Slipper guilty verdict sends a powerful message but won't fix transparency failings

The guilty finding against former Speaker Peter Slipper for dishonesty in the use of his cabcharge should send a message to parliamentarians about the need for close attention to the rules. But as we know from the big fuss last year and earlier this year when instances of questionable use emerged, the rules can be a bit rubbery.

What we do know about use of entitlements largely comes from information published by the Department of Finance about the payments it administers. Last week, the department published details of expenditure in the second half of last year for travel, office fitouts, telecommunications and publications, and for travel, office facilities and office administration for eligible former Parliamentarians. (Here's the take in The Age.)

While this is welcome, and miles ahead of what goes at state level, the system overall is a far cry from the simple, timely, comprehensive transparency and accountability model needed for use of entitlements by parliamentarians and related integrity matters.

Half yearly publication on line of details of payments by Finance goes back to 2008. Reporting categories were expanded in 2009. Publication is nowhere near real time. The latest, July to December 2013 includes information about expenditure some of which was incurred over 12 months ago. Searching across members and senators and over different six month periods is complex, putting it mildly.The Belcher Committee four years ago noted that publication by Finance is voluntary/discretionary and recommended it be enshrined in legislation.Nothing has happened on that score since, or on a raft of other Belcher recommendations.

Details of use of entitlements paid by Finance before 2008 is not published. Possibly available under Freedom of Information. Probably wait at least 30 days and you may have a drawn out fight on your hands. With regard to some information, the member or senator may argue that it is personal and should not be disclosed as Prime Minister Gillard did unsuccessfully in 2012-13 concerning a repayment made in 2007. That was classic gaming the system by grasping at straws to delay disclosure of information that clearly was not exempt.

Payments to, or support provided to senators and members by the Parliamentary departments are not published. They can't be accessed under FOI because parliament exempted itself from the act in June last year. Depending on what you ask for the parliamentary departments may at their discretion provide information or documents. Payments include salaries and electorate allowances, additional salaries and support provided to parliamentary office holders, superannuation entitlements, resettlement allowance payments, and services and facilities to support parliamentarians in Parliament House including the cost of office accommodation, computing and other equipment, telephones, newspapers and stationery: 

Gifts and interests: Published by the House and Senate as a series of notifications by the member but no up to date list of current interests is published and the registers have no search function. 

Payments to or on behalf of ministers, assistant ministers and parliamentary secretaries by their departments,and the cost of support provided are not published. These include official cars for the Minister and spouse; departmental liaison staff; additional stationery, office requisites, furniture and equipment in Ministers’ and Parliamentary Secretaries’ Parliament House Offices and their home State offices; official hospitality; and a range of other services. Maybe available under FOI.

At the Federal level and in the states, apart from sensible, clear rules, we need fully transparent timely disclosure on a comprehensive single fully searchable site to follow the money paid to or on behalf of parliamentarians and ministers, and declared interests.

Australia for more foreign affairs transparency - in New York

Positive comments all round in a Lowy Institute assessment Australia in the UN Security Council including for a push for greater transparency in international dealings. On the home front next?

Australia’s efforts to promote openness over sanctions have been a part of a broader strategy to raise the Security Council’s transparency.‘Transparency’ is not the diplomatic pabulum that it might sound like. Always an exclusive club, the (permanent 5 members) have notably increased their grip on the Council in recent years, conducting most essential negotiations in private.[ See Bruno Stagno Ugarte et al., Security Council Working Methods: A Tale of Two Councils? (Security Council Report, March 2014).] This sidelines the non-permanent members and alienates states outside the Council. In mid-2012 an alliance of small states led by Switzerland launched a General Assembly resolution demanding greater openness, but the P5 put aside their Syrian differences to crush the initiative. As Australia joined the Council, the transparency advocates were still recovering from that fight. Despite the risks of offending the P5, Australia soon emerged as an advocate of transparency within the Council. It worked well with the “Accountability, Coherence and Transparency” (ACT) Group, a coalition of states formed in May 2013 to restart the fight for a more open Council after the 2012 debacle. A diplomat from one of the leading ACT members describes Australia as an “excellent” partner.

Government thinking about FOI changes needs a full airing before, not after decisions

The Fairfax Media report that Cabinet is reviewing/has reviewed Freedom of Information fees and charges, and the recommendations from the Hawke review is not surprising. 

