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Monday, May 23, 2016

Public service leaders maintain the FOI rage setting 'tone at the top"

Thirty three years ago, four years after government began considering FOI and five years before legislation passed, in notes to Prime Minister Fraser, then Secretary Department of Prime Minister and Cabinet, Sir Geoffrey Yeend in May 1977 wrote:
"Freedom of Information legislation would result in administrative chaos.. departments keeping dual filing cabinets...It is a can of worms, political commitments notwithstanding. The heads of Defence and Treasury are opposed to the legislation. Broader and in some cases blanket exemptions are necessary.
It has been a consistent theme pursued by the leadership of the public service since, with few public expressions of the contrary view.
The most recent public comments came in April from current Secretary of the Department of Prime Minister and Cabinet Dr Martin Parkinson and head of the Public Service Commission John Lloyd as reported in The Canberra Times

Both spoke at a forum, picking up on the report by another of Parkinson's predecessors Dr Peter Shergold (Learning from Failure) in which Shergold recommended changes to the FOI act to better protect 'frank and fearless advice.'
"The FOI act does not afford sufficient protection to public servants," Dr Parkinson said. "As leaders we need to use exemptions appropriately, but I would support going further and advocating for changes to FOI laws to protect the deliberative process." "[This is] not to reduce our accountability, nor to protect us from stuff ups we may have made, but to enhance the capacity to give truly frank and fearless advice that good policy design needs."
His comments 
"were supported by Public Service Commissioner John Lloyd, who said the bureaucracy was subject to sufficient scrutiny and accountability beyond FOI laws. "We have a high level of accountability in the public service with at least three senate hearings a year, an auditor general, ombudsman, privacy commissioner, information commissioner, and a public service commission just to name some," he said. He continued to say he was "dismayed" by how many times he had heard public servants say "don't put it in writing" to deliberately avoid any chance of a mention in FOI documents."
(More on the Shergold report and 'frank and candid' in a post to follow.)

The Australian Public Service Commission acting on behalf of the Commissioner in response an FOI application has just confirmed the views expressed by Lloyd "are his own."

(The Department of Prime Minister and Cabinet is yet to respond to a similar request.asking about the status of Dr Parkinson's public comments. Update: PM&C "Dr Parkinson was asked to provide some closing remarks and commentary on the implications of the Shergold report for the Australian Public Service going forward. He did this in his role as Secretary of the Department of the Prime Minister and Cabinet.")

The Commission's APS Values and Code of Conduct exhorts public servants in senior ranks (Section 6) to "consider the impact of public comments they might make particularly carefully" and in exercising the right to speak personally, to be mindful of the potential conflict between those views "and the ability to fulfil current and potential duties in an apolitical, impartial and professional manner."
(Section 4 contains plenty of guidance also on records and the importance of maintaining "in an accessible form decisions by Ministers, and the basis for them, including advice on options and risks; program decisions, including decisions affecting individuals or individual businesses that may be subject to administrative review, together with the basis for the decisions and the authority for making the decision; and significant events, including meetings and discussions with Ministers or stakeholders or members of the public which may be significant in terms of policy or program decision-making.)

As perceptions are everything we can only guess what the public might think of the impartiality Lloyd, Parkinson and Treasury Secretary Fraser (also on the record that important things don't get written down these days because of FOI) bring to information access issues.

However the message from leaders to the public servants they lead is clear, to paraphrase:
"FOI is an unfair challenge to public service professionalism. We've been trying to talk sense to government about this for years. So we understand if you can't do your job properly, particularly when it comes to writing down the sort of frank, honest and timely advice you might offer orally. Wink, wink, nod, nod."
Lloyd in April returned to a topic first explored last year when he said "FOI is very pernicious."
He subsequently explained at a Senate Estimates hearing that his remark was prompted by the fact FOI had departed from the original purpose of providing individuals with access to personal information held by government, and seemed unaware FOI was a foundation stone from the time it was laid in 1982 to underpin government transparency, accountability and the public right to know.

