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Wednesday, February 13, 2013

Parliamentary departments argue for FOI windback

Following on from the NZ government decision to reject a recommendation that the offices of the parliament should be subject to the Official Information Act regarding administrative matters, defined with a bit more detail than that, the parliamentary departments in Canberra in a joint submission to the Hawke review argue they should only be subject to the FOI act, if at all, in relation to documents containing matter of an administrative nature. 

They raise issues about the impact of FOI coverage and the institution and status of the parliament (decisions subject to review by the OAIC, tribunal and courts), privilege, and confidentiality. The Joint Committee on the Parliamentary Library and the Parliamentary Librarian have also raised concern in additional and separate submissions about coverage of the library, and the need for confidentiality when a member or senator seeks research assistance.

I don't know if the privilege and confidentiality arguments carry much weight-there are existing exemptions that would be relevant in any event. But if they do and given the narrow interpretation of "in relation to matters of an administrative nature" in the courts, a preferable approach would be to spell out in detail what is and isn't covered by the act as it applies to them. All the time making sure all payments to, for and on behalf of parliamentarians are  not just within scope but a publication requirement.

The issue was raised in Senate Estimates hearings this week. Extracts follow, for diehards.

As an aside to the main discussion about FOI coverage, Senator Faulkner in commenting about a Senate Committee report, said the Department of Parliamentary Services had been
"the worst administered department I had seen in all my time in parliament, and I have had plenty of experience on both sides of the table and dealt with plenty of what I think might be inadequate administrative practices. Nothing comes close to what we were facing in the Department of Parliamentary Services Yes, it has improved, and I think everyone on this side of the table is grateful for that, but there is still a very critical issue here about oversight and how we got to the situation that we did." 
All this predated last year's surprise development that the departments other than the Parliamentary Budget Office had been subject to the FOI act for years. Senator Faulkner is mainly talking about the apparent failure of the presiding officers and other accountabilty mechanisms. But it sounds like another strong argument for increased transparency and accountability, including via FOI on Capital Hill.

