Secrecy laws remain sitting uneasily with open and accountable government

Here is what you are entitled to know about work undertaken in the three years since the Australian Law Reform Commission completed a report on Secrecy laws and open government:

                        (This space intentionally left blank.)

The report, tabled in March 2010 identified 506 secrecy provisions in 176 pieces of legislation, including 358 distinct criminal offences and made 61 recommendations for reform. In publishing the report the commission observed:

Secrecy laws that impose obligations of confidentiality on individuals handling government information—and the prosecution of public servants for the unauthorised disclosure of such information—can sit uneasily with the Australian Government’s commitment to open and accountable government. Secrecy laws have also drawn sustained criticism on the basis that they unreasonably interfere with the right to freedom of expression.

Ah yes, amen to that. 

But my Freedom of Information application to the Attorney General's Department for a copy of the most recent summary of the work undertaken or still remaining to be completed on a response to the report was knocked back. 

Today ditto, on internal review for the same reasons as spelled out (well in a fashion) in this Notice of determination, apparently because the document contains deliberative matter and these considerations tip the balance in favour of non -disclosure. I quote:

• "whether it is contrary to the public interest to disclose draft material that has not gone before the relevant minister (or ministers) and does not reflect the government's settled policy (or even a settled view within an agency) and would have cross-portfolio implications if released

• whether it is contrary to the public interest to provide the public with a factually incorrect sense of direction that an agency (and the Government) is taking on matters of criminal law, where the material in question uses strong language that would suggest it is the Government's final settled position when it is not

• whether an agency could effectively discharge its responsibilities if material prepared for internal consultation and consideration was released prematurely  and damaged  the relationship between an agency and the Government and

•  whether it is contrary to the public interest to disclose material that would inhibit policy officers  from considering (and documenting) a full range of draft responses to ALRC recommendations."

You won't be surprised - I'll invite the Office of Australian Information Commissioner to give  the decision the once over.

As to the broader issue of what it says about priorities that the document is a minute to the Secretary dated 24 August 2012, is said to contain thinking of the kind not put to the minister in the previous two and a half years, and that there has been no document created along these lines in the year since...

I'll leave you to your own conclusions.

OGP urges aspirants to greater ambition

As we await news from the Attorney General on how Australia intends to approach the task of preparing a national action plan to present as part of its application to join the Open Government Partnership, probably at a meeting in March 2014, the message from the recent Steering Committee meeting in London is that the focus in such plans needs to move beyond ‘business as usual’ commitments to more ambitious action plans and civil society engagement.

The meeting endorsed a sub-committee report that the second round of national action plans (that includes us) "should clearly demonstrate how commitments are advancing open government in scope and/or in time frame. Governments should also move beyond traditional civil society consultation models, towards on going meaningful dialogue on policy commitments and implementation of action plans."


The minutes of the meeting are here Jul2013SC_MeetingMinutes_Final.pdf
   
Apart from important matters concerning governance and finances, other items of interest include:

• conversations are underway with four multilateral partners (OECD, World Bank, IDB and UNDP) concerning areas of potential collaboration.

• and somewhere out there is a newly formed OGP Media Council."The Council, which is comprised of high profile journalists from all regions will provide expert guidance on how OGP can better partner with the media to promote our shared objective of more open and accessible government. To inform a white paper that the Media Council will produce, Richard (Sambrook former Director of Global News for BBC) is collecting input from more than 200 journalists and media leaders from around the world.The Media Council will present some initial recommendations to OGP in late July or early August and will organize a session at the October Summit to discuss the white paper."

Wonder whether any Australian journalists and media leaders feature in the 200? 

Australia's intention to join the OGP has hardly rated a mention in the mainstream so far, so any stirring interest would be welcome.

Australia's Right to Know, the coalition of major media organisations, impressively led the backlash over excessive secrecy in 2007-2008 but has rarely surfaced since. The last posted entry on its website is October 2009 and the contact person listed left in 2012 to work for the Leader of the Opposition.

Update: Toby McIntosh has this fuller summary of the Steering Committee minutes.

Privacy and security-Sydney next week

Late notice - mea culpa - but the iapANZ has this event on Privacy and Security organised for Sydney on 31 July- worth a visit if you can make it.

Argy bargy over "Minister's documents" subject to FOI

Darting and weaving about what documents held by a minister are subject to freedom of information legislation is not new and has been an issue in recent times in Canberra and Melbourne. 