As to why he spoke:
"I think that, as Public Service Commissioner, I have a responsibility to at times comment on matters which go to the administration and management of the Public Service."
Lloyd told the committee he hadn't raised the issue with the minister for public service because responsibility rested with the Attorney General, and hadn't raised it there either - "They would have been aware of my comment. I did not see the need to actually take it further." Except of course to give it another run in April 2016 as a personal view.

Tone at the top
While public service leaders speak on FOI on some occasions because they see this as a responsibility, on others expressing a personal view, I can't recall a single positive statement from the Attorney General or other minister reinforcing the importance of FOI and why the law of the land should be implemented fully and fairly in accordance with the spirit and intent of the Parliament.

Saturday, May 07, 2016

Abbott and Turnbull governments: same same or different on transparency, open gov?

The article below appears in "Criminalising The Truth Suppressing the Right to Know: The Report into the State of Press Freedom in Australia in 2016" (pdf p39) published on Friday by the Media Entertainment and Arts Alliance. An update of course is the government's decision announced in the Budget this week that it will not proceed with legislation to abolish the Office of Australian Information Commissioner.

There is plenty more of interest in the report-commend it to you!!

Little Intent behind the Promise

On the transparent, open and accountable government, front, it’s that familiar story six months into the Turnbull era. Hope and disappointment. 

On his first day in office hopes were raised when Prime Minister Turnbull said  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. The statement reminded of the Liberal Party promise before the 2013 election to "restore accountability and improve transparency measures to be more accountable to you.” 

At the time of writing just ahead of the budget and the commencement of the real election campaign, there are still few markers of serious intent that the Federal government intends to put the dark Abbott days behind.

Tuesday, May 03, 2016

Hallelujah: wisdom in the interests of open transparent government prevails

From the Attorney General tonight:

Office of the Australian Information Commissioner

The Government has decided not to proceed with the new arrangements for privacy and Freedom of Information (FOI) regulation, including the proposed changes to the Office of the Australian Information Commissioner (OAIC).
Accordingly, the OAIC will receive ongoing funding of $37 million over four years to continue its privacy and FOI functions. FOI funding is provided on the basis of the streamlined approach to FOI reviews adopted by the OAIC since the 2014–15 Budget.
Details regarding the allocation to the Office are at  Page 261 of the Attorney General's Department Portfolio Budget Statement

As summarised by IT News
The funding includes $8.1 million in new funding, and $6.7 million per year for the next four years out of the budget of the Australian Human Rights Commission, which was set to house the Privacy Commissioner under the new arrangements. Another $600,000 per year will be allocated back to the OAIC from the Attorney-General's Department, which was set to recieve the FOI functions.The OAIC's full operating budget for 2016-17 is set to reach $14.4 million, which budget papers indicate is around $2 million more than it received in 2015-16.
In 2015-16 the agency employed an average of 72 full time equivalent staff.
Josh Taylor writing in Crikey:
After two years in limbo, the Office of the Australian Information Commissioner can breathe a sigh of relief, with the Turnbull government abandoning Abbott government plans to shut it down.In the 2014 horror budget, the Abbott government announced plans to shut down the office responsible for privacy investigations and reviewing freedom of information requests and move its functions to the Administrative Appeals Tribunal and the Human Rights Commission from January 1, 2015.

The plans stalled in the Senate, with Labor, the Greens and the crossbench refusing to pass legislation to shut down the office.

This forced Attorney-General George Brandis to provide funding to the OAIC to keep the lights on and keep the office functioning until legislation passed to shut it permanently.

When Turnbull rolled Tony Abbott, he promised a more open and transparent government, and late last year he committed Australia to joining the Open Government Partnership global group, focused on transparency in government.

