Ministers and "engagement" in the FOI process

The release of guidelines in Queensland about reporting to and briefing the minister and senior officials on information access applications sets a new standard in transparency about such things.

In all jurisdictions these aspects of the Freedom of information /Right to information process aren't discernible to those on the outside generally, or in a particular instance.

However recent glimpses of what happens or may happen in two major Federal agencies, Prime Minister and Cabinet and Immigration, raise questions about the extent to which senior officer and ministerial involvement and influence could be, or is brought to bear on the decision maker. Both would likely fail to meet the Queensland standard. 

The PM&C FOI Milestones document recently released to a Righttoknow FOI applicant Mr G King, outlines procedural steps that ensure many eyes are looking for "sensitivities" in requested documents and that the Prime Minister's Office and the Secretary of the Department have plenty of opportunity to comment before a final decision is taken.

With offence provisions in the law to reinforce independent decision making (replicated in NSW and Tasmania) now supported by guidelines regarding ministerial and senior officer engagement in the process, Queensland is well ahead of the rest. The Commonwealth lags on both fronts. (Dr Hawke?)

Queensland guidance
 The Acting Information Commissioner has published Protocols for reporting to ministers and senior executives on Right to Information and Information privacy matters.

The protocols are performance standards under s 131 of the RTI act and take effect from 15 April 2013. 

The goal of the model protocols is to balance the need to protect the integrity of RTI and IP decisions and individuals’ privacy with the need for appropriate reporting to Ministers and senior executives.

The protocols provide that ministers and heads of departments may establish reporting systems regarding access applications received by an agency. However the circumstances where briefing is required should be limited to where "this is relevant to the minister's responsibilities," and generally, where the giving of access to information requested "will require the minister or Department to prepare for public debate." 

According to the protocols, systems for reporting to the minister and the director general, where they exist, should be documented in a written policy, the policy must be made available for inspection under s 20 of the RTI act, and in the interests of transparency should be published on the Department’s website.

Importantly

The written policy and any related correspondence should make it clear that the reports are for information only and note the offences relating to giving direction in the RTI and IP Acts.

Provisions in those acts make it an offence to direct a person to make a decision that the person believes should not be made, or to direct an employee, officer or minister to act in a way contrary to the legislative requirements.

No-one is holding their breath waiting for a prosecution in Queensland, NSW or Tasmania. However the existence of these provisions helps stiffen the backbone of public service decision makers mindful of their duty to make the correct and proper decision in accordance with the law. And certainly to make a distinction between " inputs" and more strongly expressed opinions.

Ministerial dabbling
The extent of ministerial and ministerial staff involvement in agency decision making is largely unknown but the subject of much speculation throughout our 30 year FOI history. Not just by conspiracy theorists.

Successive governments in Victoria have maintained a procedure requiring a contentious decision to be submitted to the minister's office five days before release to the applicant "for noting." Some examples of intervention that went beyond "noting" were mentioned in this parliamentary debate last year.

In 2009 the NSW Ombudsman discovered the RTA routinely engaged with the minister's office on FOI decisions. Then roads minister Eric Roozendaal is one of those former ministers attracting the interest of the ICAC these days. I know of other agencies from personal experience back then where this was the routine.

The Canberra scene
In Canberra the professionalism and integrity of the public service has always been cited as the assurance for good agency decision making. This may deliver in many cases.

A holdover from another era that may cut in here is s 23 of the Commonwealth act. The section authorises "the responsible minister" among others to make a decision on an access application for an agency's document. There is a similar provision in the Victorian act. 

No-one mentions s 23 much if at all but some of the back and forward between an agency and a minister's office may have become an entrenched routine over time because in theory at least a minister could decide to exercise decision making powers in any instance. (There may of course be the more straightforward explanation.)

Elsewhere a clearcut distinction is made in the legislation between authority to make a decision on access to a minister's document (the minister) and on a request for an agency document (an authorised agency decision maker).  Dr Hawke should recommend clearing this up as well.

PM&C
The PM&C document  released in response to Mr King's request sets out FOI processing milestones for dealing with an application.

I'm sure PM&C receives requests that move the finger towards the "raise the moat" button pretty quickly but the process described not only raises questions about inputs that may influence decisions and who in fact makes the decision, but also questions regarding efficiency and cost.  It's quite a process.

There is little sign of recognition that the default position is disclosure, or of the hoped for culture change thought to be underway over the last two years.

The relevant milestones are:

 1.  Every FOI request received is to be notified by email to:

The Secretary of the Department of Prime Minister and Cabinet,
The Prime Minister's Office (Adviser on FOI)
The First Assistant Secretary (relevant line area)
The identified decision maker
Relevant contacts as identified by A&AR (eg FAS, Cabinet Division.

The email notification provides, among other things "an opportunity for the Secretary and PMO to indicate their interest in being engaged in consultations."

2. As the process rolls on, "all internal parties (the Secretary, PM&C line areas, PMO, other ministerial offices in the portfolio) are consulted as appropriate. The Deputy Secretary and FAS of the line area should be kept consistently informed of all sensitivities."

3. As documents are gathered for decision "the decision maker must consider whether a brief on documents being considered for potential release should be provided to the Secretary to allow him an opportunity to provide comments or insights, prior to a decision being finalised." 

4. As the decision maker forms a clear view on information to be released, a number of further consultation steps are required including with the Secretary "if appropriate," and with the PMO which "should be given three days to provide final comment." 

5. "Three days before release, the decision maker should send a copy of the decision letter and documents for release to the Secretary with a noting brief advising of consultations and any sensitivities and email copies to the relevant Deputy Secretary, First Assistant secretary and PMO contact/s. If the Secretary hasn't been consulted previously and needs more time to review the documents it may be necessary to negotiate a brief extension of time with the applicant."

If someone down the line is the authorised decision maker we take it on trust that the insights, comments and sensitivities raised by those on-high don't lead him or her to deviate from making the correct and proper decision in accordance with the law.

On a related point has anyone seen a notice setting out the reasons for decision that says "In making this decision X  has had regard to the views of the Secretary, Deputy Secretary, and the Minister...."?

The Cornall Report on Immigration FOi processing revealed that similar to the situation in Victoria, five days notice of decisions on access to non-personal documents is given to the minister's office. The Australian Information Commissioner noted that DIAC advise that this is a "heads up' process so that the Minister's office can understand the nature of the documents intended to be released and comment can be given" (emphasis added.)

Both PM&C and Immigration systems would likely fail the Queensland Protocols test.