Considering options while confirming plan to abolish Information Commissioner?

In a Media Release last Friday Attorney General Brandis said

"Timothy Pilgrim was appointed acting Australian Information Commissioner for a three month period in July 2015 while the Government considers options for the future of the Information Commissioner position."

 Today Jane Lee in Fairfax reports a spokesman for the Attorney General as saying 

"The government remains committed to its budget savings measure to abolish the OAIC...

The bill before the Senate to abolish the OAIC would abolish the positions of Australian Information Commissioner and Freedom of Information Commissioner. 

'Considers options for the future' - "thinks carefully about choices before making a decision."

Hmm...

Public sector corruption survey

Transparency International Australia (TIA) is supporting the TIA Queensland Regional Committee in conducting a pilot Survey in relation to public sector corruption in Australian states.  If you have the time help by completing the Survey today.

"We're the government and we're here to protect your privacy"

Not... 

as two experts outline years of failure to pay attention to privacy protection.

Dr Roger Clarke in a detailed working paper examines the last 15 years' incursions into human rights based on 'the terrorist threat' and highlights the limited attention paid to privacy impact assessment:

Democracy in Australia is gravely threatened by a flood of measures harmful to human rights that have been introduced since 2001, and a large proportion of which are unjustified and not subject to effective controls. The passage of these measures through the Parliament has been achieved on the basis of their proponents' assertions and without appropriate scrutiny. Parliament had available to it various forms of impact assessment techniques, but failed to require that such methods be applied. The study reported here found that one particular form of evaluation, Privacy Impact Assessment (PIA), should have been performed, but was seldom applied, and where it was applied the process and report were in almost all cases seriously deficient. Survival of democracy is dependent on the Parliament standing up to the national security extremism that has taken hold of the Attorney-General's Department. Ministers and Parliamentary Committees must demand prior evaluation of proposals that restrict civil freedoms, must ensure transparency in relation to the proposals and their justification, and must require effective controls over, and mitigation features within, those measures that survive the evaluation process.

Reminder: the Office of Australian Information Commissioner that includes the Privacy Commissioner has operated under threat of extinction for 15 months. Currently one commissioner is responsible for the functions of three commissioners envisaged by parliament in establishing the office. A Privacy Commissioner will be in place for 12 months from 19 October.

.......................
Anna Johnston of Salinger Privacy responds to a NSW parliamentary committee call for submissions on a statutory cause of action for serious invasions of privacy by providing chapter and verse of failure to address other well known weaknesses in privacy law and enforcement. 

Johnston lists the black holes where privacy laws don't apply and loopholes unique to NSW "so wide you could drive a truck full of privacy-invaders through them, and still have room for a parade of dancing elephants on either side." For example State Owned Corporations are not subject to privacy legislation, a NSW agency can pass any personal information to a person or body outside the state and not breach the Privacy and Personal Information Protection Act, and an agency is not responsible for privacy invasive conduct of an employee malicious or otherwise if the person wasn't really acting as an employee at the time.

Reminder: as Johnston notes, "NSW has only a part-time Privacy Commissioner, who does not have enough staff or an independent budget, let alone any powers to levy fines or compel privacy-invaders to do anything."

Brandis considering options for future of Australian Information Commissioner

It's the first indication in 15 months that a rethink of sorts is underway about plans to abolish the Office of Australian Information Commissioner.

In his announcement that Timothy Pilgrim has been appointed Australian Privacy Commissioner for a period of twelve months commencing 19 October 2015, Attorney General Brandis said Pilgrim's current three month appointment as Acting Australian Information Commissioner is 

"while the Government considers options for the future of the Information Commissioner position."

Options haven't been mentioned previously as the government single mindedly pursued abolition of the OAIC. Legislation before the Senate would eliminate both the information commissioner and FOI commissioner positions and a whole range of FOI oversight and information policy functions.There is no majority in support of the bill in the Senate.

Faced with this reality it's clearly time for a rethink.

Back in May 2014 Attorney General Brandis said abolition of the office was about savings, about simplifying, streamlining and improving efficiency and effectiveness in the conduct of FOI merit reviews, and reducing the burden on FOI applicants.

If the government sticks with those objectives there are plenty of options short of abolishing the office, a course of action that should never have made it to first base.

The better option however is withdraw the bill and look to ways to simplify, streamline and improve efficiency and effectiveness in provision of access to government information.

I was no fan of the limited Hawke FOI review process conducted in 2012-13 but that report has been sitting in Attorney General Brandis' in-tray since he took office two years ago. 