Transparency advocates pointed out that this position might be inconsistent with shutting down the OAIC, but the Attorney-General’s Department insisted that closing the OAIC remained government policy.

But that has all changed. In the 2016-17 budget, the Turnbull government quietly announced it would abandon the plans to shut down the office.

It didn’t make the front page of the press release (after all, this is a “jobs and growth” budget, not a “transparency and open democracy” budget), and it was buried in the portfolio statement for the Attorney-General’s Department:

“The government has decided not to proceed with these proposed changes and the OAIC will have ongoing responsibility for privacy and FOI regulation.”

The government will spend $34 million to keep the office open over the next four years, including $8.1 million in direct funding over the four years, $6.7 million per year from the Human Rights Commission for privacy functions, and $0.6 million per year from the Attorney-General’s Department for FOI functions.

But before the OAIC pops the champagne, the government says it can’t go about giving out information willy nilly; it expects the office to operate in the same way it did while it was under threat of being shut down.

“FOI funding is provided on the basis of the streamlined approach to FOI reviews adopted by the OAIC since the 2014-2015 budget.”

This means that where FoI reviews are deemed too complex for the OAIC to deal with, it is to refer the matter to the Administrative Appeals Tribunal, with an associated $800 application fee for people wishing to challenge the outcome of an FOI request.

The other factor to consider is that the office has operating on the smell of an oily rag. Many staff have left the organisation, and many of those remaining work on a part-time basis. To save money during the attempted shut down, one commissioner, John McMillan, was working from home.

Crikey understands that the Canberra office will not be reopened, with the OAIC working out of Sydney. The budget estimates that staffing levels in the OAIC will rise from 72 this financial year to 75 in the next financial year, but the office’s overall budget is lower than before the 2014 budget.

Thursday, April 28, 2016

Look to the Budget for the white flag or further warfare in the battle to abolish the OAIC

 In the absence of any statement beforehand, the Budget on Tuesday will next indicate whether the government intends to maintain the position that it wants to legislate the Office of Australian Information Commissioner out of existence. 

The Freedom of Information Act Amendment (New Arrangements) Bill, before the Senate since October 2014 but not brought on for a vote is not among the bills reintroduced during the two days parliament met in April. 

The bill still gets a mention on Page 31 of the Senate list of Bills in the lapsed due to prorogation of the last session category.

As at COB on 19 July eight bills were introduced or reintroduced into the House of Representatives and 59 in the Senate.

Most, introduced by Labor and The Greens should be on a wish list instead, given Budget week is the only sitting before the PM says we are off to the polls. 

This includes Senator Ludwig's Private Member's Freedom of Information (Requests and Reasons) Bill, a bill opposed by the government and thus with no prospects of passage in this parliament at least, but Labor senators canvassed its benefits during debate on FOI.

Senator Wong asked for an explanation from the Attorney General why a question on notice to the Prime Minister about the government's performance on freedom of information remained unanswered three months later. The senator didn't get much of answer other than the Attorney General said a request to him in the same terms was complex, sought "very detailed data" over a two year period and the three months included the summer break... Hmm.

In debate that followed Senator Wong and Senator Ludwig slammed the government's record on transparency and freedom of information with Senator Ludwig making what amounts to a big call given 34 years of history:
 "Senator Brandis presides over the worst administration of FOI that this country has ever seen.."

Monday, April 18, 2016

Bill to abolish OAIC: gone or like a phoenix, ready to rise again?

An entry in today's Senate Bills List- there are over 200 bills in the 'lapsed' category as the new session of parliament kicks off but let's hope common sense, the common good and the Prime Minister's endorsement of the goals of the Open Government Partnership mean this is the last we'll hear of this one:

Freedom of Information Amendment (New Arrangements) Bill 2014
Amends the: Freedom of Information Act 1982 to provide for: the Administrative Appeals Tribunal to have sole jurisdiction for external merits review of freedom of information (FOI) decisions; the Attorney-General to be responsible for FOI guidelines, collection of FOI statistics and the annual report on the operation of the Act; and the Ombudsman to have sole responsibility for the investigation of FOI complaints; and Australian Human Rights Commission Act 1986 and Privacy Act 1988 to provide for an Australian Privacy Commissioner as an independent statutory officer holder within the Australian Human Rights Commission. Also repeals the Australian Information Commissioner Act 2010 to abolish the Office of the Australian Information Commissioner; and makes consequential amendments to 22 Acts.
House of Representatives:Intro. 2/10/14; Passed 28/10/14
CID amendments: 2 Govt/passed.
Senate: Intro. 30/10/14; 2nd reading adjourned 30/10/14.
Reference (SBC report 14/14): Provisions of bill referred to Senate Legal and Constitutional Affairs Legislation Committee 30/10/14; report tabled 25/11/14 

[Lapsed due to prorogation of first session of 44th Parliament17/4/16]

Thursday, March 24, 2016

Entitlements rebranded Work Expenses and more transparency, maybe

I haven't been through the report of the review An Independent Parliamentary Entitlements System but these seem to be the recommendations relevant to transparency and accountability.

This is territory traversed in the past to some degree by the Auditor General and the Belcher committee. In those instances quite a few recommendations were ignored or conveniently disappeared through the cracks, but we live in hope.... 
(Update: From Minister Cormann's Media Release:
The Government supports all the recommendations in principle and will now commence work on implementation. Implementation of a number of recommendations will involve further work by the Remuneration Tribunal, which the Government will ask the Tribunal to commence forthwith.
Recommendation 24
 Improving transparency – publish all key documents online
The Government should ensure that all rules and practices relating to interpretation and operation of the work expenses framework are published together online, along with
guidance material.

Recommendation 25
Improving transparency – more frequent reporting
The Government should publish:
a.details of work expenses of parliamentarians and their staff ; and
b.a parliamentary expenses dataset on
The Government should do so quarterly, pending implementation by the Department of Finance of an integrated digital system proposed in recommendation 30, and from then on monthly.

Recommendation 26
Improving transparency – more detailed travel reporting

The Government should:
a.require parliamentarians to identify in their claims for flights (including air charter) and travelling allowance that the purpose of travel falls within at least one of the work streams covered by the inclusive definition of ‘parliamentary business’ recommended in chapter 4; and
b.ensure this identification is included in published expenditure reports

Recommendation 28
Improving transparency – office costs

The Government should:
a.amend the reporting regime so that required expenditure on the establishment, relocation and refurbishment of off ices appears as Commonwealth expenditure administered by the Department of Finance, not in the expenditure reports of individual parliamentarians; and

b.initiate a motion to refer the issue of the high cost of outfitting electorate off ices under existing arrangements to the Joint Committee of Public Accounts and Audit for examination and possible inclusion in the Parliament’s audit priorities advised to the Auditor-General.

Recommendation 30
Information technology – integrated digital system

The Department of Finance should urgently develop for Government consideration a business case for a fit-for-purpose, integrated online work expenses system.

Recommendation 32
Oversight and accountability – certification

The Government and the Department of Finance should undertake the following improvements to certification arrangements:
a. the Government should introduce legislation creating a requirement that parliamentarians certify that their o icial expenditure accords with the eligibility
b. the Government should introduce legislation creating a requirement that parliamentarians certify the purpose of travel provided pursuant to recommendation 26;
c. the Department of Finance should publish certification reports quarterly pending implementation of the integrated digital information technology system proposed in recommendation 30, and then monthly;
d. the Department of Finance should include in its certification reports any reasons provided by parliamentarians for not complying with certification requests, instances of failure to provide reasons, and details of any qualified certifications;
e. the Department of Finance should apply the improved information technology arrangements in recommendations 30 and 31 to its administration and reporting of certifications.