The Department of the Senate with the Clerk answering:
Senator RHIANNON: Dr Laing, in preparing the Hawke review submission about the FOI laws, did you examine jurisdictions under the Westminster system like Scotland, Wales, Northern Ireland and ascertain what they have learnt from their FOI experience? From what I can ascertain, the parliamentary departments are covered to no ill effect, and that has been in operation for a number of years.
Dr Laing : No, we did not; we considered our own circumstances.
Senator RHIANNON: So there wasn't consideration of other jurisdictions?
Dr Laing : Not in detail, no. We are aware that other jurisdiction are subject to FOI but whether they have that distinction between administrative documents of the department, which we have no issue with, and other documents which we hold which are effectively not ours but the parliament's is something we did not go into. We have different constitutional arrangements, and there is sometimes a limited analogy that you can draw.
Senator RHIANNON: I have heard on a number of occasions the commitment to comply with the law and point 8 in the submission states:
The committee— and that is referring to the Senate legal and constitutional affairs committee— recommended that the parliamentary departments should be encouraged to act as if the legislation did apply to them. Is that the case of how you operate?
Dr Laing : Yes, and of course at the moment we are technically subject to the FOI Act and we are complying. But on those occasions in the past when we have received requests purportedly pursuant to the FOI Act, we have responded. They have not been numerous, but over the years we have reported on them in our annual reports and given some details of the occasional request and how we have responded.
Senator RHIANNON: If you already comply with the spirit of the legislation, why would it be untenable to comply with the law as occurs in other jurisdictions?
Dr Laing : Because in our jurisdiction there is no distinction made in the FOI Act as we appear to be covered at the moment between documents of the department and documents of the parliament. Documents of the parliament are not ours to release. It is not an area you would want an officer of the executive, the Information Commissioner, to be getting involved in issues of parliamentary privilege.
For example, if you are dealing with unpublished correspondence with a Senate committee, that is clearly a proceeding in parliament; yet the documents are on files that we create and we maintain as departmental officers but they are for the purposes of a parliamentary committee. I think it is important to recognise the separation between those kinds of documents and the ordinary administrative documents that we hold as the department in common with most other departments. If I were asked to release documents of that nature—committee correspondence—that is not a decision that I can make; it is a decision for the committee, because the correspondence belongs to the committee and only the committee has the authority under the standing orders to publish that material.
Senator RHIANNON: In response to the earlier question about other jurisdictions: are you saying that that is different from how the British parliament works?
Dr Laing : I do not know how the British parliament works, because the British parliament has different constitutional arrangements to us.
Senator RHIANNON: I thought that was relevant here because FOI laws apply to them. Just staying with this, considering again your strong commitment to comply with the law, clearly challenging situations will arise. But there are exemptions that cover that, so wouldn't that deal with some of the situations that you have just outlined? If you are in a situation where you felt the exemptions did not cover it, wouldn't you then be in a situation where you could then withhold and not respond to the application? That could then trigger a ruling, so you are not the one making the decision but the decision to clarify this important aspect is then developed?
Dr Laing : Potentially, yes. But then you also potentially have a situation when you are inviting a place outside parliament—a court or a tribunal—to question or impeach proceedings of parliament. It is a catch-22. It does not work as it is currently framed.
Senator RHIANNON: When you say it does not work, you—
Dr Laing : There are potential difficulties.
Senator RHIANNON: And you do not see what I have just outlined about the current exemptions. If you are not satisfied with them you withhold the application and get a ruling: you do not see that that is a way to work. What we are trying to do here is deal with the issue of transparency.
Dr Laing : Yes. It may be that the current exemption would cover it. This is quite hypothetical because we have not had any applications that trespass on this area. The current exemption in the FOI Act which touches on parliamentary privilege is terribly, terribly framed. It is very unclear; it needs some work.
Senator RHIANNON: I notice that from the Kline case in the Federal Court the definition of the administrative nature ends up being very narrow, does it not? I would be interested in your interpretation. Documents supporting, assisting, facilitating or implementing the functions of the Governor-General are beyond the reach of the FOI. Do you see that as a fairly narrow interpretation?
Dr Laing : I have not examined the judgement in detail but under the FOI Act the Office of the Governor-General is specifically covered for administrative documents and not the other documents that go to the support of the Governor-General and her role as representative of the Crown, just as courts have that distinction between administrative documents and documents related to the administration of justice. What I am saying here is that the parliament does not, and should, have that recognition. It would be on the same footing as the Office of the Governor-General and the courts, and would be constitutionally appropriate.
Senator RHIANNON: Going back to how some of the work of the department has been developed here, could you outline any response that the Office of the Australian Information Commissioner provided to you on some of the rationale you have set out arguing coverage for matters of an administrative nature?
Dr Laing : I do not think we have had any response from the Information Commissioner?
Senator RHIANNON: So there was no interaction thereof? There was nothing; no advice from them?
Mr Hallett : We are advised of certain technical issues by the Office of the Australian Information Commissioner, not the Information Commissioner himself, about things like statistics and so on. I looked quickly at the Information Commissioner's submission to the Hawke inquiry and, from memory, I do not think it touched on our submission, which had already been provided.
Senator RHIANNON: In your submission, you noted correspondence between department heads and the Freedom of Information Commissioner, Dr James Popple, in the period before the May 2012 guidelines were issued, stating that the departments were covered. Can you table this correspondence?
Dr Laing : Yes, certainly, we can provide that. I do not have it with me now.
Senator RHIANNON: It can be tabled?
Dr Laing : Yes.
Senator RHIANNON: Have you had discussions with the Attorney-General's Department about plans to amend FOI laws in the near future to exclude departments from FOI?
Dr Laing : No, we have not. The Hawke review is examining various issues with a view to perhaps look at amendments in the future, but we have not had discussions with Attorney-General's.
Senator RHIANNON: There have not been any formal or informal discussions with the department?
Dr Laing : I think the Hawke review is ongoing. It will report quite soon.
Senator RHIANNON: Yes, I am interested, but from the Hawke review?
Mr Hallett : Can I check the file? We will take it on notice. I am pretty sure the answer is no but we will just check the file.
Senator RHIANNON: Would you reconsider your position considering Professor McMillan's proposal to the Hawke review that research and advice to MPs by the Parliamentary Library be subject to an exemption?
Dr Laing : I did not quite follow the question.
Senator RHIANNON: Considering what your position is—and I understand Professor McMillan has proposed to the Hawke review that research and advice to MPs by the Parliamentary Library be subject to an exemption—if that exemption was there would that help us bring these departments under FOI?
Mr Hallett : I think if you look at the submission from the Parliamentary Librarian—because it is obviously a matter for the librarian—she was concerned about a possible anomaly in the law. The library has a confidentiality clause but you also have the FOI Act coming in another direction. So I think that is probably best left for the librarian. She was concerned with the anomaly.
Senator RHIANNON: Are you saying it is best just to direct at question to them, not to you?
Mr Hallett : I would suggest so, yes.

