Senate Estimates query FOI impacts on parliamentary departments

 Questions regarding freedom of information coverage of the parliamentary departments were raised in Senate estimates during sessions this week with the Clerk of the Senate, Dr Laing, the Secretary of the Department of Parliamentary Services, Carol Mills and with Australian Information Commissioner Professor John McMillan. 

The upshot is that it's not all over. There are ongoing discussions with officers of the Attorney-General's Department "around legislation". The issue seems certain to be canvassed in the review of the act to commence before the end of November. 

The Department of Senate has received six FOI requests, and Parliamentary Services seven, since May.

Dr Laing said she had no argument with the idea that the FOI Act should apply to administrative documents of the department. "We do run on taxpayers' money; we are open and transparent about our operations. The difficulty comes, I think, with things that are not the administrative functions of the Department of the Senate, and that is the whole area of proceedings of parliament and the operation of the Senate and its committees, and there is a very strong argument under the separation of powers ..... What parliament does is up to parliament, not up to the executive."

Ms Mills presiding over a service rather than a chamber department had even less of a problem: "..our department should be transparent. I believe that, where we utilise taxpayers' money, that should be the case. But I also recognise the complexities, particularly in the parliamentary environment, of some of the material, as well as some of the reasons behind the consideration of exemptions."

In terms of carving out any areas that warrant special consideration Ms Mills said "I will certainly be guided by experts in the legislative arena and Attorney-General's about the best way to construct the balance between protection of necessary information and transparency. I can only comment that we will work to culturally support the concept of FOI wherever it is reasonable and possible for us to do that. I strongly support the notion that for government departments, particularly in the type of work that my department does, with the vast majority of that information it is beneficial for the community to be aware of it."

Professor McMillan said his office has not been a central player in the discussions but he had been kept informed.  He did not have a firm view, but acknowledged the need for consideration of some special factors: "I can say that the FOI Act was framed on the assumption that it would apply to executive agencies. The application of the act to parliamentary departments, on one view, was inadvertent—at least it did not follow any announcement by government that the consequence of some legislative changes would be the application of the act to the parliament. If the act is to continue to apply to the parliamentary departments, there are some special issues that will need to be considered. For example, one issue on which I have held discussions with officers of the parliament is the application of the act to the Parliamentary Library that provides a special service to members of parliament. To give another example, there are special questions about the fact that the parliamentary departments provide the infrastructure for electronic communications and other support services to members of parliament. These raise special issues that have never been squarely addressed in the operation of the FOI Act."

(Update-not that it is of any great consequence as there are many jurisdictions where the legislative branch is subject to an access to information law, but noticed this foreshadowed move in New York state  to extend FOI following, you guessed it revelation of payments to settle s..ual harassment claims. Shades of recent events in Canberra.)

The relevant extracts from Hansard follow for those keen to keep up with this riveting debate:
 Department of the Senate Estimates

Senator RHIANNON: Have there been any discussions with the Attorney-General or her office about challenging the interpretation that the Senate is subject to FOI?

Dr Laing : There have been some discussions with officers of the Attorney-General's Department about the decision of the Australian Information Commissioner to revise the guidelines to indicate that the parliamentary departments, other than the PBO, are subject to the act.

Senator RHIANNON: That would lead to legislation?

Dr Laing : Yes. There has been some discussion around legislation, and that discussion is ongoing. There is also a review of the act due to commence late this year, which I am sure I will make a submission to.

Senator RHIANNON: How many FOI applications have been made since the Office of the Australian Information Commissioner made guidelines which note the department is subject to FOI?

Dr Laing : I will ask the Black Rod to answer that one.

Mr Hallett : Through you, Chair, there have been six FOI requests which have been made. They have all been dealt with. They are on our register, which is on our website.

Senator FAULKNER: It would be useful, Mr Hallett, if you could say what 'they have all been dealt with' means.

Mr Hallett : From memory, one was referred to the Department of Parliamentary Services because it was not within the remit of our responsibility. For a second one we had no documents that met the request. A third one related to items that were in the care of senators and had been written off. I contacted two senators who had been unfortunate enough to have their laptops stolen and provided the information and the senators agreed. The remaining requests were to do with the amount of moneys paid to senators, which is already publicly available, but I collated that information and provided it to the people who were requesting the information.

Senator FAULKNER: Thank you.

Senator RHIANNON: Does that mean that you approved supplying the information of three out of the six? Is that how you would describe it?

