WA government argues 'caretaker' period takes documents outside the reach of Freedom of information Act

The Western Australian Government has lodged an appeal to the Supreme Court on a question of law following the decision of Information Commissioner Sven Bluemmel in Western Australian Newspapers Ltd and Department of the Premier and Cabinet that documents held by the Office of the Premier created during the caretaker period before the 2013 election are 'documents of an agency' and subject to the Freedom of Information Act.

(Update: The West Australian reports the Supreme Court dismissed the appeal and upheld the cross appeal by WAN on the basis the original FOI application had been to a department — DPC — not the Premier, therefore the question of whether the documents related to the affairs of another agency was irrelevant.)

The 59 documents in dispute are in the main emails, including attachments, sent or received by the Office of the Premier between 4 February 2013 and 6 March 2013 (the caretaker period was 6 February-6 March) that relate to MAX Light Rail and the Airport Link projects.  (This report suggests rethinking of transport priorities in any event.)

Section 23(1)(b) of the FOI Act provides that an agency may refuse access to a document if the document is not a "document of the agency." A minister is an agency for the purposes of the act. A "document of an agency"  (Glossary Clause 4) in the case of a minister is a document held by the minister that relates to the affairs of another agency, that agency not being another Minister or the document in question not being a document of an agency for which the Minister is responsible.

The commissioner was satisfied on the evidence that the documents were held by the office and [47-49] relate to the affairs of another agency, the Department of Transport and the Public Transport Authority, who had commenced some work on the projects before the writs for the State election were issued on 6 February 2013.

Caretaker Conventions
In what appears to be an Australian first, the agency argued that the documents in dispute created or received by the Office of the Premier during the period when the Caretaker Conventions apply were outside the scope of the FOI act as  [at 40], ‘much of what occurs in Ministerial Offices during the caretaker period no longer relates to an agency.’ 

Commissioner Bluemmel [50] said even "if that were so, the relevant issue in this case is whether the disputed documents themselves relate to the affairs of another agency."

The agency further submitted [54] that, during the period that the Caretaker Conventions (pdf) P21 are in force, those Conventions may alter or affect:   

• the nature of the business of agencies and the decision-making authority of Ministers;

• how Ministers and agencies interact;

• the relationship between a Minister and his agency;

• the matters about which a Minister might make decisions;

• the way in which information is disseminated by Ministers and their officers; and
• the conduct of the public sector in how it performs its duties.

Commissioner Bluemmel concluded:

55. Even if I accepted those submissions, I do not accept the agency’s claim that documents produced during the caretaker period are necessarily of a different character than those produced during other times in the electoral cycle. In my view, there is nothing in the Caretaker Conventions to support that claim.
56. Similarly, I do not agree that it follows that the disputed documents or ‘many, if not most, of the documents created in Ministerial Offices during the period in which the Conventions are in force’, do not ‘relate to the affairs of an agency’, as the agency submits. As noted at [41], the agency disagrees with my conclusion in this regard and contends that ‘[t]he nature of the Caretaker Conventions is such that they expressly alter the manner in which Ministerial Offi ces function and, as a consequence, the documents which are created in Ministerial Offices during that time’.
57. However, having considered all of the material before me, including the Caretaker Conventions and the agency’s submissions, I am not persuaded that the application of the Caretaker Conventions to the particular facts of this matter results in the disputed documents failing to be documents of an agency.

As the commissioner noted [70] the issue whether the documents are Minister's documents subject to the FOI act may not have arisen if the application and review had proceeded as initiated by the applicant:

’Under the Freedom of Information Regulations 1993 (the FOI Regulations), the Office of the Premier is a related agency to the Department of the Premier and Cabinet. Consequently, under clause 2(4) of the Glossary to the FOI Act, the Office of the Premier is not to be regarded as a separate agency but is to be regarded as part of the Department of the Premier and Cabinet for the purposes of the FOI Act.
71. In this case, the complainant initially made and addressed its access application to the ‘Department of Premier and Cabinet’, not the ‘Office of the Premier . That is, the application was for documents held by the Department of the Premier and Cabinet, not the Office of the Premier. On that basis, I consider it is arguable that the issue of whether the disputed documents are documents of a Minister does not arise, on the basis that the disputed documents are documents of the Department of the Premier and Cabinet and, consequently, are documents of an agency within clause 4(1) of the Glossary to the FOI Act.
72. However, as I understand it, following negotiations with the complainant to reduce the scope of the application, the agency proceeded on the basis that the application was for documents held by the Office of the Premier only. In light of my finding at [69], it is unnecessary for me to make a finding in this regard.

The appeal should prove interesting but Commissioner Bluemmel's reasoning seems sound to me.

Update on the Open Government Partnership: Australia still considering while OGP 'growing up'

The Abbott government is still considering whether to join the Open Government Partnership according to Minister for Communications Malcolm Turnbull. It's a long, long process-in all close to four years since we were first invited.

