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Monday, March 18, 2013

Australian Information Commissioner on the job

Final decisions on Freedom of Information review applications have been pouring out of the Office of Australian Information Commissioner, relatively speaking. In 2012 the OAIC published 35 decisions. In the first two months this year (to 8 march) it published 20. 

Internal audit reports
A decision of particular interest, and wide import is Besser and Department of Infrastructure and Transport [2013] AICmr 19 concerning an application for 10 internal audit reports for the financial years 2007–08, 2008–09 and 2009–10. 

The Department had granted access to the Executive Summary in each case, including the background, scope of the audit, objective, summary of results and management's response. The remainder were claimed exempt as deliberative documents (s 47C) and documents, the disclosure of which would, or could reasonably be expected to, prejudice or have a substantial adverse effect on its operations (ss 47E(a), (b) and (d)).

With regard to the deliberative documents claim [10-16] Acting Information Commissioner Pironi decided internal audit reports in their final form are by definition not documents of this kind. While a final internal audit report "may be part of an ongoing process of assessing compliance within Australian Government agencies, each individual audit report is itself final and reflects the state of an agency's practices and processes at a particular point in time[14]. 

On the other claims the Acting Commissioner accepted that the disclosure of the sampling methodology used in three of the reports that had not already been disclosed in the summary released, would, or could reasonably be expected to, prejudice the effectiveness of sampling methods used by the Department when undertaking future internal audits. Disclosure of this information would on balance be contrary to the public interest.

No go for Frank and Candid
As to the rest, Acting Commissioner Peroni was not persuaded that the adverse effects claimed would eventuate, and wasn't impressed even by Frank and Candid. The Institute of Internal Auditors won't be pleased.
  1. The Department also relied on s 47E(d) in its decision on the basis that ‘line areas being investigated in audits would not be as candid and forthright in the provision of information to the auditors'.
  2. The (OAIC) Guidelines provide that:
    [t]he predicted effect must bear on the agency's ‘proper and efficient' operations, that is, the agency is undertaking its expected activities in an expected manner. Where disclosure of the documents reveals unlawful activities or inefficiencies, this element of the conditional exemption will not be met and the public interest factors of accountability and transparency are further weighted towards disclosure.[6]
  3. As the applicant noted, the Department should not be dependent on the good will of its staff when undertaking audits. In fact, I would consider it an obligation of APS employees to assist their employer in relation to audits being conducted into the agencies activities in accordance with the APS Values and Code of Conduct.
  4. I am not satisfied that it would, or could, reasonably be expected that, given the release of the executive summaries, the disclosure of the remainder of the reports would result in the outcome claimed by the Department.
  5. In my view, the disclosure of the documents the subject of this IC review cannot reasonably be expected to have a substantial adverse effect on the proper and efficient conduct of the operations of the Department. 
OAIC pressure brought to bear
On an FOI matter that didn't get to a final OAIC decision but in which it apparently played a key role, Linton Besser and Deborah Snow in Fairfax Media on Saturday wrote about the results of a two year battle over access to reports by the Internal Affairs branch of the Customs and Border Protection Service. They reported that Customs, as a result of a year of pressure by the Information Commissioner and the Herald, had released thousands of individual records created by its professional standards staff investigating 930 cases. The documents expose "a stunning range of misconduct and laid bare the scale of the corruption threat facing Customs."

The FOI story of a long drawn out process will sound familiar to many, but Besser and Snow acknowledge the key role played by the OAIC in making these disclosures happen.  But there's no getting away from the fact that two years is a long time to wait. Another illustration that we don't have the incentives and disincentives in place to get the right decision made promptly by the agency first up.

Detail here.
"The Herald's original 2011 Freedom of Information application explained it was seeking ''material compiled by Customs' Integrity and Professional Standards Branch which examines cases of fraud, corruption or other serious cases of non-compliance or breaches of protocol by Customs employees and its contractors and consultants''. By May 2011 the Herald lodged an appeal to the then newly-created Australian Information Commissioner, reporting that the agency had failed to make its decision within the statutory timeframe. Suddenly, a month later, Customs released 189 pages of A3-sized spreadsheets created as a kind of work logbook. But every one of 11 columns was blacked out with the exception of the case file number and a general description of the offence being investigated (''Bribery and corruption'', ''prohibited import'' or ''fraud offence'' etc).
Donna Storen, the then national manager of Integrity and Professional Standards, wrote that every other column - including the description of the offence and the actions taken by Customs as a result - contained information not fit for public consumption.
Its release was not in the public interest because it might create ''real risks to the integrity of Customs and Border Protection'' and ''would have a substantial adverse effect on [its] operations''. It would prejudice future investigations, it would not promote scrutiny of government decision-making and ''would be of interest to a very narrow section of the public''.
But after more than a year of pressure by the Information Commissioner and the Herald, Customs arrived last month at a very different decision.
The documents were still very much redacted. Names and the identities of other agencies such the police or ASIO were redacted. Some information was still excluded because it would ''cause damage to the Commonwealth's international relations''.
But otherwise, under the watch of an independent arbitrator, previous concerns evaporated and the rich detail of more than 900 internal affairs inquiries was laid bare."

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