The heading, "An Unwelcome Freedom Rider" (probably not McKinnon's doing), is one of those ambiguous sub-editor smarty jobs, but in the context of what follows comes across as a personal shot about lack of ticker:
Freedom of information requests are all too often subject to unwarranted delays, bureaucratic wrangling and nit-picking refusals, writes Michael McKinnon The reformed FoI Act announced three years ago was to have its own watchdog, the Commonwealth information commissioner. But Seven Network’s FOI editor Michael McKinnon has found the watchdog lacks both the ticker and the teeth for the jobThe watchdog could do with more teeth for sure in the form of powers to lay down the law and pull some out there on board, or in line. But the lack of "ticker" charge is unwarranted.
As to the article itself, the Commissioner Professor McMillan doesn't need me to defend his administration, or his views, but the following is a summary of what McKinnon had to say, with a few counter-points of my own.
(I notice Professor McMillan responded to recent commentary about the charges review by Perrin Brown of Monash University on The Conversation,. He is welcome to respond to this, as is Michael McKinnon.)
McKinnon's first shots concern OAIC processes and decisions:
The OAIC has failed to ensure a timely appeals process, delivering slow decisions often supporting secrecy. It’s also wasting resources on appeals that should be referred to an alternative, far better credentialed system in the Administrative Appeals Tribunal.
However you can't snatch targets out of the air like that. Realism rather than idealism needs to rule here.
Freedom of Information Commissioner Dr Popple in a briefing last Friday week said 551 review applications were received between November and the end of April. Two hundred and four were finalised in that time and 347 remained on the books. Dr Popple who had identified resource problems in Senate Estimates in February, mentioned a number of initiatives underway to attempt to more effectively manage the list.
I differ on some points with the various published decisions of the OAIC, for example the decision on Australian Honours guidelines, but hey, that decision has now been confirmed by the AAT (but may be going on appeal to a higher authority).
However the "backing secrecy" charge goes too far.
Dr Popple told the recent briefing that he understood that two of the eight OAIC decisions that overturned agency refusals of access have been, or are to be, appealed to the AAT by the agency concerned. In both cases it is the ABC, that rare combination of government agency subject in part to the act, but also a media organisation that employs journalists who use it.
The shortcomings won't get attention now until the two year review due to commence before the end of the year.
In the meantime the OAIC and the rest of us are stuck with what we've got.
I haven't seen Professor McMillan on the public record on this. In fact McKinnon's claim doesn't sit well with the FOI act and published OAIC Guidelines. The Commissioner can decline to undertake a review if satisfied that the interests of the administration of the [FOI] Act make it desirable’ that the AAT consider the review application (s 54W(b)). The OAIC Guidelines state " It is intended that the Information Commissioner will resolve most applications, but the Commissioner may consider it desirable to have an AAT ruling where, for example, there is an important or contested issue, or an apparent inconsistency between earlier IC decisions and AAT decisions."
How speedy the tribunal would prove to be in any event is an open question. The AAT took a $2 million hair cut in the 2012-2013 budget, down to $43 million. And its KPIs are a little puzzling but certainly don't hold out the prospect of instant action: for matters finalised without a hearing, a first conference will be held within 13 weeks in 85% of cases ; for matters finalised with a hearing, 60% of cases will progress to a hearing within 40 weeks. (PBS -p59).
He argues that in the pre-reform era, lodging an AAT application had a more salutary effect on agencies and encouraged concessions to the applicant.
I don't know if there is evidence that agencies react differently to an external review application depending on the review forum. I'd be surprised if as claimed agencies ignore the fact that an application has been lodged with the OAIC. According to Dr Popple's stats, the lodgement of a review application appears to have some effect, with a significant number of OAIC reviews in effect settled between the parties. This plus the fact that about one third of decisions have been overturned in final decisions, at least in part, suggests the OAIC record is about the same as the pre-reform record of the AAT.
Other issues raised in the article include:
This is over-reach pure and simple.
The charges review report proposed more extensive use of administrative access to provide free access to information. This has nominally been a part of the FOI scheme since inception, but to little effect for many of those years. Far from changing the FoI Act "to a Spin Doctors’ Access Act (that) would just add cost or delay to an applicant", as McKinnon asserts, a scheme that more strongly links FOI to broader access to information avenues might prove beneficial for most applicants.The formal avenue for FOI access to documents would remain. As Professor McMillan explained what is being proposed is a link between administrative and FOI access, with encouragement to pursue informal access as a first resort:
An (FOI) application fee of $50 would be payable only if an agency establishes and publicises an administrative access scheme that can be used to request information or documents, and a person uses the FOI Act ahead of the administrative access procedure. An FOI Act request could be made free of charge 30 days after the administrative access request (or perhaps earlier in many cases). The report acknowledges this to be a contentious recommendation that could only be implemented after further planning and reassurance that it will make it easier for people to obtain information without having to battle through formal FOI Act requirements.
Prompt, reliable information access needs to become an integral part of what public servants do. But it's not a hopeless cause, at least not yet. Ensuring spin doctors and others in government operate in accordance with legal and ethical standards should be the priority.
Now where was I ??????