They had to get around sometime to looking at the report to the then Attorney General by Australian Information Commissioner Professor McMillan on charges completed in February 2012, and the Hawke review report completed well over a year ago. 

But both reports, and the Government's thinking about the issues raised deserve a thorough airing that they haven't received to date.

More cost recovery and the search for disincentives to ease the workload are likely the catalysts for action on charges.

Some recommendations ( boosting informal or administrative access) in the McMillan report are sensible improvements, but others such as the flat 40 hour limit on processing time are not. 

There are also issues not addressed in the report that flow from the decision announced in  Budget 2014 to abolish the OAIC.For example, the going rate for a review application to the Government's preferred one tier at the Administrative Appeals Tribunal is since 1 July $861, and that's for starters.

A detailed examination of FOI processing, resourcing and costs should be undertaken before any changes to the charging regime.

The claim that FOI costs something close to $50 million a year to administer has been run up the flag without any evidence as to agency efficiency and effectiveness in carrying out FOI functions or any examination of the benefits side of the equation. This at a time when there is much self congratulation about the 'free data' voluntarily released by government agencies that fueled Gov Hack gatherings across the country at the weekend and may deliver big economic and social dividends.

But free access to what the government voluntarily releases and increased charges over and above what can already be hefty imposts for access to the information government isn't pushing out the door will take some explaining.

How much of the FOI administrative costs can be attributed to inefficiency, failure to invest in technology, refusal to make sought after information available promptly and at lower cost without the need for formal applications, and gaming the system by putting applicants through the run around, we don't know. Professor McMillan didn't go there nor did Dr Hawke. It's no doubt the tip of an iceberg but take a look at the pedantic, bureaucratic and no doubt costly to the taxpayer correspondence generated by applications made through Righttoknow.

As to the Hawke report (pdf), cherry picking the bits that appeal to those in the government shouldn't be on either. Dr Hawke had limited terms of reference, limited time, completed his inquiry apparently without any research or prying into  dark FOI corners, or talking much to anyone at all outside the Parliamentary Triangle. 

Hence his recommendation No 1

"..that a comprehensive review of the FOI Act be undertaken."

And this concluding observation: 

"I believe a complete rewrite of the FOI Act in plain language is now necessary, so that it is readily accessible and easily understood."

Sorry emailees, power now restored

Apologies to email subscribers who may have not have had a message in a while. 

Like to tell you that my brilliant technical skills over many hours located the problem and fixed it. The truth be known, I don't have a clue what happened or how it magically corrected itself. The system is back. You may have missed all or some of the posts listed, starting with the most recent.

Apart from the email subscription in the sidebar you can also follow me on Twitter where my modest handle is @Foiguru

• Policy 101: Blind siding rarely the way to bring the troops with you
• Is this the senate to sort out public interest immunity claims?
• What's the problem: why not close to real time disclosure for accountability purposes?
• AEC way too quick in reaching for the 'vexatious' FOI button.
• NSW access to information law under review
• Silver Anniversary: 25 years since FOI commenced in NSW
• G20 and countries including Australia need to re-open the whistleblower protection file
• FOI commentaries: two for the money
• Trust in politicians Episode XXX: "Democracy for Sale"
• Civil society puts it to the G20: open, transparent government part of the growth equation.
• The trust thing-where to from here?
• First report card on operation of NSW GIPA act
• C20 Global Summit this week in Melbourne.
• Victoria rejigs privacy law
• Victoria proposes to improve FOI commissioner model not abolish it
• Prime Minister's travels: missed opportunities galore
• SA Ombudsman's FOI wisdom should travel beyond state borders
• DFAT waiting for Finance to ring before opening the OGP file.
• Parallel 'open government' worlds on display
• The time and cost equation for AAT review of FOI matters
• Prime Minister's travels: missed opportunity No 1
• OAIC, a casualty in the name of efficiency, or set to fail: you choose.