Dr Hawke's first recommendation was "..that a comprehensive review of the FOI Act be undertaken" and his concluding comment "I believe a complete rewrite of the FOI Act in plain language is now necessary, so that it is readily accessible and easily understood." 

If come 19 October when Pilgrim changes hats again things are no further advanced, the position of information commissioner will need to be filled one way or another.The commissioner is head of agency and as such the accountable authority responsible for governance functions under the Public Governance, Performance and Accountability Act. 

Certifying entitlement claims too much for busy parliamentarians particularly Bob Katter

ABC picks up on Senator Conroy and Bob Katter not certifying Department of Finance entitlement expenditure for years-noted here four weeks ago. 

Senator Conroy could hear feet in the corridor and has now signed for expenditure back to 2011.

Bob Katter's defence amounts to are you kidding, I run two offices you know....

"More than 100 other MPs have failed to sign their half-yearly certification at least once."

Certification details are listed for each reporting period.

Deep breaths needed instead of talk about binning Big Tobacco access rights

The Nick Baker - Richard McKenzie piece in Fairfax Media on the two pronged attempt to utilise freedom of information laws to obtain data from surveys on smoking has raised some interesting issues. 

However some reactions - that the applicant shouldn't be able to exercise the right to seek access to government information, that this sort of thing may frustrate public health research and may even warrant legislative amendment - seem way over the top. 

(Addendum- an opinion piece from the Los Angeles Times on the right to access scientific research undertaken at public expense-within limits. And more pertinently this on "Big Tobacco' FOI rights on The Conversation UK and this on The Conversation Australian version. I'm with Nola Ries of University of Newcastle-tobacco companies should be free to use FOI laws even if we don't like it.)

Without seeing the detail of what was sought, what was released in NSW and what reasons were given for refusal of access in Victoria it's difficult to muster the outrage running in some commentary, or be concerned the laws don't adequately protect sensitive information and data.

Baker and McKenzie report a lawyer acting for American Tobacco obtained Cancer Institute NSW research into adults' attitudes to smoking through an application under the Government Information (Public Access) Act. But the Victorian Cancer Council "is spending thousands of dollars" fighting an FOI application from the same lawyer in the Civil and Administrative Tribunal "for data from surveys by thousands of Victorian school children and teenagers that reveal their attitudes to smoking and alcohol."

Just what was sought and obtained from the Cancer Institute NSW is unknown. The Chief Cancer Officer, Professor David Currow said "The Cancer Institute NSW was compelled" to provide tobacco survey data requested under the GIPA act.There are plenty of public interest considerations designed to safeguard sensitive information from disclosure but not possible to comment on the decision without more detail.

The GIPA act differs in many respects from Victoria's FOI act.

There, the yet to appear VCAT decision will throw light on the exemption claims in due course.

Both Victorian Cancer Council Director Todd Harper and Professor of Health Policy at Curtin University Mike Daube (see below) are outraged but whether their concerns about release of de-identified data amount to valid exemption claims is yet to be seen.

FOI is no stranger to Big Tobacco but the idea of a 'block tobacco' FOI amendment is just plain silly.

International Commission of Jurists remind that Parliament not Executive fiat decides the fate of OAIC

Bernard Keane in Crikey today on the FOI rollback campaign that includes the unsuccessful push to legislate to abolish the Office of Australian Information Commissioner, and in the meantime crimp its capacity to undertake its full range of functions, coinciding with public service leaders now speaking of how they thwart the law of the land.

On the same subject former NSW Attorney General John Dowd in his capacity as president of the Australian section of the International Commission of Jurists (ICJ) writes to Attorney General Brandis, as reported in The Guardian Australia, reminding that the rule of law involves the ongoing effective discharge of the functions of a statutory body such as the OAIC until such time as parliament no longer requires:

... the government is seeking to achieve executively what it cannot achieve legislatively,” Dowd said in the letter to Brandis. “This is of profound concern to the ICJ which has the responsibility of defending the rule of law. “The rule of law is not a nebulous concept but does have some very specific components, one of which is the doctrine of the separation of powers … It is disappointing that we have to draw this simple principle to your attention.”

When a government was seen to be doing executively what it was unable to do by legislation, Dowd wrote, concerns about “insults to rule of law and the doctrine of separation of powers are understandably aroused”.

“When this executive function has the effective result of emasculating a statutory body, which can only be abolished by statute, there can be no doubt that the wall of protection separating the executive from the legislature has been breached,” he said.
Dowd told Brandis a government should not prevent the ongoing effective discharge of the functions of a statutory body that the law required to continue, otherwise “the consequences in a civilised society such as ours would be too disastrous to contemplate”. He said if that were the case, a government could emasculate any statutory body that caused it displeasure.

(Addendum: John Dowd on ABC AM Tuesday morning.)

The bill to abolish the OAIC has been before the Senate since October 2014 and not once brought on for a vote. Meanwhile because of failure to fund and fill positions one commissioner carries the functions of the three positions Parliament established.

Open Government Partnership: Australia on notice to follow through on membership

Toby McIntosh on Freedominfo.org in Washington DC did some sleuthing to identify the unnamed country referred to in the Open Government Steering Committee minutes of its July meeting- and it's Australia

Australia’s lack of action as a member of the Open Government Partnership is “particularly concerning,” the OGP Steering Committee decided at a recent meeting.
The Steering Committee set a new deadline for Australia “to recommit to OGP,” according to recently released minutes of the July 22-23 meeting. (See this page on the OGP website, scroll down.)
After two years as a member, Australia has yet to prepare a National Action Plan, the key component of participation in the OGP in which members make specific commitments on how to advance open government.
Australia, which joined in May of 2013, should have created its first action plan by May of 2014, according to an OGP chart. The submission of a plan is followed by other steps, including a one-year self-evaluation and then an assessment through the OGP Independent Review Mechanism.
Australia was given until the upcoming October OGP Global Summit meeting in Mexico to “recommit.”

The Australian version of course is that the Abbott Government is still 'considering' whether to proceed with Labor's announcement in May 2013 that it intended to join. 

This letter in  August 2014 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..."   

A year on in the public domain at least, silence.

Russia is the only country to withdraw from the OGP. Sixty five others are members including all we usually cite as the peer group - USA, UK, Canada, NZ- every country ranked ahead of Australia on the Worldwide Web Foundation Open Government Index, and in our region the current co-chair Indonesia, along with Korea and the Philippines.

McIntosh provides this further background on the laggards

Lithuania, Malta and Turkey were the first members to get a notice about missed deadlines. In February of 2014, the OGP issuing a public statement saying that  reports that there was “little evidence” that the countries’ action plan commitments were being fulfilled. (See previous FreedomInfo.org report.)
Under a revised OGP policy approved in March of 2014, two warnings in a row would trigger a discussion about continued OGP membership – the sanction that the organization, founded on inclusion, voluntary goal-setting and mutual support, hopes to avoid. A country will be in breach if it does not publish a NAP within 4 months of the due date. (See previous FreedomInfo.org article.)
The OGP in August of 2014 has made public 11 letters sent in April informing member governments they were not in compliance with their OGP commitments. (See previous FreedomInfo.org.)
In December of 2014 the OGP cautioned 12 governments that they were falling behind on their OGP responsibilities, announcing the action in a blog post with links to the letters). (See FreedomInfo.org report.)

Open season on information commissioners?

Victoria's plan to enhance FOI watchdog powers stands in sharp contrast to the Federal Government's tenacity in clinging to its plan to abolish the Office of Australian Information Commissioner one way or the other and in the meantime leaving the office with one acting commissioner instead of the three positions parliament established.

Freedom of Information Commissioner Lynne Bertolini issued this Media Statement on Friday that she will step down on 5 September citing the government's intention to  create a new position of Public Access Counsellor. 

Farrah Tomazin in The Age suggests other factors may have contributed, and reports Special Minister of State Gavin Jennings providing this general update on reforms:

Mr Jennings did not go into details of the review, other than to say the government had identified "significant opportunities to reform the FOI system", improve oversight and make it easier for Victorians to access information. He said the new Office of the Public Access Counsellor would have extra powers, including the ability to review decisions to withhold documents based on cabinet-in-confidence exemptions. Mr Jennings said the government changes would include requiring agencies to progress and respond to FOI requests more quickly. A bill to establish the new office will be introduced to Parliament in the first half of next year.

Victoria's Freedom of Information Act represents, well, the finest thinking of the nineteen eighties. 

Hopefully those outside government will be given an opportunity to point towards contemporary good practice before 'significant reforms' are locked in.

Acting Australian Information Commissioner on OAIC performance:'managing effectively within available resources.'

The post Impact of cutbacks at OAIC attracted a response from Acting Australian Information Commissioner Timothy Pilgrim who in a letter pointed out correctly that I did not provide a complete picture of how the OAIC is managing its workload. 

The Acting Commissioner said the OAIC seeks to provide

"timely case management processes within the resources we have been allocated for each of our functions.We have been managing both (Freedom of Information and Privacy) jurisdictions effectively within those available resources and the matters you refer to reflect the OAIC’s focus on finalising older matters while also providing a prompt and efficient response to recent matters."

Fair enough. 

And I accept Mr Pilgrim's point about the professionalism and commitment of staff  "who have been working hard to ensure the provision of an effective and efficient service in the current circumstances." 

But the statistics he cites show IC FOI reviews received and finalised in the last 12 months on average were finalised within 3 months of receipt leaving plenty that weren't; 10% (22 of 220) on hand are more than 12 months old; and 13% (61) finalised in the last year were closed with the applicant authorised to head off to the AAT ($861 for those who don't qualify for a concession) because of a finding that the "interests of the administration of this Act make it desirable.."

"(M)anaging.. within.. available resources" and "working hard.. in the current circumstances" suggest to me doing the best the OAIC can in light of the ongoing attempt by the government to abolish the office and the resulting uncertainty and effect on staff, and reduced funding for FOI functions in particular.

The events of the last 15 months must have impacted on OAIC capacity to carry out fully and in a timely fashion all statutory information policy, freedom of information and privacy functions assigned to the office.

The main purpose of the post in question was not to run the ruler over the OAIC in any detailed fashion but to encourage those who have had matters before the office that may have been impacted by the resource constraints and the failure to fill commissioner positions to contact me about the experience. 

That invitation still stands: peter.timmins100@gmail.com

Mr Pilgrim's letter (Email 5 August) follows:

Impact of cutbacks at OAIC: Open and Shut interested in your story

With the functions of the three commissioners that make up the Office of Australian Information Commissioner now in the hands of a single acting commissioner, Timothy Pilgrim's 'in folder' will be heavily loaded with important matters. 

None more so than files concerning non delegable functions that the commissioner only can exercise such as freedom of information review decisions, and determinations on privacy complaints not resolved by conciliation.

The latest published FOI review decision is on a matter lodged with the OAIC in April 2014. The latest published privacy determination is on an application lodged in August 2013.

How many applications remain in the queue and how long they have been there is not known. 

The latest Quarterly Statistics about Freedom of Information and Privacy complaints and reviews published by the Office are for the period April - June 2014, before the cutbacks on funding announced as the government launched its initiative to abolish the office through legislation that is still to pass.

More FOI review applications are likely to be waved off in the direction of the Administrative Appeals Tribunal where the commissioner "is satisfied that the interests of the administration of this Act make it desirable." Quite a few with legitimate grievances but not eligible for a concession will balk at taking the matter further given the AAT application fee is $861.In the absence of a determination, privacy complainants appear to have nowhere else to go.

If you have had an FOI or privacy matter before the OAIC and the resource constraints and contraction of commissioners from three to two in December and to one since 19 July seem to have added to your woes, Open and Shut is interested in hearing your story.  

May not be able to do more than listen but email me: peter.timmins100@gmail.com

Deja vu: Government announces comprehensive review of parliamentary entitlements

Six years ago the then government announced a 'root and branch review' of parliamentary entitlements following critical findings by the Auditor General

The committee chaired by Barbara Belcher reported in April 2010. The government sat on the report for a year before releasing it.

As recounted here the Auditor General six weeks ago reported something had been done on 17 of the committee's 39 recommendations. But

"there has been no formal government response to the recommendations of the CROPE (Belcher) report, or subsequent Remuneration Tribunal report, in relation to fundamental reform of the legislative and administrative framework underpinning the provision of Parliamentarians’ ‘tools of trade’." 

Today the Prime Minister announced

The rules governing the parliamentary entitlements system need reform....The rules lack clarity and lack transparency. We need a system that is simple, effective and clear. We need a system that more independently sets and monitors parliamentary entitlements, working with the Department of Finance and the independent Remuneration Tribunal. We need a system that enables parliamentarians, their staff, and the public, to operate inside the rules with confidence and for those rules to meet the expectations of the community. We need a system that supports the work and activities of current day politicians, from diverse electorates, and helps them to serve their constituencies, parties and the Parliament. The Government has asked former Secretary of the Department of Finance, Mr David Tune AO PSM, and Chair of the Remuneration Tribunal, Mr John Conde AO, to co-chair a committee to examine how best to deliver a more independent system.This committee starts with a blank sheet of paper to provide options on a system that is truly independent.

I'm sure they're serious this time.