Mr Hallett : I would not use the word 'approved'. I mean we tried to provide the information where possible. The first case was about catering and senators' use of catering. The Department of the Senate has no role to play in that, so I referred that to the Department of Parliamentary Services. There was another request where we checked the files and we did not have any documents or information, so I advised the person of that and they accepted that. There was the issue of the stolen laptops, as I have mentioned, and the rest were to do with payments to senators.

Senator RHIANNON: Four?

Mr Hallett : Sorry, four. Thank you.

Senator RHIANNON: Considering public money allows the Department of the Senate to function, should it be beyond the reach of FOI laws?

Dr Laing : I might take that one. There is certainly an argument that the administrative functions of the parliamentary departments—the Department of the Senate—should be within the remit of the FOI regime. We do run on taxpayers' money; we are open and transparent about our operations. The difficulty comes, I think, with things that are not the administrative functions of the Department of the Senate, and that is the whole area of proceedings of parliament and the operation of the Senate and its committees, and there is a very strong argument under the separation of powers that those areas should be beyond what is effectively interference by the executive. This is not a radical idea; it is already present in the Freedom of Information Act by the way that the act applies to the courts and to the Office of the Official Secretary to the Governor-General. In recognition of the fact that they are separate institutions of government, the FOI Act applies only to administrative documents of court registries, not to the proceedings of courts, and it applies only to the administrative documents of the Official Secretary to the Governor-General, recognising that there are other areas that are beyond that coverage.

Senator FAULKNER: In relation to transparency for administrative documents and such matters, does the Department of the Senate have a policy in relation to full transparency?

Dr Laing : I believe we do, yes. We have always cooperated with the spirit of the FOI Act. Those students of old annual reports will see from time to time where we did get requests, purportedly under the FOI Act, that we did outline how we responded to them. Yes, I have no argument with the idea that the FOI Act should apply to administrative documents of the department.

Senator FAULKNER: Thank you.

Senator RHIANNON: You raised the important issue about the separation of powers. Obviously it is fundamental to our parliamentary process. I would be interested if you could expand on what makes the department different from other agencies and therefore would justify, if I am understanding correctly, some level of exclusion from the federal FOI scheme.

Dr Laing : The major difference, of course, is that we are not a government agency. We serve the Senate, which is established under chapter I of the Constitution, as opposed to executive agencies, which serve ministers of state, appointed under chapter II of the Constitution. The running of the Senate is up to the Senate itself. The Senate has control over its own proceedings and committees have control over their proceedings, to the extent that that has been delegated by the Senate. So it is totally inappropriate for any outside body to interfere with those operations. This is the absolute fundamental tenet of parliamentary privilege, going back centuries upon centuries, that proceedings in parliament shall not be impeached or questioned in any place outside of parliament. What parliament does is up to parliament, not up to the executive.

Senator RHIANNON: Yes, it is certainly an interesting one, isn't it. It is like we are cooperating with the spirit but not the law in terms of how freedom of information plays out. Do you feel that there are some contradictions there?

Dr Laing : No, not at all, because for the most part parliament operates in public openly and transparently. Committees have hearings in public, like this, and to the extent that they do not operate in public it is their decision not to. It is their decision about the evidence they receive—whether or not to publish it. Their private deliberations they may disclose in terms of publishing their minutes or relating in reports how they went about coming to a particular decision, but that is up to the committee, and no-one can interfere with that right.

Senator RHIANNON: Thank you.

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Estimates Parliamentary Services

Senator RHIANNON: Congratulations on your new role, Ms Mills. It was really interesting to hear you outline your plans. I was also interested earlier—before today, obviously—to read about your work on bullying behaviour. My main line of questioning is around FOI. Have you had discussions with the Attorney-General or her office on FOI issues? If so, do you understand, from those discussions, that legislation will be introduced which will put parliamentary departments beyond the reach of FOI?

Ms Mills : I have not personally been part of those discussions but obviously I have been party, with the other House departments, to providing advice to the Presiding Officers on the issues connected with FOI. If I may, I will give you my own department's point of view. I heard part of what the Clerk of the Senate said this morning about the importance of transparency on administrative matters and I certainly strongly support that. We have received seven FOI requests since the decision in May this year, I believe it was, to cover us through FOI. Of those seven, two are still in train, four were requests for material not held by the department and one was for an item we were happy to provide—a personnel file which could actually have been asked for through other processes.

