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Wednesday, October 31, 2012

Freedom of Information review announced

Dr Allan Hawke has had a distinguished career and long experience in and around government. He has been a go to man for all sorts of government commissioned inquiries since finishing up as High Commissioner to New Zealand in 2005. That followed stints as head of Defence, before that Transport and Regional Services and as chief of staff to Prime Minister Keating.

Attorney General Roxon appointed him yesterday "to review and report on the operation of the Freedom of Information Act 1982 (FOI Act) and the Australian Information Commissioner Act 2010 and the extent to which those Acts and related laws continue to provide an effective framework for access to government information." 

A review within two years was an agreed element of the reforms of 2009-2010. Those reforms did not evolve from a comprehensive review of the act. As Mark Robinson SC, for the Law Council of Australia said at the time a complete rewrite was required. His metaphor then was the government had kept the whole body and grafted half a transplant. Whether it is to be a different outcome this time around remains to be seen. As does what Dr Hawke brings with him on FOI from working in the government system since 1974.
The terms of reference require the review to include consultation with relevant stakeholders so it's time to dust off the FOI best/good practice in the information age file.  Even though those words don't rate a mention in the terms.

The Attorney-General in her statement did get in a reference to the fact that "$41 million of taxpayer money was spent across the Federal Government in 2011-12 processing FOI requests.The review will consider how the Government’s FOI costs could be reduced, including the Information Commissioner’s recent recommendations regarding the current charging regime."  Reduction of costs to government is not specifically mentioned in the terms of reference but I'm sure Dr Hawke gets the story.

(Update: We'll have a fair bit of by-play like this today on about costs and what's behind the increased cost of administration over time. As I've commented previously the $41 million is based on agency estimates of time spent. Efficiency issues including records management systems, the investment in and use of appropriate technology, best practice processing, and the cost arising from excessive caution and a preoccupation with overly cautious legal approaches to decision making cry out for some scrutiny. Over to you Dr Hawke! As to the comparative combined government spend on public affairs and media management, I'd like to see that.)

Also interesting that of all the things you could suggest the review consider regarding the operation of the act 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:
  1. the requirement to ensure the legitimate protection of sensitive government documents including Cabinet documents; and
  2. the necessity for the government to continue to obtain frank and fearless advice from agencies and from third parties who deal with government;
The review is to report by 30 April 2013. 

Whistleblower protection still over the horizon

Independent Andrew Wilkie tried to get things moving on whistleblower protection legislation by introducing the Public Interest Disclosure (Whistleblower Protection) Bill 2012  in the House of Representatves on Monday. But any hope that the government would pick up and run with it were quickly disappointed. Special Minister of State Gary Gray chose a media release to announce the bill was "well-motivated but falls short of necessary safeguards and balance." 

No amendments will suffice apparently. While "the government shared Mr Wilkie’s strong desire to provide effective protections for Commonwealth employees willing to identify instances of maladministration, misconduct and corruption" it's, ho hum, we need time to finalise our position and get our version ready for parliament.... next year.

If you need a recap:
  • ALP commitment to act on whistleblower protection prior to 2007 election. (They also talked then about justice for Allan Kessing, but that's another incomplete story.)
  • House of Representatives Standing Committee on Legal and Constitutional Affairs (Dreyfus) asked to examine models in 2008 and reported in 2009.
  • Government responded to the recommendations in March 2010 in a positive manner and went a bit further than the committee in some respects, including on public disclosures. Then attorney general McClelland said at the time “The Government supports a pro-disclosure culture in the Australian public sector, underpinned by enhanced whistleblower protection mechanisms, as part of its commitment to integrity in Australian governance. Whistleblower protection is about ensuring that there are appropriate processes in place, and protections offered, to facilitate the disclosure of wrongdoing, misconduct and corruption. The Government is committed to providing best-practice legislation to achieve this end. The Government will develop legislation reflecting this Government response for introduction during this year.(ie 2010). A further announcement about the legislation will be made in due course.”
  • The Gillard agreement in September 2010 with Andrew Wilkie to enable formation of her government included a commitment that parliament would pass the law by July 2011.
  • The Australian Public Service Commission State of the Service Report 2010-2011 released in November 2011: "The government is finalising the Public Interest Disclosure Bill. The legislation is intended to set up a scheme that provides for the investigation of unacceptable conduct in the Australian Government sector and extend the protections available to people reporting wrongdoing. The legislation is expected to be introduced to parliament in 2011.
  • October 2012: Government commitment to legislate in 2013.
Update: other views contrast with those of Minister Gray.