Mr Turnbull didn't get to my question in a recent Our Say appearance:

"You have said Australia intends to reach out to the global community and will join the D5. The D5 countries- UK, NZ, Israel, Estonia, Korea- are all members of the Open Government Partnership. The D5 Charter states OGP membership as a qualifying requirement. What are Australia's plans?"

But he subsequently replied by email (17 June)

Dear Peter
Thanks for your question. At this stage the Government is still considering its position on Open Government Partnership. Once further decisions have been made regarding OGP the Finance Minister will be making announcements accordingly.
Regards
Malcolm

The question picked up on earlier public comment by Mr Turnbull that Australia "should aim to become the world's leading digital economy....." and that  "we intend to reach out globally to collaborate with the world’s leading digital economies. These include, but are by no means limited to the D5 - Estonia, Israel, New Zealand, South Korea and the UK, as well as state and local governments in Australia."

The D5 charter is clear that member countries must belong to the OGP. Perhaps not accidentally the nine countries ranked above Australia (10th) in the World Wide Web Foundation Open Government Index 2015-UK, US, Sweden, France, New Zealand, Netherlands, Canada, Norway and Denmark are all OGP members.

What's behind all the pondering within government about OGP membership and whether Mr Turnbull and others are pushing against resistance is unknown. This letter last August to the Minister for Finance made it clear the Prime Minister is a key part of the decision tree, instructing that no announcement of Australia's position should be made "until a draft national action plan is submitted for my consideration..."

Meanwhile without us, the OGP and many of the 64 other governments on board or in the process of joining make progress on transparency, open government and citizen participation as Suneeta Kaimal and Paul Maassen write

OGP is growing up. At the end of the month, a dozen countries will complete new national action plans, adding to the more than 2,000 commitments already made and many delivered. Several of these countries are embarking on their second national action plan, implementing lessons learned and deepening engagement with civil society by creating mechanisms for ongoing dialogue and shared decision making...

OGP is still just a toddler, but we know that early childhood development is critical. With the strong leadership of the forthcoming co-chairs and the continuity of our civil society steering committee members, we can help ensure OGP’s future is bright ..

Dark FOI days prompt call for top FOI success stories

Taro Taylor- Wikimedia Commons

Dark days for Freedom of Information here but clouds are gathering elsewhere including the UK where new Justice Secretary Michael Gove is said to have a cutback agenda that extends to introduction of charging for 'thinking time' in the course of a decision.

('Thinking time' charges are a painful FOI reality in all Australian jurisdictions and have been for years. One example, The Canberra Times request this year for documents from Finance going back 12 months that explained delays in completing the $6.4 million renovations project at the Prime Minister's Lodge - $3759 all up including charges for 176 hours to decide what could be released. And the decision? Not in the public interest to release the documents, nor to waive costs. Ah dear.) 

But I digress....
As part of the coverage of the yet to be unveiled cutback agenda in the UK, The Daily Mail published this list of Scandals We Wouldn't Have Known About Without FOI Powers:

 • The MPs expenses scandal would not have been exposed if not for the FoI Act. Discs containing receipts and submissions from MPs to the Parliamentary authorities were being redacted for release under Freedom of Information rules when they were leaked.
  • Graham Knight, the father of an RAF Sergeant among 14 servicemen killed when a Nimrod jet exploded in Afghanistan in 2006, used FoI to discover that the RAF was aware of fuel leak problems with the aircraft.
  • The ‘spider letters’ from Prince Charles to government departments in which he warned about military helicopters in Iraq and lobbied in favour of homeopathy would have remained hidden.
  • More than 1,100 care home deaths were linked to dehydration over a nine-year period and more than 300 deaths to severe malnourishment, according to documents obtained under the Act.
  • An FoI request by the Daily Mail revealed a prisoner was given the right to taxpayer-funded IVF while behind bars by using human rights laws.
  • More than 10,000 criminals escaped prosecution for serious violent assaults by saying sorry in a single year. FoI requests showed the police’s widespread use of ‘community resolutions’.
  • It was found that disgraced peer Lord Janner made three visits to Parliament months after police were told he was too ill to be questioned over child abuse allegations.
  • The Mail revealed how hospitals were paid millions to hit targets for patients who died on the Liverpool Care Pathway, which has now been scrapped.

That prompted thinking about an Australian list. 

The Daily Mail loves 'scandals' but we don't need to be so limited. Your nominations please
  
Australia's Top Disclosures We Wouldn't Know About Without FOI.
Four off the top of my head to start:

Reserve Bank Board minutes published commencing in 2007 following Michael McKinnon's FOI digging going back to 2004.

Exposure of Australia’s first case of foreign bribery as a result of investigations that included FOI by Richard Baker and Nick Mckenzie revealing that Securency, a subsidiary of the Reserve Bank of Australia had paid million-dollar commissions to win global banknote contracts.

