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Friday, August 24, 2018

Amid the hubbub, an FOI reform bill introduced from the crossbench goes to committee

Its been quite a week so you're excused if you missed the introduction into the Senate of the Freedom of Information Legislation (Improving Access and Transparency) Bill 2018 by Senator Rex Patrick  (Centre Alliance).

The senator is among the few who take a serious interest in transparency and accountability, evident in his time as a staffer to former senator Nick Xenophon, and in his own stead since he replaced Xenophon in November last year.

Introduction of the bill took one minute of the senate's time but it won't automatically sink without trace. It has been referred to the Legal and Constitutional Affairs Legislation Committee for inquiry and report by 30 November 2018. Thus the opportunity to draw attention and advocate for action from those in government who since the election in 2013 have settled for words if pressed on the subject.

While well short of the changes that would be expected if Australia embarked on developing information access laws fit for the 21st century, an OGP commitment on which the government has remained silent about what is under consideration since August 2017, Senator Patrick's bill is a welcome attempt to identify high order priorities for improvement.

Specific changes proposed include:
  • Requiring the government to fill all three offices of the Australian Information Commissioner, the Privacy Commissioner and the Freedom of Information Commissione
  • Allowing FOI review applicants to elect to have their matter bypass the Information Commissioner, who can take more than a year to make a decision on controversial issues, to the Administrative Appeals Tribunal.
  • Granting an FOI applicant the right to switch a review into the AAT, without charge, in the event that the Information Commissioner takes, or indicates he or she will take, more than 120 days to make a decision.
  • Preventing agencies from making submissions to FOI decision reviews that have not been advanced by the agency in its internal decision making, so that they can't switch exemptions half way through a review as often happens now. This would prevent a current practice that, in effect, this allows an agency to remake decision half way through a review, something not normally permitted in merits reviews being run in superior jurisdictions.  
  • Preventing the Information Commissioner from making FOI decisions if he or she does not hold the legal qualifications required of the FOI Commissioner (as happens now). 
  • Preventing agencies from publishing information released under FOI until at least 10 days after the applicant has received his or her copy of the information. 
  • Promoting the use of freedom of information requests by Senators and Members of the House of Representatives by entitling them to access to documents without charge unless the work generated by an access application involves charges totalling more than $1000
  • Requiring an agency to publish its external legal expenses for each Information Commission or AAT FOI matter that has concluded. This would apply in relation to agency FOI legal expenses and to expenses incurred by the National Archives in respect of applications made for access to information under the Archives Act 1983.
 The reasons for referral/principal issues for consideration by the committee are:
"Impact and benefits
Affect on OAIC resources/processes
Possible submissions or evidence from:
OAIC/Attorney/Law Council/Media Organisations
Accountability Roundtable."

Specific mention of The Accountability Roundtable is an acknowledgement of the tireless work of the former Chair Tim Smith QC in drawing attention to the Abbott and Turnbull governments' move away from the legislated model of three commissioners to exercise the functions of the OAIC and to downscale resources available for FOI and information policy.

Senator Patrick's second reading speech (incorporated in Hansard but not read):

Monday, August 20, 2018

Australian Information Commissioner appointed

After acting in the positions since March, Angelene (apology for earlier typo) Falk was appointed Australian Information Commissioner and Privacy Commissioner from 16 August for a three year term.

 Congratulations and best wishes.

The appointment sees the government continue to hold fast to the decision that one commissioner not three as legislated is sufficient to manage the privacy, freedom of information and government information functions of the OAIC.

This despite the rise and rise of privacy issues and concerns, the new regulatory framework under development for data management, the ongoing freedom of information battleground and road blocks, and the disappearance from public view at least of the OAIC contribution to information policy-the most recent publication on the website is four years old and the rest much older.

Government also maintains silence- now for 12 months- on a commitment to ensure information access laws and practices are fit for the 21st century.

