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Friday, September 07, 2012

McMillan ats Brennan [2012] The Australian.

Australian Information Commissioner Professor John McMillan in The Australian (paywall) today responds to Barrister Tom Brennan's recent paper about the Freedom of Information external review model, suggesting Brennan takes a narrow but mistaken approach in assessing open government reforms solely on the number of contested disputes that are unresolved at the OAIC.

Professor McMillan makes some good points and I'm with him that broader measures tell the real tale. He provides some indicators of cultural change, proactive disclosure and administrative access, all important parts of the reform mix. And "(a)cross government there is an increase in FOI requests for policy documents, lower FOI cost recovery, faster processing and more consistent practice."
(As an aside however, we are slow in all jurisdictions except Queensland in coming up with the measures and performance data for agencies that show better than the anecdotes, what progress has been made.) 

Professor McMillan in my book is also on the money in advocating external review processes such as we have at federal level that provide for binding determinations as a better first step to the alternative of racing off to tribunals and courts, perhaps the unstated but understandable fora of choice for lawyers.

But Brennan is also right that time is of the essence for everyone caught up in these processes, so delay amounts to access denied in many instances. 

Professor McMillan points out more than 500 of 950 review applications received since the scheme began in November 2010 have been resolved. Workload and resource constraints appear to be significant. However as noted here the KPIs for the review function are unambitious to say the least: 80% to be completed within six months. Even performance to match might see cause for concern.

While delay at the OAIC was Brennan's main criticism, he took wider aim at the OAIC model, raising these issues that Professor McMillan has chosen to leave for another day or forum:
  • that the Commissioner’s guidelines function and policy advisory role are incompatible with the merits review function,
  • that the Commissioner's general principle to conclude a matter without a hearing "is quite extraordinary conduct of an independent merits review entity", and Brennan's clincher
  • that we may soon see some applicants seek to bypass the OAIC by going to the courts for orders "in the nature of mandamus, or otherwise by way of judicial review to directly review decisions of respondent agencies."

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