Professor AJ Brown writing  in The Australian (paywall) 2 November:
Professor David Lewis:
Mr Wilkie's bill is already winning international support as a means of filling this gap. Yesterday, it was described as impressive by a world expert, David Lewis, professor of employment law at Middlesex University, London, and convenor of the International Whistleblowing Research Network.
He said he was surprised to read a comment by Special Minister of State Gary Gray that the bill falls short of necessary safeguards and balance. "In the 1990s, Australian states led the world in the development of whistleblowing legislation," Professor Lewis said. "This bill clearly demonstrates that lessons have been learned from the measures subsequently enacted . . . it builds on the best statutory provisions elsewhere. "Overall, this bill provides a great opportunity for the Australian federal government to lead the world on whistleblowing legislation." According to Professor Lewis, the Wilkie bill sets clear constraints on when and how whistleblowers should go public, unlike some countries that permit freer access to the media.

Professor Brown's views
The introduction of the federal Public Interest Disclosure (Whistleblower Protection) Bill by independent MP Andrew Wilkie is not before time. It is 18 years since a Senate select committee, chaired by Liberal senator Jocelyn Newman, recommended comprehensive legislation to protect employees who speak up about wrongdoing in government. And it is almost four years since the House of Representatives legal and constitutional committee, chaired by Labor's Mark Dreyfus QC, came down with a strong blueprint in that direction. The Wilkie bill is consistent with the spirit of all these recommendations - and then some. In fact, the background to the bill includes more than $1 million of taxpayer-funded research, involving more than 300 federal, state and local government agencies - the most comprehensive research of its kind in the world. It also reflects more than two decades of experience with what works, and what doesn't, across all Australian states and territories, in the US and in Britain..... Following recent reforms in the ACT, the bill gives more detailed guidance than equivalent media whistleblowing clauses in Queensland and Western Australia.

If a disclosure is reported internally, it is only if no action is taken and there remains clear evidence of wrongdoing, that a whistleblower is entitled to go public. Even then, whistleblowers may only reveal what is reasonably necessary to get the wrongdoing acted upon -- not blurt out whatever they like. And an extra public interest test applies, if the disclosure includes sensitive defence, intelligence or law enforcement information. This is information that could jeopardise an operation, or expose troops, police, informants or the public to harm. This is a broader safeguard than anything announced by the government, which has promised to give extra protection to intelligence information, but so far has said nothing about protecting defence or law enforcement operations..... Mr Wilkie's bill brings quality whistleblower protection a step closer -- something of which Australia should end up being proud."

Chris Merritt also in The Australian 2 November:
The Community and Public Sector Union, which represents about 60,000 public servants, has been lobbying for improved protection for disclosures by its members since 2008, soon after Labor promised a federal whistleblower law in the 2007 election campaign. "We were hoping to see legislation coming out of the parliamentary inquiry in 2010," said CPSU national secretary Nadine Flood. "In our view, it has taken too long to introduce legislation. "We would encourage the government to work with Mr Wilkie and others to ensure that legislation passes the parliament during this parliamentary term."

Allan Kessing
Mr Kessing said he welcomed Mr Wilkie's bill, "as it puts into prime position the public interest as the criterion."

Monday, October 29, 2012

Parliamentary privilege and the spirit of 1688.

When parliament sits, public servants are busier than usual with the additional task and a strict deadline to prepare suggested responses on portfolio issues that the minister might use in answering questions. Answers to tricky questions the opposition might raise, providing accurate information to be able to respond to a genuine inquiry, or seeking to correct the record where necessary in the light of misreporting or errors in the media. Or to enable the minister to sound authoritative and on top of just about everything on the off-chance Dorothy Dix shows up.(Gone are the days when John Button could get away with "I don't know.")

The minister always has a fat file, constantly updated at an indeterminate cost to the taxpayer. As Paddy Gourlay suggested in The Canberra Times last year ministers keen on cutting expenditure should "consider more closely the costs and consequences of parliamentary, media and other briefings they request, and just how much of that ends up being of any use - there would appear to be ample scope for better risk management here."

In any event I'm sure most involved probably don't realise they are engaged in highly sensitive work that potentially raises weighty issues of parliamentary privilege.

Yes, under access to information laws in Queensland, WA and NSW briefing notes on contentious issues, possible parliamentary questions or PPQs in some parlance and House folder notes to others, have been found to be exempt from disclosure or contrary to the public interest to release because to do so would infringe the privileges of parliament.

The privileges of parliament are an arcane subject that takes us way back to 1688. 

I expect, if we could check, that the leaders of the Glorious Revolution would be highly amused to learn that the spirit of that year is invoked to favour non-disclosure of information prepared by public servants for possible use by the minister to answer questions that may or may not be asked. Or at least some that I've seen in my day. 

Despite these rulings there are instances where question time briefs have been released without fuss. As far as I'm aware parliament wasn't outraged and no one complained of a limitation on freedom of speech. Whatever would they have made of that in 1688?

