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Wednesday, November 28, 2012

Memory lane and present and future challenges feature at FOI anniversary

The 30 year Anniversary event organised by the Office of Australian Information Commissioner in Canberra yesterday was an interesting walk down memory lane, and a look at today and the future.  

Commissioner Professor McMillan can take you back to his pre-FOI activist days, Dr David Solomon found FOI in his in-tray while working for Prime Minister Whitlam, AGS CEO Ian Govey's first job in AGD was with the task force developing legislation, and Alan Rose was a member of that group while at PM&C, and later president of the ALRC at the time of the Open Government report in the mid nineties.

(While on memory lane I was at the Australian Embassy in Washington from 1973 to 1976 when US experience with FOI, pre and post Watergate, was something Canberra wanted to know more about as it wrestled with the unknown beast.)

Alan Rose said the culture change recognised as necessary since 1982 is still to arrive.
He evidenced this with a number of examples of personal experience and drew attention to   the refusal of access to plans claimed to justify a grant to a car manufacturer, and what was put to the government by lobbyists. Rose emphasised that the object advanced in the 1995 ALRC report that government information is a national resource must be taken seriously. Census material for example. More creative minds could do more with it. Real time access was essential. The closed period for government information should be reduced to something like five years to let our Bill Gates and Steve Jobs see what they could do to fully utilise government information for the benefit of all.

FOI Commissioner Dr Popple gave a generally positive account of how things are working-access was easier and cheaper, most agencies were doing reasonably well and "people are generally aware of their rights." (It turns out this is a "feeling" not based on anything more that frequent references in the media-I don't think government has done anything on the demand side for yonks.) However issues concerning delay and the OAIC model both require attention. The OAIC has received 4194 applications from agencies for extension of time, and 285 complaints and 872 review applications, all far in excess of what was anticipated.

Former Queensland Information Commissioner Julie Kinross provided a global perspective, noting in particular the rights focus clearly driving developments elsewhere, but barely heard here, and other forces at work promoting transparency including anti-corruption, environmental concerns, accountability and development assistance, and technology. Kinross highlighted the absence of any regional Asia Pacific right to information activity of the kind obvious in Europe, Latin America and other regions. Australia was well placed to play a role in this. (Why was I thinking about the OGP at this stage?)

Professor McMillan spoke of the broadening information agenda and the need for a new open government policy framework. Roxanne Missingham, the former Parliamentary Librarian now in a similar position at ANU provided reasons for some urgency in this citing the dramatic decline in government publications listed in the National Bibliographic Database, and the limited retention of history (including government policy documents over time) on the National Library's Pandora system. She gave a spirited account of why leaving agencies to their own devices in this area was a grave error. And gave short shrift to copyright laws created in another era that are holding us back.

As to me, I had 10 minutes for Leading Cases?

Stephanie Forgie and Michael McKinnon should know I was only joking.

My notes, should you be interested-and it's not a list of leading cases.

Leading cases ?

Peter Timmins  FOI 30 year Anniversary, Canberra  27 November 2012

You know it’s not possible.

Ten minutes, thousands of cases, 30 years, looking for the standouts and noting some lemons on the way.

Of course the best way to come to grips with the cases isn’t in a learned 10 minute paper.

Or a search on Austlii.

It is best done by gathering together FOI decisions by Deputy President Forgie since her appointment to the AAT in 1988.

You will find in each a reference to every case ever decided on the issues before her, all neatly distinguished on this point and that.

And highly detailed analysis of every term used in the act..

Including the, in and on.

But friends I want to draw attention today, in the presence of people with heads crammed with case law, to how much useful knowledge and wisdom created often at great public expense has had to be jettisoned as a result of legislative change.

What a shocking waste of public money!

All that “ no leaning”  from News Corporation and the National Companies and Securities Commission, Searle and PIAC, Cleary and Treasury rendered useless apparently- after all it’s still early days- by a reformulated objects section that makes no reference to the exemptions and whose words form part of the public interest test .

The Parliament intends, by these objects, to promote Australia’s representative democracy by contributing towards the following:
 (a)  increasing public participation in Government processes, with a view to promoting better-informed decision-making;
 (b)  increasing scrutiny, discussion, comment and review of the Government's activities.
 (3)  The Parliament also intends, by these objects, to increase recognition that information held by the Government is to be managed for public purposes, and is a national resource.
  (4)  The Parliament also intends that functions and powers given by this Act are to be performed and exercised, as far as possible, to facilitate and promote public access to information, promptly and at the lowest reasonable cost.

Then there are those among you steeped in the intricacies of the scope and meaning of personal affairs.

Replaced these days by the simpler but more expansive personal information.

No place now for detail plucked from Young and Wicks, Dyrenfurth and Williams and the AAT

But Chandra and Colakovski can still come in handy. “Unreasonable” disclosure survived the cut.

The ins and outs of conclusive certificates went straight out the door in 2009. Much of Burchill, Searle, Bracken and of course the High Court in McKinnon  v Secretary Treasury was rendered useless by repeal of the certificate provisions.

 Reflecting on the law, where would we be without McKinnon?

Michael, the indomitable, that is.

Stephanie Forgie has sat through quite a few Mckinnons as they affectionately are known.

 She would tell you the dictionary meaning of that word:
"Incapable of being overcome, subdued, or vanquished; unconquerable."

The Deputy President  of the AAT and FOI officers who deal with Michael or end up in the witness box when he self-represents can attest to the aptness of the term.