And in Perth this week as reported by Daniel Emerson in The West Australian

Transport Minister Troy Buswell has kept hidden a second tranche of Government correspondence on its rail projects after arguing they were promises of the Cabinet and the Liberal Party at the same time....The West Australian sought access to all correspondence to and from Mr Buswell relating to MAX light rail, the airport line and Federal funding between January 26 and the election on March 9. A similar request to Premier Colin Barnett's department was denied this month after it argued the documents were created for the Liberal Party - not the Government. In his response this week, Mr Buswell confirmed for the first time that reams of documents matching the description did exist. But he used the same justification as the Department of Premier and Cabinet to withhold 94 emails and attachments between his Treasury and Transport ministerial offices, Mr Barnett's office and the Liberal Party of WA. "Whilst the documents may deal with matters within the functions of another agency, they do not concern the business or operations of that agency as they relate to election commitments rather than Government decisions," Mr Buswell wrote.

Without seeing the determination, this would seem to revolve around definitions of document subject to the WA Freedom of Information Act. 

Whereas in the case of an agency. possession or control of the document is the defining issue, where the agency is a Minister

 (2).. "a reference to a document of an agency is a reference to a document that (a) is in the possession or under the control of the Minister in the Minister’s official capacity; and (b) relates to the affairs of another agency (not being another Minister),and includes a document to which the Minister is entitled to access and a document in the possession or under the control of a member of the staff of the Minister as such a member, but does not include a document of an agency for which the Minister is responsible. 

It's generally in line with most FOI acts around the country although (b) is a bit strange and unusual. 

But the basis for application of this and most other FOI acts only to a minster's document if it relates to the affairs of an(y) agency leaves too many gaps. 

As observed previously argument and uncertainty on this important question would be less if something along the lines of the NSW GIPA act formula was adopted elsewhere (emphasis added):

A reference in this Act to government information held by an agency is, when the agency is a Minister, a reference to government information held by the Minister in the course of the exercise of official functions in, or for any official purpose of, or for the official use of, the office of Minister of the Crown.

Even this could be further improved to deliver real accountability. 

How do we rate?

Separovic Lawyers in Perth tell me Open and Shut has been selected in the Top Ten Legal Bloggers in Australia. It's a nice thought, and I wouldn't but others might suggest they have already achieved one aspect of what they had in mind by me telling you so. 

However if you are even slightly inclined to a positive reaction to anything you have ever read here, or on the other hand simply wouldn't have a clue, a vote for best at the bottom of this page would see me puff the chest a millimetre or so.

On the other hand, sob, it won't be the end of the world if you pass this wonderful opportunity by.

Queensland facing a "no reasons" for RTI refusal future?

Just a couple of weeks before Premier Newman announced he was taking further steps to advance the government's claim to be the most open and transparent government in the nation, the Queensland Government (pdf) accepted in principle this recommendation from the Callinan Review of the Crime and Misconduct Commission:

that an agency not be required for nine months (unless ordered by a court to do so) to provide reasons for any decision to refuse access to a document sought under the Right to Information Act. 

There was just a hint in the statement of a pause for serious consideration of the ramifications:

The proposed amendment raises a number of important and complex matters requiring further and ongoing discussion with departments and agencies including the Office of the Information Commissioner. The Implementation Panel will provide advice about how the intention of the recommendation can best be achieved.

The recommendation accepted in principle extends to the Ombudsman as well. 

It seems a ridiculously wide and broad remedy to what Callinan saw as a fundamental problem to be overcome at all costs, the risk of disclosure of anything that might reveal information about the existence, content or subject of a current misconduct complaint or investigation.

However abolishing reasons for decision for all RTI decisions takes simplification of the system referred to by the Premier last week, way too far.
 
As I said when the Callinan report was released:

For mine, the case for the recommendation that no reasons should be given in any RTI case isn't well argued; the report doesn't consider less radical alternatives; and the recommendation if accepted would turn on its head the general well established principle that an administrative decision-maker has an obligation to give reasons. It would mean that public servants have to be taken at their word that there are good reasons for refusal of access which can't be scrutinised or effectively challenged for nine months, unless through Supreme Court proceedings. The blunderbuss should be put back on the shelf, replaced by something more suited to polishing rather than blasting the existing RTI framework, where this is necessary. Quite apart from reasons being more than an RTI issue through a general requirement in the Queensland Judiciary Act, the Queensland Ombudsman's Good Decisions Guide (pdf) (page 10) advocates "giving reasons is good administrative practice in that it promotes fairness, transparency and accountability in decision-making."