Thursday, October 25, 2012

FOI humming along in the west

The Annual Report 2011-2012 of the Western Australian Information Commissioner (PDF) - 3095kb indicates business on the rise, but no major problems, no areas of great concern.  No hint at all in the report of the need for big picture freedom of information reforms, or open gov or open data developments. Other observations from the west are welcome of course.

Commissioner Bluemmel reports applications for external review (114) were up 9% from the previous year. Of those cleared, 57 (44.5%) were conciliated, 27 (21%) confirmed the agency decision,13 (8.5%) varied the decision, and 2 (1.5%) set aside and substituted the commisioner's decision. 

The office has some useful performance indicators but time taken to finalise reviews is not one of them- it doesn't appear to rate a mention this year other than the fact that two additional staff have helped address a backlog and the commissioner expects further positive effects from next financial year. (Two years ago delay was a big deal.)

The WA PI's are:
Satisfaction of parties with review processes: 81%;
Satisfaction of agencies with advice and guidance provided: (98%)
Extent to which complaints resolved by conciliation: 55% against a target of 60%.
Average cost of reviews finalised: $8395
Average cost of advisory services delivered per recipient: $196

On agency stats:

"The number of access applications made to agencies under the Act has steadily increased, from 3,323 at the end of the first full financial year of operation of the Act (1994/95) to 16,634 in the year under review. That represents an increase of approximately 400% in 17 years from 1995 and 5.8% from last year (15,716). As in recent previous years, the Western Australia Police received the highest number of applications made to a single agency (2,446 - an increase of 3% from last year), with the next highest number received by Royal Perth Hospital (1,969 - an increase of 5.1% from last year), followed by Sir Charles Gairdner Hospital (1,208 - an increase of 8.6% from last year). A further 5,923 applications were received by various other health service providers (hospitals, health services and the Department of Health), representing an increase of 8.24% over last year."
Of the 16,634 applications received by agencies in 2011/12, 633 (just over 3.8%) were received by local government agencies and 16,001 (96.2%) by state government agencies- 89.7% of the state government agency decisions granted access in some form.

WA ministers continue to receive more applications than counterparts elsewhere - 146 in this reporting period. 

The commissioner's gripes include non-compliant agency notices of decision:
"For example agencies frequently cite clause 4(2) but fail to explain why the information in the document has commercial value or why disclosure of the document in question could reasonably be expected to destroy or diminish that commercial value. It is necessary to explain the elements of the exemption and how they apply in a given case. The FOI Act has been in operation for nearly 20 years and, in my opinion, there is no excuse for any government agency to be ignorant of its obligations concerning the legislation.The obligation to provide applicants with notices of decision that contain all of the information prescribed by s.30 is intended to ensure that the true basis of a decision is clearly explained to the applicant. If an agency gives an applicant a notice of decision that does not contain sufficient findings of fact and a clear statement of the basis on which an exemption is claimed, it is unlikely that the applicant will have a clear understanding of the reasons why access is refused and why the requirements of any exemption clause are satisfied. An applicant is entitled to reasons for the agency’s decision. Only if applicants understand all of the elements involved in applying a particular exemption and why access is refused are they in a position to decide whether to accept the decision or to test it by way of external review on complaint to the Information Commissioner.An inadequate notice of decision from an agency invariably increases the time it takes for this office to deal with a matter on external review
And agencies unnecessarily consulting third parties or placing undue reliance on the objections of third parties.

Tuesday, October 23, 2012

Habib broke the camel's back-no kidding!

This may have surfaced previously-I hadn't noticed-but in the Cornall report on DIAC Freedom of Information processing, in a discussion about good practice at Defence, Cornall was told "the Habib FOI request broke the camel’s back in Defence’s legal area and led to a reorganisation of the way in which Defence managed FOI, and the establishment of the Freedom of Information and Information Management Branch." 

Not sure if this was the Habib FOI request in question, but in 2008 Mamdouh Habib, FOI and Defence were in the news: The Australian reported on an application for all documents held by the Department of Defence about him and his rendition from the time he was arrested in Pakistan in 2001:
"The Defence Department came back with a preliminary assessment of $107,145.55 that includes 1038 hours and 15 minutes to identify the documents and decision-making time examining 85,418 pages of documents that "fall within the terms of the request". It also estimated it would cost $85,603.80 to examine 82,838 pages of documents generally relating to the US rendition program."
And then the fishy bit:
"The revelation about the amount of information Defence has appears to be at odds with evidence given to the Senate estimates committee earlier this year when officials said: "Defence has no record of involvement through meetings or through the provision of advice in the matter of the rendition of Mr Mamdouh Habib." The disclosure has prompted calls from NSW Labor backbencher Daryl Melham for the federal Government to reveal what it knows about the rendition. "There is a public interest matter in this ... This should not have to be like extracting teeth." Greens senator Scott Ludlam has put questions on notice, asking Defence Minister Joel Fitzgibbon to explain to parliament. "There appears to be a roomful of documents about a subject which they told parliament they know nothing about ... Something is a bit fishy here."
I don't know what documents eventually emerged, but it likely was the catalyst for major, positive FOI changes at Defence.

