External review failings bring 'prompt' access objective into serious question

Michael West in the Sydney Morning Herald Business Day column on Saturday (Here's an office that's hardly free with information) gives the Office of Australian Information Commissioner a real pasting, drawing on the annual report to argue too many speeches, not enough timely Freedom of Information review decisions. 

There are some unfair shots and omissions. West for example makes no mention of the office's responsibilities apart from FOI reviews and complaints. Privacy is a biggie with a heavy caseload of inquiries and complaints, and significant changes to the Privacy Act that come into effect on 12 March. Quite a few of those 59 speeches and presentations West highlights were likely in the cause of promoting discussion and awareness of those changes.

His one liner about Will Matthews and OAIC silence on an FOI case running for 10 years didn't have legs last year when I followed it up. Presumably there isn't much point to the rerun West gives it this time round.

But he is right about unacceptable delay with FOI external review, delay that casts a shadow over the worthy object of the act, ‘to facilitate and promote public access to information, promptly and at the lowest reasonable cost.'

As to why this is occurring, on the demand side applications for external review grew from 110 applications to the AAT in 2009-10 to 456 to the OAIC in 2012-13 - which among other things may say something about agency decision making. Australian Information Commissioner Professor McMillan has been pointing to the shortage of staff to cope, this a year ago and again more recently. I have no idea whether  efficiency shortcomings at the OAIC contribute - the Hawke review report didn't disclose any serious digging, and his first recommendation is that someone undertake a comprehensive review of the legislation and how it is working-something he didn't do.

I'm sure in Opposition current government ministers particular Senator Brandis would have been up in arms over this. One way or another the situation needs fixing. 'Promptly' comes to mind. 

An update on the stats West plucks from the annual report is contained in the September-December quarterly summary (pdf). 

The average time to complete an FOI review decision in the year to date was 250 days (2012-13, 169 days); the age of the oldest case then on the books 1057 days, and the age of the oldest unallocated case 301 days. At the end of December 315 case files had been open for more than 150 days. On the plus side, 257 reviews were completed in the period July-December compared to 419 for the year 2012-13. (And in the privacy space, territory West didn't explore, the office received 4929 phone and 1033 written inquiries, completed work on 1104 complaints and six own motion investigations, issued 31 data breach notifications, gave 42 policy advices and made eight submissions.)

Agencies and ministers' offices know the situation. As Professor McMillan told The Guardian recently:

 ... agencies could be “gaming the system.” It now takes close to 200 days to allocate an application for information commissioner review. He said: “I’m not going to name individual cases, but I have a great concern that agencies will say, ‘Let’s just deny it. The person can appeal to the OIC, it may take them a year or two to get around to it,’ in which case the sensitivity will go out of the issue. "I accept that that happens at the moment. So there is gaming of the system going on.”

Immigration, AGD, DFAT, and NBN Co have some form from my vantage point.

Published IC decisions this year are matters that have all taken 12 months, some far longer. These brought gaming to mind:

BB: the review application was with the OAIC for 13 months while the Department of Human Services argued, unsuccessfully in the end, about release of names of staff.

Welch: in the hands of the OAIC for 26 months, before the commissioner largely upheld the DFAT decision. In October 2011 the department told the applicant that it would not confirm the existence or non-existence of the requested documents, but if they did exist they would all be exempt. In December 2013, just before the IC review decision it revised the decision and released 18 pages in part.

AY: in the OAIC then the AAT previously and back on this occasion over charges after the AAT decided the ABC should think again.The commissioner sided with the ABC on the charges issue but the matter has been kicking around since the application was made in 2011.

AX: took the OAIC 18 months to decide The commissioner upheld some parts of the Civil Aviation Safety Authority decision to deny access to details of CareFlight Fixed Wing Operations. But not the identity of the individual approved as check pilot (publicly available on the website of the company); the identity of the individual appointed as chief pilot (not publicly available however disclosure not unreasonable as the individual has been appointed to that role by CASA); the identities of the general managers and directors of the company and CareFlight NSW which are listed on their websites and is publicly available information; the name and Air Operator’s Certificate number of the company which is  publicly available on the CASA website; and information that an agreement for the company to provide checking and training services had been executed because it is not personal information as claimed.

Talking of gaming, on a personal note, I'm still in the OAIC queue waiting for a decision on Attorney General's Department refusal of access in July last year to anything contained in a briefing note for the Secretary in August 2012 setting out the stage reached in work on a government response to an Australian Law Reform Commission report completed at the end of 2009.

The subject?

The 506 secrecy provisions in 176 pieces of legislation, including 358 distinct criminal offences and the Commission's 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.

Attorney General Brandis is very concerned about interferences with freedom of expression.

Maybe he'll remove the need for me to box on with my FOI knockback in the OAIC by telling us all where things stand in consideration of a report that has now been sitting in his department for four years.

You've got to love 'em!