Information about breaches of food hygiene standards starting in NSW and extending to other parts of the country (maybe still not everywhere?) following Matthew Moore's FOI campaign.

Revelations about Australian knowledge of, and involvement in detention practices in Iraq and Afghanistan by the Public Interest Advocacy Centre, based on documents obtained after a six year FOI battle, raised many questions about policy, accountability and transparency going back to 2003.

Important FOI disclosures or scandals welcome by way of comment, email  peter.timmins1@gmail.com or tweet or direct message @FOIguru

The Mandarin: dark days for FOI, but we're yet to see the penny drop

Stephen Easton in The Mandarin FOI laws: fixing the chilling effect on frank advice
(Subscription) writes about the laws, culture and tone at the top.

Extracts (no false modesty here)

(Timmins) and many others notice a distinct air of secrecy around the current federal government — more so than past governments — and Timmins says top public servants are getting the message to play along. “There’s no prizes or honours being awarded for [public servants] who efficiently and effectively administer the FOI Act..."....

The current Commonwealth government’s transparency track record.. has been “very poor” in his view, particularly in contrast to this 2013 pre-election promise:
“We will restore accountability and improve transparency measures to be more accountable to you.”

Timmins also recalls George Brandis admonishing Labor way back in 2009 with the old adage that actions speak louder than words, and he now uses the same standard to judge the Coalition, pointing particularly to its ongoing battle against the Office of the Australian Information Commissioner, and the government’s refusal to answer simple factual questions, particularly around immigration and border protection.

Since there is not enough Senate support to do away with the office, the government is trying to achieve its aim by stealth. The FOI commissioner role has been vacant since December and now that information commissioner John McMillan, whose term was due to end soon, has gone to work for the NSW government, it is possible he won’t be replaced anytime soon either. Only privacy commissioner Timothy Pilgrim remains.

“The claim is that they’ll save $10 million over the four-year period [by abolishing the OAIC and] that it would help FOI applicants by removing complexity,” Timmins said. “Well, I’m afraid that claim was not evidence based. I think the claim of how much money it would save is a bit questionable, and the claim that it would simplify the system is without evidence.”

Timmins suggests some public servants dealing with FOI requests are now “gaming” the system because they know that even if they reject a request on spurious grounds, it will take a very long time for the OAIC to review the decision. That was the impression he got from the responses to two requests he put in with the Attorney-General’s Department recently.

“As journalists will point out, getting access to something 12 months after you ask for it [isn't helpful because] the story is probably gone by then, and it’s only the most dedicated or the journalists with the longest lead times who can effectively use the act in that context,” he added. “So I think it’s pretty dark days myself, about FOI generally, and we’re yet to see a penny drop with the government that this is a cause of real concern.”

The Saturday Paper: Plan to abolish OAIC part of bigger secrecy picture.

Sophie Morris links the plan to abolish the Office of Australian Information Commissioner with other developments in Abbott weakens FOI and public service disclosure  

Extracts 

The weakening of the freedom of information regime has occurred without fanfare, eroding an important mechanism for holding governments accountable and safeguarding against abuse of power and wrong decisions.

The government announced in the budget last year that it planned to wind up the OAIC. Ostensibly, this was a savings measure, worth about $10 million over four years, but it was also a ploy to limit FOI requests and appeals.

When it was clear the senate would baulk at passing the legislation, which Labor and the Greens argue will reduce oversight of government actions, McMillan was left in limbo, limping along on rationed resources.

His Canberra office, where 25 staff used to work, closed in December. His departure will further weaken the office, which opened in 2010. A year earlier Labor’s special minister of state, John Faulkner, said: “These reforms will change the law, but they will also demonstrate the government’s commitment to culture change, to a shift from a culture of secrecy ... to one of openness and transparency.”

FOI laws had existed since 1982, but the Faulkner reforms were the first attempt to make them really work. Faulkner pursued his reforms despite resistance from within the then Labor government and the public service.

His aspiration was at least partially achieved. The biggest sign of change was in 2010, when departments published, in response to FOI requests, the briefings they had prepared for the incoming government, providing information about the policy challenges ahead. After the Coalition came to power at the 2013 election, requests for these documents were denied, in an early sign of the tide turning against transparency. Under legislation prepared by the Abbott government, Attorney-General George Brandis and his department will take over some of the FOI functions and appeals will again be sent to the Administrative Appeals Tribunal, attracting an $860 filing fee, which will deter many applicants.

Timmins says the public service culture has already shifted back in favour of non-disclosure.“I think there’s been a fair bit of gaming of the system on FOI,” he says. “With the OAIC thought to be on death row, agencies have worked on the basis in some cases, I think, that if you knock back a [FOI] request, you won’t have to worry too much about someone taking you on. These days, there’s no great incentive to make a correct and proper decision.”

