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Friday, August 07, 2009

FOI reforms the real thing, even to Michael McKinnon

After two days at different conferences in Canberra where Freedom of Information was a lively topic, a few reflections.

David Solomon and Michael McKinnon in addressing the National Administrative Law Forum on the topic "FOI reform or political window dressing?" both agreed its serious and far beyond window dressing thus far in all the jurisdictions that are on the move. Premier Bligh received special acknowledgement from both for the priority she gave to change from day one in office, her willingness to go with root and branch reform and the skin she has put on the line to make this work in Queensland.

Solomon said the common element everywhere was that new political leadership had seen more open government as a virtue, with FOI part of a bigger reform picture to improve integrity, accountability and public trust and confidence in government. McKinnon not surprisingly thought that the media had played a key role in getting the issue on the agenda through highlighting how FOI was not working, gave some telling examples of the high cost of government secrecy in terms of impact on citizens, and suggested the need for constant vigilance by the media and others to hold onto the gains, given what he sees as the underlying resistance by ministers and public servants to openness.

Cabinet Secretary and Special Minister of State Senator Joe Ludwig gave an outline of the new scheme in the Federal Exposure Draft released by his predecessor in March, but no advance on that, although in this first speech on the topic since his appointment, he put on the record his strong commitment to the change proposals. The Minister gave no indication of what influence on thinking the 46 submissions in response to the Draft bills have had, and left straight after, without taking questions, on the note that having considered them, the bills will now be introduced into Parliament.

One welcome comment by the Minister was on frank and fearless advice- those who still mumble (you know some of the names) that the potential for advice to be open to later scrutiny will mean it is not written down should note:

"I know that some in the Australian Public Service feel that FOI reforms may inhibit their ability to provide frank and fearless advice. But I believe that the tradition of frank and fearless advice is more robust than that. I believe that our public servants will work professionally within the new FOI framework as they do within other accountability mechanisms. It is beyond dispute that it is in the public interest for ministers to receive written advice on matters relating to their administrative and policy responsibilities. In any given case, whether or not the exemption may be sustained will depend on the subject matter of the document and the circumstances around the Government’s consideration of the document, including whether a Government position has been announced. Political sensitivity will not be an argument against disclosure."

Professor Bill Lane and Eleanor Dickens of Clayton Utz Brisbane ran a concurrent session at the Forum providing a detailed run-through of Queensland's Right to Information Act. It provided a sharp contrast for me between the fundamental shift in Queensland (and NSW) reflected in completely new legislation and the Federal proposals which graft onto the existing 27 year old act some extensive changes that deliver on the Government's pre-election commitments. While 21 months on, now is long past the time to get on with it, the opportunity has been missed this time round for a bigger step by Canberra in the best practice direction.

At the Walkley Foundation Public Affairs in the Nation's Capital Conference on Wednesday one issue I spoke about was the looming management challenge posed by the new forms of access to information legislation, with the emphasis on publication and pro-active disclosure. Public affairs functions within government agencies will need to be directly involved, as will IT, the web people and records management. Existing models where in some agencies FOI has primarily been law influenced work often in a legal branch won't fit the new world. Neither will the current attachment in ministers' offices, including that of the Prime Minister, to attempt to micromanage and control information flows to the outside world -something will have to give.

Nicholas Gruen of the Federal Government 2.0 Task Force sparked a lot of interest in outlining the Task Force agenda, and says so far - early days - he, with Minister Tanner ( and Ludwig) behind him, is encountering enthusiasm from those in government who hear about the open government possibilities. Public affairs staff at the conference were also positive but indicated Gruen needs to get to senior management who they told him are risk-averse when it comes to getting information out there.

I understand the issue of how best to organise and manage the new era is already exercising minds in Queensland government agencies, with deputy heads designated Right to Information champions and responsible for making this new idea, something close to the Premier's heart and political fortunes to some extent, work in practice. The issue doesn't seem to have hit the intray in Canberra or Sydney as yet.In NSW existing structures where FOI responsibilities in some agencies are in a ministerial liason unit will also not sit comfortably with the Government Information (Public Access) Act which provides that an agency is not subject to the direction or control of any minister in dealing with applications for agency information, and separately contains four offence provisions including one concerning improperly influencing a decision.

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