Input invited on draft OGP National Action Plan

It's been quite a journey since Australia was first invited to join the Open Government Partnership in August 2011, since the Labor Government signed on in May 2013, and since Prime Minister Turnbull revived Australia's commitment in November 2015, but...

A draft Open Government National Action Plan has been released this morning by the Department of Prime Minister and Cabinet for public consultation.

The Minister for Finance has drawn attention to the plan and invited public comment. (Administrative responsibility remains with PM&C)

The draft Plan can be accessed/downloaded here:

• PDF: Australia’s first Open Government National Action Plan
• DOCX: Australia’s first Open Government National Action Plan
• HTML: Australia’s first Open Government National Action Plan

As the minister states, the draft was developed through a consultation process that began in December 2015 and was informed by an interim working group established in August 2016. 

The extent of 'ambition' is in each detailed commitment and views will vary on whether some go far enough but proposals now on the table are to do something about:

1.    Transparency and accountability in business
1.1.  Improve whistle-blower protections in the tax and corporate sectors
1.2.  Beneficial ownership
1.3.  Natural resource transparency

2.    Open data and digital transformation
2.1.  Release high-value datasets and enable data-driven innovation
2.2.  Build and maintain public trust to address concerns about data sharing
2.3.   Digitally transform the delivery of government services

3.    Access to government information
3.1.  Information management and access laws for the 21st century
3.2.  Understand the use of freedom of information
3.3.  Improve the discoverability and accessibility of government data and information
   
4.    Integrity in the public sector
4.1.  Confidence in the electoral system and political parties
4.2.  National Integrity Framework
4.3.  Open contracting

5.    Public participation and engagement
5.1.  Delivery of Australia’s Open Government National Action Plan
5.2.  Enhance public participation in government decision making.

Information sessions
Information sessions organised by Department of Prime Minister and Cabinet will be be held in the next week.

At each a government representative will discuss Australia’s process to join the OGP and lead a discussion on the commitments. A civil society representative who participated in the Interim Working Group will be present as will others from the Australian Open Government Partnership Network Steering Committee (of which I'm the interim Convener).

If you are interested in any of these issues please consider attending and encourage others to do so.

A high level of interest and participation at this stage will help demonstrate the importance we attach to the OGP initiative and to meaningful reforms.

RSVP by emailing ogp@pmc.gov.au.

Brisbane
Thursday 3 November 2016 5:30pm – 7:30pm
Griffith University, QCA Lecture Theatre and Gallery (S05), Room 2.04, South Bank QLD 4101
(in conjunction with a panel discussion on Extracting strategic advantage from public data sources)
This is a free event with this separate registration essential.

Melbourne
Thursday 3 November, 11am-12pm
St Michael’s Uniting Church, 120 Collins Street, Melbourne VIC 3000

Sydney
Friday 4 November, 11am – 12pm
Office of the Australian Information Commissioner, Level 3, 175 Pitt Street, Sydney NSW 2000

Perth
Friday 4 November, TBC

Canberra
Monday 7 November, 11am – 12pm
National Archives of Australia, Menzies Room, Queen Victoria Terrace, Parkes ACT 2000

If you aren't a member of the Australian Open Government Partnership Network we would love to have you join us. Finalisation of this first plan is the beginning of a longer journey to promote transparency, empower citizens, fight corruption, and harness new technologies to strengthen governance. The network is in this for the long haul.

The battle over the "Dear Minister' letter to Barnaby Joyce 18 months in the making

Heath Aston  in The Sydney Morning Herald

A one-page letter that the federal government has spent a year and a half and tens of thousands of dollars trying to keep from public sight raises explosive questions about Barnaby Joyce's conduct and "integrity". The March 2015 letter written by Paul Grimes, the former head of the Agriculture Department, was sent 10 days before he was sacked amid fallout from the so-called "Hansard-gate" affair in which the transcript of some of Mr Joyce's statements in Parliament were quietly altered.

Australian Information Commissioner Pilgrim in March decided the letter sought under the Freedom of Information Act by Opposition front bencher Joel Fitzgibbon (and seperately by the Herald and Weekly Times) was not exempt. As Aston writes:

Mr Joyce's department fought that ruling, spent $80,000 on engaging Ernst & Young to review its public information processes, and then fought the matter through the Administrative Appeals Tribunal before giving up the fight just after Parliament rose for two weeks on Friday.

An agency changing its mind on the steps of the tribunal raises the question whether all that time energy and cost to the taxpayer could have been avoided way back when the application was made in June 2015 or when Commissioner Pilgrim made his review decision in March 2016.  