 Department of Parliamentary Services with questions fielded by the Parliamentary Librarian Dr Heriot and Departmental Secretary Carol Mills:
Senator RHIANNON: Dr Heriot, on 11 January I received a letter I imagine went to all MPs which was very helpful in terms of you explaining the challenges of the FOI Act and how you are meeting them.
Dr Heriot : Yes, it was to all members and senators.
Senator RHIANNON: Thank you for that. I noted that Professor McMillan on page 62 of his submission makes a recommendation with regard to the library:
Consideration should be given to the possible need for a similar exemption for research/advice to Members of Parliament provided by the Parliamentary Library.
He is making the comparison there to the PBO. I was interested in whether you have considered that and whether you thought that that recommendation should be adopted.
Dr Heriot : I in fact made a submission to the current review of the FOI Act where I drew attention to the similarity in some respects between the roles of the PBO and the Parliamentary Library. I recommended that there be provision in the act that would exempt confidential client advisers from the operation of the FOI Act and suggested that the PBO might be one model. Another model might be to take an arrangement analogous to that applying for the courts, whereby the library would be exempt for matters relating to client advices but subject to FOI for matters relating to administrative arrangements. I should also note, in the interest of a full answer, that the chairs of the Joint Standing Committee on the Parliamentary Library made a submission to the Hawke review, urging exemption for library confidential advices to members and senators.
Senator RHIANNON: So is it correct to take from that that you are saying that, if those exemptions were in place, the law would be appropriate to be applied to the library?
Dr Heriot : The impetus for my submissions and my letter was that, when parliament turned its mind to the operation of the library, it clearly was of the view, in enacting amendments to the Parliamentary Service Act in 2005, that the client advices that the librarian provides are confidential. I have a degree of complication there when the FOI Act does not explicitly recognise that and I am not able to say with certainty that under the FOI Act all advices will be treated as confidential. That is my concern.
Senator RHIANNON: So even with the exemption that concern remains?
Dr Heriot : Sorry; I was unclear. If there were an explicit exemption around client advices, that would be fine.
Senator RHIANNON: That would resolve that issue?
Dr Heriot : Yes. I am sorry if I was unclear.
Senator RHIANNON: Thank you. Have you or anybody in your section been in discussions with the Attorney-General's Department about possible FOI legislation and your suggestions in this area?
Dr Heriot : I have had some contact with the Attorney-General's Department but only in its capacity as providing support to the review. That was about the technicality of making a submission. I have spoken to Dr Hawke, but I have not had discussions with Attorney-General's regarding legislation.
Senator RHIANNON: Thank you. Ms Mills, have you been involved in these FOI issues?
Ms Mills : Yes, I have.
Senator RHIANNON: Has that involved discussions with the Attorney-General's Department?
Ms Mills : No, it was only in the same context as the librarian just indicated. I was co-signatory to a parliamentary department submission and have met with the people doing the inquiry to expand on our views as a joint session.
Senator RHIANNON: To stay with the library for a moment: is expanding on the views looking to resolving whether, if that exemption were in place, the law would be appropriate? We are dealing here with an act that has been in place for 30 years and obviously have some problems.
Ms Mills : Yes. My position for the Department of Parliamentary Services is that we strongly support transparent government and support the concepts of right to know and freedom of information. There are two areas that we identified within our portfolio. A number of those issues were discussed with, I believe, the Department of the Senate this morning regarding certain parts of parliamentary proceedings. I think there is some consistency in that issue with those of the library in terms of the ability to provide independent advice and advice that is not seen under the same umbrella as general administrative matters. One other area of my department where I did raise some concerns is that some of the operations of this department have dealings with issues that potentially, if they were public knowledge, might jeopardise the department's ability to perform its functions specifically in the area of security. Given that it is such a major issue for us in terms of our responsibility for ICT, physical security of this building and support for parliament, there may sometimes be the need not to reveal some of that information.