Reasons are particularly important when refusal of access to government information is concerned.
  

The Chair of the Parliamentary Crime and Misconduct Committee in a letter  (pdf) to the Attorney General weighed in on this and other matters just prior to the government response, stating the Committee did not support the recommendation:

Firstly, the Panel put forward no empirical basis for selecting the nine month timeframe. Secondly, the recommendation will result in a disproportionate negative effect upon applicants who apply for information under the

Right to Information Act 2009 or make a complaint under the Ombudsman Act 2009 regardless of whether their application or complaint relates to a complaint before the CMC.There needs to be a balance between the public interest in protecting the privacy of those persons subject to a complaint to the CMC and the public interest of complainants to the Ombudsman or applicants under the Right to Information Act receiving reasons for the decisions of those agencies

This recommendation may impact upon the rights of those individuals to appeal against such decisions, or may negatively impact upon other matters relating to that individual in relation to the information they seek. This recommendation will also likely increase the workload of the Office of the Information Commissioner and the Ombudsman’s Office in dealing with complaints about refusal to provide reasons for their decisions. The Committee respectfully suggests that the Legal Affairs and Community Safety Committee may be able to provide more information on this issue given its oversight responsibilities for the Ombudsman and the Information Commissioner.

Integrity in government-up for discussion in Queensland

Queensland Premier Campbell Newman announced last week that an Open Government Policy Forum (to be held in Brisbane on 13 August) would "spark ideas about simplifying Queensland’s integrity system while maintaining real accountability."  

The forum the Premier said, is "the next step in making (the) government the most open and transparent in the nation":

“We’ve decided to hold the forum because of concerns raised in the independent Review of the CMC Act and Related Matters, which found the three fundamental and very simple elements of honesty, fairness and openness were lost in an overly complicated system,” Mr Newman said.“It’s pretty clear there is something wrong with the state’s integrity framework when most people, including a High Court Judge and a leading Professor of constitutional law and governance, think it is overly-complicated and confusing. “We want to make government processes clear, straightforward and accountable and we want to know about any gaps in our integrity and accountability framework.“We are already giving people regular progress reports on our plans, making government data publicly available on line, releasing Minister’s diaries on a monthly basis and once again, we’ve made lying to the Parliament illegal.“Our reforms have made the Queensland Government the most transparent, open and accountable in the state’s history – but we want to make it even better.

The "most open and transparent" claim raises issues of criteria, measurement  and comparison that have had little or no attention here to date. In a submission to the Hawke review academics Brett, Henman, Lidberg and Snell indicated they were seeking a grant for a study into whether FOI regimes have delivered on promises to promote open government.

But even though RTI in Queensland incorporates the push and pull dimensions of open and transparent government, the Premier is raising a broader issue by throwing accountability and integrity into the mix.
--

The Premier rightly can cite Queensland positives such as proactive publication on Open Data, and a national first, the release of minister's appointment diaries. He could have added other pluses such as the publication of selected information about cabinet decisions that puts Queensland (and the ACT) way ahead of other jurisdictions. And uniquely, the disclosure of some lobbying contacts. 

The Newman government of course inherited the Public Interest Disclosure Act 2010, welcomed at the time as world class, and the Right to Information Act 2009, where Queensland led the Australian FOI reform mini-wave. The RTI act however has plenty of gaps, holes and areas for improvement. Beyond the confines of RTI, I'm assuming Queensland is enthusiastic about Australia embracing on the home front the disclosure standards set by the Extractive Industries Transparency Initiative.

A legislated integrity, open government and accountability framework in line with best practice international standards is a good first step, and Queensland still has a way to go to get there. Full and enthusiastic, properly resourced implementation is another matter.

In passing, it's worth noting that Queensland has had an acting information commissioner for a year, and the effect of wide-ranging resource cuts on information publication and access, and where things stand on the culture change front are two of many unknowns.

Then there are outcomes and results? And the relevant criteria, indicators and measures? Who collects, analyses and publishes the data?  Who leads and pushes for continuous improvement?

There is a lively international discussion about these issues, certain to become more visible  as Australia moves towards membership of the Open Government Partnership.

A discussion in Brisbane on 13 August about simplifying and enhancing Queensland's integrity system while maintaining real accountability could provide a spark.

Integity in Government-cancelled

I'm sure the reason is genuine but there is something wonderfully ironic in this announcement about the Dreyfus-Brandis-Milne pre-election forum:

A Message from Transparency International Australia:

UNAVOIDABLE CANCELLATION OF INTEGRITY IN GOVERNMENT PRE-ELECTION FORUM

We wish to advise that the Integrity in Government Pre-Election Forum to be held on Tuesday 23 July will not take place.

