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Friday, October 09, 2015

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:

    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

    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.

    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."
    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.

    Tuesday, October 06, 2015

    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.

    Monday, October 05, 2015

    "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.

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

    Thursday, October 01, 2015

    The Guardian and Crikey share common ground on open government

    Paul Farrell in The Guardian continues his series on the war against the Office of Australian Information Commissioner and Josh Thomas in Crikey (subscription) covers similar territory, Thomas canvassing initiatives Prime Minister Turnbull could take to give effect to his pledge to open and transparent government:
    • abandon plans to shut down the OAIC, 
    • undertake a complete overhaul of the Freedom of Information Act
    • look into record keeping in the digital information age
    • move FOI from the Attorney-General's Department into PM&C to take it away from just being "lawyers' business"
    • join the Open Government Partnership.

    Wednesday, September 30, 2015

    The voices keep coming: scrap the bill to abolish the Office of Australian Information Commissioner!

    With no sign of any weakening in the solid Senate majority against, Paul Farrell reports in The Guardian today that Senator Nick Xenophon wrote to Attorney General Brandis this week calling for the bill  to be withdrawn to end the uncertainty surrounding the office.

    Former Australian Information Commissioner Professor John McMillan in this interview with Farrell said the uncertainty "can’t continue. it’s very hard to maintain staff morale. It’s very hard to recruit really talented people on an ongoing basis when they don’t know whether the office is going to disappear from one month to the next,” 

    Professor McMillan reiterates points made in his piece in The Australian today and singles out the Attorney General's Department and senior public service leaders for special mention:
    .. McMillan told the Guardian the decision to scrap the office was a blow to open government. He called for more debate on freedom of information and hit back at claims by senior public officials who said FOI had gone too far. “It’s a great shame that government decided to abolish it,” said McMillan. “It was inevitable that a body like this would encounter issues early on in changing culture, developing efficient procedures, working out the most efficient methods. We had just achieved that ... so all of that experience is lost. “I’ve no doubt it’s all to do with two things; irritation with FOI and that the portfolio department is the attorney general’s department, which never understood information policy, which never understood transformational change on information issues and so found the whole thing an irritant......He also criticised recent comments by treasury secretary John Fraser and the Australian Public Service Commissioner John Lloyd about freedom of information for their recent comments speaking out in opposition to FOI. “I think it’s terrible that the head of treasury and the head of the public service commission feel comfortable in speaking out and saying FOI has gone too far, without having to explain what is meant by it’s gone too far,” he said. “You get all these mists thrown around, about you can’t have frank briefing at senior levels. FOI protects any document that needs protection. The exemptions are quite adequate to protect any document, and the IC review decisions make it plain.”
    The following statement by a spokeswoman for the attorney general makes no mention of the bill before the Senate, or any determination to continue the 11 month stalemate - a slight glimmer of a rethink, one hopes:
     “The government is committed to transparent, accountable and open government. The OAIC continues to operate and its privacy functions continue to be funded on an ongoing basis. Additional resources were also provided to the OAIC for the continued exercise of FOI functions in 2015-16.”

    Former information commissioner labels government's 16 month struggle to abolish the office as "shameful."

    Writing in The Australian today former Australian Information Commissioner Professor John McMillan argues the exercise has "further entrenched the cynicism and hypocrisy that has permeated the operation of open government laws for more than three decades." 

    Professor McMillan makes an urgent call for a constructive debate on the future of Freedom of Information, and has a message for Prime Minister Turnbull, the nation's very enthusiastic supporter of open government:
    "No political party can truly claim to subscribe to a policy of open government while this impasse continues."
    I'm sure The Australian and News Corp Australia won't mind if I let the professor speak for himself on this important subject: 

    Commitment to freedom of information bolsters our democracy

    It is 16 months since the government announced its intention to revise arrangements for resolving disputes about access to government information under the Freedom of Information Act 1982.

    At a formal level nothing has happened: the government bill to implement its plan by abolishing the Office of the Australian Information Commissioner languishes in the Senate.

    At an informal level the cynicism and hypocrisy that has permeated the operation of open government laws for more than three decades becomes entrenched.

    The FoI Act has long been a source of tension in government, dating back to before it took effect. Nearly every politician is on record, at some point in their career, as declaring their belief in open government.

    Prime ministers often lead the chorus. Democracy, accountability and transparency go hand in hand. That is why we have a tradition of open parliaments.

    But transparency in government will not occur unless the law requires it. The default position in government is to control the information flow.

    This minimises the risk that government actions will be misunderstood or misrepresented, that a spotlight will shine uncomfortably on matters that are hard to explain or justify, or that an ill-timed disclosure will sidetrack debate on an issue.

    Transparency ends up being a vacuous concept unless there is a law that requires disclosure.

    In a practical sense, that means a law that enables an outsider to point to information that they think should be released, and to seek independent arbitration if a government agency claims the information is sensitive or confidential and should remain secret.

    It is a truism that political leaders understand that point while in opposition but disown it when in government.

    Former British prime minister Tony Blair described the passage of an FoI act during his tenure as his biggest regret.

    US president Lyndon Johnson was said by his press secretary to have been “dragged kicking and screaming” to a ceremony at which he signed the US FoI Act “with a deep sense of pride”.

    And Australian FoI parliamentary advocate Gareth Evans later recanted, saying “really strong FoI legislation is for elves, fairies and oppositions”. At one level that renunciation is understandable. In my five years as information commissioner I saw many FoI requests that did not tie in with the noble “right to know” cause espoused by applicants.

    Some FoI requests are little more than a fishing expedition to find a story or an attack point. Some are driven by an obsessive belief that bureaucrats are hiding a skeleton.

    Others involve wasting time on searching for drafts and email chains on topics that are amply on the public record.

    At a general level, society gets more value from open government practices such as open data and proactive disclosure than from individual FoI requests.

    On the other hand, it has become fashionable at senior government levels to say that the FoI Act has gone too far — that it is stopping officials from tossing ideas around and providing candid written advice to ministers.

    The legal and practical reality is the FoI Act contains numerous exemptions that adequately protect any document that warrants exemption. It is probable that leaks and selective releases lie behind many irksome disclosures.

    Despite the challenges and complexities, having effective public access to government information through an FoI Act is a cornerstone of democracy. We must ensure that the operation of the FoI Act is uncoupled as far as possible from political and bureaucratic expediency. Leaving the FoI Act and the information commissioner in limbo for 16 months — and counting — is a shameful way to deal with this perennial tension in government.

    Nor is this an issue for the government only. The opposition, which first promoted open-government reform in government in 2010, then went cold on the idea, has as much responsibility to fashion an enduring and workable FoI scheme.

    The FoI Act ushered in a new era of open government in 1982. Ever since, government in Australia has been more responsive, engaged and transparent. The Australian lead was followed in many other countries. And yes, the FoI Act is not perfect. It doesn’t balance well the ­administrative demands on government with the ideal of public access to government information.

    Many recommendations for reform have been made during the past five years by the OAIC and others. There has been scant government consideration of those proposals, at least outside the bunker.

    There is an urgent need for constructive debate on future directions in FoI. No political party can truly claim to subscribe to a policy of open government while this impasse continues.

    Tuesday, September 29, 2015

    Strong media voices speak up about freedom issues including the backsliding on Freedom of information.

    Independently of Right to Know day or week - now there's a missed opportunity - Australian media organisations and journalists are finding new strong voice about freedom of speech,  press freedom and related issues, decrying poor efforts to speak up as the wave of national security laws washed through and freedom of information went backwards in the last few years.

