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Monday, December 14, 2009

Gov 2.0 Draft Report needs to toughen up.

The following are comments I've offered on the Draft Report of the Gov 2.0 Task Force, which contains many worthy and commendable suggestions:
"You need to toughen this draft up in the light of close to 30 years of experience since the last attempt at open government principles through the Freedom of Information Act. Strangely this experience and the lessons to be drawn don't rate a mention in the Draft. Nor do other environmental factors such as the more than 500 secrecy provisions in Commonwealth laws, the subject of an Australian Law Reform Commission inquiry about to result any day now in a final report to the Attorney General. Most commentators agree these laws (particularly the draconian Section 70 of the Crimes Act with two years imprisonment for unauthorised disclosure) have a chilling effect on public service attitudes. The other elephant in the room is the emphasis at the top on micromanaging information flows to the outside world. Something is going to have to give if Gov 2.0 is to have a chance, but (this) possibly (is) a little beyond your terms of reference.
Perhaps your response is that, as in the terms of reference, you are talking primarily about "non-sensitive information." There is no discussion in the Draft of what this means. The FOI experience is that anything is sensitive if someone high up enough thinks so, and public servants know this and often play the game themselves. Australia's longest running most expensive legal battle (McKinnon v Treasury) was over documents relating to the number of wealthy people applying for the first-home buyers grant and "tax bracket creep", that were 4 years old by the time the matter got to the High Court. The FOI case book (only a very small part of the full story) is full of examples.Even documents that are 30 years old get the treatment on occasion- last January's annual release (by the Archives Authority) did not include all or part of some Cabinet documents on the Uranium Marketing Authority something being talked about in 1978, but apparently never established.The reason- legal professional privilege, something the ALRC 10 years ago recommended be removed as a reason for refusing access to archived documents, but which has never been taken up by Government since
I could go on but turning to matters raised in the Draft.
While the Task Force is encouraged by the FOI Reform proposals, among the many positive proposals, some, particularly the proacative publication requirements of direct relevance to Gov 2.0, do not take things very far. The Explanatory Memorandum states: "Proposed section 8(2) sets out information that must be published. The classes of information substantially reflect classes of information that must be published under existing paragraph 8(1)(a) and subsection 9(1) of the FOI Act. For example, an agency will continue to be required to publish information about its operations and on the rules and guidelines that are used to make decisions affecting members of the public."

It goes on to say "Additional classes of information must also be published. Under proposed paragraph 8(2)(d), for example, agencies will be required to publish details of statutory appointments....Proposed paragraph 8(2)(g) requires agencies to publish information in documents to which access is routinely (regularly) given in response to access requests under Part III of the FOI Act."

Proposed subsection 8(4) establishes that an agency may publish other information it holds. The intention is that an agency, in addition to publishing the information that must be published under proposed subsection 8(2), will publish other classes of information that it holds, having regard to the objects of the FOI Act and guidelines issued by the Information Commissioner (see proposed section 9A in this Schedule). Agencies are generally best placed to identify information they hold which should be published taking into account the objects of the FOI Act."

Many with experience in the field would seriously doubt this last sentence.

A little further on proposed section 9A raises hopes about publication. It "requires agencies to have regard to the objects of the Act and to guidelines issued by the Information Commissioner in meeting the obligations to publish information.... The decision on what to publish is to be guided by the objects of the Act (for example, information that could assist in increasing scrutiny of the government’s activity or could increase public participation in government processes). The Information Commissioner’s guidelines may address classes of information appropriate for publication (beyond the mandatory classes of information in proposed subsection 8(2)), how long information should remain published, as well as the manner in which information should be published."

Two points here- what "must have regard to" means will be picked over closely in many quarters. But if you find your way to the proposed section on Information Commissioner's powers you find that the Commissioner may never issue (Guidelines):

"Proposed section 93A gives the Information Commissioner a discretionary power of issuing guidelines for the purposes of the FOI Act. The reference to guidelines addressing certain matters under proposed subsection 93A(2) is not intended to limit the power of the Information Commissioner to issue guidelines on other aspects of the operation or administration of the FOI Act. An agency or Minister must have regard to any guidelines issued by the Information Commissioner (that is to consider the guidelines). It is not intended that the guidelines have binding effect.
Proposed subsection 93A(3) provides that guidelines are not legislative instruments.."

Your consultants in an Appendix refer to the UK Publishing Scheme. I think we should aim a little higher. But the point is that the UK Model Scheme is more than that-it is mandatory.

As outlined above the Government's proposal is underpinned by the idea that each agency knows best, and the Commissioner can't make anything mandatory in any event.

A minor point. This sentence is wrong: "Changes to the fees and charges associated with FOI requests have also been put forward in March 2009 via the Freedom of Information (Fees and Charges) Amendment Regulation which seeks to reduce or make free of charges applications for some government information." The changes were released in December 2009 and submissions are invited until early January. Elsewhere in the Draft there are quotes from John Quiggin about the positive overall effects of free (no charge) information. But no mention that the FOI proposals fall way short on this. The Government has never mentioned the ALRC 1995 recommendation that charges only be imposed for documents released not those that aren't.

Another point that I thought you might take up is the Government's intention to stick to the concept of access to "documents"(admittedly broadly defined) not shift to "information" in the Reform Bill. There is a very 1980's feel to many parts of the law that are unamended by the proposals before Parliament. You won't find anything about data-sets in the law likely to emerge from this process.

Just in conclusion what I regard as some lessons from FOI experience.

Legislation needs to spell out explicitly what must be done. Reform by administrative decree won't work in this area.

Ministers and senior executives have to lead the discussion and debate but first must be sold on the pluses, and convinced of how to manage the risks. With FOI an early group of enthusiasts within government were not followed by others with the same zeal, while the anti forces bided their time to take things backwards, not forward. And no one at high level spoke up for years (except the Ombudsman) while some still in high places kept telling the world (still) the public service can't do its advice work without an absolute guarantee of confidentiality.

Keep lawyers in their place on this stuff- public management informed by a healthy understanding of contemporary thinking about democratic practices, not the fine points of the law should dominate in the discussion.

The overseer needs strong powers, and stick. There isn't much of this in the FOI Reform Bill. The personal characteristics and style of whoever ends up with the job are equally crucial to success.

Reporting and measurement are important tools that encourage public administration action. So are performance agreements with senior people that stipulate this is an important criterion. As are published report cards on agency performance. Obama's recent directive included a requirement for a transparency plan-what the agency intends to do in the next 12 months to promote greater transparency.

I remain very interested in where to from here for the Task Force product. For some hard to fathom reasons the open government/ FOI reform worlds seem to have been operating in different universes. Some heavy hitters such as the business community still seem to be part of neither...

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