Attorney-General Dreyfus has been called to a Cabinet Meeting to be held that day and has therefore indicated he is now unavailable to participate in the forum.

To date, we have been unsuccessful in establishing a date to reschedule the event.

We regret any inconvenience that this may have caused.

If we succeed in securing another date at which the main speakers are able to attend we will advise you immediately.

Michael Ahrens
Chief Executive
TI Australia

Australians for the Open Government Partnership

A number of us taking a close interest in Australian involvement in the OGP have started a list for the exchange of information and ideas that might assist in the anticipated government-civil society collaboration to develop a National Action Plan. 

Others from non-government groups, and individuals who have an interest and commitment to open, transparent government may wish to join in.

The group has no formal structure, and participation does not involve any commitment, obligation or ongoing engagement.

I'm the gatekeeper at present. If you would like to be part of this, email me at peter.timmins1@gmail.com with a short description of who you are and your interest in these issues that can be shared with other participants.

Background if you need it:
The Open Government Partnership
Australia decides to join 
Information Commissioner Promising prospects

Lots more, on request.

Parliament outside the FOI zone... because it always has been

Or, well, because we thought it was..

I was in touch with my local member about the blanket exemption from the Freedom of Information Act legislated by the parliament for the parliamentary departments that support the operations of that august body with a budget allocation of around $170 million.

My email, 3 June:

Mr (Malcolm) Turnbull,
I'm glad common sense prevailed regarding the party funding proposal. But I'm staggered that in 11 minutes in the House last Wednesday the blanket FOI exemption for the three parliamentary departments went through with nods from both sides. This is my take. Would be interested to know what you think.
http://foi-privacy.blogspot.com.au/2013/06/bipartisan-support-for-overkill-and.html#.UaxGweskgdM
 Peter Timmins.

Not a peep until this, at 8.35pm on the quiet Saturday night just passed, six weeks later:

"thanks for your note Peter – the exemptions were of longstanding or thought to be.
All the best
malcolm."

Good that he probably read my email. Courteous that he replied. 

But unpersuasive as to reasons, particularly not explaining the rush to legislate beyond what the departments themselves saw as necessary, and in advance of the Hawke report that looked into scope of the act issues among others. I could go on:
the more general argument for instance that the accountability and transparency framework should apply to all government agencies in principle; the parliament's failure to legislate for an integrity commissioner; that some of the resources are spent on entitlements and support for members and senators; that FOI coverage of parliament is accepted in the UK, Scotland, and Ireland, among others; and that the Australian Law Reform Commission and former clerk of the Senate Harry Evans to name just two supported extension of the act to the departments. And the then Prime Minister's 2010, "let's draw back the curtains and let the sun shine in; let our parliament be more open than it ever was before.."

But you've heard it all before.

TI Corruption Barometer puts spotlight on open, transparent government

The Transparency International Global Corruption Barometer 2013 reports on public perceptions of corruption in 107 countries. 

Results for Australia are based on a survey (prior to March 2013) of 1200 people and includes ratings of institutions as corrupt/extremely corrupt.

Should we be surprised?

Political Parties 58%
Media 58% ( Only four countries gave corruption in the media a high rating-Australia, Egypt, New Zealand and United Kingdom.)
Business 47%
Religious bodies 44% ( But least corrupt in worldwide rankings.) 
Judiciary 36% (Third worldwide)
Parliament/Legislature 36% (Fourth worldwide)
Public officials and civil servants 35% (Fifth worldwide)
Police 33% ( Second worldwide)

We aren't alone on concern about political parties. Globally, "the driving forces of democracy, are perceived to be the most corrupt institutions." 

But Australians put the media and religious bodies way up the list compared to global rankings. And public office holders - judiciary, parliament, public servants and the police - lower down the scale than most others.

However, it's hardly reassuring that more than 1 in 3 rate the parliament and public servants as corrupt.  (NSW developments of course would have clouded the picture.)

And then there's the judiciary!

Five per cent report paying a bribe in the last 12 months.That's remarkable, or I'm showing my innocence or ignorance.

(Correction-5% appears in the published graphic but a reader points out the report doesn’t say that. "On page 10, Australia is listed amongst the countries where ‘<5%’ of respondents reported having paid bribes in the past year.  On page 33, the percentage for Australia is given as 1%.  And that’s in relation to any one of eight services: ‘education system, judiciary, medical and health services, police, registry and permit services, utilities, tax and/or customs, or land services’ (see endnote 11 on page 42)." The reader comments "1% is remarkably high —  but it’s not nearly as bad as 5%." I agree.)
 