Policy 101: Blind siding rarely the way to bring the troops with you

Independent Senator Nick Xenophon in Crikey today:

The budget in May was a stinker. As one senator reportedly told The Australian Financial Review this week, the budget was “in more shit than a Werribee duck”, referencing the coastal town south of Melbourne that hosts a sewage treatment plant. I have big policy problems with the budget, such as the Medicare co-payment and the cuts to auto sector workers, pensioners, social security, higher education, health, schools, foreign aid and renewable energy funding. But I’ve been gobsmacked at the blind-siding of the whole country by this government. When did the government tell the states they were stripping a lazy $80 billion out of their future health and education budgets? When did the government tell the auto sector it would drain a further $600 million out of industry assistance (that makes $1.1 billion cut in total) that could have gone to restructuring ahead of the exit of the car makers? When did the government tell the universities it was going to cut 20% from federal funding for undergraduate courses and deregulate the sector? When did the government tell self-funded retirees it was taking away their modest seniors’ supplement?

Never, that’s when. Until budget night, that was. The subtext is all about mistrust of the electorate. I’m tipping Budget 2.0, sometime soon. And the government won’t get that through unless it restores trust with the voters.

You could add plenty to the Senator's list of Budget blind siders that add to the trust deficit including the announcement of the plan to restructure the access to information system by abolishing the Office of Australian Information Commissioner, all the time pronouncing a commitment to transparency and accountability and claiming the resulting changes will "improve administrative efficiencies and reduce the burden on FOI applicants."

Is this the senate to sort out public interest immunity claims?

The Senate from here on will likely be an even livelier front for argy bargy over access to government documents.

 But whether there is appetite and numbers among Labor, The Greens, the PUPs and assorted others - maybe even among staunch parliamentarians on the government benches - to push for a mechanism to resolve a disputed public interest immunity claim remains to be seen. Refusal to produce has been treated as a 'political problem' to date. If the matter can't be sorted by negotiation it dies in the ditch at that point.

In February there were indications it was game on. At one point the non-compliance rate with orders of the 44th Parliament to produce stood at 100%. The Senate Procedural Information Bulletin at the time labelled it "an unprecedented situation." The record has improved since.

The Legal and Constitutional Affairs References Committee then huffed and puffed about the refusal to comply with an order to produce documents relating to 'Operation Sovereign Borders' with secrecy about the boats an ongoing issue, given new impetus this week.

The report also recommended the Senate refer to the Procedure Committee "as a matter of urgency" inquiry into the independent arbitration process followed by the NSW Legislative Council regarding responses to orders to produce and any modifications necessary if such a scheme was to be adopted by the Senate. The Clerk of the Senate Dr Laing told the References Committee the NSW system is the best around for adjudicating these matters.

The 'matter of urgency' didn't count for much. The report was tabled on 6 March but there has been no debate and no referral to date.

Meanwhile stand offs continue. 

The Procedural Bulletin reported on the May-June Senate Estimates hearings:

There were numerous occasions when officers or ministers declined to provide information and senators pressed for articulation of the grounds on which the information was being declined. In most cases, the questions were then taken on notice. Some examples include:

• monthly reports of agency figures on involuntary redundancies (Australian Public Service Commissioner) – said to be advice to ministers (FPA, 26/5)
• whether the Prime Minister’s Chief of Staff attends Cabinet meetings (FPA, 27/5)
• appointment and role of the new Cabinet Secretary (FPA, 27/5)
• the timing of advice on cessation of the Nursing and Allied Health Scholarships Support Scheme in Tasmania (CA, 3/6)
• further questions about funding for mental health programs (CA, 3/6)
• the number of Cabinet decisions in relation to free trade agreement negotiations with China (FADT, 5/6).

In other cases, while only skeletal public interest immunity claims were articulated – such as national security concerns in relation to information about drone strikes in Yemen and the death of Australians (LCA, 28/5) – senators did not press for further information....

There are always cases of officers or ministers declining to provide answers on the basis of “longstanding” practice, only to be embarrassed by the discovery of the information from a public source moments later. In this round, the ministerial order of precedence – astonishingly – was claimed to be a secret, but was found shortly thereafter on Wikipedia (FPA, 27/5). It is also reflected in the published ministry list and in the order of occupation of seats on the front benches in each House. Membership of the Government Staffing Committee was also discovered to be public information (FPA, 29/5)...

Despite the recent enhancement of opening statements with the agreement of the Chairs’ Committee, “advice to Government” is still the most common bleat by officers and continues to remain unpursued on most occasions. Apparently, it is also “not the practice” to make legal advice public in estimates hearings, a statement made in the context of discussion of the tabling of departmental legal advice on the legality of settlements in the Palestinian Territories at a previous round of hearings (FADT, 4/6).

In another development Senator Wong has a number of motions before the Senate including 298,

noting "the frequency with which freedom of information legislation is invoked to withhold information from senators and the Senate, not only by reference to grounds of exemption in the legislation but also apparently on the basis that an answer will not be provided if a Freedom of Information (FOI) request has been lodged for the same information;

(b) recalls the observations of the Procedure Committee in its Third Report of 1992 that:

(i) there is no basis in law for the application of the FOI Act to the production of documents to a House;

(ii) if a minister were to regard all of the exemption provisions in the FOI Act as grounds on which to claim a privilege against disclosure of information to a House, this would considerably expand the grounds of executive privilege hitherto claimed;

(iii) the use of the provisions of the FOI Act as a checklist of grounds for non-disclosure does not relieve a minister of the responsibility of carefully considering whether the minister should seek to withhold documents from a House, or from considering the question in the context of the importance of the matters under examination by the House;

(c) resolves That the same principles apply to the provision of information to committees in response to questions asked by senators, which require the same careful consideration by ministers;

(d) declares that declining to provide documents or answer questions on the basis that an FOI request has been made for the same information is an unacceptable response, is not supported by the FOI Act and shows a profound lack of respect for the Senate and its committees.

Secrecy surrounding what is up for grabs in the negotiation of the Trans-Pacific Partnership Agreement continues to attract attention in the Senate.

Meanwhile The Greens Senator Rhiannon is seeking to up the ante in that 'vexatious applicant' matter and the associated refusal of an an FOI application for the Senate vote count software, with this motion that may or may not get a run today:

*330 Senator Rhiannon : To move—That there be laid on the table by the Special Minister of State, no later than 15 July 2014:

 (a) all correspondence and documents, whether written or in email form, from the Special Minister of State’s office and/or the Australian Electoral Commission (AEC) relevant to:

 (i) the decision of the AEC to have Mr Michael Cordover declared a vexatious applicant, and

 (ii) the assertion that Mr Matthew Landauer colluded with Mr Cordover to harass the AEC; and

 (b) the source code of the software by which Senate vote counts are conducted.

(Update: Paul Farrell in The Guardian reports the motion passed on 10 July and quotes Senator Rhiannon:

“There is no justification for the AEC refusing to release information on how the Senate vote is counted,” Rhiannon said. “It is widely known that it is very complex so surely the methodology used should be publicly available. “Why would you stop the public knowing how the Senate vote is counted?..The AEC are not only doing the wrong thing in refusing a legitimate FOI request – in the wake of the WA federal election debacle they are further damaging their own reputation,” Rhiannon said. “The AEC hardline position in trying to discredit Mr Cordover as a vexatious litigant is an abuse of the law under which the AEC operates and raises the very relevant question what do they have to hide."

I'd expect resistance to the software demand which in the FOI context the AEC claims contains 'trade secrets' and information of a commercial value. Whether the Senate or the AAT becomes the forum for battling this out remains to be seen.

What's the problem: why not close to real time disclosure for accountability purposes?

With all the talk and welcome enthusiasm in open government circles concerning public release of government data sets, governments, including the legislative branches are yet to fully embrace timely, searchable publication on the internet of information that goes to accountability.

Some quick examples off the top of my head. I'm sure deeper digging would see the list multiply many times over.

Voters go to elections without knowing who has funded campaigns, and at other times have no idea for close to two years who may have kicked the can. Federal election disclosure returns are made available for public inspection 24 weeks after polling day on this website. Annual disclosure returns are similarly made available for public inspection from the first working day in February, ie seven months since the end of the reporting period, and 19 months since any donation made at the commencement of the period. With some variations its the same in the states. Why not continuous on line and easily searchable disclosure close to real time?

NSW joined Queensland and the ACT from 1 July in the publication of ministerial diaries.Its far from universal practice however. Queensland diaries are published monthly at the end of the following month. NSW returns are required quarterly with ministers given a month at the end of the quarter to complete the paperwork. Publication on the Premier's Department website will occur up to four months after the contact. Why not continuous disclosure, searchable across all ministers, close to real time?

(The original post also referred to the failure just about everywhere to provide comprehensive single site searchable information close to real time about parliamentarians entitlements, and up to date searchable information contained in the register of interests. In removing a gremlin I've lost the text!!)