Senior bureaucrats have also mounted the case for a further weakening of FOI laws. Most notable were the comments from John Lloyd, the new public service commissioner, who set the tone for the rest of the bureaucracy in his first public speech in March.

 “FOI laws are very pernicious,’’ said Lloyd, whose past roles include serving on the Australian Building and Construction Commission, the Australian Industrial Relations Commission and as director of workplace relations and productivity at the Institute of Public Affairs.

“I think they [FOI laws] have gone beyond perhaps what they intended to do, and I think they do make us a bit over-cautious and make some of the advice more circumspect than it should be, and I hope the government will address that and perhaps reassess the extent of some of those FOI laws.”

Brandis’s office did not respond to inquiries about whether anyone would be appointed to replace McMillan or whether he agreed with Lloyd’s description of the FOI regime.

 

Former justices argue government plan to abolish OAIC raises rule of law and separation of powers issues

Tim Smith, David Harper and Stephen Charles, former justices of the Supreme Court of Victoria follow their previous opinion piece on the government's stalled attempt to abolish the Office of Australian Information Commissioner at the same time reducing the capacity of the office to fully carry out its statutory functions, with"Senate's last chance to save FOI watchdog and protect the rule of law published in Fairfax Media publications this week.

Extracts:

..section 61 of the constitution refers to the executive power of the federal government as extending to "the execution and maintenance of this constitution and to the laws of the commonwealth". It is arguable that the Abbott government has failed to "execute" and maintain the laws of the Commonwealth, and has thereby acted in a way that is contrary to two of our constitution's fundamental principles: the rule of law and the separation of powers....

The money available to the office is nowhere near enough to enable it to give effect to its legislative mandate. No longer can the office perform its key role of monitoring and supervising the FOI system. No longer can it advise the government on FOI matters. No longer can it consider complaints about the handling of FOI applications. Its ability to carry out these crucial functions has been negated. It is true that the Attorney-General's Department has absorbed some of these functions. But that is to defeat Parliament's original and ongoing intention....

Moreover, the office's ability to provide a free review of refusals of FOI applications has been severely truncated and the number passing to the AAT has increased by 47 per cent. The AAT will deal with them only if applicants pay the $816 (sic) fee...

Let us hope that, for the sake of the integrity of our parliamentary democracy, the rule of law and the separation of powers, the Abbott government withdraws the bill to abolish the office and provides it with the resources it needs to perform all its statutory functions.

Ludwig bill set for further debate this week, but fate sealed as government senators oppose

The private member's Freedom of Information Amendment (Requests and Reasons) Bill 2015 introduced by Labor Senator Ludwig was debated last week in the Senate for the scheduled 140 minutes, and as time ran out, is now listed for further consideration on 25 June. 

But with the government apparently opposed, the bill won't get through the House even if Labor, and The Greens who plan to support it can do enough with the crossbenchers to get it through the Senate.

Four government senators (no front benchers participated) spoke against the bill. 

Senator Ian McDonald made the only concession from that side of the chamber observing the bill "has good intentions" before citing its defects. Liberal Party Senator Linda Reynolds opined the bill "is yet another example of poorly thought-through policy by those opposite." 

National Party Senator Barry O'Sullivan didn't hold back: Senator Ludwig should know

 "that the government would not support this because it does not need to support it. Why would you go to the trouble of drafting a bill, why would you go to the trouble of taking up the very, very valuable time of this chamber to debate the bill when you know, full well, there is no need for the bill, and it is very unlikely that the government will respond positively to the bill? ....It is a political stunt. It is one that this government will not be trapped with. It is one that this government will not be supporting." 

National Party Senator McGrath demonstrated he had read the bill at least.

All four managed to speak without a mention of the government's stalled bill to abolish the Office of Australian Information Commissioner but there was plenty of the this "government is committed to being a transparent, accountable and open government" variety. 

Senator O'Sullivan took the prize however and showed he moves in different circles to most of us:

the freedom of information systems that we have around this country are working, and they are working very efficiently..... This has been one of the most open and transparent governments that I have witnessed over my time of political interest of 30-plus year, and I know I participate in the government.

Labor senators Bullock, Alex Gallagher, Brown, O'Neil and Moore painted a different picture.

Senator Bullock said "the attack on the Information Commissioner stands out as an alarming development and one that deserves greater attention."

The Greens Senator Rhiannon likewise, but the senator then went on to describe the bill as "a missed opportunity .. that a Labor senator who has in fact worked in this area has brought forward such a minimal bill," listing 'big picture' issues that require the attention of parliament:

• changes in the law and regulations to actively promote cultural change within government agencies including further enhancements to Information Publishing Schemes such as mandatory publication of information about agency priorities and finances; lists including agency contracts, grants and appointments; and links to datasets, submissions to other bodies and policies;

• the need for all agencies to be covered by FOI as a matter of principle including the parliamentary departments and the intelligence agencies;

• comprehensive accessible searchable information about MPs' entitlements along the lines adopted by the Scottish Parliament.