Our approach is that we are very strongly supportive. I believe our department should be transparent. I believe that, where we utilise taxpayers' money, that should be the case. But I also recognise the complexities, particularly in the parliamentary environment, of some of the material, as well as some of the reasons behind the consideration of exemptions.

Senator RHIANNON: You have spelled out there not only how supportive you are of it but also the complexities of it. You also made reference to some of the earlier questioning on this issue. I think the theme—maybe it is a way to sum it up—is that there is a commitment to support the spirit of the openness and the transparency but possibly some concerns about the legislation covering it. Wouldn't it be appropriate, though, for the law to cover the departments, particularly at a time when—I think we would all agree—the standing of parliament and the standing of MPs is a little bit problematic for many members of the public? Would you see that, rather than going for blanket exemptions, which seems to be the effect if we have the legislation come in to exempt departments, the departments could identify those parts which are sensitive information and apply for exemptions for those, so then the departments can be compliant with the law and equal to all other departments?

Ms Mills : I will certainly be guided by experts in the legislative arena and Attorney-General's about the best way to construct the balance between protection of necessary information and transparency. I can only comment that we will work to culturally support the concept of FOI wherever it is reasonable and possible for us to do that. I strongly support the notion that for government departments, particularly in the type of work that my department does, with the vast majority of that information it is beneficial for the community to be aware of it.

Senator FAULKNER: The Clerk of the Senate mounted a spirited case on this this morning, but I wonder if you see a distinction between that case as it applies to a chamber department, the Department of the Senate, and how it might apply to the Department of Parliamentary Services.

Ms Mills : As I said, I only saw a portion of the Clerk's thing this morning, in the background, but I believe I heard her reference the difference between administrative transparency and process transparency and other work that they undertake. I think that seems a very practical distinction. What I was alluding to is that, in the case of my department, we are much more on the administrative side than the confidentiality side.

Senator FAULKNER: Indeed, and I think that the application of these principles to chamber departments on the one hand, the Parliamentary Budget Office as a separate entity and then the Department of Parliamentary Services is worthy of consideration. Mr President, has this distinction been a matter that you have given any consideration to?

The President: Not at this stage. We have not become that deeply involved at this stage. We are just waiting for the course of whatever might take place in this area to take place, and then we will give it the due consideration. But I am listening closely to the debate.

Ms Mills : We have spoken at length this morning about security. There are aspects of the work of the department that of necessity are probably exempt in some ways, even under standard FOI regulations. I would also say that the department, in my looking at our files and processes historically, even when not officially covered by FOI has made its best endeavours to act in concert with the intention of FOI throughout—

Senator FAULKNER: Yes, but current exemptions under the act would apply.

Ms Mills : Yes.

Senator RHIANNON: It is interesting to remember that back in 1996 the former Clerk, Harry Evans, was quite clear in arguing for the extension of the FOI Act to parliamentary departments. There is a developing discussion around this. You have just spoken about how important and beneficial it is for the public to have a greater understanding of how parliament works. The Scottish parliament has a lot of the administrative information online so it is readily available to the public and quite easy to search. As you have spoken about your commitment to providing this information so it is publicly accessible, is that something you have considered or would consider?

Ms Mills : I said at the beginning that one of the reasons I have unfortunately not been able to table our annual report yet is that I believe that some of the data we currently collect could be more meaningfully provided and more meaningfully interpreted for senators, members and members of the community. Certainly I will always look at good practice elsewhere as a way to explore how we can tell that message. One thing about the Department of Parliamentary Services is that a great deal of effort is focused upon supporting the operations of parliament, and it is true that many people in the community do not fully understand how parliament works and if we can contribute in some way to that then I would be very pleased to do so.

Senator RHIANNON: The evidence we have heard in this session and the earlier session suggests that there is a commitment for some information to be in the public domain but not for the departments to be on an equal footing with regard to the legislation. Considering that such a shift is going on within other jurisdictions— Tasmania's 2009 Right to Information Act covers requests to parliamentary departments, though true it is limited to administrative matters but that is essentially what we are discussing, and then England, Scotland, Ireland, India, South Africa and Mexico's FOI regimes also capture parliamentary departments—Australia at the federal level has this different position. Is there something different about Australia? Why are we different from this quite clear trend towards having consistency with regard to FOI laws?

Ms Mills : As I said, I would not want to speak over the expertise of my peers in the parliamentary departments, in the chamber departments in particular, whose advice is that it is critically important that we do not inadvertently restrict the appropriate operations of the parliament through this. What I have also committed to, as has I believe the Clerk, is that where it is an administrative matter about the performance of the department as opposed to the necessary processes of the performance of the parliament, the distinction is appropriate.