AEC way too quick in reaching for the 'vexatious' FOI button.

Cordover self portrait

Lots of interest on Twitter (@mjec) last week about the Australian Electoral Commission and Michael Cordover's Freedom of Information application for the software used to count votes during Senate elections. 

Particularly that two requests and an application for internal review of the decision on the first of those, and a request for Information Commissioner review by Cordover were enough to send the AEC off to the Australian Information Commissioner seeking a declaration that Cordover was a vexatious applicant.

The AEC's reasoning is puzzling, and the claim seems more like another in the all too frequent gaming the system stakes. 

But it brings to light the fact that it isn't necessary to use the FOI act repeatedly to run the risk of being sent to the FOI sin bin.

While repeated use and abuse of process is one ground, the commissioner can but has never exercised the power, make a declaration where a particular access action involves, or would involve, an abuse of the process, or would be manifestly unreasonable. None of this applies in Cordover's case, a genuine attempt to find out more about the way votes are counted in an agency that is central to the exercise of our democratic right.

The AEC's claim however is a telling example of what an agency could do if it had power itself to deal with an application it regarded as vexatious. Exactly what the Hawke report (90-92) sitting in an in-tray in the Attorney General's Department for 11 months now, recommends: an amendment to permit an agency to decline to handle a repeat or vexatious request or requests that are an abuse of process, without impacting on the applicant’s ability to make other requests or remake the request that was not accepted. The applicant could appeal against such a decision to the OAIC.

Back to the Cordover matter- and by the way follow me on Twitter:@FOIguru

NSW access to information law under review

The five year statutory review of the NSW Government Information (Public Access) Act 2009 and the Government Information (Information Commissioner) Act 2009 is underway with a call for submissions. Get cracking!

The purpose of the review is to determine whether the policy objectives of the Acts remain valid and whether the terms of the Acts remain appropriate for securing these objectives.

The policy objective of the Government Information (Public Access) Act 2009 is to open government information to the public by:

• authorising and encouraging the proactive public release of government information by agencies, and
• giving members of the public an enforceable right to access government information, and
• providing that access to government information is restricted only when there is an overriding public interest against disclosure, in order to advance an open, accountable, fair and effective system of Government.

The objective of the Government Information (Information Commissioner) Act 2009 is to establish an independent champion of open Government.

 

The review will also consider the relationship between the Government Information (Public Access) Act 2009 and the Privacy and Personal Information Protection Act 1998.

 

The Acts can be viewed at www.legislation.nsw.gov.au

The Department of Police and Justice invites interested individuals and organisations to make written submissions to the review. Submissions should be sent to: The Director, Justice Policy, Department of Police and Justice, GPO Box 6, Sydney NSW 2001 or by email to justice.policy@agd.nsw.gov.au.
If you would like to provide comments in an alternative format please call (02) 8061 9222. If you are hearing or speech impaired please contact us via the National Relay Service on 133 677.
 
All submissions will be treated as public and may be published, unless you indicate that all or part of your submission should be treated as confidential.
 
The closing date for submissions is 29 August 2014.

Silver Anniversary: 25 years since FOI commenced in NSW

The silver isn't without some tarnish but access to government information has come a long way since the commencement of the NSW Freedom of Information Act on 1 July 1989. 

From that day the absolute discretion exercised more frequently than not by public servants and ministers to refuse or limit access because they could, was replaced by legal, enforceable rights to know what government knows unless there are good reasons why not.

Time is testimony to the fact that opinion varies about whether that line has been drawn in the right place and whether those responsible for delivering the goods have delivered in full or left the requester empty handed or short changed.

But overall the Information Commissioner can report in 2014 that many applicants get most of what they seek most of the time; the Government's ICT Strategy proclaims: "An open, online approach to delivering services, communicating and sharing information in accordance with the principles of transparency, participation, collaboration, and innovation"; and the government has encouraged an Open Government Community of Practice.

A pity that 1 July 2014 passed apparently unnoticed in the corridors of power. With or without a cup of coffee and a biscuit discussion about this journey would have been not only of interest to many but for government would have the makings of a reasonably good story about what has been achieved since 1989, and the lessons so far.

If you are interested in the stepping stones along the way to where things are today: