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.
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."
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