On this last point the Auditor General pointed out recently in Administration of Travel Entitlements Provided to Parliamentarians:

...independent recommendations for substantive legislative and administrative reform developed to simplify current arrangements and safeguard the interests of the Commonwealth and Parliamentarians, or alternative measures to address recognised fundamental issues with the framework, have not been actioned. As a result, the framework under which Parliamentarians’ non-remuneration entitlements are provided has continued to be complex and opaque...

Freedom of Information bill in Senate

Senator Ludwig's private member's bill Freedom of Information Amendment (Requests and Reasons) Bill 2015  is listed for consideration tomorrow 18 June.

 As mentioned a useful reform that would require government agencies and Ministers to publish online the exact wording of freedom of information requests and the statement of reasons for the decision to allow or refuse release, and require information in released documents to be available for downloading from the web.

But the much more significant government Freedom of Information Amendment (New Arrangements) Bill that would abolish the Office of Australian Information Commissioner on the Senate list since October is yet to be brought on for consideration.

Pity those opposed, Labor,The Greens and some or all the cross-benchers don't combine  their majority numbers to force a vote on that one.

August 2013 and the plan to improve transparency and restore trust seems a long, long time ago

Item August 2013
Liberal Party Our Plan Policy-2013 Election
"We will restore accountability and improve transparency measures to be more accountable to you."

Item August 2013
Trust deficit
Mark Baker SMH:
"Abbott now declares he wants to be a healer. He says his first priority if he wins the election will be to seek to rebuild Australians' confidence in government and restore civility to the national political discourse after three bruising years of minority government.
''The greatest deficit in our country at the moment is the trust deficit. Sure we have got a very serious budget deficit, but the trust deficit is even more serious. I would hope that, should we win the election, I would be able to so conduct myself and my team would be able to so conduct themselves that by the end of the first term people would have once more concluded that Australian government was competent and trustworthy …

 Item June 2015
Trust in Professions 
Bernard Keane Crikey:
"For the first time, Essential also asked about most trusted professions. Doctors scored highest, with 81% of voters having a lot or some trust in doctors; engineers were next, on 68%. Accountants, on 49%, rounded out the trusted professions. .. Journalists scored 27% a lot or some trust, 26% no trust at all and 41% little trust. Real estate agents managed 12% trust and 44% no trust. And at the very bottom, scoring 1% a lot of trust, 10% some trust, 33% little trust and 49% no trust at all, politicians."

Item June 2015
"Tony Abbott's tangled web over paying people smugglers" 

Related Item
(Minister for Immigration and Border Protection) Dutton said: “It’s been a longstanding policy of the government not to comment on on-water matters.”

Item May 2015
"Feds Iron Curtain  of Secrecy' around Detention Centres" 

Item June 2015
"Veil of secrecy descending over foreign aid, experts warn"

Item June 2015
Australian National Audit Office Report: Administration of Travel Entitlements Provided to Parliamentarians 
"The conduct of an independent ‘root and branch’ review of Parliamentarians’ entitlements following the completion of ANAO’s 2009–10 audit report gave some cause for optimism that improvements would be made to the entitlements framework and its administration. However, fundamental weaknesses in the framework remain. Principally, this is because independent recommendations for substantive legislative and administrative reform developed to simplify current arrangements and safeguard the interests of the Commonwealth and Parliamentarians, or alternative measures to address recognised fundamental issues with the framework, have not been actioned. As a result, the framework under which Parliamentarians’ non-remuneration entitlements are provided has continued to be complex and opaque, with travel entitlements recognised as representing one of the areas most affected by those factors.

Item June 2015
Xenophon urges housing transparency

"Independent senator Nick Xenophon has called for greater scrutiny of politicians' travel allowances, saying if taxpayers are helping MPs or their families pay off mortgages then they are entitled to greater transparency."

(An earlier list of noteworthy items.)

Tasmania to introduce on line publication of 'public interest' RTI documents

Tasmanian Premier Hodgman's announcement of "a new policy to ensure that more Government information is shared with the public" is a welcome development that brings the state into line with the disclosure logs introduced some years back by Federal, Queensland, NSW and ACT governments.

The Premier has "directed all Government agencies to publish Right To Information requests online within 48 hours of them being sent to the applicant," explaining

"(q)uite often it is only journalists or Members of Parliament that ask for, and have access to, Right To Information documents.  Under our changes, every Tasmanian will be able to access that information for themselves. While this is one of the biggest reforms since Right To Information laws were introduced, it brings Tasmania into line with Queensland and the Federal Government. This will only apply to public interest Right To Information requests, not requests for personal information. This policy has the support of the Ombudsman and the Solicitor-General."

It probably won't have the support of journalists.