    The chair of the Australian Press Council Professor David Weisbrot said laws proposed as a counterterrorism measure threatened the ­future of investigative journalism and must be revisited. He told The Australian the council had an important advocacy role, a role for a long time left to the publishers:
    “My view is that the issues are so central to all of our constituency, our readers and the newspapers, that we need to be involved and we can do that because if The Australian or the Tele or the Herald argues about these things, many people will see that as self-interested, whereas The Press Council, when we speak we’re representing the broader community and we’re more at arm’s length than an individual publisher is.”
    And the doyen of the Canberra Press Gallery Laurie Oakes in his address (pdf courtesy MEAA) to the Melbourne Press Freedom Dinner blamed government for the intrusions and journalists and media organisations including those publishers for complacency as the screw turned.

    Oakes said 
    "it’s.. incumbent on journalists and publishers and broadcasters to fight the press freedom side of the argument. It’s not going to be given due weight by governments of any stripe otherwise.”
    Oakes included in his list of issues that journalists in the main have ignored, Freedom of Information backsliding under successive governments,culminating in the attempt to abolish the Office of Australian Information Commissioner, and Australia's lack of interest and enthusiasm for the Open Government Partnership.
     (Press freedom is) not going to be given due weight by governments of any stripe otherwise. I repeat, press freedom,transparency etc. are rarely high on their list of priorities.

    You can see that from what’s happened with the Freedom of Information system. There’s been a steady retreat by politicians and bureaucrats from the freer flow of information that briefly gave cause for optimism following John Faulkner’s reforms in 2009 and 2010. The retreat started under the Labor government. And it had nothing to do with security merely old habits reasserting themselves.

    John Faulkner as Special Minister of State was a true believer in government transparency, and introduced reforms to the FOI system that unequivocally conveyed a presumption in favour of disclosure. When Faulkner went, so did enthusiasm for his approach.
    A key reform was the appointment of an Australian Information Commissioner to review access refusals, publish FOI guidelines for agencies to follow, and act as a kind of champion of open government. We get an idea of what happened to that from a 2013 paper by Professor John McMillan, the first Information Commissioner and, in any meaningful respect, the last one as well.

    When an event was organized to mark the 30th anniversary of FOI in Australia, no minister attended or made any contribution. Legislation to entirely exempt the Parliamentary Departments from the FOI Act was rushed through Parliament, even though this was contrary to a submission from those departments. The Government stopped responding to key reports from the Information Commissioner. It ignored a suggestion that ministerial appointment diaries be published on the web. Australia did not join the International Open Government Partnership formed in September 2011 and which now has 64 member countries. And so on.

    And when the coalition came to office? It announced the abolition of the Office of the Information Commissioner in its first Budget. The senate blocked that, so the government effectively defunded the office. McMillan, largely stripped of staff, spent his last eight months in the job working from home. A disgrace.

    And the media were pretty much silent throughout.

    The welcome mat is out if these issues are given new prominence in media circles.

    Professor Weisbrot and Oakes both are guardedly optimistic about the arrival of Malcolm Turnbull - so is Open and Shut - but regardless, media organisations and journalists should be reaching out to others in the broad community who share these interests to establish a formal or informal coalition to argue the case and seek to safeguard freedom of speech, press freedom and transparent, open government. 

    Monday, September 28, 2015

    Right to Know-worldwide any questions?

    A Right to Know Day panel that includes me (under my Twitter handle FOIGuru) is happy to respond to any questions about right to know, information access and related questions on Reddit

    But at 11.30pm local time in Sydney, with 28 September drawing to a close here as other parts of the world awake, I'll chime in with my take in the morning. Good night all.

    Right to Know Day insights into international best practice tools for open government

    On Right to Know Day  NSW Information Commissioner Elizabeth Tydd released a report by Professor Anita Stuhmcke of the University of Technology, Sydney commissioned by the IPC that provides an insight into the types of practical mechanisms utilised in selected international jurisdictions to promote open government through information sharing and citizen engagement. 

    Despite the title
    "Advancing the objects of the Government Information (Public Access) Act 2009 (NSW): an international comparative evaluation of measures used to promote government information release" 
    the report is relevant anywhere policy makers (hopefully) and advocates (certainly) are wrestling with the challenge of how to encourage proactive release of government information.

