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Monday, May 14, 2012

Australian Information Commissioner accused of lacking "teeth and ticker"

The 2012 Report on Press Freedom in Australia released by the Media Entertainment and Arts Alliance, Kicking at the Cornerstone of Democracy (see the full report here pdf), includes four articles on Freedom of Information. One unattributed (p 22) and one by academic Johan Lidberg (p 29) make reasonable points about shortcomings in the law and the system. Another by Christian Kerr of The Australian (p 20) provides a couple of FOI war stories. Then there is an article by Michael McKinnon, FOI Editor at the Seven Network (p 26) that makes some valid critical comments about the state of play but over-reaches in a couple of respects.

Michael McKinnon
McKinnon, a Walkley award winner in 2009 for leadership in this field, (and a winner for investigative journalism as well) has a great record as a vigorous applicant, has blazed many FOI paths, and is an exceedingly able advocate in his own cases in the tribunal and courts. He knows his FOI oats, so his observations about the state of the game deserve attention. However...

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 job
The 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.
Taking this a point at a time:

Too slow
No argument on this score-way too slow. McKinnon says 82% of the decisions published took longer than 20 weeks and others a little more or a little less than a year. I agree reviews delayed are reviews in effect denied particularly in those cases where information sought has a relevance that passes with time. The OAIC starts off with unambitious KPIs: 80% of FOI reviews to be completed within six months, and 80% of FOI and privacy complaints to be finalised within 12. (See OAIC Portfolio Budget Statement). Things seem to get worse from there. The targets set, even if achieved, are almost designed to ensure a level of dissatisfaction. Fifty percent resolved in one month and 80 in three months might be in with a chance.

However you can't snatch targets out of the air like that. Realism rather than idealism needs to rule here.

While OAIC review processes may or may not be as simple, practical and cost efficient as they might be, this is only part of the story. The size of the task and the resources available are also relevant. The number of review applications are way up on pre-scheme estimates and resources are less than promised. And they are about to shrink further as a result of the budget.

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.

Professor McMillan
As McKinnon himself notes (and Dr Popple put this on the record also in February),  the Australian information Commissioner Professor McMillan "warned that refusal to adequately fund oversight of Freedom of Information legislation was undermining the government’s declared commitment to increased transparency and more open government." Christian Kerr in his article refers to the resources problem as well. "Professor McMillan has complained that the Office of the Australian Information Commissioner only has three quarters of the staff foreshadowed when it was created at the end of 2010. He has warned the 2.5 per cent efficiency dividend may lead to staff losses."

The OAIC (and for all but a handful of other government agencies) the efficiency dividend  to be delivered in 2012-2013 is 4%, not 2.5%. The total appropriation for the OAIC for the coming year is $14.871 million compared to $17.275 million last year, an amount that included a one-off capital injection of $2.16 million. The year ahead will see a reduction of around $300k in resource levels that proved insufficient in 2010-2011.

Some of McKinnon's ire should be directed, in part at least, at those who determine the budget allocation-at ministerial level, in the Department of Finance and in the Attorney General's department.

Decisions often support secrecy
McKinnon supports this by reference to his analysis of 17 published OAIC review decisions that shows "more than two in three decisions agreed with the original agency decision to keep information secret. Only five of the 17 decisions were set aside and substituted with a different decision, with only one decision wholly in the original applicant’s favour."

There isn't much difference between his stats and those provided by Dr Popple at the recent briefing, but as McKinnon knows, published final decisions also are only part of the picture. According to Dr Popple, of the 204 reviews finalised, 50 had been closed by the Commissioner on the grounds they lacked substance, and 90 were withdrawn or varied through negotiation or concession before final decision, presumably in some/many cases satisfying the applicant. Of the 24 finalised by published decisions, 14 affirmed the agency decision to refuse access, one affirmed a decision to grant access despite a third party objection, and nine set aside the agency decision or substituted another-one supporting non disclosure for a different reason, the other eight changing the agency decision in some respects.

It's a bit rich to claim as McKinnon does that all this means the OAIC "too often, back(s) secrecy." He overlooks the fact that OAIC review is a merit review process. The Commissioner has to determine the correct or preferable decision but can't make up the law or decide that a document containing exempt matter should be disclosed.

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 bigger problem at the root of this is the state of the law that the OAIC has to interpret and apply and in some instances the binding precedents that apply until  legislation changes things. Since 2009 some of us have harped away about opportunities missed, and gaps and weaknesses that should have been addressed during the limited review of the FOI act in 2009-2010. Some related issues have surfaced in the published OAIC decisions, for example the limits on FOI coverage of documents held by a minister, one of the "excessive secrecy" decisions referred to in McKinnon's article.