Media organisations in their joint submission to the Hawke review argued not for the first time for a five days exclusive use period when documents are released to a journalist in response to a Federal government FOI application. At present information is required to be posted within 10 days. Some agencies are said to publish promptly so as to remove the prospect of an exclusive and make the FOI exercise something of a waste of the journalist applicant's time. Others don't publish the documents released instead simply indicating they are available on request.

It seems reasonable to allow some exclusive time with released information in Tasmania and anywhere else. Perhaps any applicant - not just a journalist - should be able to ask for a few days exclusive use at the time of making the request, with that elective to bind the agency?

More broadly six years after the introduction of the RTI act the Tasmanian government shouldn't leave reform at this. 

I'm sure that things aren't as good as suggested in the Annual report 2013-14 (pdf) from Department of Justice on the administration of the act, that a drop of 100 in RTI formal requests for the second year in a row can be attributed to how well the proactive release of information is working.

As to what goes on that front, no decisions by the Ombudsman since 2012 have been published on the website

The Ombudsman Annual report  (pdf) (pages 22-26) draws attention to underfunding and the impact on the RTI review function, a point picked up by The Greens Nick McKim. His colleague Cassy O'Connor argues the Premier's interest in the subject is empty rhetoric given agency responses to RTI applications.

sounds like empty rhetoric when you actually look at the Right to Information decisions coming back from Departments. - See more at: http://tasmaniantimes.com/index.php?/pr-article/right-to-information-highly-politicised-despite-liberal-rhetoric/#sthash.

New twist in Office of Australian Information Commissioner saga

The announcement that Australian Information Commissioner Professor John McMillan has been appointed NSW Ombudsman for a two year term raises the question, where to from here for the office he leaves? 

No statement so far from Attorney General Brandis, for the last year intent on abolishing the office despite the lack of majority support in the Senate for his bill.

It's the perfect opportunity of course to rethink this flawed policy choice, pull the bill and proceed to evidence based decisions to improve the FOI framework.

But then again, having dug in so far the government may seek to use Professor McMillan's departure to move towards achieving its purpose in practical terms by not filling the position.

The Australian Information Commissioner Act establishes the Office of the Australian Information Commissioner consisting of the Information Commissioner, the Freedom of Information Commissioner and the Privacy Commissioner, and confers on them statutory functions that remain in place until such time as Parliament repeals the act.  

Freedom of Information Commissioner Dr James Popple left the OAIC in December following his appointment to the Administrative Appeals Tribunal. 

Unless the Information Commissioner and/or the Freedom of Information Commissioner positions are filled on an acting or permanent basis, Privacy Commissioner Timothy Pilgrim will be the sole remaining commissioner charged with the statutory functions and associated powers.

Update: Coverage
The Mandarin:  OAIC weakened as commissioner side-steps into NSW role (Commended)
itnews: Australia's Information Commissioner lands new gig in NSW
Computerworld: Information Commissioner lands new gig as NSW Ombudsman
The Australian: Professor John McMillan appointed new NSW Ombudsman
SBS: John McMillan named new NSW's new Ombudsman
SMH: Acting ombudsman appointed to take over police bugging inquiry

UK Prime Minister David Cameron talks openness and transparency

Does Australian Prime Minister Abbott know what he is talking about?

 I will start tomorrow at the G7 in Germany and I will put corruption at the heart of my agenda at the United Nations in September and the G20 in Turkey, culminating with a major anti-corruption Summit in London next year.
Of course there will be some who will be sceptical and say it is all too difficult. But I believe we should draw confidence from what we have already achieved. When we began the Open Government Partnership, many doubted that it would amount to much. But today 65 countries have made over 2,000 specific commitments on openness and transparency - from pioneering citizens' budgets in Liberia to letting the public audit major government projects in the Philippines.
When I put tax, trade and transparency on the G8 agenda for Lough Erne two years ago some said we would never get agreement on a global standard for the automatic exchange of information over who pays taxes where. But today over 90 countries have agreed to share their tax information automatically by the end of 2018, meaning more people will pay the tax that is due.
While there is further to go, Britain has also taken important steps in practising what we preach. Last December we published our first comprehensive national Anti-Corruption Plan, which Eric Pickles will help take forwards as my anti-corruption champion.

Estimates a missed opportunity to ask where years of 'considering' Open Government Partnership membership has taken us

In hours, days, of picking over the entrails of every government portfolio over the last two weeks- cruel and unusual punishment for Moi - not a single question or mention of the OGP in Senate Estimates.

In the estimates round in February Finance had carriage, the issue was still under consideration and the government was 'positively inclined' to join.

In May 2013 the previous government had lodged a notice of intention to join the 64 other members of this international initiative committed to making governments more open, accountable, and responsive to citizens.

In May, alas, the issue wasn't raised at all in the Finance Estimates.