In 88 countries the majority of those surveyed consider their government to be ineffective in addressing corruption.

Recommendations in the report won't surprise. They include making integrity and trust the founding principles of public institutions and services with transparency at the top of the list.

(Separately a recent study shows freedom of information laws work to reduce corruption over time, although they are not a quick fix.)

So as we head into pre-election or high election mode, some reflections on recent developments and inaction.

I'm sure these factors don't impact overly on public perceptions. 

But you can only speculate about the influence of a more positive, comprehensive embrace of an openness, transparency, accountability and integrity agenda:

• The Federal Parliament has just voted to exclude the parliamentary departments from the Freedom of Information Act, and none of the state parliaments other than Tasmania are covered by state FOI law.

• Dr Hawke's report on review of the Freedom of Information Act is yet to appear in public, and may or may not suggest changes that could see Australian FOI law move up from the current ranking of 48 of 93 countries surveyed. 

• Despite undertakings by former Prime Minister Gillard in 2010, we don't have a Parliamentary Integrity Commissioner. Legislation proposed by The Greens Adam Bandt. in May 2012 to create  the National Office of Integrity Commissioner, comprising three elements—the National Integrity Commission, the existing Australian Commission for Law Enforcement Integrity (ACLEI) and a new Office of the Independent Parliamentary Advisor - got nowhere.

• Similarly a Code of Conduct for Federal parliamentarians. Opposition backbencher Steven Ciobo told Parliament these sort of feel good things are a waste of time:

"The reason that there is still behaviour that people frown upon is that, fundamentally, it comes down to individual choice. Simply adding one more document to a pile of documents and simply having one additional public servant called an integrity commissioner is not going to change a thing. Anyone who believes that it will is delusional. It has not changed things in other jurisdictions. It is not as if in the United Kingdom or in the state of Queensland, where these types of vehicles exist, there is this great love of the parliament or towards parliamentarians. No. The same problems exist in those jurisdictions. This is nothing more than a feel-good exercise that will deliver no net tangible benefit whatsoever."

• The Government has been thinking and consulting about a National Anti Corruption Plan since 2011. It says it is "giving detailed consideration" to it all but we have nothing to show so far despite obligations under the UN Convention Against Corruption ratified by Australia on 7 December 2005.

• Political donation and lobbying laws are weak and reform efforts in recent years amounted to nothing.

• Silence on the Australian Law Reform Commission recommendation five years ago that the exemption for political parties from the Privacy Act should be removed. ("In the interests of promoting public confidence in the political process, those who exercise or seek power in government should adhere to the principles and practices that are required of the wider community..")

Yes, yes i know good whistleblower protection legislation did pass in the dying days of the last parliamentary sitting after Attorney General Dreyfus rescued the bill from years in the too hard bin. Addendum: but as a reader points out, the major parties opposed changes to the legislation that would provide protection for public officials who report wrongdoing by, you guessed it, politicians.

Bearing all this in mind, we wait to hear what the Government or the Attorney General's Department has to say about a National Action Plan, required by our membership of the Open Government Partnership, with transparency and accountability the touchstone to improving the way our democracy operates.

Parliamentarians travel reminds of gap in transparency standard.

Overseas travel by parliamentarians at taxpayers expense is no state secret. 

So details of 'study tours' by the soon to retire Senator Crossin and Simon Crean (each accompanied by spouse) are out there, and costs will eventually appear on the website at the Department of Finance which pays for these and other entitlements of members and senators. 

The Prime Minister when asked, said the rules regarding travel may need "sharpening up."

Hmm. Wonder whether he noticed that the transparency and accountability standard for payments to, for or on behalf of parliamentarians by the parliamentary departments has just been dulled to indecipherable? 

Just a few weeks ago, when Mr Rudd was on the backbench the Government and Opposition combined to legislate a blanket exemption for those departments from the Freedom of Information Act. Not just payments to or for parliamentarians are beyond reach of FOI. So too are all documents concerning the operation of the three departments which receive a budget allocation of around $170 million.

For the record entitlements paid by the parliamentary departments according to the fine print of the handbook include salaries ($185,000 per year) and electorate allowances (between $32000 and $46000); additional salaries for parliamentary office holders; superannuation; resettlement allowance payable to some who retire or lose a seat after short tenure; services and facilities to support parliamentarians in Parliament House including office accommodation, computing and other equipment, telephones, newspapers and stationery, $1800 in postage for parliamentary or electorate purposes (from $40,000 administered by Finance) and IT equipment and facilities and administration of IT in electorate offices.

Oh, and the cost of travel as a member of a delegation to conferences of the Commonwealth Parliamentary Association (CPA) and Inter- Parliamentary Union (IPU).

Then there are support costs for office holders such as the Speaker and President of the Senate. The brief FOI window that opened on the parliament revealed former speaker Peter Slipper spent $1248 on coat and tails and $8500 on catering, among other necessities.

As to transparency about payments to parliamentarians by the state parliaments, don't ask.

Freedom of information advocacy: a global snapshot

Ninety five countries now have a right to information or freedom of information law.

But the goal of a universal right of access is still a long way off, according to a report released on 8 July by the Freedom of Information Advocates Network (FOIAnet). The report provides an analysis of the worldwide right to information (RTI) movement by region.
  
Lydia Medland, of Access Info Europe, lead editor, said 

“The report shows that advocates still have a long way to go to see their goal achieved of a universal right to information, however, it also clearly transmits the strength of the movement and their ability to effectively confront obstacles to change.”

The report is available at http://www.foiadvocates.net 

Regional reports cover Africa, the Americas, Australasia and Oceania, East and Southeast Asia, Europe, the Middle East and North Africa and South Asia.

The Australasia and Oceania Chapter  (Peter Timmins is the author) commences on page 35. Some extracts appear below. 

In summary:

While RTI laws are well established in Australia and New Zealand, limited progress on legislated rights has been made in the Pacific, with the Cook Islands the only country to enact a law to date. Tonga introduced a government wide information access policy in 2012.

Australia’s decision to join 58 other countries in the Open Government Partnership is likely to provide new impetus to advocacy efforts and discussion of transparent, open and accountable government in Australia and the region, and may encourage New Zealand and other eligible countries to follow suit.

In Pacific island countries there are hopeful signs. There has been widespread embrace of a ‘good governance’ agenda with accountability, transparency and advancement of human rights parts of the mix. Government aid donors and international NGOs continue to assist developments of this kind in ways respectful of the regional and cultural context. The Tonga experiment with a government wide policy approach may provide experience in developing a ‘pacific way’. The Extractive Industries Transparency Initiative and interest in anti-corruption measures is highlighting the need for more and better disclosure of government information. And regional ties are strengthening in ways that should enable media organisations and civil society groups to lift the profile of RTI issues and concerns.

Contacts for background and comment on the report are:

Toby Mendel                                                            Lydia Medland

Executive Director                                                   Research and Campaigns Coordinator

Centre for Law and Democracy                               Access Info Europe

Email: toby@law-democracy.org                             Email: Lydia@access-info.org

Tel: +1 902 412 0872                                               Tel +34 91 365 65 58 

www.law-democracy.org                                          www.access-info.org

Twitter: @law_democracy                                       Twitter: @Lydyact / @Access_Info

Extracts-Australasia and Oceania. Global Right to Information Update: An Analysis by Region, Freedom of Information Advocates Network

Acting NSW Information Commissioner appointed

Kathrina Lo has been appointed Acting NSW Information Commissioner and acting head of the Information and Privacy Commission from 8 July, with Information Commissioner Deirdre O'Donnell finishing up last Friday. 

The notice on the website doesn't mention this but I understand Ms Lo's substantive position is Director of Justice Policy in the Department of Attorney General and Justice. Someone told me that she will be three days a week as Acting Commissioner, the remaining two back at DAGJ as Director of Justice Policy. 

Not sure who apart from the Attorney General or the head of his department thinks this is adequate or satisfactory given the demands of the job, high rates of staff turnover, long delays in dealing with review applications and complaints.The IPC has been under the pump for many months.

It's not as if there hasn't been time to manage a transition to a replacement or less satisfactorily, a full time acting commissioner. Ms O'Donnell's departure plans were announced in March and recruitment of a replacement was said to be underway at that time.

NSW already has a part time privacy commissioner. 

Ms Lo "will fill this role until the Government makes a longer term appointment to the position."

Experience elsewhere demonstrates "acting" appointments can drag on and on.

In Queensland, Clare Smith, Right to Information Commissioner, is the Acting Information Commissioner. Commissioner Julie Kinross left in August last year. The position is vacant "pending the outcome of a selection process conducted by the Department of Justice and Attorney-General and appointment by the Governor-in-Council under the RTI Act. The position was advertised 12 July 2012." 