More on Habib and what he endured here 

Lawyers and information access-can the twain meet?

The Cornall report was hard to find when I wrote this post about the OAIC own motion investigation into aspects of Freedom of Information processing of "complex, high-profile and sensitive FOI cases" at the Department of Immigration and Citizenship, but it has since been posted on the DIAC website. 

Cornall observes that at a time when a pro-disclosure approach is required "the Department presently appears to have more of an attitude of resistance to disclosure." He sees the answer in acceptance of FOI compliance as a whole-of-organisation responsibility, and outlines steps to that end. Despite concluding that Defence has a lot to offer in the area of process improvement, Cornall does not recommend DIAC follow the Defence lead to take lawyers substantially out of the game, a factor it cites as a major contributor to its improved FOI performance. 

So the DIAC Freedom of Information and Privacy Policy Section that processes non-personal requests, to be co-located with a new legal unit, will remain responsible to DIAC's Chief Lawyer in the Governance and Legal Division (although it sits in the Governance Branch rather than the Legal Branch). Cornall raises as an option "to place FOI more squarely within the DIAC legal stream which Ernst & Young suggested could increase the effective engagement with their legal staff (which) is critical to success." "However, my view is that the placement of the Freedom of Information and Privacy Policy Section within the Governance and Legal Division is not a key issue as long as the FOI and legal areas work closely together." 

Cornall concludes "It is not necessary to have lawyers as decision makers although lawyers could be appropriate decision makers in some complex or sensitive cases."

Yes, but is "legal" the best perspective for access to information issues and decisions?

I've expressed the view that the information management environment (not that of spin or the law) where a public management/service to the public ethos prevails might be better.

FOI continues to be located in the legal area in many agencies at Federal and state level, perhaps a result of FOI's administrative law heritage. Not just in DIAC but as Cornall discovered in Veterans Affairs, the Australian Taxation Office and Human Services, the three largest Federal agencies in FOI terms.

According to the report, the majority of FOI decision makers in the ATO are lawyers. In DHS the Ombudsman, Privacy and FOI Branch is part of the Legal Services Division and an "FOI legal team has recently been established in the Department’s Legal Services Division for complex matters." Cornall reports the Chief Counsel there "regards the freedom of information area as a high risk area for the department and compliance with the department’s FOI obligations commands a lot of her attention.."

 (Just one of many others, taken from a recent job advertisement:"The CSIRO Legal Team, including the CSIRO FOI/Privacy Officer, is responsible for processing, managing and responding to all Freedom of Information (FOI) requests and privacy enquiries from the public and from within CSIRO")

You know that old one, "when you hold a hammer everything looks like a nail"? 

Meanwhile over at Defence, Tony Corcoran in the Freedom of Information and Information Management Branch in the the Ministerial and Executive Communication and Coordination Division, soldiers on (sorry) with a sensible combined responsibility for freedom of information, records management and associated issues.

In my humble, lawyers should play a role in FOI  administration in the same way they do on a myriad of other issues-when required. Public servants without law degrees give effect to the law all day every day in all sorts of areas without a lawyer at their shoulder.

I know the answer, but "what's so special about information access?"

Roll on cultural change. As Cornall emphasises, tone and leadership from the top is crucial.

Two other issues from the report regarding FOI management, not questioned by Cornall but of potential concern and that warrant a closer look across the system:

What goes in "special handling" for requests variously described in one or more of these agencies from the media, Members of Parliament, a political party, advocacy groups, requests seeking policy documents and requests in high profile cases that have attracted or may potentially attract media attention?

And exactly what's involved in the practice of briefing the Minister’s Office about upcoming FOI decisions, in some cases allowing five days for comment, and how any of this impacts on decisions.


Monday, October 22, 2012

Corby FOI decision not as exciting as media reports suggest

The two mainstream media reports of a freedom of information decision by Deputy President Hack in the Administrative Appeals Tribunal suggest a large number of previously withheld documents are to be forced out of the hands of the Australian Federal Police: Eamon Duff in The Sydney Morning Herald "Corby granted access to case files" writes the decision paves the way "for reams" of new documents to be released. Jared Owens in The Australian "Schapelle Corby wins access to police records" reports Ms Corby won access to "a slew" of new Australian Federal Police records detailing the agency's dealings with Indonesian authorities at the time of her arrest. 

Not sure if Duff and Owens spent much time reading the decision, or whether they accepted someone's wishful thinking about the outcome, and hate to disappoint Corby supporters or others interested, but it was no big deal either in quantity or (to this casual observer of things Corby) the potential significance of the released documents.

Deputy President Hack decided to grant access to two documents, nine pages of another and additional parts of two other documents previously withheld. The Deputy President notes [6] a "good many" of the relevant documents sought had been released in full by the AFP in determining the application. More documents or parts of documents had been released during pre-hearing stages in the Tribunal [8]. 

In most respects Deputy President Hack affirmed the AFP decisions to deny access. The law applicable was the pre-reform Commonwealth FOI act as it stood prior to November 2010. It's largely a safe conservative decision, much of it devoted to dealing with 19 documents that  the AFP "wrongly, and too generously" listed as relevant despite the fact they do not answer the request [23]. 

Several of the claims by the AFP were faintly ridiculous as outlined below. But for the rest the AFP not Ms Corby had the win. When the penny drops expect more of this from Corby supporters. It's no conspiracy, just FOI-land.

Drawing from the published decision, the documents to be disclosed are:

Victoria's "disappointment" file keeps growing

Yet another summary of Victoria's transparency promises, set alongside performance, this time in Failure to launch by Farrah Tomazin in the Sunday Age. No room in her impressive litany for two matters raised here- the mystery five weeks before commencement on 1 December 2012 of the Freedom of Commissioner scheme, of any visible sign of preparation; and the opaque system for payments made for and on behalf of parliamentarians in Victoria. 

Tomazin concludes with the observation about Premier Baillieu and his team that "good leadership isn't about promising higher ideals in opposition, only to back down once in government."

Friday, October 19, 2012

Walkley Award finalists know their FOI

Among the Walkley Award for Journalism 2012 finalists are names familiar to many in government who deal with access to information requests. Congratulations to all who made the list, especially:

Print News Report

Hedley Thomas, The Australian, “What the floods inquiry didn’t hear: Wivenhoe ‘breached the manual’”

Sustained Coverage of an Issue or Event
Commended: Linton Besser, The Sydney Morning Herald, “Fraud probe snares top bureaucrats"

Business Journalism
Nick McKenzie and Richard Baker, 7.30, ABC TV and The Age, Fairfax, “RBA faces questions over bribery connections”
(Comment: McKenzie and Baker have been on the Securency story since 2009, when they revealed that a subsidiary of the Reserve Bank had paid million-dollar commissions to win global banknote contracts, overcoming FOI obstacles like this along the way.  They won the Walkley for Investigative Journalism last year. The RBA stories are still running in 2012 having led to criminal charges and forced a parliamentary inquiry. They are also finalists this year for best Scoop of the Year, “Church’s suicide victims” and McKenzie for Newspaper Feature Writing for “Why did Abraham Papo die?”)

Investigative Journalism
Linton Besser and Kate McClymont, The Sydney Morning Herald and The Age, “Exposed: Obeids’ secret harbour deal” 

Commended: Sharona Coutts, Joel Tozer, Clare Blumer, Adam Glyde and Paul Farrell, The Global Mail, “Patients at risk”

Best Digital Journalism Category
Stuart Washington, Tom Allard, Conrad Walters and UTS Team,, “Sky’s the limit on political gifts”
(Comment: Don't ring Senator Faulkner for a soundbite.)

Commended: Sharona Coutts, Joel Tozer, Clare Blumer, Adam Glyde and Paul Farrell, The Global Mail, “Failing the aged: a multi-billion dollar mess”

Television News reporting
Sharri Markson, Lee Jeloscek, Adam Walters and Michael McKinnon, Seven News, Seven Network, “The cabinet leak”

Let me know of others that I may have missed who plied the FOI/RTI/GIPA trade to make the finals.

Resource squeeze=review backlog and other consequences at OAIC

The Senate Estimates session with Australian Information Commissioner Professor McMillan this week provided further confirmation if it was needed, of the impact resource constraints are having on performance. In answering questions, Professor McMillan made no bones about it:
".... we do not have adequate resources to discharge all the functions, as required by the act, in an efficient way........ In the last five or so months we have implemented different measures that have been successful in reducing the backlog of FOI review cases. However, there is still a large backlog. There is an increase in work coming into the office. Certainly, one of the views that I will be putting during the review of the act in my own office that is forthcoming is that, under the current model in the act with the current funding and the current workload, it is not possible to meet the objectives that the office has set for itself.... In a letter to the Secretary of the department of finance about a year ago, at the time of one of the efficiency dividend rounds I expressed my concern and I drew attention to the fact that the original funding estimate was that the office would have 100 staff, but it was operating at a full-time equivalent level of about 80 staff,,,The office is doing the best it can to cope with the workload, with the staff—and, I might say, with some success. For example, since we have opened, in the space of nearly two years we have received 794 applications for information commissioner review and have resolved over half of those, 402. Equally, we have received 273 complaints just in the FOI area alone and resolved 206. The office is certainly achieving some success. But there is a large backlog that is still unresolved and that is a matter of genuine concern."
To many, review decisions delayed for months amount to review decisions denied.

Of course the OAIC is not alone among information commissioners in finding itself underdone on the resources front. Those exercising their rights are the ones that suffer.

If the OPG membership case advances within government, agencies other than OAIC that also stand to benefit through assistance to achieve their objectives, and/or old moneybags at Finance would need to dig deep to come up with the necessary.

The Hansard extract of the questioning of Professor McMillan on this topic in Estimates follows:

Australia: UN Security Council today, OGP next month?

Those in Canberra looking for an "announceable" for the Prime Minister in Bali from 8-­‐9 November where she is to co-chair  the Fifth Bali Democracy Forum hosted by Indonesian President Yudhoyono, should push for a decision by then that Australia apply for membership of the Open Government Partnership.

We've been considering this for well over a year, with no result so far, as Australian Information Commissioner Professor McMillan explained when quizzed by The Greens Senator Rhiannon in Senate Estimates this week.

Professor McMillan said there are a number of issues that still need to be examined, and his office has been asked to explain in greater detail the role that it could play in preparing for example, a national action plan. But other pressures and limited resources meant that work is yet to be undertaken. A membership, decision would need to be made at the highest levels of government, presumably by the Prime Minister or cabinet. In the meantime his thoughts:
But I think it is of benefit to Australia to take heed of the substantial developments that are occurring internationally in relation to open government. Australia has achieved a great deal but there are many examples internationally from which Australia can learn about further implementation of open government. Participation in international forums is certainly an advantage to all countries, I would think, in this space.
Here are 10 reasons off the top of my head for a favourable decision quickly. By my reckoning PM&C, DFAT, AusAID, OAIC, AGIMO, AG's and RET all have an interest in the matters raised below. Can an interdepartmental committee like that move at a cracking pace? The track record isn't encouraging but we live in hope.

1. Professor McMillan is right, we would benefit directly from joining with others who think this stuff is important.  The Open Government Partnership describes itself as "a global effort to make governments better. We all want more transparent, effective and accountable governments -- with institutions that empower citizens and are responsive to their aspirations." So do we, including here at home. It's not just a fledging democracy gig. The US, UK, Canada, Denmark, Finland, Greece, Hungary, Israel, Italy, Latvia, Lithuania, Netherlands, Norway, Spain, Sweden, Turkey, the increasingly influential Brazil, and Mexico along with South Africa, to name just some members, all see take home value in this. So should we. 

2.  The UK and Indonesia currently co-chair the OGP with 57 member countries. Both are good friends of Australia. Indonesia is more, located on our doorstep. Our foreign ministers agree there is "a unique partnership between Australia and Indonesia that would be an asset in supporting the region's ambitions" and that "Australia and Indonesia would co-operate on building a peaceful, prosperous and connected region." Here's another opportunity for partnering. Indonesia's representative at officials' OGP discussions is a senior officer from Strategic Initiatives at the President's Delivery Unit, close to the centre of things.

3. Only three countries, Indonesia, the Philippines (yet to pass a law) and Korea have joined in our region, a notably poor show given the lip service paid to open government in most countries in Asia and the Pacific. As a newly elected member of the UN Security Council (this morning) we should show some practical regional leadership, by example, not just words.

4.  By signing up to the OGP and now playing a leadership role, Indonesia is inviting close scrutiny of its track record and delivery on open government commitments at home and abroad. At home where the membership criteria requires civil society engagement with and evaluation of progress on a national national action plan, and abroad where independent evaluators also review the plan.This can only be a good thing. As the Indonesian National Action Plan states: "Open government is critical for Indonesia to complete its democratization process and to set a solid foundation towards a new strong economy characterized by a mature and open society."

(While no world beater on performance to this point (see for example this UCL Constitution Unit assessment and reports published on, the RTI Index that ranks the access to information laws of 93 countries placed Indonesia 24 (99/150) on the list-Australia was 48 with 84/150, but that's another matter. Some good bones are in place there but performance to deliver takes time, as we know from experience. Encouragement from those nearby is both welcome and necessary. Update: democracy in Indonesia is under pressure as outlined in this commentary published on the Lowy Interpreter, reinforcing the point that friends should stand visibly alongside on the question of open government.)

5. Minutes of meetings of committees of the OGP held in recent weeks in New York show that willing helping hands are needed for this ambitious project to achieve its objectives. We're well placed to pitch in and contribute.

 6. Signing on to an international open government initiative such as this fits with our other interests. We seek to promote better governance through our official aid program, an element of which is more accountable, open and responsive government. Australia has over $700 million invested in initiatives to deliver on this in the region. After all we're in this region for the long haul, as the commissioning of the White Paper on Australia in the Asian Century testifies.