Secretary's letter- opinion about relations with the minister, not for a deliberative process

The issue before Commissioner Pilgrim was whether the one page letter was exempt under s 47C-.

".would disclose matter ( deliberative matter ) in the nature of, or relating to, opinion, advice or recommendation obtained, prepared or recorded, or consultation or deliberation that has taken place, in the course of, or for the purposes of, the deliberative processes involved in the functions of: (a)  an agency;or (b) a Minister; (c) the Government of the Commonwealth."

The commissioner found (10-17) that the letter set out opinions of the former Secretary and thus satisfied the deliberative matter element of the exemption. 

However the material had not been prepared or recorded in the course of, or for the purposes of a deliberative process:

23. The Guidelines explain that a deliberative process involves the exercise of judgement in developing and making a selection from different options:

The action of deliberating, in common understanding, involves the weighing up or evaluation of the competing arguments or considerations that may have a bearing upon one's course of action. In short, the deliberative processes involved in the functions of an agency are its thinking processes – the processes of reflection, for example, upon the wisdom and expediency of a proposal, a particular decision or a course of action.^[7]

24. In my view, the letter clearly states the former Secretary’s settled opinions on the issue relating to his professional relationship with the Minister. It also conveys the subsequent processes he had put into place to ensure his Department could effectively support the Minister. As these processes had been settled and put in place by the former Secretary at the time the letter was written, it appears that the purpose of the letter to the Minister was to advise of these arrangements. Therefore, it was clearly not seeking the Minister’s views or consideration of the opinions reached by the former Secretary or the subsequent processes he had put in place.
25. Further, I do not agree with the Department that the letter particularly outlines possible means by which the ‘questions posed’, those being related to the ‘discharge of the functions of the office of the Secretary as it relates to supporting the Minister’ at that time, might be resolved. Rather, in respect of that issue, it merely identifies that there are available processes under the Public Service Act 1999.
26. In this regard, the Department contends the possibility that the former Secretary may not continue in that role generated a deliberative process in relation to the ongoing Secretary role. I am not persuaded by this argument. In my view, there is nothing in the letter that goes to show the necessary weighing up or evaluation of competing arguments or considerations that may have had a bearing upon a course of action. The fact that a course of action then followed resulting in the Secretary being replaced does not, in my view, demonstrate that the letter in of itself was prepared for a deliberative process. Therefore, this element of s 47C(1) has not been met.

As the letter was not conditionally exempt, there was no need to consider whether giving access would, on balance, be contrary to the public interest. 

Call to arms: Australians should own their own history.

This post four years ago commented on the cringe-worthy news that Governor General's official correspondence with the Queen after the event is packed off to archives at Buckingham Palace and beyond reach of Australian disclosure laws.

Now it emerges that GG Kerr's 1975 correspondence with the Palace that he designated personal is 'private' in the hands of National Archives Australia, not part of official Commonwealth records and subject to normal archives disclosure rules, is embargoed until at least 2027, and the Queen's private secretary holds a final veto over release even after that date.

Shoulders to the wheel folks-If you can contribute to the out of pockets for this legal challenge to quaint ancient world notions of British crown privilege, it's a worthy cause. 

$17k and counting....
   

Senate Estimates: Brandis changes his mind on the OAIC, Pilgrim soldiering on

From Senate Estimates (pdf) questioning of Attorney General Senator Brandis and Australian Information Commissioner Timothy Pilgrim (pp 63-67) on Tuesday:

Cease fire at last:
Attorney General Brandis no longer thinks, as he did until May this year at least, that abolishing the OAIC would be a "good economy measure." In response to questions about the change of mind he said "I am not going to comment on decisions in previous financial years that have been reversed. I do not think that is germane.... A policy was made in a previous financial year, essentially for reasons of economy. That decision was revisited more recently and reversed, and I am glad that it was, and I am really delighted that Mr Pilgrim's position has been regularised."

(Comment: Welcome news. But no questions or statements about the damage inflicted by two years of siege that followed the announcement of May 2014 that the government intended to abolish the office.)

No intention of appointing a Freedom of information Commissioner: 
Attorney General Brandis said the government intends to leave the position vacant:

"The reason is that there is already, in the absence of a freedom of information commissioner, a comprehensive architecture for freedom of information applications and review of such freedom of information decision-making." "The consolidation into one person, or one officer, of the statutory offices of Australian  Information Commissioner and Privacy Commissioner has occurred after discussion with Mr Pilgrim and with his concurrence. The functions that the Freedom of Information Commissioner could have performed may be carried out by Mr Pilgrim as well, in his capacity as Australian Information Commissioner.
There was something of a logjam of positions in relation to, essentially, the same policy space, and we are finding, and I think this is evident from Mr Pilgrim's statement, that now that his position has been regularised—I am very happy about that and I want to congratulate him on his reappointment—that the whole issue of government information and privacy can be disposed of at less expense and much more efficiently."

Commissioner Pilgrim backed this up:

"I have had discussions, primarily with the Attorney-General's Department, about the current structure and I am of the view that both the functions under the FOI Act and the function of Privacy Commissioner can be undertaken by the one position. This is not an uncommon model in other jurisdictions around the world. If I could turn to that momentarily I would say that in the United Kingdom the information commissioner's office is headed up by the information commissioner—one statutory officeholder—and supported by two deputy commissioner positions. I have undertaken to do something similar in our office. I have recently  appointed a deputy commissioner position, and Ms Falk has recently been appointed to that position. I also have an assistant commissioner to support me."

(Comment: Parliament decided in 2010 that the Office should have three commissioners with defined functions, not two. That legislation remains in force. The decision that two will suffice apparently based on discussions between the commissioner and the Attorney General's department hardly seems in line with executive government responsibility to execute and maintain the laws of the Commonwealth. Whether the decision is based on the rich body of experience in Australia and overseas about models for "an information champion, with a comprehensive range of powers and functions to promote open government, protect information rights and advance information policy" and whether effectiveness as well as efficiency was a consideration is unknown. In this submission to the Hawke review in 2012 then former Australian Information Commissioner Professor McMillan and then FOI commissioner Popple suggested legislative and other changes that would improve efficiencies and operations. None have been acted upon.)

Coping despite it all: Australian Information Commissioner Pilgrim provided detail of the FOI and privacy work undertaken in 2015-16, said the office is carrying out all FOI functions, that it is "working to ensure that it is managing its role in the most effective and efficient way" and is confident "that the office as we are currently undertaking our functions under both privacy and FOI are delivering some efficiency, certainly, in the area of our regulatory responsibilities."
(Comment: there was no mention of any squeeze on funding which for FOI functions is well below what was considered necessary when the office was established, or of how the two year campaign of attrition has left the office; no mention either of the apparently unfunded information policy functions that have all but disappeared from sight; only a passing reference to 'own motion' FOI investigations of which there have been two in the last six years; nothing about public awareness, leadership and advocacy functions that may be outside the scope of 'regulatory functions' that the commissioner assured are being performed; and as for performance, the KPI of dealing with most matters within 12 months has always struck me as not quite the measure for 'speedy' resolution of review and complaint functions. 
While it has had virtually no publicity and wasn't mentioned during the hearing interesting that the Australian National Audit Office has a performance audit underway examining the efficiency and effectiveness of the OAIC. It is due to report in June next year.)

Relevant extracts from the Estimates transcript follow.

Sharing FOI wisdom: US journos show the way

Not much of a record here among journalists of 'joint shoulders to the wheel' to assist all-comers and particularly those in their ranks to broaden and improve Freedom of Information use, skills and opportunities.

It's a different matter elsewhere.

In the US the Reporters Committee for Freedom of the Press established 46 years ago provides pro bono legal representation and other legal resources to protect First Amendment freedoms and the newsgathering rights of journalists.

It has just launched a beta of its anticipated new project, the FOIA Wiki, a collaborative FOIA resource that “is part legal guide, part community space for sharing information that aims to serve as a central hub on all manner of issues surrounding FOIA as the law celebrates its 50th anniversary.”

Features of the FOIA Wiki include:

• Pages on all aspects of FOIA, including exemptions, fees, and administrative issues. Thanks to a collaboration with the FOIA Project at the Transactional Records Access Clearinghouse (TRAC), most of these pages automatically display a list and summaries of all recent federal district court cases on the page’s topic, as well as including links to the full text of those opinions on the FOIA Project’s website.

• A forum where users can post questions and answers about FOIA, as well as discuss problems or thoughts regarding particular records or agencies.

• Entries on federal agencies, departments, and sub-components, which include contact information, links to FOIA regulations, and more. With the assistance of Muckrock, these agency pages pull in real-time statistics from people making requests via Muckrock’s services, including the agency’s average response time, the percentage of requests that incur fees, and the average success rate of requesters. Agency pages also link to the corresponding page in FOIA Mapper, a resource that details the agency’s information systems, helping requesters specify where agencies are likely to have responsive records. Finally, the agency pages also pull in the latest district court opinions from the FOIA Project, so users can see what has been happening in case law specific to that agency.

Sustainable Development Goals: “Ensure public access to information and protect fundamental freedoms.."

From Toby Mendel, chair of the Steering Committee for FOI Advocates Network, a consortium of activists whichI and others in Australia belong:
As many of you know, the SDGs have been adopted and SDG Target 16.10 is as follows: “Ensure public access to information and protect fundamental freedoms, in accordance with national legislation and international agreements”. While the indicators for this target have not yet been finally decided, one is very likely to be: “Number of countries that adopt and implement constitutional, statutory and/or policy guarantees for public access to information.”

On 19 Sept., UNESCO held a meeting of experts to discuss how to assess this indicator, with two members of FOIAnet present, myself and Gilbert Sendugwa. They have already determined that it could be broken down into three sub-questions, namely: 1) whether the country has adopted guarantees; 2) the extent to which those guarantees are in line with international standards (based on the language in the target); and 3) the steps the country has taken to implement the guarantees.

A number of methodologies will be used to assess these questions. One will be to ask countries (officials) to respond to a list of questions. At the meeting, Gilbert and myself volunteered to conduct a crowd-sourcing through FOIAnet to try to come up with a set of questions, mainly focused on the question of implementation, and we are now reaching out to you for your suggestions.

A few points:


1) We have been told that there should be a maximum of ten questions.

2) Questions should, in general, be closed/objective rather than open-ended/subjective (so as to keep the exercise as scientific, accurate and comparable as possible).

3) Questions should aim to probe a number of different implementation measures. These could include institutional measures (have you appointed information officers and/or an oversight body), procedural (what percentage of requests are answered within the legal time limits) and more systemic issues (what systems have you put in place to collect information about how implementation is going).

4) The questions should probe both proactive and request-driven implementation measures.

So, we are asking you to provide us with suggestions as to questions or issues that questions should probe. We welcome brainstorming ideas (without going too far outside of the box) and suggestions do not necessarily need to be fully formed (as long as they help us think this through). Gilbert and I will work through the ideas and come up with a suggested list of around 10 questions, on which we will again seek feedback.


This is clearly a very important activity since these questions will guide UNESCO in its annual assessment of whether countries have met SDG16.10.

Can we ask you to respond by 18 October 2016?

Thanks so much for your help with this important task."

Mendel said those not on FOIANet may email responses to him: <toby@law-democracy.org

The Mandarin: Government "sees little value" in OAIC

 The Mandarin (subscription)

Last Thursday, Attorney-General George Brandis confirmed once again that the current government sees little value in the Office of the Australian Information Commissioner, which oversees both freedom of information and privacy. In announcing Timothy Pilgrim’s re-appointment as privacy commissioner, Brandis confirmed Pilgrim is now also the permanent Information Commissioner, a role he has acted in since July 2015. The announcement confirms the current government has no intention to appoint two separate commissioners, as the office was originally intended to have. Brandis gave no indication he intends to appoint anyone as FOI Commissioner, leaving the third post in the OAIC still vacant for the time being....

On a related topic, The Mandarin reports

University of Melbourne data and privacy researcher Dr Suelette Dreyfus...sees an inconsistency in the attitudes of politicians and public servants to privacy in different contexts. In FOI releases, public servants display a very strict attitude towards privacy, making sure that the names of public servants and other stakeholders mentioned in the documents are blacked out wherever allowed by the FOI legislation.But when it comes to the collection, linkage, sharing, analysis and publication of large amounts of data — which can no doubt provide significant public value — the attitude is often more risk-based and dismissive of concerns as being overblown. Public servants might believe the public value of open data and metadata retention outweighs privacy concerns in specific cases or in general, but the point is they must convince citizens. She also sees a major imbalance with the way governments work with big data — and the large amount of communications metadata government agencies want to access — versus the amount of information it is prepared to release under FOI. "Government’s intrusiveness into the citizen’s privacy has become very pervasive but the citizen’s ability to call government to account through FOI is miniscule in the amount of information that can be gleaned from that,” Dreyfus said

Taxpayers dudded in $700k savings on commissioners at OAIC

The Canberra Times Public Eye reflects on how the public is the loser from government saves of $700k by appointing one commissioner instead of three to the Office of Australian Information Commissioner:

Long-time privacy watchdog Timothy Pilgrim was appointed Information Commissioner last week, a role he'd acted in for more than a year. He certainly deserves the honour. However, he doesn't deserve the government's treatment of him and his office. Pilgrim has been left to fill three statutory roles for the price of one: Information Commissioner, Privacy Commissioner and (acting) FOI Commissioner. This is despite the relevant legislation clearly intending that the jobs be held by different people.

The good news is that Pilgrim is saving us money. The three officers' salary packages total $1,175,050, while Pilgrim receives just $443,910. That's a $731,140 gift to taxpayers. (Thanks, Tim!)

The bad news is that, whatever Pilgrim's abilities, none of his roles will be performed as effectively as they should be. The office was designed in such a way that the at-times competing objectives of privacy and FOI law would have separate champions, balanced by the Information Commissioner's oversight. That useful tension no longer exists – and the public is the loser. Alas, the cost is likely far greater than Pilgrim's gift.

Australian Information Commissioner appointment: some certainty, still short of firepower and support

The announcement last week by Attorney General George Brandis of the appointment of Timothy Pilgrim as Australian Information Commissioner and the renewal of his appointment as Privacy Commissioner brings a degree of certainty to the operations of the Office of Australian Information Commissioner after the wrecking ball launched in May 2014 when the Attorney General announced the office was to be abolished.

While the return to certainty is welcome, and Timothy Pilgrim is a fine public servant the appointment is far from sufficient to re-establish the office on the fully operational, fully funded, firm footing required after the battering of the last two and a half years.

The announcement makes no mention of the Freedom of Information Commissioner post.

The OAIC website says "Mr Pilgrim will carry out functions and exercise relevant Commissioner powers under the Privacy Act 1988, Freedom of Information Act 1982 and the Australian Information Commissioner Act 2010." 

Who calls the shots?
The Australian Information Commissioner Act 2010 establishes an office with three commissioners and prescribes the functions and authorities of each.

if the government intends to proceed with one commissioner, In the court of public opinion at least, this would seem 'smart lawyering' and contrary to the framework established by parliament -three positions, three different functions, three people.

It may raise a legal issue about the exercise of executive power and the public trust responsibilities that go with it including to act in accordance with Section 61 of the Constitution which requires such power be used to execute and maintain the constitution and the laws of the Commonwealth. 

In the case of the Australian Information Commissioner Act, the government's responsibility to execute and maintain the act would seem to require the appointment of three commissioners not one.
 
Collateral damage
The wrecking ball of 2014 hovered over the OAIC until May 2016.

By this time the Canberra office had closed, staff had left including the FOI Commissioner and the Australian Information Commissioner, some functions were farmed out to the Ombudsman and Attorney General's Department (since returned), and Privacy Commissioner Pilgrim was given five short term appointment acting in the Information Commissioner role.

Funding for the FOI functions of the office has never reflected initial estimates of what was required and remains inadequate. Privacy responsibilities of the office have been extended. No funding has been allocated for information policy functions.

The OAIC has conducted two own motion investigations of agency FOI practices in six years, the most recent two years ago. 

The 2016-17 Corporate Plan doesn't suggest a major change in what has been a low key FOI watchdog role. There are references in the plan that suggest the office is now rebuilding FOI capacity lost in recent times.

Throughout all these tough times the minister hasn't managed a positive word in public on the importance of what the OAIC describes as its "unique role in promoting and protecting two of the fundamental pillars of open democratic government in the information age."

On the contrary Senator Brandis as late as May this year continued to assert that abolishing the office was a good idea. He told Senate Estimates (Q&A pp 42-44) the decision in 2014 to abolish the office was at the time seen as a "good economy measure-and we haven't changed our mind."

The Attorney General also maintained public silence as one public service leader disparaged freedom of information ('very pernicious') and expressed ignorance of its transparency and accountability purpose, and others went public in calling for tighter guarantees of confidentiality for advice. 

Meantime Senator Brandis was arguing an interpretation of the law before the Administrative Appeals Tribunal and the Federal Court of Australia that both rejected in seeking to avoid processing a request for some entries in his appointments diary now some years old.

New positive words and deeds required
Australia's information access law, and policies and practices in implementation of the law badly need comprehensive review, reform and updating. That should include another look at the OAIC and what can be learned from experience, not just its own, but from around the country and internationally where this and other models are in place.

However before we get there, we need words and deeds that confirm this government supports and encourages the open transparent government cause

As Senator Brandis in Opposition in 2009 said 

"..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. Legislative amendments, when there is need for them, are fine, but governments with their control over the information in their possession can always find ways to work the legislation to slow or control disclosure...."

According to the Prime Minister takeaways from the close election result in July are that the public is disillusioned with government, politicians and the major parties, and restoring trust is a priority for his re-elected government.

Different attitudes and actions - that positively promote transparency and accountability - might help.