Lemm Ex takes the prize-he has been Acting Privacy Commissioner in Queensland since December 2011. 

Just ahead of Victorian counterparts. 

Since Helen Vestey left in March 2012, Anthony Bendall acted as privacy commissioner for a year. Currently it's David Watts who is also the Victorian Commissioner for Law Enforcement Data Security and leading the transition to a combined entity.

Hawke FOI report hits first base

Not so perfect timing: the Attorney General has received the Hawke FOI report and will release it publicly after an opportunity to consider the issues it raises. Whew!

First election face off: Integrity

A great kick off subject. I'll be there. Hope you can make it.
 

Integrity in Government
A Pre-Election National Anti-Corruption Forum

Tuesday 23rd July 2013
2.15 – 6.15pm
At the State Library of New South Wales (Dixson Room)
Macquarie Street, Sydney
Chaired by Roger Gyles AO QC, Chairman, TI Australia

This free afternoon forum hosted by Transparency International Australia is a not-to-be missed opportunity before the Federal Election to hear Australia's Attorney-General Mark Dreyfus, Shadow Attorney-General George Brandis and Greens Leader Christine Milne spell out their party's approaches to fighting corruption and promoting integrity in Australia.

The Independents have also been invited to contribute to this forum.

Refreshments will be served and the event will finish by 6.15pm

Register here by Friday 12th July."

Australia and the OGP: promising prospects

In this interview broadcast on gov 2.0 Radio, Australian Information Commissioner Professor John McMillan discusses the Open Government Partnership and what flows from Australia's decision to join. 

Professor McMillan sees benefits from our participation at the international level, in the region through added weight to our promotion of an integrity framework as part of our assistance programs, and at home by focusing further attention on these issues after a few quiet years.

Other observations of interest included:

• across the country, the Federal government, states and local government have been doing their own thing in the open government space with little formal alignment. The development of a national action plan is an opportunity to look at this from  a truly national perspective

• transparency, accountability and public participation and engagement underpin the OGP commitment. The Canadian shorthand "Open Information, Open Data, Open Dialogue" captures it well. The US Plan provides a good model for the broad big picture thinking required.

• achievements in other countries since 2011 have owed much to high level leadership and support of the kind shown, for example by President Obama and UK Cabinet Minister Maude. "We are looking for this in Australia."

• realistically, open government can complicate life for government decision makers. Information available on the My School website for example focuses attention on political choices concerning funding and brings forward questions about priorities, comparisons and fair and equitable allocation of resources.

• the OGP initiative isn't just the government out in front on its own. Civil society organisations are interested in these issues but often in specific aspects - for example, traditional FOI for journalists and interest groups, Gov 2.0, and open data for other players. There is a need to lift the sights and move beyond some of these barriers.

• the National Action Plan must be a collaboration. "Soon" (this was two weeks ago) the first liaison meeting of government agencies involved in OGP issues will take place. Subsequent engagement with those outside government will be challenging. The aim should be to develop a 10-20 page well defined coherent plan. The US approach overall is one that we should follow.

• "most of the work has been done (in Australia)"- FOI legislation, information commisioner, a government information office (AGIMO), Gov 2.0, examples of innovation etc. To date we "lack a plan that brings this together." Strong political and executive government leadership will be required.

All this sounds promising. Except the "most of the work" part. And I'm sure Professor McMillan didn't mean it literally. 

While good progress on open government has been made over 30 years, this sort of work is never done. 

The OGP National Action Plan model calls on countries to identify "stretch commitments" that go beyond past achievements and repackaging existing plans. That's why it can't be left entirely to government, relying completely on public service advice.

Roll on the collaboration!

Gaming the FOI system?

Clare Blumer in the Global Mail (FOI: Fiefdom of Information) reporting on a panel discussion on Friday at the Walkley Foundation Public Affairs Conference in Canberra leads with an example I used there to draw attention to what looks like gaming the system: Immigration lumping 85 separate and different FOI applications into one, claiming they all seek documents that are substantially the same, as a step in the direction of refusing access on substantial and unreasonable diversion of resources grounds.

FOI law and practice leaves too much room for this sort of stuff.  Where it happens the result is delay, refusal of access, and a significant chunk of misspent public money. 

We need but don't have at present incentives and disincentives to encourage the embrace of the stated object of transparent, open and accountable government.