7. Indonesia is attempting to encourage and assist countries in the region. We should be giving a hand-see 6 above. As the National Action Plan states "as the current chair and the biggest economy of ASEAN countries, Indonesia holds the moral responsibility to be the role model for the region in the area of good governance and accountability." Tara Hidayat of the Indonesian President's Delivery Unit in Jakarta told the Steering Committee in New York that Indonesia and the Philippines have been exchanging ideas. Indonesia is to replicate the Philippines "check My School" program. Our experience with My School might come in handy. There are plenty of other examples.

8. Another open government topic of regional significance raised by Ms Hidayat in New York, the Extractive Industries Transparency Initiative, is an issue of great interest to us. The EITI aims for better transparency through companies publishing their payments and governments disclosing their receipts from those companies. It promotes better governance in countries rich in oil, gas and minerals and seeks to reduce the risk of diversion or misappropriation of funds generated by the development of a country’s extractive industry resources. It works through the joint co-operation of governments, private sector companies and civil society groups. Australia is a member of the EITI Management Committee and has committed $17.45 million (2007 to 2015) to the World Bank administered Multi-Donor Trust Fund and the EITI Secretariat. The only EITI compliant country in the region is Timor-Leste. Indonesia, Papua New Guinea and the Solomon Islands are interested or on the way. We have a stake in this.

9. As evidenced by the fact that the EITI has accepted the Australian Government invitation to hold its global conference in Sydney in May 2013.  Foreign Minister Carr says Australia is keen to encourage more countries to adopt the initiative.  If we're behind efforts to make this the global standard, getting involved with something similar on open government generally makes good sense.

10. The Fifth Bali Democracy Forum hosted by Indonesian President Bangbang Yudhoyono  will be held on November 8-­‐9, 2012. Prime Minister Gillard will be attending having accepted a personal invitation from President Yudhoyono to co-chair the Forum. To quote the Media Release:
 Australia has welcomed and supported Indonesia’s evolution into a strong and vibrant democracy, and greatly values the constructive leadership role that our close neighbour plays in the region and beyond. The Forum, which Australia has supported since its inception in 2008, is a key inter-governmental meeting for advancing democratic reform.
The OGP is about continuous improvement in the practice of democracy. The Bali Forum is the perfect opportunity for the PM in her opening address to announce we have decided to join the OGP. Ms Hidayat told the Steering Committee in New York that an OGP session will be included in the Forum agenda. As a country committed to joining we might even be able to grab a seat, rather than have to sit that session out.

Surely even in these tough times a country proud of how well its economy is traveling could find $50,000 (the membership fee, and sure that's just for starters) for this good cause?

Can we do it? Yes we can! Oh, and I'm ready to serve (inexpensively) should my country need me. 

The Hansard extract of the questioning of Professor McMillan on this topic in Estimates follows:

Thursday, October 18, 2012

Do it yourself publication of interests best for accuracy

Those cheers in August for the UTS/Fairfax project that put the Register of Interests in searchable form online toned down this week when Senator Faulkner during Department of the Senate Estimates referred to 10 errors in his entry. Senator Faulkner had drawn attention to this in the Senate on 12 September- some were relatively minor transcription errors, others just wrong:
"I can assure the Senate that I am not a member of the New South Wales Traders Foundation. I am, however, a member of the New South Wales Teachers Federation. I can assure the Senate—and this will come as a relief to the good parishioners of this church, I am sure—that I am not a member of the Clovercrest Baptist Church. Not only am I not a worshipper at the Clovercrest Baptist Church; I can also assure the Senate that I have not become a worshipper twice, which is the suggestion on this particular website. I can also assure the Senate that I have no investment properties, even though the website says I have. I can also inform the Senate that I do not receive a DFRDB pension, although the Herald website says I do. I can also inform the Senate that I do not have, nor have I ever had, a family trust which is bracketed as not applicable after July 2011; in my case it is not applicable before July 2011. Nor do I have life insurance, nor do I own a motor vehicle."
I don't know if other parliamentarians checked the accuracy of what was published- Clerk of the Senate Dr Laing told Senator Faulkner no one else had brought errors to attention.

Senator Faulkner suggested it might be better all round if the Senate itself made its database of pecuniary interests, currently hand written hard copy provided by senators, "a little more user-friendly and searchable". Dr Laing agreed the Committee of Senators' Interests should take a look but significant resources, in short supply, would need to be allocated. 

I'm sure that's true but it is 2012, after all. 

As Senator Rhiannon has raised on several occassions the Scottish parliament does much better and is an admirable model. As I wrote six years ago it took a major scandal there to propel expense disclosures into the 21st century.

Senator Faulkner's questions on Monday follow:

Wednesday, October 17, 2012

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:

Monday, October 15, 2012

Victoria, an FOI problem child that won't step up

More for my "Victoria disappointment" file.

See Fiona Hudson in The Sunday Herald Sun on "Why FOI has become hoarding of information for the Victorian Government" and "20 things Victorian Premier Ted Baillieu doesn't want you to know". 

There are some gems here. While a sentence plucked from a statement of reasons won't tell the full story, these shorthand refusal reasons are particularly inventive:

2 What we asked for: Details of all artworks displayed at or owned by the new Royal Children's Hospital.
The response: Refused. "Disclosure may ... give rise to the misleading impression that the RCH spent significant amounts of money to acquire artworks at a particular cost when that is not accurate."

15 What we asked for: Results from the Annual Secondary Teacher Workload Study for 2009 and 2010.
The response: Refused. "The report is an essential part of a process which enables the Department to make policy decisions. It would be contrary to the public interest to release the report as this would undermine the integrity and viability of this process."

16 What we asked for: Performance reports from private prison operators.
The response: Refused. "The private prison providers are international organisations and the discussions in the reports may expose them to disadvantage in the domestic and international marketplace."

18 What we asked for: List of Melbourne Grand Prix guests invited by Premier at taxpayers' expense.
The response: Refused. Reasons included "many of the people identified in the lists are well known to the public".

The FOI commissioner designate-if there is one- will have hands full come 1 December but the problem (the out of date FOI law, the culture) is bigger and tougher than even a highly capable, fully resourced person in that job is likely to be able to resolve.

Parliamentary departments and the 'good' FOI news

As I surmised back in May, the penny that the parliamentary departments were subject to the Freedom of Information Act dropped during consideration of issues associated with the establishment of, and an FOI exemption for, the Parliamentary Budget Office. But it was kept under wraps for six months after the Australian Information Commissioner delivered the news to the clerks in December 2011, and made public, following "some correspondence". Hmmm- any resemblance to the clerks is entirely accidental.

 From the OAIC Annual Report 2011-2012 p111
Application of the FOI Act to the Parliamentary departments
When the legislation establishing the Parliamentary Budget Office was introduced, a question was raised about the application of the FOI Act to the other Parliamentary departments: the Department of the House of Representatives, the Department of the Senate and the Department of Parliamentary Services. For years it had been assumed that the FOI Act did not apply to the Parliamentary departments, and that was probably the case up until 1999. However, when the Parliamentary Service Act 1999 was enacted, those departments became subject to the FOI Act. This is because they were established by, or in accordance with, s 54 of the Parliamentary Service Act. This makes each of them ‘an unincorporated body, established for a public purpose by, or in accordance with the provisions of, an enactment’ and therefore a ‘prescribed authority’ for the purposes of the FOI Act.
It is possible that the application of the FOI Act to the Parliamentary departments since 1999 was unintentional, or at least inadvertent.
In December 2011, the FOI Commissioner met with the Clerks of the House and the Senate, and officers of the Department of Parliamentary Services, and advised them that the FOI Act applies to their departments. In May 2012, following some correspondence between those departments and the OAIC, the Information Commissioner amended the Guidelines to reflect the fact that the Act applies to the Parliamentary departments.

The stats tell the story - the OAIC annual report

The Office of Australian Information Commissioner Annual Report 2011-2012 covers the first full year of operation of the office and incorporates this year information collected from ministers and agencies concerning management of the freedom of information function. In previous years the latter was the subject of a separate dedicated report. It is not as detailed in this new arrangement, but still enough for most of us I expect. (Update: the detailed statistics are published online.)

In addition to the facts and figures, the report shows the commissioner's reasonably upbeat as you might expect.  Australian Information Commissioner Professor McMillan notes access to information issues now have greater prominence in government:
There is a marked increase in FOI requests for policy-related material, an upswing in applicants challenging access refusals through the OAIC’s independent complaint and review processes, and more media reporting based on documents obtained by FOI requests.
Freedom of Information Commissioner Dr Popple believes that the reforms have been successful, mostly:
Most agencies and ministers have demonstrated an understanding of their obligations under the Act to facilitate and promote public access to information, promptly and at the lowest reasonable cost. Many parts of government have embraced the Act’s objective: promoting Australia’s representative democracy by increasing public participation in government processes and increasing scrutiny, discussion, comment and review of government actions. However, some agencies have made decisions, or dealt with FOI applicants, in ways that
are at odds with the pro-disclosure culture that the FOI Act promotes and requires...Agencies do not always take reasonable steps to assist applicants to make their FOI requests, as agencies are required by the Act to do.
Dr Popple identifies a number of technical deficiencies in the FOI Act, in provisions dealing with (for example) charges, third party consultation, extensions of time and IC review of practical refusal decisions that will be raised for consideration in the statutory review of the act to be conducted in 2012–13.

Privacy Commissioner Pilgrim admits to being faced with a challenge:
Privacy issues featured prominently in public debate during the year just passed. Unfortunately, much of this resulted from incidents in which peoples’ personal information was compromised, often on a large scale.
The following items of interest (well, you know what I mean, for those really into this) are drawn from the report, together with my comment here and there. (Sean Parnell's shorter summary here.)