So no follow up there on what response the government gave when the OGP Support Unit, taking the notice of intention at face value, wrote to Finance pointing out Australia had acted contrary to the OGP process in failing to meet deadlines for lodgement of a national action plan. Or queries about the current situation in light of the letter from the Prime Minister to the Minister for Finance released under FOI that instructed that no announcement of Australia's position should be made "until a draft national action plan is submitted for my consideration.The action plan must give effect to practical measures that align with the Government's overall policy objectives in this area and that take into account the work of the (Redacted: s 34(3) Cabinet) and the timeframes for Government decisions on that work." 

An issue senators might raise with Prime Minister and Cabinet perhaps? 
No, no questions in PM&C Estimates either. 

Before Finance took it up, the OGP was with Attorney General's-so no surprise, no questions there this year. And ditto Foreign Affairs and Trade who remarkably told Estimates a year ago that the international dimensions became relevant after we joined so they probably are yet to open a file.

Maybe the OGP is now with Communications, the home of the newly established Digital Transformation Office? Perhaps the establishment of the DTO as part of the Digital Agenda is the 'work' referred to in the redacted part of the PM's October letter?
  
After all Minister for Communications Turnbull on two recent occasions said Australia "should aim to become the world's leading digital economy....." and that  "we intend to reach out globally to collaborate with the world’s leading digital economies. These include, but are by no means limited to the D5 - Estonia, Israel, New Zealand, South Korea and the UK, as well as state and local governments in Australia."

The D5 charter requires member countries to belong to the OGP. And all nine countries ranked above Australia (10th) in the World Wide Web Foundation Open Government Index 2015-UK, US, Sweden, France, New Zealand, Netherlands, Canada, Norway and Denmark are members.

There were questions about the DTO in Communications Estimates, (pages 45-46) but relatively few given the Budget allocation of $254.7 million over four years to support the initial implementation of the Digital Transformation Agenda, including $95.4 million to establish the DTO.

Maybe there are a few dollars in there to advance our plans to "reach out globally" and join the international movers and shakers in the transparency, accountability open government space?

Senate Estimates didn't uncover it but it's a question raised for Minister Turnbull in an Our Say session later this week. Vote it up if you can. (Update-the OGP question didn't make the cut. The session is here)

Estimates a missed opportunity to quiz Treasury Secretary about what gets recorded, what doesn't, and to ask why

In Senate Estimates for Treasury last week with Secretary John Fraser at the table no one asked about 'culture' and the way they do things there, following his remarks last month:

"Freedom of information has made people extremely careful in the public service about what they put on paper, and that's sad. Freedom of information is not a bad thing in itself. But open policy debate means people have got to be candid. And at the moment a lot of it is done orally, which is a pity. It's a pity for history and it's a pity because I'm not smart enough to think quickly on my feet. And writing something down is a great discipline."

A missed opportunity to explore how Fraser leads on the issue of transparency and accountability, given these ground-rules and good practice guidelines:

The Freedom of Information Act objects

The Parliament intends, by these objects, to promote Australia's representative democracy by contributing towards the following: (a) increasing public participation in Government processes, with a view to promoting better-informed decision-making; (b)  increasing scrutiny, discussion, comment and review of the Government's activities.

 The Public Service Act and APS values

The APS is open and accountable to the Australian community under the law and within the framework of Ministerial responsibility. The APS is apolitical and provides the Government with advice that is frank, honest, timely and based on the best available evidence.

The Australian Public Service Commissioner's Directions:
Upholding the first mentioned APS value includes:

(b)  being open to scrutiny and being transparent in decision making;

(c)  being able to demonstrate that actions and decisions have been made with appropriate consideration;

(f)  being able to demonstrate clearly that resources have been used efficiently, effectively, economically and ethically;

Upholding the second includes:

(d) understanding the needs of the Government and providing it with the best objective, non‑partisan advice based on the best evidence available;
(e) providing advice that is relevant and comprehensive, is not affected by fear of consequences, and does not withhold important facts or bad news;

 The Australian Public Service Commission elaboration in APS Values and Code in Practice:

Good advice from the APS is unbiased, evidence-based and objective. It is politically neutral but not naïve, and is developed and offered with an understanding of its implications and of the broader policy directions set by government..... Good recordkeeping is also essential to accountability. All significant decisions or actions need to be documented to a standard that would withstand independent scrutiny. Proper recordkeeping allows others to understand the reasons why a decision was made or an action taken and can guide future decision makers.... Building and maintaining a constructive relationship with Ministers and their offices is a key responsibility of APS employees. Consistently working to the APS Values is crucial to such relationships, as are a sound appreciation of the respective roles and a spirit of cooperation and good communication.... Although not all communication needs to be written, it is good practice to provide advice on key issues in writing, addressed to the Minister. File notes on significant decisions should also be created and retained.

