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Wednesday, February 29, 2012

Victorian Freedom of Information Commissioner on the statute book

The Victorian Legislative Council after five hours of debate concluding at 1am this morning passed the Freedom of Information Amendment (Freedom of Information Commissioner) Bill 2011 without amendment (See LC Hansard 28 February commencing at page 42-it's a long read!)

 It was a clear case of the numbers rather than rationality in some cases prevailing as the governing parties had enough votes to see off even those amendments supported both by the Opposition and The Greens.

So an FOI Commissioner will be a reality in Victoria when the act receives assent and the government finds someone for the job. Prospective candidates will no doubt find the Council Hansard (and the Assembly debate) illuminating-the Council debate was miles ahead in substantive terms.

Opposition speakers and The Greens Mr Barber (clearly the best informed participant in the debate) made plenty of legitimate points about aspects of the bill that are either unsatisfactory or could be significantly improved, although an amendment to require a decision on review by the commissioner within 14 days rather than 30 was unrealistic and naieve. (See my take on the bill in December.)

Mr Barber also got nowhere with amendments that would have been a start on the broader reforms necessary to bring Victorian law closer to standards adopted in other jurisdictions that have undertaken reform in recent years, for example prescribed pro-active publication.  Here and there he had a shot at a step beyond that standard- for example proposing an amendment that would abolish the internal working document exemption completely.

There was plenty of chapter and verse provided on what is wrong with the Victorian FOI act and the way it is implemented, particularly delay way beyond the already far too generous 45 days for an agency decision-some examples involved 260 days. Centralisation of  FOI authority within the premier's office also received plenty of attention.

As did ministerial interference in decision making arising from the long established and unique Victorian procedure that contentious decisions are submitted to the minister's office five days before they go out. Just "for noting" you'll understand. 

Mr Barber shared this result of an FOI request about how an earlier application had been handled (pages 51-52):
I have some examples of how ministerial staff of the Minister for Public Transport, Mr Mulder, are successfully directing FOI officers as to what to exclude and by doing so not only compromising the process in substance but also adding further delays. A number of these applications were well overdue — this one in particular was. It related to the network development partnership — that is, the monthly meeting between the Department of Transport and Metro Trains Melbourne. There are many commuters who would like to be a fly on the wall at such meetings. What we see is memos going back and forth between the FOI officer and the minister, the FOI officer and the spin unit, and the spin unit and the minister’s office. I have one document here from 13 September 2011. It is a file note about the FOI officer’s discussion with Mr Mulder’s office. The names of the ministerial advisers have been blanked out so I do not get to find out who they were.
Mr Leane — Faceless men.
Mr BARBER — The file note says:
 … called to advise that the minister was noting this FOI request. He asked if I would redact a further excerpt from page 4 of the January minutes which stated that … We do not know what it stated because it has been blanked out. … advised that this was not correct and to release it would be misleading. I agreed to redact the statement … also asked if we would be able to correct typos within documents, and I explained that we were unable to do so
The FOI officer had to explain to the minister’s office that when someone makes an FOI request for documents, we have to give them the documents — we do not get to clean up the typos and then send the documents over. The other point is even if the information in the documents is wrong, that does not mean we get to fix it. We have to send the documents. Get it? This is the FOI officer explaining it to the minister’s office. The file note continues: 
… advised that he would send a confirmation email shortly when the minister had noted the FOI brief. 
Then we get the following email, which says:
 Hi Sam — this is from the aforementioned ‘faceless man’ — or woman, who knows — Subject to the application of section 30 redactions we discussed, this office has no issues with your decision to release the NDP minutes to Mr Barber. 
There are a few more like that. This is just one example I pulled out of my little treasure trove. By way of a denouement, I appealed the removal of the faceless man’s name and on internal review I was successful. It turns out his name is Ashley, so at least that state secret is going to be out in the open. It was Ashley in Mr Mulder’s office who sought to direct — successfully in that case and unsuccessfully in other cases — an FOI officer in their administration of the act. This is exactly what the Ombudsman condemned in 2006 and exactly what the author of this bill and Mr Dalla-Riva, who will be sitting at the table in a minute, ranted and raved about when they were in opposition. It happens to this day.
The FOI commissioner has a big job ahead-and the legislation provides that the minister responsible for the act not the commissioner may (not shall) set standards for processing FOI applications!

Good luck to all concerned.

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