Senator RHIANNON: Wouldn't the concerns that you just raised about security be covered by the present exemptions?
Ms Mills : I have asked as part of the review to ensure that that is the case.
Senator RHIANNON: We are hearing that this is this strong commitment to comply with the law.
Ms Mills : Yes, absolutely.
Senator RHIANNON: People under you are aware of that?
Ms Mills : Yes. Since the decision was made—and we have effectively been an organisation that is subject to FOI since year—we have made every endeavour to respond in a timely and appropriate manner to requests that have come forward. Perhaps one of the areas of greyness for the department is that of information, particularly regarding the content of emails, sent between people who use the computer network. It has been our position that we are controllers of the network but not necessarily of the content; so, if somebody has requested an email between, for example, you and Senator Faulkner, we have seen that as a matter outside the scope of our responsibility even though we control the network upon which you have conducted that exchange.
Senator RHIANNON: We have this challenging situation in this era and a general commitment to greater transparency that I certainly believe everybody has. So much of the technology has moved extraordinarily fast. We are hearing this very clear commitment to complying with the law. In that case, wouldn't it be clearer to change the law?
You have the exemptions there. You can use those exemptions. We now have the recommendations from the Library—that seems to be clearing up that area. If you enter one of these grey areas then you could withhold the application until the ruling can be made to clarify it. Surely we need to be shrinking the grey area. Is that not part of the objective here?
Ms Mills : Yes, that is one of the ways to do it. The reason we suggested our concern in the Library situation was that if people were unsure as to whether their request would be released, that might prevent them from seeking that information in the first place. Again, if I think of something like security, if it were to be released on a case by case basis that might make us overly cautious in the way in which we maintained material. I do not think you want a perverse outcome where that area of concern remains grey. I will be interested in the views of the FOI inquiry on whether that can be done through an exemption or case by case
Senator RYAN: I will follow up on some of the questions that Senator Rhiannon was pursuing. What is your view about emails between Library staff about requests from members of parliament.
Dr Heriot : I would regard those as being part of the preparation of a request. So, I would consider the original request, the internal processing and the final product as all of that.
Senator RYAN: Did you seek legal advice about the letter you sent or about the position that you believe the Library finds itself in at the moment?
Dr Heriot : I did not seek formal legal advice. I spoke to the lawyers we have on staff, noting the difference, and—
Senator RYAN: As in Library staff?
Dr Heriot : They are Library staff who are lawyers, yes. I also had a brief conversation with Professor McMillan before writing to him.
Senator RYAN: Have you had any complaints at all regarding the letter—feedback, comment?
Dr Heriot : I have had one letter saying, 'Thank you for your letter and letting us know'. I have had a conversation with someone else who said, 'Thank you for letting me know.' Sorry, I am not sure whether you mean complaints about my letter or complaints about the situation?
Senator RYAN: About the situation, sorry. I would not expect there would be complaints about the letter.
Dr Heriot : I have had a couple of people say, effectively, 'This is unfortunate' but I suspect I would not be the right person to get a complaint since the remedy is not within my keeping.
Senator RYAN: Have you advised Library staff of any change in procedures that flows from your assessment of the situation?
Dr Heriot : I have certainly advised directors and Library staff of the situation. From the Library's point of view, I can see no need for a change of procedures because we already treat the material as confidential. The issue, if we got a request, then would be to do the document review but we would still need to have the same processes for handling at our end.

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