Senator RHIANNON: Does that not underline how it would be timely, rather than to bring in a blanket exemption for the parliamentary departments for the negotiations, if you thought there were sensitive areas that should be excluded, to look at adding to the exemptions rather than living in the current arrangement where the law does not apply but we keep on hearing that there is a commitment to provide the information. Should this not be tidied up?

Ms Mills : Again I would reference the Senate department and the House of Representatives department and the PBO all as being experts in the content knowledge of their area. Within my own area, as I said, in the main the type of work that we do and the type of support we provide to the parliament is probably something that is more readily provided to the community, and our practice has been to do that and we will continue to do that regardless of the legislative regime, but always bearing in mind that we do not want to compromise the operations of parliament or inadvertently cause matters of security or matters of complexity around legislative development to be revealed in a way that actually prohibits them progressing.

Senator RHIANNON: I think that helps me pinpoint the need for the very sensitive information that should not be released about putting them into the exemptions. I thought it would be useful if you could explain what information your department holds that should not be made public through the FOI process, and why it should not be made public.

Ms Mills : At this point I would probably take tha t on notice. As the President said, this is very early days . It is an issue that we have only just begun discussions on. I have not participated in any direct discussions with the Attorney-General's yet. One of the issues for me is that the items that have been sought from us under the FOI in the last six months or so are not data that is held by our department anyway, so perhaps clarity of that would help the community understand roles and responsibilities. But it was probably data that for commercial-in-confidence or other reasons may not be released regardless of whether it was a parliamentary department. Clearly all departments even under the FOI regime have to make judgement calls about that at any one time.

Senator RHIANNON: If you could take that on notice, I think it would help advance this discussion which is so important.
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Australian Information Commissioner

Senator RHIANNON: Your guideline in May, that parliamentary departments are now subject to FOI requests, has had an impact. It came up for some discussion yesterday. We were told by the Clerk of the Senate and the head of the Department of Parliamentary Services that there have been discussions with the Attorney-General's Department about how to manage this change, which may result in legislative amendments to revert to the prior situation where these departments were not covered. Have you been involved in discussions with the Attorney-General and/or her department about this particular issue?

Prof. McMillan : Our office has not been a central player in those discussions but we are aware of the discussions occurring. I have been consulted individually by officers from the parliament about the application of the FOI Act to the parliament and I have been kept abreast of discussions by the Attorney-General's Department. But, as I said, I have not been a central player and it is quite possible that there have been threads in the discussion that I have not been a party to.

Senator RHIANNON: Do you have a view on whether these departments should remain subject to the act you administer?

Prof. McMillan : I do not have a fixed view at this stage, bearing in mind that a review of the FOI Act will commence in November, as required by section 93A of the FOI Act. I can say that the FOI Act was framed on the assumption that it would apply to executive agencies. The application of the act to parliamentary departments, on one view, was inadvertent—at least it did not follow any announcement by government that the consequence of some legislative changes would be the application of the act to the parliament. If the act is to continue to apply to the parliamentary departments, there are some special issues that will need to be considered. For example, one issue on which I have held discussions with officers of the parliament is the application of the act to the Parliamentary Library that provides a special service to members of parliament. To give another example, there are special questions about the fact that the parliamentary departments provide the infrastructure for electronic communications and other support services to members of parliament. These raise special issues that have never been squarely addressed in the operation of the FOI Act.

Senator RHIANNON: Rather than have the blanket exclusion of these departments, would a way to go be to look at where there is sensitive information and have exemptions? There are already exemptions, so we would look at extending the exemptions and then all the departments are effectively under the same FOI regime.

Prof. McMillan : That would certainly be an option and it would not be an uncharacteristic option. For example, the FOI Act applies to government business enterprises but not to all of their records. The act also applies to the office of the Governor-General and to courts and tribunals but not to all of their records. There are many precedents for a partial application of the act in which certain categories of documents and certain activities are carved out from the operation. That would be an option that could be considered.

Senator RHIANNON: Do you think that would be more favourable than the blanket exclusion?

Prof. McMillan : Before expressing a final view, I would prefer to hear more of the debate, particularly bearing in mind that a review, possibly an independent review, of the act will commence within the next month.

I expect we will consider this issue and come forward with a considered report. I would be very happy to express a more definite view after considering those matters.