DFAT submission should catch Hawke eye

Stephanie Peatling's article in Fairfax Media yesterday Public servants baulk at FOI changes mentions several agency submissions to the Hawke Freedom of Information review including the submission from the Department of Foreign Affairs and Trade. Peatling notes DFAT "questions whether the government is getting ''value for money'' from the 2010 changes. While it had ''no concerns with the value-for-money proposition in relation to personal FOI requests by members of the general public'', ''questions of value'' could be raised about applications made by other applicants such as journalists, lawyers and not-for-profit organisations."

For an agency that plays a key role in the international consideration and propagation of human rights, DFAT's submission is all about trimming, limiting and reducing FOI rights here at home.

 I concede DFAT deals with information that is often sensitive - I worked there a long time ago. Information access on occasion obviously raises complex issues of balance. The department get more non-personal requests than they did previously. But hey, that's not inconsistent with what the government said it wanted to achieve in opening government to more scrutiny.

 What emerges from the submission to Dr Hawke is a DFAT cultural preference to be left alone to get on with the job without pesky busybodies sticking their nose in, and an abundance of caution and excessive secrecy. I think it's in a class of its own.
Department of Foreign Affairs and Trade [PDF 397KB] (pdf).

 A contrast to the Department of Defence, an agency that also deals with complex stuff. The Defence submission makes some suggestions for change but has none of the "stop this train, I want to get off" character that permeates DFAT's submission.
Department of Defence [PDF 195KB]

Peatling highlighted one DFAT gem in a submission full of them.

I wonder whether Dr Hawke will provide a forum for discussion of these propositions and others that fall well short of this standard, but are equally enticing?

1.  In addition to the quoted value for money query for example, DFAT thinks if there was any extra money floating around it should have been spent on more important things than publishing information and responding to requests, and that it's not too late to reverse this: "DFAT contends that the review could closely consider the merit of increasing investment in an area whose value is difficult to measure and has not been measured (ie the reforms of 2010) at the expense of investment in policy and program areas whose value is better established."

2. For an agency that apparently doesn't provide Administrative Access and took 10 weeks over the simplest of requests, DFAT suggests that some unspecified applicants who enjoy unspecified special rights shouldn't automatically have FOI rights: "a number of applicants already have available to them special routes of access to unpublished Government information. The review could consider an expansion of the thinking behind s15A of the current Act, to ensure applicants exhaust their other means of accessing Government information prior to using the more costly FOI route for access." 

3. DFAT clearly finds it tiresome dealing with requests when the applicant should know the application has no chance. DFAT notes "Applicants frequently lodge requests for documents which due to their nature must be largely exempted from release – for example, requests for documents which concern confidential conversations between the Australian Government and a foreign government."
(And anything that passes between us and a foreign government is automatically out of bounds. A document published on the DFAT Disclosure Log regarding communications with the US government concerning Julian Assange contains this advice to the FOI decision maker: "The starting position for deciding on FOI release is that all diplomatic exchanges are presumed to be in confidence, that their release would cause damage to our relationships, and that they should therefore be exempt. It remains true that our determinations are subject to judicial review in the Federal Court should an applicant wish to pursue that route. I'm advised by colleagues in Canberra that previous litigation on FOI matters has on occasion seen our arguments rejected when the underlying information has been deemed not to be sensitive." Hmm, there are a few things wrong with that including the starting point. The advice is also hardly in line with the Guidelines issued by the OAIC: "The expectation of damage to international relations must be reasonable in all the circumstances, having regard to the nature of the information; the circumstances in which it was communicated; and the nature and extent of the relationship.")

4.If a document can generally be categorised as exempt, agencies shouldn't have to worry about the fiddly bits. In cases of the kind mentioned in 3, DFAT said "(l)arge amounts of Departmental resources are expended in processing these requests, including in ensuring that the statutory obligations to exempt certain information from release are complied with. The result is, often, a set of almost blank pages, released to the FOI applicant.....
it is hard to see how there is value generated, in terms of the objectives of the FOI Act through consideration and release of very small portions of documents which are exempt virtually in full."
 
5. Putting it more bluntly than DFAT does, the department thinks the OAIC needs its head pulled in. Shades of Tom Brennan here: "..the OAIC has been given a range of functions whose compatibility is questionable. At a general level, DFAT observes that the OAIC has been given a mixture of adjudicative and advocacy roles in relation to FOI – in effect, combining the roles of ‘judge’ and ‘barrister’ into a single entity. Although this is not unique, DFAT submits that it nevertheless creates particular challenges in the context of FOI.

...
DFAT submits that this review of the FOI Act could consider one of two reforms to the current OAIC merits review process. Either (i) limit the scope of merits review to certain exemptions and charges issues, which can be judged on the basis of little or no evidence supplied by the agency, and allow other exemptions to be reviewed through the AAT or (ii) remove the merits review function altogether and use a system where the AAT, operating in an appropriate legal and evidentiary environment, is the next stage of appeal following internal review by the agency."

6. DFAT may be the only agency that wants Frank and Candid not only centre stage but with their names up in lights. In canvassing the adequacy of exemptions for example ".. DFAT submits that a consideration such as the necessity for the government to continue to obtain frank and fearless advice from agencies and from third parties who deal with government (such as other governments) could be usefully made explicit as a presumed public interest factor against release." More broadly let's list other factors as well: "if there is an inherent public interest factor against release contained within the terms of that conditional exemption (such as protection of privacy), this could be spelled out in the Act and could establish the bar which public interest factors in favour of release must clear before release is appropriate."

7. DFAT along with other agencies argues for a discretionary non-reviewable ceiling of 40 hours processing time for FOI requests. But it appears to be on it's own in suggesting the review consider steps to ensure everyone pays for access: "make clear the positive obligation on agencies to charge for the processing of (non-personal) FOI requests. Agencies could be compelled to charge for the processing of non-personal FOI requests unless an active decision is taken, with regard to the merits of a particular case, to reduce or waive those charges."

8. DFAT thinks getting rid of the 30 day time limit would be a good idea. Let's just give a quote and see how that goes. "A less burdensome system could be for agencies to provide a ‘quote’ regarding the time which it is expected that it will take to finalise an FOI matter, in much the same way as occurs currently for charges estimates. The time quote could have an upper limit of, say, 120 days. The basis for the quote would need to be notified to the applicant by the agency (for example, the agency could indicate that a matter is complex or voluminous, that it will require extensive consultation etc). This quote could be contested by applicants. Additionally, applicants could elect to refine the scope of their requests to reduce the applicable timeframe."

9. Even better: "The review could consider introducing a limit on the number of FOI requests for non-personal information which can be made by an individual to a given agency within a financial year. " 

You've got to love them!