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Friday, October 21, 2011

Back to the future: FOI back in lawyers' box

In answer to questions at Senate Estimates this week, Renee Leon, Deputy Secretary (Governance) Department of Prime Minister and Cabinet confirmed that the Privacy and Freedom of Information Branch is being moved back to the Attorney-General's Department from whence it came following election of the Rudd government in 2007. Then it had 10 staff. As it goes back it has seven.

Bureaucratic chess, you might say. But it's a disappointing reversal of the belated recognition then that FOI was more than an administrative law matter. The transfer of the function to the Prime Minister's portfolio and to PM&C (and the assignment of responsibility for a bundle of integrity issues to a senior minister with stature and clout in John Faulkner) put FOI centre-stage in the accountability, good government and democratic practices frameworks. It loosened, in theory at least, the lawyers hold, suggesting a public management prism at the center of government provided the best perspective for consideration of policy and ongoing responsibility for laws concerning information flows between government and the citizenry. Just the sort of thing to fit neatly into the responsibilities of someone with the title Deputy Secretary (Governance) in fact.

You can see these views are widely shared: with FOI at the Commonwealth level back in AGD, it's a full hand for attorney generals/justice departments across the country who now manage the function in all jurisdictions. The Commonwealth brief flirtation with something different followed 20 years of NSW experience where from 1988 FOI was a Premier's Department responsibility. That too changed after the passage of reform laws in 2009. 

(Another thought: the same emphasis on the law rather than public management and access to information as a service is reflected in the many agencies at Federal and state level where the FOI function is located in the legal branch. Lawyers should play a role in FOI in the same way they do on a myriad of other issues-when required. Public servants without law degrees give effect to the law all day every day in all sorts of areas without a lawyer at their shoulder. FOI, in most places now with a pro-disclosure element, would be better placed in governance or linked to public affairs.)

This was the Deputy Secretary's explanation for the decision to move the branch to AGD:
"They came to the Department of the Prime Minister and Cabinet principally because the government had made a commitment to do broad reform to freedom of information laws. In the context of that being a significant whole-of-government activity that affects every portfolio, it was thought appropriate that that should be moved to the Department of the Prime Minister and Cabinet while those reforms were undertaken. The reforms to freedom of information have now been completed and are embedded in the implementation stages, and now it is an appropriate time for the implementation function to go back to the Attorney-General's Department."
 Ms Leon responded to Senator Rhiannon's questions regarding reduced staff:
"The reforms to FOI.. have been completed now, and that was a significant body of work that that branch was doing... It has not been a cut so much as over time priorities shift and staff are either moved around or not replaced as positions fall vacant. So over a period of four years a reduction of two or three people is not unusual in an area with changing priorities.
Senator Rhiannon: But, considering commitments such as the consultation on a private right of action, shouldn't the government be at least retaining the staffing levels or even supplementing the resources of the branch rather than this cutback? There has been a reduction, whatever the reason.
Ms Leon : Within those existing resources of the branch, the branch has successfully produced a comprehensive discussion paper on the statutory course of action. So the numbers in the branch are adequate to enable them to perform their duties."
To an outsider the slim staff resources might partly explain the painfully slow action on privacy reform. 


  1. Andrew12:28 pm

    Depressing news, Peter. For all of various governments' bleating about FOI being a major piece of constitutional legislation and a core function of every department, putting it into the hands of a lawyers department, instead of the agency with responsibility for the civil service (or even government IT) has been shown to be a mistake in many jurisdictions. It perpetuates forensic legalistic approaches on a case by case basis, instead of taking a systemic approach and examining how best value can be obtained for the government (as the taxpayers' agent)from the resource they are custodian of and the work they do.

    Hopefully some comments on this from some of the speakers at the Commissioner's conference in Canberra next month.

  2. Andrew, Yes you have to wonder whether the Prime Minister and the Minister for Privacy and Freedom of Information even blinked when they got to this proposed change to the Administrative Arrangements Order at the bottom of the pile. On that front nothing published to date that I can see.

  3. Anonymous9:58 am

    bugger. You can see the wide-held belief that FOI is a legal matter, rather than another service to the public that happens to have its authority in statute, in the job ads. All FOI positions seem to require the applicant to have a law degree and be admitted to practice. You don't need that to be a decision maker under the Social Security Acts, the Taxation Act or even the OH&S Act. What makes FOI too hard for the non-lawyer public servant?

  4. What indeed.I'm with you.

  5. Disappointing... The only difference between this and the tax office etc. seems to be a desire to release nothing except under meticulously scrutinised legal coercion. Here's a thought experiment - if there were no FOI, which of our current governments would ever contemplate enacting anything of the sort. Probably not the Federal government - this move hardly suggests they share the Fraser and Hawke governments' belief in the spirit and purpose of FOI.