Turnbull government stands its ground, apart from international open government community

Disappointing that the Turnbull Government chose to keep the head down rather than step up publicly with a positive response to the request three months ago from the Open Government Partnership Steering Committee to recommit by the time of the OGP Global Summit in Mexico this week. 

Spirits here rose sharply yesterday morning when my email inbox lit up:

Re: Commitment to open government -  Whitney Brennan Office of The Hon. Malcolm Turnbull MP

Only to drop like a stone when it turned out to be pretty much the standard boiler plate, pass the parcel reply to an email sent to the PM a week ago about the OGP and the related issue, the continuing saga of the Attorney General's attempt to scuttle the Office of Australian Information Commissioner. 

Toby McIntosh reports over one thousand delegates from 94 countries attended the
Civil Society Day in Mexico City yesterday prior to the official two-day OGP meeting.

Meanwhile back in Canberra.......
 
Emails to and from the PM's office and an earlier exchange with Mr Turnbull in July follow.

Australian Press Council seeks Government commitment to open and transparent government

"The Chair of the Australian Press Council, Professor David Weisbrot, called on the Turnbull government today to demonstrate its commitment to open and transparent democracy by immediately providing the Office of the Australian Information Commissioner (OAIC) with sufficient resources to fulfil its mission under existing law.

Professor Weisbrot also called on the government to send a high level delegation to the Open Government Partnership’s Global Summit in Mexico City, to be held on 27-29 October.

“Australia used to be one of the world’s leaders in promoting open government and freedom of information, along with Scandinavian countries,” Prof Weisbrot said. “Now, there appears to be little interest in federal government circles, which is a great shame as these issues are more important than ever.

"These are not only critical issues for all of us as citizens, but they are of particular importance in underpinning the work of the free press, which is reliant upon open access to government information, minimising secrecy laws and encouraging whistleblowers who disclose government or corporate malpractice.

“The lack of commitment to our own OAIC is a very discouraging sign — and with the Global Summit to commence in days, we are still waiting for any sign of interest in that meeting by the Turnbull government or the federal Opposition”

The OAIC has been badly run down in recent years, with a single commissioner (the former Privacy Commissioner) on a short-term contract filling the roles designed by Parliament to be covered by three senior statutory officers.

There was little evidence at the recent Senate Estimates hearings that Attorney-General George Brandis is planning to restore the OAIC’s budgetary and human resources, nor was any alternative strategy canvassed for ensuring that Australia maintains a robust freedom of information system, open government and privacy protection.

Australia made a commitment in May 2013 to join the Open Government Partnership (OGP), but has been inactive ever since, while most other nations have been busy designing and implementing government Action Plans in collaboration with civil society organisations, Prof Weisbrot pointed out. The OGP consists of 66 member countries and aims to secure concrete commitments from governments to promote transparency, empower citizens, fight corruption, and harness new technologies to strengthen governance.

“Open and transparent government is one of the key foundation stones of liberal democratic government,” Prof Weisbrot said. “Free access to data and documents held by government — with some obvious exceptions for a small amount of information that is security sensitive or otherwise clearly inappropriate for release — is essential for ensuring good policy making and sound administrative decision making, as well as for exposing and preventing corruption”.

For more details, contact Michael Rose, the Press Council’s Director of Research and Communications, on 0451 978 276 or by email at michael.rose@presscouncil.org.au"

A simple step for Australia to come out of the Open Government Partnership naughty corner

With one day until the Global Summit gets underway in Mexico City, Canberra maintains silence in response to the request in July that Australia indicate its intentions by this time.

Distinguished former Australian diplomat Richard Woolcott is the latest to call on the government to sign on. On the Lowy Institute Interpreter Woolcott lists eight ideas for fine tuning foreign policy in the Turnbull era including:

"Another positive change which Prime Minister Turnbull could make as soon as possible would be to sign up to the Open Government Partnership. Nearly 70 countries, including Indonesia, New Zealand, the Philippines, the US and the UK have already done so. Mr Turnbull has said he wants to have a more transparent and open government. Joining would reinforce his comments."

Meanwhile Toby McIntosh in Washington notes that dealing with the few difficult members poses problems for an organisation that is guided by a steering committee consisting of government and civil society representatives. Particularly in dealing with complaints from civil society in a member country about a government clamp down. 

And closer to home, complaints about failure by a member government to live up to its OGP commitments:

"When countries have missed deadlines, the OGP has occasionally, and as a last resort, issued public warnings about the need to get back on track, usually with good effect. One member, Australia, has done virtually nothing. This caused the Steering Committee in July to set a deadline of next week for Australia to recommit. (See FreedomInfo.org report.) Australia, joined up under a liberal leader, but left its membership card in the wallet under a conservative government. A recent change in governments back to the liberal persuasion may trigger recommittal, but no official word has emerged."

The OGP aim overall has been to keep members and intending members inside the tent to the extent possible with a liberal interpretation and application of the rules. Australia got to first base in May 2013 with its notice of intention to join. Followed by two and a half years and counting of considering and reconsidering while deadlines for next steps passed.

A recommitment to the OGP should be a walk up for a 21st Century government led by a prime minister who not only wants his government to be more open and consultative but has 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 best.

Now's the time to reach out and link up with the 66 countries in the OGP.  

Let's do it, at the same time eliminating that stain on our credentials, the plan announced in the infamous 2014 budget and still stuck in the Senate to abolish the Office of Australian Information Commissioner

McIntosh points to powers that could be exercised if and when patience finally runs out:

The OGP Articles of Governance provide a mechanism for suspension in the event of repeated missed deadlines. The OGP Steering Committee 2014 adopted a policy under which two warnings in a row would trigger a discussion about continued OGP membership. (See previous FreedomInfo.org report.) The policy states:

Should the Support Unit or IRM process find that a participating government repeatedly (for two consecutive action plan cycles) acts contrary to OGP process or its Action Plan commitments (addenda B and C), and fails to adequately address issues raised by the IRM, the SC may upon recommendation of the Criteria and Standards (CS) sub-committee review the participation of said government in OGP.

I'm sure it won't come to that or an Australian walk in the footsteps of Russia, the only country to sign on and then think better of it.

Silence on Open Government Partnership five days from Mexico deadline

Will we, won't we?

Not a peep out of Canberra (except these unsourced positives) in response to the request from the OGP Steering Committee in July that Australia indicate its position prior to the Global Summit in Mexico City commencing on 27 October.

But out of Berlin a letter to Prime Minister Turnbull  from Cobus de Swardt Managing Director of Transparency International urging Australia to fully sign on, and send a delegate to the summit which will include a side meeting on how the OGP contributes to the fight against corruption:

Transparency International would like to extend our sincere congratulations to you on becoming Prime Minister. We look forward to working together to achieve a consultative and open government that effectively tackles corruption.

For Transparency International, a first step towards these aims is for the Australian government to realise its outstanding membership requirements as part of the Open Government Partnership (OGP).
Australia made a May 2013 commitment to join OGP, a multilateral initiative with 66 member countries that aims to “secure concrete commitments from governments to promote transparency, empower citizens, fight corruption, and harness new technologies to strengthen governance.” Yet in the 30 month period since joining, Australia has made little public progress on advancing such commitments while other nations have designed and implemented one or more OGP national ‘Action Plans’ in collaboration with civil society.

There is an opportunity to correct this. On October 27th, the President of Mexico will host all the OGP governments at a Global Summit in the country’s capital. Transparency International encourages the Australian government to take a strong public stand ahead of the summit and state that it will fully comply with the OGP membership requirements. The government should also send a delegate to the summit and join the planned side meeting the Mexican government will convene on how the OGP contributes to the fight against corruption.

At this stage it looks as if Australian involvement -government and non government alike- will be minimalist if registrations as at 19 October are anything to go by. A list seen by Open and Shut includes nineteen hundred names, no kidding, but only one from Australia-Silvana Fumega from Tasmania.  

Public service chief's FOI 'very pernicious' claim based on false premise.

The responses by Australian Public Service Commissioner John Lloyd to questions in Senate Estimates on Monday suggest Mr Lloyd doesn't know what he is talking about when it comes to information access in the cause of transparency and accountability.

Apparently he didn't know when he described freedom of information earlier in the year as "very pernicious." His comments this week showed he hadn't bothered to find out much since March, or talk to others including ministers about the subject.

The Canberra Times and The Mandarin (registration) report his remarks but neither make the point that Lloyd based his claim on a false premise, and on that basis, ventured an opinion few outside the public service share: that FOI as originally conceived was intended ('particularly') to provide access to information about an individual's dealings with government, and that the law had expanded in the wrong direction since.

FOI law since enacted (after years of public service resistance) is about open, transparent and accountable government. The objects of the act in 1982 and since 2010 are reproduced below.

Reviews, investigations, reports and experience over the years showed that the law and its implementation by ministers and public servants fell a long way short of the promise.Things changed since 1982 across technology, public expectations, and thinking inside and outside government about publication of data and pro-active disclosure of other information.

The 2010 reforms as a result took a few steps in the right direction, but open transparent and accountable government is a long journey, not assisted when public servants (no names no pack-drill) look to thwart the ideals. 

Most who look into the subject, including the last reviewer of the FOI act, Dr Allan Hawke don't give credence to the argument that FOI constrains the public service in providing written frank, professional advice.

The direction on the journey is forward, not back to a past that hasn't existed in any event since 1982.

You have to wonder how comfortable and enthusiastic Lloyd is as leader of the public service in a government led by a prime minister whose stated intention is for government to be more open consultative and participatory. 

Come to think of it, how the Prime Minister feels about it.

Estimates
Lloyd, quizzed (along lines suggested in this post in June) by Senator Rhiannon and Senator Ludwig on Monday about what he meant, said 

"My view is that the FOI laws have extended beyond perhaps what I understood to be the original intention, which was particularly to allow our citizens to have access to information about their affairs that governments were holding. It seems to me that it has come to a stage where people are very reluctant perhaps at times to give advice in writing. I found this throughout my experience in both state and federal governments — both coalition and ALP — over many years. That is often the statement that is made: I would rather not give that in writing. I do not think that was the intention of FOI."

Objects Freedom of Information
As enacted in 1982:

 3. (1) .. to extend as far as possible the right of the Australian community to access to information in the possession of the Government of the Commonwealth by - (a) making available to the public information about the operations of departments and public authorities and, in particular, ensuring that rules and practices affecting members of the public in their dealings with departments and public authorities are readily available to persons affected by those rules and practices; and (b) creating a general right of access to information in documentary form in the possession of Ministers, departments and public authorities, limited only by exceptions and exemptions necessary for the protection of essential public interests and the private and business affairs of persons in respect of whom information is collected and held by departments and public authorities.

As a result of reforms in 2010

 3. (1)  The objects of this Act are to give the Australian community access to information held by the Government of the Commonwealth or the Government of Norfolk Island, by:(a)  requiring agencies to publish the information; and (b)  providing for a right of access to documents.

(2)  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.

(3)  The Parliament also intends, by these objects, to increase recognition that information held by the Government is to be managed for public purposes, and is a national resource.

(4)  The Parliament also intends that functions and powers given by this Act are to be performed and exercised, as far as possible, to facilitate and promote public access to information, promptly and at the lowest reasonable cost. 

Lloyd on speaking up

Lloyd defended his statement and the right to make it ("I think that, as Public Service Commissioner, I have a responsibility to at times comment on matters which go to the administration and management of the Public Service"; said he hadn't raised it with the minister for public service because responsibility rested with the Attorney General, and he hadn't raised it there either ("They would have been aware of my comment. I did not see the need to actually take it further.") and saw nothing wrong or inappropriate with injecting "a view into the public discussion."

Conclusion
Someone in the Australian Public Service Commission needs to give Mr Lloyd a briefing note before he ventures into public discussion on the topic again. And while he shouldn't need it, a book on how tone at the top influences culture throughout. He has a service wide parish.

A higher authority needs to counter the unfortunate message that FOI has taken a wrong turn and can be labeled very pernicious - extremely "harmful especially in a gradual or subtle way; damaging, detrimental, deleterious."

Extracts from Senate Estimates follow:

Silence on Open Government Partnership seven days out from Mexico deadline

No questions of Department of Prime Minister and Cabinet about the Open Government Partnership in Senate Estimates yesterday and no word from the Prime Minister. With seven days to the OGP Global Summit in Mexico City, will Australia recommit?

Senator Gallagher raised a few other data policy issues with Deputy Secretary (Projects) Dr Heather Smith. Extracts:

Barbeque stopper: NSW government contracting itself out of information access law?

Jacob Saulwick's report in the Sydney Morning Herald on Saturday was a barbeque stopper where I was over the weekend and I don't expect that's just because I move in narrow circles:

The largest transport project in the country could be shielded from public scrutiny after the government transferred control of the $15.4 billion WestConnex motorway to a "private corporation". The transfer means information about the Sydney Motorway Corporation, which is now in charge of building the motorway, cannot be captured by freedom of information requests.......When Fairfax Media requested, using the Government Information (Public Access) Act (GIPA), the salary and bonus details of top WestConnex representatives, Roads and Maritime Services responded, in part: "Sydney Motorway Corporation Pty Ltd is a private corporation and not a Government agency."

Saulwick went on to mention that a spokeswoman for the SMC said a 2014-15 financial report would be submitted to ASIC by the end of October, which would disclose information relating to key management compensation. The spokeswoman also said that because the corporation is delivering and financing the road on behalf of RMS, RMS "will continue to hold information relating to WestConnex and remains subject to GIPA".

But could it be true, friends asked, that the government could in effect contract out to a wholly owned government private company control of a government funded $15 billion project and avoid the standard government transparency and accountability provided by freedom of information?

The answer is yes it could. On the other hand, it doesn't have to be.

More later when I have the time.

Senate estimates in a week when decisions needed on open government in practice

Senate Estimates hearings get underway in Canberra today. 

Let's hope for clarification on where Australia stands with the Open Government Partnership and the future for the Office of Australian Information Commissioner.

Estimates kick off today with the Department of Prime Minister and Cabinet

PM&C now has responsibility for the Open Government Partnership. A response is still outstanding to the request from the OGP Steering Committee in July that in light of disappointment at the failure to follow through on the notice of intention to join in May 2013 Australia recommit to membership before the Global Summit in Mexico on 27 October.

As former Victorian Supreme Court justices Tim Smith, David Harper and Stephen Charles write in Fairfax Media today on the OGP issue, "Time for Turnbull to step up on open government."

The Office of Australian Information Commissioner is listed for hearing on Tuesday 20 October.

The day that Privacy Commissioner Timothy Pilgrim's appointment as acting Australian Information Commissioner for a three month period expires. As the Attorney General Brandis said at the time, the appointment was "while the Government considers options for the future of the Information Commissioner position."

But not a peep from Attorney General Brandis since about what the government plans with the Freedom of Information Amendment (New Arrangements) Bill that would abolish the Information Commissioner position. The bill remains on the Senate Bills List where it has been since October last year. 

Abolishing the office and the Information Commissioner position does not fit with the Prime Minister's ambition to lead an accountable open government.

Let's clear up these uncertainties this week and get on with it.

Report: Open Government Partnership file dusted off and in new hands

I've no reason to doubt but hoping James Riley, Editorial Director, writing on Innovation Aus.com had reliable sources when he wrote earlier in the week:

Having been quietly shelved two years ago, Australia’s plans to join the multilateral Open Government Partnership are being dusted off by Malcolm Turnbull and an announcement to formally sign-on is expected within weeks.
Prime Minister Turnbull is understood to have considered a proposal last week to move ahead with the OGP, and the final discussions are underway to make that happen. The Prime Minister was expected to approve in-principal (sic) policy, which would provide direction for machinery of government negotiations which are currently underway and which will ultimate decide how Australia’s commitment to the program will be managed.

Finance confirms responsibility for the OGP has transferred to Department of Prime Minister and Cabinet and inquiries there are directed to Dr Heather Smith, Deputy Secretary (Projects).

The OGP Steering Committee in July asked for an indication of Australia's intentions before the Global Summit in Mexico City 27-29 October. 

A new strong commitment to the OGP would be welcome here and in international circles. Perhaps personally delivered or reinforced in Mexico City by say Minister for Communications and Minister Assisting the Prime Minister for Digital Government Mitch Fifiield? But if a minister can't make it, Dr Smith would be a welcome first for Australia, a senior government representative in our seat at an OGP event. 

Deadline approaches for Australian decision on Open Government Partnership

The OGP Steering Committee at its meeting in July 2015 noted as "particularly concerning" Australia's failure to follow through with its membership application lodged in May 2013 and "agreed on next steps and a deadline for Australia to recommit to OGP by the time of the Global Summit."

The Global Summit will be held in Mexico City 27-29 October.

The only public response to date to the Steering Committee request was this answer (from the Department of Finance) to a question on 8 September:

As has been stated publicly previously, the Government is positively inclined towards finalising its membership of the Open Government Partnership but is still considering its position. Once the decision is made, it will be conveyed to the OGP. 

It's a matter for the busy Prime Minister of course - the last one was responsible for much of the dithering - although there is uncertainty whether Finance or the Department of Prime Minister and Cabinet now has carriage of such matters.

So will the Turnbull government:

• let the deadline quietly pass?

• ask for even more time to decide, continuing four years of foot dragging?

• join Russia as the only country to date to say it was joining only to withdraw?

• recommit to membership before 27 October, thereby expressing intent to explore with civil society, domestic reforms across the transparency, accountability and citizen participation spectrum; link up with the world leaders in advancing digital and open government and the use of open data; and through active engagement with current and aspiring members, promote our foreign policy and development goals ( including making a connection with the Sustainable Development Goals) particularly in the Asia Pacific region?  Will we sign on with: (Update) Albania, Argentina, Armenia, Azerbaijan, Bosnia and Herzegovina, Brazil, Bulgaria, Cabo Verde, Canada, Chile, Colombia, Costa Rica, Croatia, Czech Republic, Denmark, Dominican Republic, El Salvador, Estonia, Finland, France, Georgia, Ghana, Greece, Guatemala, Honduras, Hungary, Indonesia, Ireland, Israel, Italy, Jordan, Kenya, Latvia, Liberia, Lithuania, Macedonia, Malawi, Malta, Mexico, Moldova, Mongolia, Montenegro, Netherlands, New Zealand, Norway, Panama, Paraguay, Peru, Philippines, Romania, Serbia, Sierra Leone, Slovak Republic, South Africa, South Korea, Spain, Sweden, Tanzania, Trinidad and Tobago, Tunisia, Turkey, Ukraine, United Kingdom, United States, Uruguay.  Check out where each stands with their plans and commitments here:

Albania

Argentina

Armenia

Azerbaijan

Bosnia and Herzegovina

Brazil

Bulgaria

Cabo Verde

Canada

Chile

Colombia

Costa Rica

Croatia

Czech Republic

Denmark

Dominican Republic

El Salvador

Estonia

Finland

France

Georgia

Ghana

Greece

Guatemala

Honduras

Hungary

Indonesia

Ireland

Israel

Italy

Jordan

Kenya

Latvia

Liberia

Lithuania

Macedonia

Malawi

Malta

Mexico

Moldova

Mongolia

Montenegro

Netherlands

New Zealand

Norway

Panama

Paraguay

Peru

Philippines

Romania

Serbia

Sierra Leone

Slovak Republic

South Africa

South Korea

Spain

Sweden

Tanzania

Trinidad and Tobago

Tunisia

Turkey

Ukraine

United Kingdom

United States

Uruguay

A commitment to the OGP will lack credibility if the government at the same time continues with the pointless attempt to abolish the Office of Australian Information Commissioner.

What's the story on Australian ministers using non government messaging services?

The post below was published in March and is now republished in light of reports today that Prime Minister Turnbull continues to use non government messaging services.

And isn't alone, as a spokesman explained:

"Many MPs and Ministers use private messaging systems — including SMS, WhatsApp, Wickr, etc and private emails etc — for non-sensitive material for reasons of convenience and superior functionality," the spokesman said."All communications or records of a minister which relate to his or her duties are [subject to many exemptions] potentially subject to Freedom of Information whether it is on SMS, a private email server or a Government email server. "The majority of Government correspondence is routine and of a non-sensitive nature and is therefore not subject to sensitive security markings."

...............................................................................................................
Australian angles arising from Hillary Clinton's private email escapade 
19 March 2015
Hillary Clinton may or may not have succeeded in hosing down the kerfuffle following revelations she used only a personal email account and never a government account while she served as secretary of state, now admitting this was a mistake.  She also ran a private mail server in her home during this period hosting her email at domain Clintonemail.com.

Clinton and the US don't have troubles in the newish technology space to themselves. Other government  and political figures there are caught up in issues concerning crossover points between information communicated through official and unofficial devices.  It's an issue that has cropped up elsewhere including the UK and Canada.

Beyond a few straws in the wind we know precious little about what goes on in Australia and existing laws aren't much help in working through the issues.

Clinton
Questions are still out there about Ms Clinton's system: whether federal guidelines were violated, state secrets left vulnerable and an offence committed under public records law. Then there's the adequacy of State Department responses over the years to congressional calls for documents and compliance with subpoenas and freedom of information requests. Not to mention the impact on Clinton's likely bid for the presidency in 2016.

The legal and political to one side, it is hard to defend the use of private email exclusively for messaging during your time as head of of a government agency, to then walk out the door with the lot and subsequently deciding in house with your lawyers that 55,000 pages of emails should be handed over to the government, and 30,000 ditched because they are personal.

As US FOI expert Daniel Metcalfe said if he had heard of a Cabinet member setting up a personal email system and deciding what gets deleted and what gets kept as government record, “I would’ve said, ‘You’ve gotta be kidding me.’”

Nine sitting US Cabinet Secretaries and the Attorney General were quick to confirm to Time magazine that they use a government email account for official business.

Not just Clinton
While not quite emulating Clinton's system other public figures in the US have run into private email problems including currently Republican presidential hopefuls Jeb Bush and Scott Walker.

The George W Bush White House had an issue in 2007 when it was revealed some White House officials had conducted government business over private email accounts set up on a server through the Republican National Committee.

Not just the US
See FOIMAN's account of the use of private email in the UK in 2012 when Education Secretary Michael Gove and some in his office used private email accounts to conduct business apparently to avoid potential disclosure through FOI. Both the Information Commissioner and the Cabinet office issued guidance on the subject in 2013.

The Vancouver Sun refers to a number of  instances where the issue has arisen in Canada but concludes Canadian laws are intended to avoid situations like the Clinton controversy. 

What about here?
The short answer is we don't know much about what goes on, the law isn't clear in some respects and oversight is thin on the ground.

For example in the wake of the Clinton fuss, IDM asked Australian and New Zealand government ministers about their email arrangements and then published two Australian responses, presumably the only responses received:

A Senior Media Adviser in the office of Australian Defence Minister Kevin Andrews confirmed “Minister Andrews uses a government email account to transact parliamentary and government business. “ A spokesperson for Finance Minister Senator Mathias Cormann said, “The Minister does not use a private email account for official government business.”

 On law and policy IDM asked other questions, but answers weren't entirely forthcoming:

In Australia, the Department of the Prime Minister and Cabinet is responsible for Commonwealth whole-of-government coordination and leadership for cyber policy issues. Nothing about the Ministerial Standards of Oath of Office requires adherence to any particular computing standards. IDM asked the Department whether it issued firm guidelines on the use of personal versus official government email accounts for official business, but is still waiting on response.The National Archives of Australia responded that “Federal government ministers’ documents are subject to the Archives Act if they are records of their work as a government minister. It isn’t against the Archives Act to use personal email for Commonwealth business, as long as there is a mechanism for records to be retained in accordance with the relevant records authority.“ Unauthorised destruction of a Commonwealth record is a potential breach of the Archives Act.

Sally Whyte in Crikey also looked for Australian angles following the Clinton expose. She refers to reports Communications Minister Malcolm Turnbull and his colleagues were using messaging apps such as Wickr -- a platform that allows users to send encrypted, self-destructing messages -- to discuss the leadership tensions recently. "While Turnbull hasn't confirmed what was said in the messages, he did tell reporters that he uses both Wickr and WhatsApp to send messages, as text messaging is not a secure form of communication."

When Crikey asked the Australian Information Commissioner John McMillan if federal MPs had been advised against using encrypted apps to communicate, he said he hadn't done so -- although that kind of advice would usually come from government archivists, he said. McMillan told Crikey that the commission hadn't looked closely at apps like Wickr, but most likely would if it continued to exist. McMillan's role and office was defunded by the government in last year's budget, and he was supposed to finish up last year. The bill to abolish the role has passed the House of Representatives but has not been introduced to the Senate.

From my notebook a few earlier Australian 'private email' episodes
Pretty thin pickings, perhaps just the tip of a a large, growing iceberg.

In Queensland in 2013 the Minister for Housing resigned after a series of integrity failings  including that the minister, his son and the minister's chief of staff were communicating on official matters using private email addresses; the minister's register of contact with lobbyists released during a Budget estimates committee hearing that he declared"very accurate" did not list extensive contact with his lobbyist son on a range of issues; and according to the opposition the minister's ministerial and electorate diary released under Right to Information laws had been doctored to hide the fact he was continuing as a GP to see patients. 

The then Queensland Attorney General "denied the use of private emails was a tactic to avoid having them released under the RTI Act, but said he used private email at home because he didn't have access to his work email. "I wouldn't envisage that's a systemic problem, no," he said. "Everyone should be careful what they put in writing no matter what communication you use."  

Tom Swann in July last year in the Saturday Paper wrote  about documents concerning the Federal Rudd government's 2013 asylum seeker advertising campaign to deter boat arrivals. It involved $6.5 million in public funds spent in the run up to the election. Documents released under FOI in 2014 revealed the controversial advertising campaign was developed and approved in less than a day and someone was calling the shots on Gmail:

The first email was sent at 8pm on Thursday, July 18, by the department’s head of communications, Sandi Logan. It contained the guidelines’ criteria for exempting a campaign from normal scrutiny, with the words “extreme urgency” underlined. Close to midnight someone in the prime minister’s office sent a media plan – “canvassed and locked-in” – to Burke’s media advisers and senior immigration bureaucrats. The sender’s name is redacted, but the email is described elsewhere as coming from “the Minister’s Gmail”.

 In November 2014 the South Australian Independent Commissioner Against Corruption (Annual Report pdf P57) expressed concern that some public officers, mainly ministerial staffers, use personal rather than government email accounts to conduct official business and sounded this warning:

"It has been suggested that the reason for doing so is to avoid the requirement to disclose those emails where an application is made under the Freedom of Information Act 1991(‘FOI Act’). If it is the case that public officers are engaging in this kind of conduct to avoid the consequences of the FOI Act, that conduct should cease immediately. It is a matter of concern that public officers would seek to circumvent a legislative scheme designed to enhance transparency in government decision making. Such conduct might, at the least, amount to misconduct in public administration and be the subject of investigation and potential disciplinary action. I am told that the FOI Act is often abused. If that is so that is a reason to address that Act. It is not a reason to frustrate the FOI Act. While it remains the law the spirit of the Act should be observed by all public officers. Presumably those emails are not maintained in accordance with the State Records Act 1997 (‘SR Act’) (where that Act applies). The conduct therefore might also amount to an offence against section 17 of the SR Act. An offence against that section by a public officer while acting in his or her capacity as a public officer would amount to corruption in public administration under the ICAC Act."

Comment 
It is highly unlikely that a minister or senior public servant would use a private email for government business exclusively as Clinton did. But it would be the height of naivety to think there isn't something going on that brings into question the adequacy of records, archives and information access laws. And the questions aren't all to do with new-fangled gadgetry.

Doubts everything that should be recorded is recorded
Of course doubts have been raised for years about what gets recorded and what doesn't in the course of conducting government business. This despite guidance from the Auditor General, the Public Service Commission and Archives Australia about the importance of recording important stages in "the deliberations, decisions and actions of the Commonwealth and Commonwealth institutions relating to key functions and programs and significant issues faced in governing Australia."

"Don't write it down, let's talk"
A long line of senior public servants over the years have said they won't commit to a written record in future if information in dispute usually advice and claimed to be sensitive was released in response to an FOI request. The extent to which this permeates communication across government, up the line and between ministers is known only to insiders.
 
No general obligation to create records  
Six years ago, former agency head and Public Service Commisioner Andrew Podger gave a glimpse of what happened behind the scenes when he was present as colleagues discussed ways to thwart FOI applicants. The discussion was informed by advice from the then head of AGD that the law contains only an implied not explicit general obligation to create records of key business activities and decisions. (Some specific requirements are addressed in relation to specific matters such as financial records in the FMA act.) 

Record management systems aren't great, and officials might be hard working and hard pressed but some are less than punctilious when it comes to record keeping.
Systemic deficiencies and/or or failure to adhere to the guidelines mean there have been many reports such as this Auditor General report tabled this week into Health's management of an agreement with pharmacists:  

(T)he report documented "persistent shortcomings in departmental record-keeping," including a failure of the department to keep a formal record of its meetings with the guild during the negotiations and its discussions about contracts.

Post it Notes still handy
While paper records and files are on the way out Noel Towell in The Canberra Times reminded recently that the post it note had never gone out of fashion "as a powerful weapon used by the Australian Public Service to avoid Parliamentary scrutiny and Freedom of Information laws.

Public records law and private communication
The Archives Act applies to Commonwealth records defined as records that are "the property of the Commonwealth." As far as public servants are concerned this covers records created or received in the course of APS employment.

Ministers and ministers' records are not singled out for special mention but as Archives told IDM, the act applies to records of work as a government minister.

In both cases information handling responsibilities under the act would seem to apply to relevant records held in government systems and to records of the requisite nature held in other systems for example personal email accounts, or in or on personal as distinct from government devices.

I don't know if Archives Australia has ever had cause to look into this.

Ministers' and the agencies they are responsible for are separate entities for FOI purposes.

In the case of an agency the Commonwealth Freedom of Information act confers a right of access to a document that is in the possession of the agency, whether created in the agency or received in the agency.

In the case of a minister only "Official documents" are subject to the Act. Official documents are documents in the possession of a Minister in his or her capacity as a Minister that relate to the affairs of an agency or department. A document in the possession of a minister’s office but not held personally by the minister seem to be covered. Ministers' documents concerning political party business, the minister's activities as a member of parliament, or personal documents are not subject to the FOI act. 

"Document" is broadly defined. In addition to paper the definition includes

(iv) any article or material from which sounds, images or writings are capable of being reproduced with or without the aid of any other article or device;

 (v) any article on which information has been stored or recorded, either mechanically or electronically;

 (vi)  any other record of information.

As with the Archives Act official documents of a minister would seem to cover relevant documents held in government systems and 'documents' of the requisite nature held in personal email accounts, or in or on personal as distinct from government devices of the kind referred to in (iv) and (v).

I have no idea whether any FOI applicants have explored this territory, or if these sort of issues have bobbed up on the Information Commissioner's desk. 

Interested to hear from anyone with a tale to tell.

Journalists' union voices up-drop the plan to abolish Office of Australian Information Commissioner

The journalists union the MEAA is the latest voice urging the government to drop the plan, with the bill to achieve this doomed to fail in the Senate and the whole idea out of kilter with Prime Minister Turnbull's commitment to more open, transparent government. MEAA chief executive, Paul Murphy told Guardian Australia discussions should take place on how to improve the freedom of information system. Read Paul Farrell's report. 

Attorney General Brandis has told the world recently

"Never underestimate the importance of a change of leadership itself. Never underestimate the importance of the fact that there are no fewer than eight new faces around the cabinet table. So this is a very different government,"

In 2009 Senator Brandis said Freedom of Information is vital to ensure that government remains open, responsible and accountable for its decisions, adding :

 "the true measure of the openness and transparency of a government is found in its attitudes and actions when it comes to freedom of information."

Different faces at the cabinet table, different person in the chair, "very different government."

Attitudes dictate actions and actions speak louder than words.

"Closing down FOI: a case study in sneaky government"

Johan Lidberg, Monash University 

In a year and a half the Abbott government managed, in practice, to undo the painstaking reforms of the federal Freedom of Information (FOI) system that took shape in 2008 and came into force in late 2010.

In the best of worlds, FOI laws can create a win-win situation for governments and their constituents. By facilitating, instead of blocking, access to information governments signal that they take transparency and openness seriously. This limits maladministration and corruption. The public feels trusted with unspun information that they need to participate meaningfully in the political process.

Unfortunately, we’re not living in the best of access-to-government-information worlds.

From the time it took office, the Coalition government, spearheaded by Attorney-General George Brandis, tried and failed to shut down the Office of the Australian Information Commissioner (OAIC). The Abbott government’s first budget cut the OAIC’s funding.
The Senate rejected this part of the budget. The bill is still on the Senate Bills List, where it has been sitting for 16 months without the support needed to pass the Senate.

Meanwhile, the government tried to close the OAIC by starving it of funds. Reading the writing on the wall, the FOI Commissioner, James Popple, left for another job in January. The position is still vacant.

A few months ago, the inaugural Information Commissioner, John McMillan, followed suit. He was not replaced.

The OAIC’s FOI functions are now essentially closed down.

Three decades of FOI gains reversed in two years

The first Australian FOI laws were the federal and Victorian acts passed in 1982. The other states and territories then followed, with the Northern Territory act commencing in 2003.

By world standards the start of FOI in Australia is neither early nor late (apart from the NT act). Globally, FOI has moved from being a “nerd” issue to a strong international movement of well-organised information access advocates.

By the mid-2000s it was clear that FOI reform in Australia was sorely needed. A number of high-profile cases in both state and federal jurisdictions showed that the laws did not deliver in practice what was promised in the acts.

Queensland led the way when it reviewed its FOI legislation and implemented far-reaching changes in 2009. This was the first jurisdiction to move from a “pull” 1.0 FOI system – where FOI requests are used to “pull” the information from government agencies – to a 2.0 “push” system, where departments are supposed to proactively publish information on their websites.

In a 2.0 FOI system disclosure is meant to be the default position, in line with best international practice. But as research, mine and others, has showed, changing the law is the easy part. Making it work in practice is the challenge.

This is where the federal FOI regime led by the OAIC had started to make real headway.

For the first time in Australia’s history of access to information there were some signs that the OAIC had started to change the culture of how federal FOI is interpreted and administered. My research points to a change away from the unfortunate Westminster-based tradition of government secrecy to one of increased openness and, most importantly, information access facilitation.

It’s clear from this body of research that the federal FOI reforms implemented by the former Information Commissioner were providing crucial national leadership, taking Australia closer to where access to government information is going internationally.

This is why the Abbott government’s blatant undermining of federal FOI was so tragic and frustrating. The information access momentum that had been building since 2007 came to a grinding halt under the Abbott government.

Turnbull faces ‘open government’ test

The proactive information disclosure feature of FOI 2.0 has in part been driven by the concept of Public Sector Information (PSI). The core of PSI is that information or products and services created with government funding should exist in the public domain. The European Union 2003/98/EC directive is the foundation on which several EU member nations have passed their own PSI laws.

Will Malcolm Turnbull let Australia join Russia as the only country to withdraw from the Open Government Partnership? AAP/Lukas Coch

The goal is that information generated and held by government should, as much as possible, be accessible to the public, with very few limitations. To date, the PSI discussion has not reached serious policy- and law-making levels in Australia. It remains to be seen how the government under new Prime Minister Malcolm Turnbull will deal with PSI.

Another challenge for the Turnbull government is what to do with the OAIC “kill bill” mentioned above. Even if the government now decides to keep and fund the OAIC (which would be the preferred option from a transparency point of view), a lot of organisational damage has been inflicted on OAIC by the Abbott government’s FOI-hostile policies.

Turnbull will also need to decide if Australia will formally sign up to the Open Government Partnership (OGP). The OGP describes itself thus:

OGP was launched in 2011 to provide an international platform for domestic reformers committed to making their governments more open, accountable, and responsive to citizens. Since then, OGP has grown from eight countries to the 66 participating countries … In all of these countries, government and civil society are working together to develop and implement ambitious open government reforms.

The Gillard government committed to the OGP in principle. But to become a full member, a national open government action plan has to be submitted.

The OGP has repeatedly asked for Australia’s decision. The Abbott government stalled for so long that Australia now risks joining Russia as the only candidate member to withdraw from the OGP.

Next year, 2016, will be the 250th anniversary of the first FOI-related law, which was passed in Sweden in 1766. Australian federal FOI approaches the anniversary in a poor state.

Turnbull will be a very busy man in the months to come. The question is if he can find head space to ponder the challenges above. Judging from Turnbull’s leadership challenge pitch, open government matters to him:

We need to be truly consultative with colleagues, members of parliament, senators and the wider public. We need an open government, an open government that recognises that there is an enormous sum of wisdom both within our colleagues in this building and, of course, further afield.

What this means in practice remains to be seen. A good starting point would be to reappoint the federal FOI commissioner and properly fund the OAIC again.


Johan Lidberg, Senior Lecturer, School of Media, Film and Journalism, Monash University
This article was originally published on The Conversation. Read the original article.