The OAIC seeks to encourage this shift, including by advocating the advantages of providing Administrative Access wherever practicable rather than the slow, complex, technical and formal FOI process with all its associated costs,

However this is met by a blank stare in some agencies where the rules seem to be:

• one, take cover immediately behind as many guarded legalisms as you can muster

• two, string things out for as long as possible,

• three take advantage of exemptions simply because they are there and, you never know, just might apply with a pinch.

The resulting expense and run around is just chalked up to the cost of administration of FOI  and used to argue for increased fees and charges.

Those who go down this path have nothing to lose as disincentives are non-existent. Part of the culture problem is the dominant position of lawyers on information access matters in many agencies.

The OAIC needs to be all over those who seem interested in gaming the system.

I cited from personal experience other examples including my 10 week battle with DFAT over a request for one document listing the pros and cons of Australia joining the Open Government Partnership, long before we did. The department argued throughout that the request was complex and voluminous and on this basis convinced the OAIC to grant two 30 day extensions of time, before releasing all they had-one sentence already out there in a publicly available document.

Another was the decision last week by the Attorney General's Department to refuse my application for a copy of the most recent summary of the work undertaken or still remaining to be completed on a response to an ALRC report, on of all things, Secrecy Laws and Open Government in Australia. Not a word has been said publicly by a minister or public servant about the report in the three years since it was completed and handed to the government.

The report identified over 506 secrecy provisions in 176 pieces of legislation - laws that have a chilling effect on the information access environment - and made 61 recommendations for reform.

My back and forward with AGD are here on righttoknow 

In this case and with DFAT I suggested initially the agency deal with the request for a single document as Administrative Access. Neither did.

First response from AGD, delay. 

The department asked for an additional 30 days needed for unspecified external consultation, presumably with other government agencies. There is no provision in the act for extra time for this purpose. I pointed this out and responded "you've got to be kidding" but agreed to an additional 14 days. AGD came back, pleading for 30 days, this time because of the volume of requests on hand. I commiserated about the workload but stuck with consent for 14 not 30 extra days - that had just about passed in any event.

Next reponse, the Determination. 

The notice is on letterhead marked  "Office of Corporate Counsel." I imagine that's enough in itself to warn the applicant it's lawyers at ten paces from here on

In the notice, Frances Brown, Director FOI and Privacy Section informed me the relevant document held is a minute to the Secretary dated 24 August 2012. 

That seems strange as a new attorney general Mark Dreyfus was appointed on 2 February 2013. You would think the incoming minister brief would include a section on where things are with outstanding ALRC reports. Or that a PPQ on the subject might have been prepared for the AG during parliamentary sittings since. Or that someone might have asked for a status report when the minister revived whistleblower protection legislation, given the interplay between that, the Crimes Act and other laws. 

Apparently not.

The decision to refuse access cites the deliberative process document conditional exemption (s 47C )- advice, opinion recommendation etc, and disclosure on balance would be contrary to the public interest.

Ms Brown makes no reference to s 22 and whether it isn't practicable to provide an edited copy of the minute containing what I requested. Obviously not.

When it comes to public interest considerations, the factors considered are preceded by these words: "Under section 11B of he FOI act and Part 6 of the Australian Information Commissioner's Guidelines, I have identified the following factors as relevant in determining whether disclosure would be in the public interest:"

Two sets of factors are listed, all in italics.

The four favouring disclosure are drawn from the OAIC Guidelines and appear in quotation marks thus:
'inform debate on a matter of public importance'
'inform the community of the Government’s operations'
'enhance the scrutiny of government decision making'
'reveal the reason for a government decision and any background or contextual information that informed the decision'

The four against are also in italics but not in quotation marks. Given the lead in sentence  the reader might think they too come from the OAIC guidelines.

They aren't. I can't recall any receiving recognition in published OAIC decisions. 

The considerations are worded unusually, commencing whether as in
whether it is contrary to the public interest to disclose draft material... and
whether it is contrary to the public interest to provide the public with a factually incorrect sense of direction that an agency (and the Government) is taking..

Most don't reflect the law, or the OAIC caution to be mindful of the changes in 2010, particularly the factor singled out as the major consideration - release of the material could damage the relationship between an agency and the Government.

None of this is convincing to put it mildly, but it sure makes the document sound interesting. The public interest considerations in favour of disclosure of information about what the department has done with this report over the last three years are strong.

I've lodged an application for internal review.

Meanwhile as to the question posed for discussion in Canberra on Friday, "Open Government-within sight?", experiences such as these suggest the answer is "still a long way off."