The Australian National Audit Office Better Practice Guide Public Sector Governance (Chapter 4)

Good records management ensures that decisions and the processes that lead to them can stand up to scrutiny. It is particularly important that accurate and relevant records are accessed and used when making decisions. An entity's records also reinforce the transparency and accountability of its activities, strengthening stakeholders' confidence in the entity. Effective records management practices can also strengthen an entity's ability to comply with obligations to respond to requests for information under the Freedom of Information Act 1982 and to manage personal information in accordance with the Privacy Act 1988. To meet transparency and accountability obligations under the Public Service Act 1999, officials need to create records that document key decisions and actions in support of their entity's legal and business needs. For most Australian Government entities, requirements for the retention of public records are established under the Archives Act 1983. Each entity should establish robust systems and procedures to support good records management practices. 

The Australian Archives Managing Your Agency Records

When you create a record you are documenting your business. A record can be a range of different things: a map, written report, email, film or sound recording. The format of the record you create doesn't matter. What is important is that evidence of your activities is recorded in a way that supports your agency's business needs.

Estimates a missed opportunity to quiz public service leader on 'FOI very pernicious' remark

Senate Estimates run for hours, days, weeks with some penetrating questions and plenty of banal ones as well. Unfortunately important questions often get crowded out or for other reasons never get asked.

For example Estimates for Department of Prime Minister and Cabinet last week included one hour of questioning (Transcript 122-134) of Australian Public Service Commissioner John Lloyd.

Senator Ludwig showed particular interest in the commissioner's speeches.

The commissioner said he had given many speeches since assuming office but didn't think any had been posted on the web as he tended to speak off the cuff.

When Senator Ludwig asked 

"Were the comments that were made to the public servants at the National Portrait Gallery on 11 March an off-the-cuff speech?" 

I thought, terrific, the senator is onto Mr Lloyd about his reported remark on that occasion that Freedom of Information laws are "very pernicious," to which he added

"I think they have gone beyond perhaps what they intended to do and I think they do make us a bit over cautious and make some of the advice more circumspect than it should be, and I hope the government will address that and perhaps reassess the extent of some of those FOI laws.”

At the time Senator Ludwig said

"It's unbelievable that the head of the Commonwealth public service would call the FOI laws 'pernicious' – he either has no understanding of the importance of FOI laws in a modern and transparent democracy or he is trying to undermine the legislation with his comments."..
"FOI laws simply provide a window into the decisions and process of government. If the Public Service Commissioner has confidence in the professionalism and integrity of public service staff, then he has nothing to fear from FOI laws."

Mr Lloyd responded to the question explaining it "was a speech where I had notes and I spoke. I was asked questions at the end of the speech and I responded to questions. It was a typical session. I think it was an IPAA speech. The Institute of Public Administration of Australia was the organiser of the speech."

Go Senator Ludwig, I'm thinking, follow on with
Were your remarks about FOI laws accurately reported? 
What did you mean by "very pernicious?" 
What was the basis for the claim?
In what way has the law gone beyond what was intended?
Have you raised the issue with Minister for the Public Service Abetz?"
What action do you suggest is needed?
Have your views changed since you took up your position after working at the Institute of Public Affairs where your then colleague now Human Rights Commissioner Tim Wilson made 750 FOI applications to one agency in a four month period including 440 on one day? 
(I could go on......)

Alas, not even close.

No questions for the commissioner from Senator Ludwig or anyone else moved beyond the two topics the senator pursued, Lloyd's remarks regarding 'hangover' day sickies, and leaks about military pay offers.

Until corrected 'tone at the top' set by the commissioner on integrity and transparency is that FOI is "very pernicious," that is "extremely harmful, damaging, detrimental, deleterious."

OAIC Estimates reminds of Monty Python and the Holy Grail

Images kept recurring as I read the Senate Estimates hearing for the Office of Australian Information Commissioner (Transcript  Pages 33-44).

The plot so far
The Freedom of Information Amendment (New Arrangements) Bill that would abolish the office has been stuck in the Senate since October, opposed by Labor, The Greens and enough of the eight crossbenchers to deny the government a majority.


The OAIC has operated for 12 months against the backdrop of the government's plan; the apparent intention is to keep the bill on the Senate list with no sign of movement in the government's position; no funds for freedom of information and related work were allocated to the office for the period 1 January to 30 June and the office operated on savings during this period at a reduced level ; the Canberra office closed in December with the Australian Information Commissioner working from home other than three-four days in alternate weeks in Sydney; the Freedom of Information Commissioner resigned and was appointed to the AAT with no one appointed to the position on an acting or permanent basis since; "transitional funding" of $1.7 million is allocated in the 2015-16 Budget for currently nine soon to be twelve staff working in this area, half the number involved prior to May 2014; all FOI complaints are now handled by the Ombudsman; advice, guidance,statistics, assistance, training and education functions conferred on the office by legislation have moved or are to move to the Attorney General's Department.

Estimates
Despite it all, Australian Information Commissioner Professor John McMillan, like a good public servant (or the Black Knight) explained how the office soldiers on, regardless of a situation he described variously as 'not ideal', "awkward" and "undesirable."

Some extracts: