Search This Blog

Tuesday, December 22, 2015

FOI veteran Waterford lets go with a few wild swings and low blows.

When Jack Waterford Editor- at- Large at The Canberra Times talks Freedom of Information, the rest of us listen. 

After all Waterford has been on this beat from the very beginning, lodging a raft of FOI applications on 1 December 1982, the day the Commonwealth FOI act commenced, followed by hundreds in the years since including two that went all the way to the High Court; was named the Graham Perkin Australian Journalist of the Year in 1985 for his work on FOI, and in 2007, Canberra Citizen of the year and a Member of the Order of Australia.

His opinion piece last week "FOI laws are resented and resisted" is as usual a good read, including some history about John Wood, another FOI champion, and commentary on the AAT decision in Wood and PM&C, the subject also of an earlier report by Chris Knaus about access to documents concerning the Ombudsman in 2011, Alan Asher.

Waterford on a roll
Waterford goes on to give the government a justified serve over the attempt to abolish the Office of Australian Information Commissioner, criticises the attacks on information access including by Public Service Commissioner John ('FOI very pernicious') Lloyd, and delivers a tough assessment of former Australian Information Commissioner Professor John McMillan and the OAIC generally, stating
"I could never be convinced that most of the quasi-judicial officers of the office of the Australian Information Commissioner were ever very much in favour of FOI or, in practice, very likely to cause disclosure to occur, at least within a reasonable period of time."
That's a wild swing, low blow or both.

In getting stuck into the OAIC and McMillan, Waterford makes no mention of the factors beyond control of the office that impacted on performance of the OAIC since establishment in November 2010 and tops it off with an error about the earlier IC decision in Wood.

Wood case
Recounting the background to the AAT decision, Waterford writes that PM&C's arguments for keeping the document in dispute secret when the matter came before the OAIC a year previously "very much impressed the FOI Commissioner and received his fairly usual rubber stamp."

Well mostly, the arguments didn't impress the commissioner at all.

Deputy President Forgie in a decision that Waterford praises reached exactly the same decision as then commissioner Popple who he criticises: that subject to two deletions the document is not exempt:
80.For the reasons I have given, I affirm the decision of the Information Commissioner dated 19 December 2014...
(Of course Deputy President Forgie takes longer to get there adding along the way valuable guidance about the interpretation and application of the FOI act.)

Waterford in making the rubber stamp remark does not mention that the commissioner in that 2014 decision [83-119]  rejected the deliberative process exemption claims by PM&C for seven other documents consisting of briefs, question time briefs and briefing notes for Senate estimates hearings and a record of conversation between the Ombudsman and Secretary of the Department.

PM&C had argued disclosure would be contrary to the public interest, the end of 'frank and candid' with flow on dire consequences. Having not impressed or persuaded the commissioner the department did not seek further review of those parts of the commissioner's decision. Presumably departmental officers soldier on providing Prime Minister Turnbull (three prime ministers on from the one who received the briefing note) with frank and candid advice despite it all.

in his comments about the OAIC which has endured the axe hanging in the air for 19 months since the government announced the intention to abolish the office, Waterford does not mention issues that cumulatively hampered performance: limited powers and no sticks (eg review decisions not binding; no penalties), no political appetite for reforms and modifications to the scheme suggested by McMillan and others, fewer resources than anticipated and expected, and importantly a failure of leadership at the ministerial level that left McMillan to fly the flag for culture change while faced with senior public servants 'going red' at the mere mention of FOI and open government. 

Contrary to Waterford's comment that he can't think of one OAIC decision that has amounted to much, an SBS report this week suggests quite a bit of commendable OAIC disagreement with agency decisions: of the 352 IC decisions examined 
"141 (40 per cent) were to 'set aside' and change FOI decision outcomes completely..A further 38 (11 per cent) review decisions were to 'vary', where the OAIC mostly agreed with the FOI decisions made by government agencies, but disagreed with the reasoning."
That strike rate doesn't include mediated results that aren't formal IC decisions. Results aren't published. I expect many involved the agency giving ground. .

I've been critical generally and sometimes from personal experience of some IC decisions and of unacceptable delays, and concerned that few own motion investigations or compliance reviews have been undertaken. Much of the fault lies at the highest levels of government, where Attorney General Brandis is apparently still keen to bring the whole show down.

However the wild swings and low blows in the Waterford commentary aren't justified.

No comments:

Post a Comment