    From the Executive Summary

    SECTION 3: The Concept of Open Government: History and challenges
    "This report bases its findings upon the three characteristics of open government as defined by the Organisation for Economic Co-operation and Development (OECD): transparency, accessibility, and responsiveness. Proactive release of government information is a critical plank in building these characteristics.

    In Australian jurisdictions there are cultural and organisational barriers to information release. These barriers have become increasingly evident due to the rapidly changing context within which the promotion of government information sharing occurs. Technology has heightened expectations as to efficient release and effective use of government data. However as technology continues to drive change to governance models the government response can be characterised as slow and uncoordinated. In Australia macro and micro policy reform has not grappled with information sharing between agencies nor adequately addressed existing barriers to information release from government agencies to the public. This approach seems set to continue."
    (Comment: Is that noise in the background Prime Minister Turnbull coming down the corridor to set the situation right ?)

    SECTION 4: Leading International Jurisdictions: How open government should look
    "The open government movement is global. Public data is big business and promises a new model of democratic interaction between citizen and government. In 2011 the international Open Government Partnership (OGP) was launched as an initiative by 8 founding governments. Today this includes 65 countries. This report identifies the governments which lead the international open government rankings. The United Kingdom is typically identified as the world leader in this area. The report then uses these comparative jurisdictions to identify:
    (a) three switches to encourage inter-agency information sharing (see Section 5); and
    (b) eight practical mechanisms to encourage proactive government information release to the public (see Section 6)."

    (Comment: PM Turnbull-a great week to end years of dithering and commit Australia to continuing as a member of the Open Government Partnership?

    SECTION 5: Encouraging information release in open government: Strategic tangible mechanisms to promote information sharing by government agencies
    "In Australia the closed government culture is a barrier to open data policy. This section identifies three switches to overcome the behavioural/oganisational issues which prevent information sharing:
    Switch 1
    Legislative/structural features that build success: promoting a model of proactive agency information sharing
    Best practice UK regulatory model that facilitates exchange of data between agencies (Data Protection Principles and Data Sharing Code of Practice)
    Switch 2
    Promoting proactive release of government data across organisational walls: Recognise and reward the individual
    Promote agency Open Data Champions; individual data release prizes and challenges; and identify agency data ‘boundary spanners’
    Switch 3
    Build inter-agency trust: the use of soft regulation
    Adopt UK ‘Personal Information Promise’; investigate multi-agency models; develop feedback loops on information sharing."

    (Comment: follow the UK lead where the legal requirements for data sharing are legally enforceableby the ICO.)
     SECTION 6: Encouraging information release in open government: Strategic tangible mechanisms to promote information release by government to the public
    "This project approaches the sharing of government information between agencies and release of government information to the public as initiatives which involve more than putting government data on the Internet. The eight mechanisms identified in Section 6 are:
    Mechanisms to promote transparency:
    1: Democratize information sharing through using Games Contests, App development and Hackathons (Civic Hacking) to crowd source ideas and promote government information release
    2: Measure government performance and encourage citizen rankings
    Mechanisms to promote accessibility:
    3: Select policy area as the moderator for transparency and usage by combining a bottom-up and top-down approach to select specific data sets for release
    4: Use non-government platforms to promote government information
    5: Promote republishing and re-using government data
    Mechanisms to promote responsiveness:
    6: Integrate citizens, consumers and non-government organisations into policy making
    7: Ensure sustainable change through the integration of “ecosystems” of key actors
    8: Encourage production of government information through individual citizen contributions."

    (Comment: law review is also necessary - to broaden pro-active publication requirements to reflect 21st century public expectations, and modernise freedom of information still stuck in a 1980s paper world in some jurisdictions. (NSW and Queensland better than the rest but statutory reviews in both states, conducted largely behind closed doors, have disappeared into government black holes.) And ensure there is a clear leader and advocate, and an oversight body with resources and clout to make things happen)
    (Good on SBS, BTW). Addendum; So too 612 ABC Brisbane)