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.

Should refer matters to the AAT
McKinnon says "Professor McMillan is on the record as saying he will not allow direct appeals to the Administrative Appeals Tribunal, which he can under Section 54W(b) of the Act." The law generally requires OAIC review before a matter can proceed to the AAT.

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."

McKinnon presumably is grumpy that some of his own review applications have not been referred. He seems to be suggesting that inability to handle the case-load within reasonable time should be another reason why OAIC referral to the AAT might be desirable.

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).

Far better credentialed Tribunal 
McKinnon who usually represents himself in proceedings, may be talking up his forum of choice in suggesting the reintroduction of a right to go direct to the AAT. At present OAIC review is a mandatory requirement before AAT review in most cases. The OAIC pursues informal, non-adversarial processes usually without hearings.

McKinnon loves putting public servants in the witness box and rightly, taking them to task on "end of the world" claims in support of refusal of access decisions.

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.
McKinnon may be missing the blood sport to be had with public servants in the AAT witness box. But while he may prefer the tribunal at $770 a pop, others who have to pay their own way probably welcome the (so far) free review available from the OAIC.

The priority should be improving its game. 

Other issues raised in the article include:
Failure to investigate systemic problems
McKinnon says the OAIC "has failed to investigate agencies refusing to deal with FoI applications until a deluge of complaints finally motivates it, many months late, when information is potentially very out of date."  Only one own motion investigation has been launched by the OAIC, into the Department of Immigration and Citizenship, in part at least it would seemas a result of McKinnon's experiences.

I'm sure the OAIC knows other agencies where FOI performance warrants close examination. It could have done more, and more quickly, to get the point across to poor performers-they know who they are- that it is on the job with whatever stick it has available with more than one own motion investigation in the first 18 months.

FOI to be subordinate to spin doctors
McKinnon says the review report on FOI charges now under consideration shows Professor McMillan "wants FoI laws to be subordinate to department and ministerial spin doctors." 

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.
I would argue for incentives and disincentives as well as a bit more OAIC stick to push agencies  to deliver on the promise of free and informal access. It's a system that is widely advocated and operating to some extent already in Queensland, NSW and Tasmania although it's hard to assess how well it is working. Integrating non-FOI and FOI access avenues into an information management bundle might break FOI free from the iron grip of lawyers over the FOI function, still the case in too many Commonwealth and other agencies. That would amount to an added bonus.

McKinnon obviously despairs of culture change ever transforming the public service into a helpful honest provider of requested information as a matter of routine. On that, plenty more needs to be done and FOI push and shove will always be needed.

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.

Charges review generally
FOI fees and charges are a contentious issue, always have been, always will. I'm for free/low cost access rights- a small application fee, and no charges in most cases, or if a charge is imposed, a flat rate graduated system would be my first preference. It is pretty close to what Professor McMillan proposes. 

Cost can't be put in the irrelevant basket, but responding to requests for information is a cost of doing government business in a democratic society. The public have rights and cost should not be a significant barrier that stands in the way. (Surely the public also has a right to enjoy lowish costs as one of the dividends flowing from the hundreds of millions spent on improved information management systems within government over the years. In fact there should be another dividend- access to tools that assist in knowing more about what information government holds, to better inform requests from outside the loop.)

McKinnon says what is proposed is an attempt to "gut the FoI Act"; points to "an appalling provision allowing politicians and their departments to stop any request over 40 hours without appeal on important policy issues", and suggests it "aims to stop politicians, media and community organisations investigating complex policy and programs." 

In my view ,there is a lot in the review report that makes sense-simplifying the whole charges regime in particular. The allegations of sinister motive seem misplaced.

However, the proposed flat 40 hour cut off, without more, needs rethinking. As Professor McMillan is still interested in hearing views, hopefully some useful dialogue will ensue.

The proposal is an attempt to put more certainty around the substantial and unreasonable diversion of resources provision that has been in the FOI act since it commenced. It's origin is a NSW ADT decision years ago that interpreted similar words in the NSW act to mean that anything that involved 40 hours processing time was getting into substantial diversion of resources territory. However it was not a strict rule and other factors, including the nature of the information sought needed to be considered.

I'm not sure if McKinnon is advocating no limit should apply. Some upper limit on resource use seems necessary if for no other reason than resources devoted to one person's large FOI request, at some point, after tens, hundreds or thousands of hours, become resources used in a way that disadvantages other applicants waiting in line. The "unreasonable" tag needs to remain in the equation somewhere allowing the nature of the application to be taken into account, and consideration given to factors such as the public interest in making the application before enabling an agency to pull the diversion of resources plug. 

Now where was I ??????

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