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.
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."
Prof. McMillan:...The figures that I have provided indicate that there is quite a dynamic output from the commission at the moment. Indeed, over the last four years there has been a steady improvement in output at a time of diminishing resources. For example, in the IC review-
Senator COLLINS: Well, this is the diminishing resources, which is exactly the point I am getting to.Attorney General Brandis,the minister at the table for most of the hour long hearing, chose to say little, which suggests an intention to continue the year long stand off.
Prof. McMillan: Yes, and I will comment on that in one moment. In the IC review space, for example, on average we receive 30 applications per month and resolve 40 per month. So, we have eaten substantially into a backlog that we had and reduced it nearly by half, and we are continuing to deal with IC review matters in an efficient way. But let me add that it is not an ideal context-
Senator COLLINS: No, it is not ideal.
Prof. McMillan:- in which to be discharging that function, and it is correct, as you say, that there was a higher staffing at an earlier time. And that certainly enabled the office to discharge a broader range of liaison functions with government, the publication of guidelines and other materials and an occasional own motion investigation, although we did complete one in December last year—in record time, I might add. It is an awkward environment,but the office is highly productive nevertheless in the FOI space.
Prof. McMillan:….. Let me say, we have undertaken some quite innovative steps to streamline matters and these will be of lasting significance for FOI review, whatever model is adopted by the parliament, and this is reflected in recent IC review decisions in which we have adopted a template model that enables easier resolution, drawing attention to the issues and quicker disposition of cases.
Senator XENOPHON: The fact that the Freedom of Information Commissioner has not yet been appointed, there is not a replacement, does that impede you in any way in terms of the exercise of your work?
Prof McMillan: Formerly, there were three commissioners who could make IC review decisions and only a commissioner can make an IC review decision. Since Dr P opple's departure, it has meant there are only two
commissioners, Commissioner Pilgrim and myself, who can make IC review decisions. Since Dr Popple's departure, we have published 34 decisions and been involved in disposing of a much larger number.
Senator XENOPHON: Would it be fair to say that in the absence of another commissioner that does axiomatically mean that there is, all things being equal, a greater workload for the two of you?
Prof McMillan: Yes. More hands on deck means greater distribution of work among those who are available.
Senator XENOPHON: Does that in itself lead to an increased backlog or a more cursory approach? I am not in any way being critical. Does that mean that you need to cut your cloth accordingly to try and deal with the workload?
Prof McMillan: We have addressed the staff reduction by exploring other options for earlier resolution of cases and indeed have been successful in reducing the backlog. The backlog of unresolved matters was standing at around 350,18 months ago. It is down to under 200 at the moment. As I indicated earlier, we receive 30 IC review applications per month and resolve 40; so there is a steady and efficient handling of cases. Of course, there is some reduced work as well. We now refer all FOI complaints to the Commonwealth Ombudsman. And, as indicated, the department has picked up the tasks of statistical reporting and preparing for further amendments to the guidelines.
Senator XENOPHON: This perception that the government appears to be seeking to dissolve the agency through lack of funding and resources rather than through legislative change. You do not think that affects what you are doing?
Prof McMillan: Yes, it does affect what we are doing in a number of ways. In a physical se
nse, it affects us because we do not have an operating office in Canberra. Although clearly we still discharge functions in Canberra…….
— As I said, it is an awkward arrangement. There is a reduction in the number of staff. There is certainly less that we can do. But we have particularly focussed on dealing with IC reviews —that is, usually applications about agency denial —in the most effective and efficient way possible.
Senator Xenaphon:..is there anything to suggest that politicians, departments or agencies are taking advantage of the relative lack of resources and any processing backlog to either refuse or delay FOI requests knowing that your office does not have the resources it hitherto had in order to conduct timely assessments and appeals? This is not a criticism of your office at all but what has been put to me is that there might be some who are playing the system knowing that there is a backlog there.
Prof. McMillan: I will make two points in response. Firstly, there has in my view been a general improvement in FOI administration, across government agencies over the last four years. There is much greater consistency in FOI administration across government. The second point is we certainly see instances in our IFC review matters of exemption claims that are not strong.........There is certainly room for improvement in more astute decision making by agencies. Whether that reflects a considered view to game the system and claim an exemption and let time run, I have no direct evidence of that. Certainly, I have said on other occasions that when there are delays in FOI review, it does provide an opportunity for an agency to make a decision that is rather flimsy but will survive until the external review body has the opportunity to look closely at it.
Senator XENOPHON: Thank you, and a consummate diplomat, Professor.
Senator RHIANNON: Professor, how have the developments of the last 12 months impacted on the office generally? I also want to go to the privacy functions. To what degree has that been limited? How has it changed?
Prof. McMillan: My short answer is that, clearly, the arrangements are, as I have said, awkward in some respects and undesirable, but at the same time the office has focused intensely on how to discharge its statutory responsibilities. In relation to IC review matters, I think we have been very successful in dealing with those now on a more streamlined and efficient basis. There are other activities I have undertaken in the past that the office does either less or not at all at the moment. Complaint investigations is one example.
Senator BILYK asked "Why hasn't the government brought on the FOI bill in the parliament? It is dated 2014—is it not?"
Senator Birmingham in a brief spell in the minister's seat responded (deadpan):
As you know, we have many legislative measures before the chamber at one time and that becomes a matter of prioritisation for the government and the manager of government business, based upon what we believe will be the most effective delivery of the government's policies with the finite sitting hours of the Senate.