In an in-tray (more probably in an archive box) somewhere in Canberra are a pile of recommendations put forward over the years by the OAIC and others on how to improve and enhance public access to information as well as the functions of the office.

In the Media release announcing Ms Falk's appointment Attorney General Porter said

Saturday, August 04, 2018

Plan to appoint Information Commissioner by end of June comes unstuck.

On 24 May, Secretary of the Attorney General's Department Chris Moraitis told Senate Estimates  (Page 51) the appointment of a replacement Australian Information Commissioner was in the process of being finalised:
"We are literally checking referees. I'll probably complete that tomorrow....
Once we've finalised the report in the next week or two, we will put a report to the Attorney again....and then government considers that.
I think the appointment is an acting arrangement for three months, so we have until around the last week of June to ideally have a new Office of the Australian Information Commissioner, Privacy Commissioner and FOI Commissioner. I think there's an option of renewing (the acting appointment) if that's not the case, but that's our timeline. We're working to that, if I may say so, as diligently as we can."
Still no news on this in the first week of August.

The OAIC has been underfunded since 2014 and will continue to be undermanned, even when a commissioner is appointed to carry out functions parliament decided warranted three commissioners.

In case the government hasn't noticed:
  • privacy concerns have gone through the roof- My Health Record is just the latest;
  • notifiable data breaches is a relatively new measure;
  • new data commissioner arrangements are in the process of being worked out, 
  • information policy is under all sorts of pressure, and
  • Freedom of Information is the usual battleground.

Friday, June 01, 2018

Public service leader who labelled FOI 'very pernicious' plays a role in selecting new FOI watchdog

Australian Public Service Commissioner John Lloyd, who in 2015 labelled FOI 'very pernicious' and showed no appreciation of the role FOI plays in a democratic society, is on the selection advisory committee that will soon report to and recommend to the Attorney General a replacement Australian Information Commissioner.

Senate Estimates (pages 51-60) hearings last week on the Office of Australian Information Commissioner covered a lot of ground (more in another post) and revealed the process is in the final stages, interviews are complete and an announcement is expected before the end of the month. In addition to the commissioner, members of the committee are the Secretary of the Attorney General's Department (Chair), Secretary of the Department of Health, and the deputy CEO of the Digital Transformation Agency. 

The APSC guidelines are that the APS Commissioner or his representative must be included in a selection committee for recruitment or appointment to a Senior Executive Service position. Usually the commissioner himself is involved for a band 3 position such as this.

It seems bizarre that Mr Lloyd would put himself forward for a role on this occasion.
Categorising FOI as pernicious-"extremely harmful, damaging, detrimental, deleterious" was bad enough from a leader of the public service. 

A former attorney general said at the time Mr Lloyd "either has no understanding of the importance of FOI laws in a modern and transparent democracy or he is trying to undermine the legislation with his comments."

Mr Lloyd topped it off a few months later telling a Senate committee 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, completely missing the point that  the right to access government information enshrined in FOI law is about transparency and accountability and a cornerstone of democracy.

Mr Lloyd's views about the 'very pernicious' impact of FOI may have been reinforced in the last few weeks as he found himself in the hot seat in a seperate Senate estimates hearing arising from a decision by the Department of Prime Minister and Cabinet to refuse access to an FOI request arising from his correspondence with former colleagues at the Institute of Public Affairs. Mr Lloyd said he was not involved or consulted about the FOI. He confirmed after two days of questions in estimates that he is not under investigation, something alluded to in the PMC decision.

The OAIC and its important role in access to government information, privacy protection and information policy was under direct attack from 2014 to 2016 and has been underfunded since, operating with one commissioner instead of the three parliament legislated for. The government apparently has no intention of addressing that hole in the system-hardly in line with executive government responsibility to execute and maintain the laws of the Commonwealth.

Timothy Pigrim, now Angeline Falk and staff have soldiered on as OAIC responsibilities particularly in privacy protection have expanded, privacy issues have heated up and the office is to have a new role and some additional funding and resources for consumer data rights.