When I asked him for suggestions about leading cases, who would be surprised that he reeled off  

McKinnon and

Finance and Deregulation (numerous)
Treasury (numerous)
Families, Housing, Community services and Indigenous Affairs
Prime Minister and Cabinet (numerous)
Foreign Affairs and Trade
Health and Ageing
Great Barrier Reef Marine Park
Australian Taxation Office
Civil Aviation Safety Authority
Australian Postal Authority
And Comcare.

That’s before he paused for breath.

But I have to move on.

Jack Waterford has his own personal FOI casebook, mostly from earlier times featuring many battles involving the same arguments and same agency adversaries.

And of course, looking through the names, where would we be without Howard?

John that is.

I didn’t check favourite cases with him.

But the eponymous case he lost in 1985, ironically when challenging a Paul Keating as Treasurer conclusive certificate might have been his best case choice.

The written decision in those days didn’t record counsel representing.

Some here may know but references by Justice Davies to “Mr Howard submitted” suggest he may have self represented.

He may have been quietly pleased at losing because when elected in March 1996 his government had on the table the ALRC Open Government Report completed in December 1995.

And it didn’t act in the next 11 years on any of over 100 recommendations including selective abolition of conclusive certificates, his bête noir in the 1985 case.

 Re Howard and Treasurer of the Commonwealth was not the first case to feature language and terms lifted straight from the script of Yes minister.

Re Peters and Department of the Prime Minister and Cabinet (1983) 5 ALN No.218, Re Waterford and Department of Treasury, , Re Murtagh and Commissioner of Taxation, , Re Chandra and Minister for Immigration and Ethnic Affairs (1984) 6 ALN 257, Re Burns and Australian National University and Re Lianos and Secretary to the Department of Social Security were all warm-ups for the main event.

The Howard factors- public interest considerations against disclosure:
The higher the office-holder involved
Related to policy making
Need for frank and candid advice
Disclosure could mislead, cause confusion and unnecessary debate resulting from disclosure of possibilities considered”
Dsclosure would be unfair to the decision maker.

These came to be favourites within government for 15 long years. Almost statutory in their application.

Remarkably given the many qualifications Justice Davies made about the tentative nature of his views, their significance for FOI drawn as they were from  executive privilege cases, and that it was early thinking on the subject.

Most were taken up enthusiastically by decision makers and many repeatedly affirmed in AAT and court decisions.

Victorian jurisprudence paid them even more respect.

Sir Humphrey if he had been with us on extended leave through the period would have smiled particularly at the public interests claimed in avoiding confusion and unnecessary debate and people might misunderstand the information.

As Sir Humphrey put it:

'There is a well-established government procedure for suppressing -- that is, not publishing -- unwanted reports.' 'You discredit them,... Stage one: The public interest 1) You hint at security considerations. 2) You point out that the report could be used to put unwelcome pressure on government because it might be misinterpreted. Of course, anything might be misinterpreted. The Sermon on the Mount might be misinterpreted. If the Sermon on the Mount been a government report, it should certainly not have been published on the grounds that it was a thoroughly irresponsible document: the sub-paragraph suggesting that the meek will inherit the earth could, for instance, do irreparable damage to the defence budget.”

Of course most of the Howard factors including these were put in the not relevant basket as a result of the 2010 amendment legislation.

The following factors must not be taken into account in deciding whether access to the document would, on balance, be contrary to the public interest:could result in embarrassment to the Commonwealth Government, or cause a loss of confidence in the Commonwealth Government; access to the document could result in any person misinterpreting or misunderstanding the document; the author of the document was (or is) of high seniority in the agency to which the request for access to the document was made;  access to the document could result in confusion or unnecessary debate.

On that last point I’ll let pass-as I’m sure decision makers are- the lack of any specific mention of “premature” debate as an irrelevant consideration.

However those old FOI friends Frank and Candid from the Howard era survived the reform period.

And who knows they may be about to prosper.

Some tribunal members were impressed by Frank and Candid.

Two High Court judges in McKinnon v Treasury gave them a tick as a reasonable consideration to take into account in issuing a conclusive certificate

Applicants might cite Justice Mason in Sankey v Whitlam to the effect that the argument that disclosure will result in want of candor in advice given by public servants “is so slight it may be ignored.” And that the possibility of future publicity might “act as a deterrent against advice which is specious or expedient.”

And point to the 1979 Senate committee observation that “one must seriously question after Sankey and Whitlam whether candor in internal communications can hereafter be relied upon as a public interest consideration.”

Deputy President Forgie with a withering gaze maintained the line “show me the evidence” and showed agencies the door on this one when nothing much could be shown.

in McKinnon v Prime Minister and Cabinet she devoted hundreds-thousands of words –pointing to the Public Service Act, Public Service Values, and Guidance from the Public Service Commission and National Archives espousing how public servants should/must undertake their work by providing frank, honest and impartial advice. And that oral advice should be recorded. 

Frank and candid had great extra-curial support from Peter Shergold, Ken Henry and Terry Moran who told everyone who would listen that advice had to be kept confidential presumably for close to 30 years or thereabouts and that the very Westminster system depended on it.

Despite the fact that confidentiality hasn’t been assured since 1982, and that parliament decided all those years ago that it should remain confidential where this would serve the public interest.

As if by magic-but we know its nothing of the sort- Frank and Candid are back in business. And maybe, about to resume center stage.

Of all the things the Attorney General could have suggested the Hawke review of the FOI act should consider that didn't rate a specific mention, this did:
“the reformulation of the exemptions in the FOI Act including the application of the new public interest test taking into account… the necessity for the government to continue to obtain frank and fearless advice from agencies and from third parties who deal with government.”

So in conclusion, history suggests ‘leading cases” can be an ephemeral concept.

My advice is don’t discard those old papers, notes and names of cases and the Yes Minister scripts collected over the years.

You never know what may come in handy in the years ahead.


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