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Tuesday, December 23, 2014

Human Services not alone in darting and weaving when it comes to FOI

The report by Australian Information Commissioner Professor McMillan of an investigation into the freedom of information processing practices at the Department of Human Services received a good going over in Fairfax Media ( Markus Mannheim), The Canberra Times (Noel Towell) and The Mandarin (David Donaldson). Understandably the focus is on shortcomings in how they do things there.

However the report is of wider significance. Professor McMillan said the
"findings should be heeded by all agencies. The FOI processing environment analysed in this report is not dissimilar to that in many agencies.
In October when the own motion investigation got underway, it must have looked like a last gasp for the commissioner given it coincided with the introduction of legislation to abolish his office. Contrary to these expectations it's still in existence if not in great shape.

The commissioner's findings of wide import include
  • in DHS and probably elsewhere there is resistance to and ignorance of the objective of the act to ‘facilitate and promote public access to information, promptly and at the lowest reasonable cost’ (s 3(4)). The Procedures Manual for use by staff in DHS does not refer to the objects, and FOI training materials detail the procedural and exemption provisions. Only the most recent training program dated August 2014 explicitly refers to the broader role of FOI and the objects thus "providing necessary context for the procedural and exemptions provisions."  The commissioner recommends a message from senior management to this effect. Presumably it hasn't occurred to anyone to convey the importance of FOI along these lines for yonks if at all.
  • the preoccupation with technical legal formality in interpreting and processing FOI requests. DHS has lawyers heaviliy involved in the process.
"A central purpose of FOI legislation is to facilitate prompt and inexpensive public access to government held information. The Commissioner is concerned that a legal and technical approach to FOI can be counterproductive by inhibiting the release of non-sensitive information, creating or extending disputes with clients, and increasing the cost of FOI administration. The department's focus on technical and legal compliance appears to be a significant cause of the rising review rate the department has experienced over the last three years. While a compliance focus may make decisions more defensible on review, combining it with an outcome-based focus is likely to reduce review rates." 
In responding to the department's view that FOI decision making is "a legal process" the Commissioner said
"FOI decision-making, like many functions of government, operates under statute. And the FOI Act confers important information access rights on members of the community that are legally enforceable. But that is not the whole picture. The FOI Act operates within and complements a broader service culture within government. Providing information upon request to members of the public must be informed by principles of legality, but it must also be guided by customer-service principles and the objects of the FOI Act that encourage public participation, scrutiny, discussion, comment and review of government activity. In a high volume decision-making environment where senior officers cannot review each action of every staff member, the principles expressed in policies, procedures and training will have an important and guiding influence. The Commissioner’s impression formed in this investigation is that the department’s approach has moved from a predominately pro-disclosure and outcome-based focus, towards an emphasis on technical and legal compliance."
(This post two years ago on why FOI shouldn't reside in the legal area followed disclosure of how Immigration processed FOI applications also with heavy reliance on lawyers. I've expressed the view previously that the information management environment (not that of spin or the law) where a public management/service to the public ethos prevails might be a better place to locate FOI than the legal area, the practice in many Federal and state government agencies.) 
  • small practical steps can make an important difference. The recommendations in this report contain many specific suggestions on how the department (and potentially other agencies) could improve FOI Act processing. They're mostly about adopting the revolutionary idea that a response to a request for information is a customer service issue.
  • performance measures are essential for gauging whether the reasonable expectations of FOI applicants are being met. In  DHS where the reported statistics turned out to be wrong there is a lot of sheltering behind the number of requests answered within the statutory time period. Period!

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