Information policy and FOI have been and remain the poor relations, the former disappearing in recent years and the latter marked for example by long delays in completing review applications, little public advocacy about the right to know, and two own motion investigations into what particular government agencies are up to in carrying out their FOI functions during the last six years or so, the most recent in 2014.

Living in hope, I'm sure others involved in the selection process particularly the Attorney General who has the last word, have a broad, deep understanding of the importance of FOI and the need for ongoing positive strong leadership in the long open government journey.

Thursday, April 05, 2018

Australia's Open Government Partnership plans: possible commitments

The following suggestions for commitments, if supported ,require refinement to ensure any commitment is specific, concrete and ambitious.We should learn from experience with the first plan that vague statements of intended outcomes  and plans to review and consult do not meet this OGP requirement. 

1. Anti-corruption
A national integrity commission and a suite of anti-corruption reforms not limited to those  included in the first national action plan yet to be delivered.
The Deputy CEO of the OGP Support Unit Joe Powell urges countries preparing a plan this year to include anti corruption measures.

2. Integrity
Address gaps and weaknesses in lobbying and political donations regulation. Measures to include a comprehensive scheme for registration of lobbyists, periodic reporting of lobbying activity.

Join Parliament in the open government initiative with a commitment to adopt a code of conduct for parliamentarians and an open government oversight committee.
3. Information access
Pick up from where Commitment 3.1 in the first plan leaves us.
The published information provides no information about what AGD has brought to the attention of government on this commitment.
Those consulted a year ago provided many suggestions for improving and modernising law policy and practice. Recommendations from the Hawke review and the ALRC report "Secrecy laws and open government in Australia" have not been acted upon.
Australia's FOI act  receives 81 /150 points in this respected international assessment
placing it 57 of 112 laws surveyed. Regardless of the accuracy of this rating the law is middle of the pack, not near international best practice.

Extend pro-active publication requirements- grants, gift registers, appointment diaries for example. Many requirements for disclosure in annual reports should become quarterly or continuous disclosure obligations.

Legislate for open data release including publication of agency data set holdings, publish data sets in machine-readable formats and require updating on a regular basis and confer rights to seek review of agency practice and decisions.

4. Sector specific commitments
The low level of awareness of the OGP initiative and  the limited contributions to discussion of possible commitments means few sector specific issues have been raised to date.
A renewed effort is required now to bring into the discussion of ideas for improvement social welfare and justice groups, indigenous voices and potentially interested parties from sectors such as health, aged care and environment. Issues likely to emerge include

5. Civic participation
Pick up on where commitment 5.2 leaves us.
This statement on your web page is questionable:
"As part of our first Open Government National Action Plan, we developed a new government framework that helps make sure that people are heard as government makes decisions or delivers services."
In fact all that has happened so far is the Department of Industry Innovation and Science has published a report.
Adoption of a new model is the next step but we do not appera to be there yet.
6. Address shortcomings in budget development and oversight as identified by the International Budget Partnership
For the first time in 2017 the survey includes a ranking for Australia.
While improvements across the board  are recommemded the score on Public Participation 41/100 is well below the 60/100 set as satisfactory
"Australia provides limited opportunities for the public to engage in the budget process."
See recommendations.
Two of 16 points required for eligibility to join the OGP are based on the IBP score.

7. Improve civil society capacity, reaffirm the right to democratic participation threatened by limitations on not for profits and civil society organisations by the Foreign Donations Bill
and other legislation. In practical terms encourage and empower civil society to engage and collaborate fully with government.
The Government committed to the Open Government Declaration in November 2015. The declaration states: "..We commit to making policy formulation and decision making more transparent, creating and using channels to solicit public feedback, and deepening public participation in developing, monitoring and evaluating government activities. We commit to protecting the ability of not-for-profit and civil society organizations to operate in ways consistent with our commitment to freedom of expression, association, and opinion..."

The Australian Government was party to a Joint statement on Protection and Promotion of Civil Society issued in Washington on 23 September 2013 supported by 23 other governments. after meeting with civil society and other groups in New York.
The statement

"affirms that the strength and vibrancy of nations depend on an active civil society and robust engagement between governments and civil society to advance shared goals of peace, prosperity, and the well-being of all people.  We noted our deep concern that many governments are restricting civil society and the rights of freedom of association and expression, both online and offline.  To combat this alarming trend, our governments committed to work together to respond to growing restrictions on civil society that undermine its ability to perform its crucial role....  We will lead by example to promote laws, policy decisions, and practices that foster a positive space for civil society in accordance with international law, and oppose legislation and administrative measures that impede efforts of civil society.  We will undertake joint diplomatic action whenever necessary to support civil society in countries where it is under threat, and to defend the fundamental freedoms of association and peaceful assembly. We will also work to develop new and innovative ways of providing technical, financial, and logistical support to promote and protect the right of citizens and civil society to freely associate, meaningfully engage with government, and constructively participate in processes to improve the well-being of their countries.  Throughout all of these efforts, our nations will continue to engage with representatives of civil society to help us understand and respond to the challenges they confront.  We commit to gather again at the opening of the 69th United Nations General Assembly to review our progress toward these objectives.  We will work in concert over the coming year to ensure a robust, effective international response to the proliferation of restrictions being placed on civil society. We call on representatives of civil society, the philanthropic community, the private sector, and other governments to partner with us in supporting and defending civil society.")

Australia's Open Government Partnership plans: preliminary comments

The following observations, comments and suggestions are put forward for consideration as plans for the OGP national action plan are developed.

Some raise administrative and policy issues that are unlikely to result in commitments in the plan but nevertheless are relevant to our open government ambitions.

1.Uncertainty about where things stand
The lack of information about where things stand and the likely outcomes by July 2018 limits discussion of possible commitments for the next plan.
A number of  commitments are tagged 'Delayed.'
With these commitments and others currently described as 'On track' it is not clear where we are, where we are going and where if anywhere we should aim for next. Current reporting on Commitments 3.1 Information Access (AGD) and 4.3 Open Contracting (Finance) for example provides no indication of what is under consideration by the government.
The lack of information hampers discussion about the next phase.

2. Moving toward the open government state
All levels and all branches of government are on the open government journey.
While roughly moving in the same direction they appear to be separate journeys.

The OECD (2016 Open Government The Way Forward) identifies the challenges countries face in implementing and co-ordinating open government initiatives. It outlines benefits from mobilising and engaging all branches and all levels of government in order to move from 'open government' to 'open state.'
Has government examined the benefits and options for

3. Link with Sustainable Development Goals.
The OECD report also advocates linking open government plans with the Sustainable Development Goals.

While not included as a commitment, the current National Action Plan refers to the link between Australia’s open government plans and the Sustainable Development Goals . 

The plan states the government’s intention to endorse the Joint Declaration on Open Government for the Implementation of the 2030 Agenda for Sustainable Development, explaining the declaration “commits us to transparency, openness and accountability in our domestic and international implementation of the 2030 Agenda for Sustainable Development. It also commits us to look for opportunities in future National Action Plans to progress implementation of the SDGs.”

There has been no public statement about endorsement of the Joint Declaration. There is no mention of the Open Government Partnership in any of the published SDG material on the DFAT website, or in any speeches or statements by the Minister for Foreign Affairs or other government representatives such as the Ambassador to the United Nations.

4. Administrative arrangements OGP
The allocation of responsibilities for policy and management of OGP requires examination
The OGP Support Unit is located in Department of Prime Minister and Cabinet.
Presumably the Unit reports to the Minister for Finance who was designated minister responsible for co-ordination of implementation of commitments in the first national action plan and would appear to have an ongoing role.
This unusual arrangement should be looked at in the context of broader information policy.

5. A transparency regime for the 21st century.

'Information policy' is not mentioned in the Administrative Arrangements Order.

Section 7 of the Australian Information Commissioner Act describes the information commissioner functions that include

(a)  to report to the Minister on any matter that relates to the Commonwealth Government's policy and practice with respect to:

 (i)  the collection, use, disclosure, management, administration or storage of, or accessibility to, information held by the Government; and

(ii)  the systems used, or proposed to be used, for the activities covered by subparagraph (i)..
There is no mention of this function or work associated with it in published plans or reports of the OAIC in recent years.
AGD is responsible for
Freedom of Information

Management of government records.

PMC is responsible for
Co-ordination of Government administration
Public data policy and related matters.
Department of Finance is managing a Whole-of-Government Digital Records Platform Project which presumably will introduce automated systems to facilitate access to some records.
National Archives is responsible for Digital Continuity 2020, a government wide program moving to 'all digital' records.
In all this do we have a minister responsible for information policy? Or a well co-ordinated departmental arrangement?
There is a strong case for at least bringing together functions such as FOI and open data policy and practice. 
See Beth Simone Novek on why a similar silo arrangement in the US is a barrier to a  satisfactory transparency regime for the 21st century.

Australia's Open Government Partnership plans

I've lodged three comments/submissions about the current consulation by Department of Prime Minister and Cabinet on possible commitments for the second OGP National Action Plan.

On meetings in Canberra, Melbourne, Perth, Sydney and Brisbane that concluded on 23 March
"Based on the Sydney meet that I attended and feedback from Canberra and Melbourne, the round of consultations was disappointing to put it mildly.
Attendances were low. The lack of awareness of the OGP initiative continues. Beyond utilisation of social media, were steps taken to identify civil society organisations that would seem to have an interest in these issues? Did any agency other than PMC refer to the consultation on their website or contact organisations they deal with to encourage engagement?
The absence of indications from government of serious intent is a factor in the low level of engagement.
When has the PM followed up his words of November 2015 with anything that resembles strong ongoing enthusiasm for OGP principles and values?
A statement by the PM followed by a personal invitation to come forward, contribute and engage with government might have received a better response.
The presentation and facilitation at the Sydney meeting would not engender confidence in any new comer that this is an initiative worth time and energy. Senior government officials were not present. Those who were lacked background and detailed knowledge which meant discussion of particular topics could not get beyond generalities.
Thought bubbles were the dish de jour.The Butchers paper notes published on the website do not reflect the views of the gathering.There was no attempt to seek consensus on topics or possible commitments.
Four hours during working hours is a big ask for those gainfully employed.Another session- shorter,deeper, attended by senior people and likely more engaging-might have seen others attend.
I’d add that the limited take up so far on the invitation to lodge written submissions also reflects low awareness and lack of enthusiasm-for reasons cited above.
An attempt to lift the game should start with the Prime Minister making it clear publicly that Australia is committed to reform, what is on the table and anything that isn’t, and that he and his ministers welcome contributions and will ensure they are given serious consideration."

Monday, January 08, 2018

Canberra Times acknowledges John Mcmillan as distinguished lawyer of highest integrity

The heading on this December 2015 post reflected my views on a column by Jack Waterford in The Canberra Times FOI veteran lets fly with a few wild swings and low blows
in which he delivered an assessment of the contributions to open government by former Australian Information Commissioner Professor John McMillan. In my view both unfair and unjustified.

Professor Mcmillan subsequently took legal action against Fairfax Media, publishers of the CT.

The following statement was appended to the online version of the article and published in the 11 November edition:
Professor John McMillan
In legal proceedings brought over this article, Professor John McMillan alleged that it constituted an attack on his personal integrity, performance and competence in his roles as former Commonwealth Ombudsman and Australian Information Commissioner.
If any reader understood it that way, The Canberra Times unreservedly withdraws any such suggestion and sincerely apologises to Professor McMillan for any hurt or embarrassment caused by the article.

The Canberra Times acknowledges that Professor McMillan is a distinguished administrative lawyer of the highest integrity.