Recommendation 33
Oversight and accountability – assurance and audi
The Department of Finance should ensure that appropriate resources are allocated to
conducting contemporary assurance and audit activities related to parliamentary work
expenses claims, and taking action on the findings of these activities.

Recommendation 34
Oversight and accountability – the Protocol

The Government should:
a. amend the Protocol followed when an Allegation is Received of Alleged Misuse of Entitlement by a Member or Senator (the Protocol) to:
i. reflect current practices in relation to allegations of misuse;
ii. incorporate the arrangements announced on 9 November 2013 for the Special Minister of State to table in Parliament the names of parliamentarians who do not comply with requests to provide information;
iii. replace the term ‘entitlement’ consistent with recommendation 2; and
iv. expand the membership of the high-level committee responsible for considering ‘more serious’ matters to include two independent members, one of whom should be a retired judicial o ff icer of an Australian Court (Federal, State or Territory); and
b. table the amended Protocol in Parliament.

Recommendation 35
Oversight and accountability – penalty loadings

The Government should move amendments to the Parliamentary Entitlements Legislation Amendment Bill 2014 to apply a penalty loading of 25 per cent to adjustment of parliamentarians’ claims for all work expenses (other than those made following Department of Finance error), not just those relating to travel.

Tuesday, March 22, 2016

A state by state approach to legislating protection of privacy rights?
The South Australian Law Reform Institute Final Report on A Statutory Tort for Invasion of Privacy includes 34 recommendations fleshing out the detail of its principal recommendation that the South Australian Parliament should enact a limited cause of action for serious invasions of personal privacy.

The report reminds
  • in 1973, the former South Australian Law Reform Committee recommended that a general right of privacy be created; 
  • bills to establish that right were introduced into the parliament in 1974 and again in 1991 but were both defeated;
  • the Australian Law Reform Commission returned to the subject again in 2014 when the report "Serious Invasions of Privacy in the Digital Age" recommended that if a cause of action for serious invasions of privacy is to be enacted, it should be enacted by the Commonwealth and should specifically deal with invasions of privacy by intrusion upon seclusion and by misuse of private information.
Not mentioned because it was tabled after the SA report was finalised the Standing Committee on Law and Justice of the NSW Parliament in a report two weeks ago recommended that the NSW Government introduce a statutory cause of action for serious invasions of privacy.

(The SA report is the subject of discussion on Radio National's The Law Report.)

Despite some differences in detail the main thrust of all the reports is that a statutory cause of action or tort should be enacted and just about everyone agrees that national consistency is desirable.

However law reform experts in SA and members of the NSW parliamentary committee at least have run out of patience with the federal government and recommend moving ahead regardless.

Federal Labor baulked at acting on the 2008 ALRC recommendation which came under heavy fire from some in the media led by Chris Merritt of The Australian, and passed the parcel back to the ALRC commissioning the privacy in the digital age report.

The only wisdom from Commonwealth Attorney General Brandis on the subject since assuming office is "the Government has made it clear on numerous occasions that it does not support a tort of privacy"- as reported by Chris Merritt.  

To let the state borders determine the extent to which citizens enjoy practical protection of their privacy rights in this privacy intrusive day and age is a crazy way to run the federation. Different railway gauges anyone?

Parliament prorogued, bills list wiped clean, end of the siege of the OAIC?

The Governor General has prorogued Parliament with effect from 5pm on 15 April and summoned Parliament to sit for a new session at and from 9.30am on 18 April. The Parliament will sit for three weeks before the Budget on 3 May.

According to the advice from the Attorney General that accompanied the Prime Minister's letter to the Governor General
"The effect of prorogation is that Bills on the Notice paper will lapse but can be restored in the manner set out in the Standing Orders."
The Prime Minister states the reason for recalling Parliament is to enable it to give full and timely consideration to two important parcels of industrial legislation, the ABCC Bills and the Registered Organisations Bill. He adds
"If time permits the Government might also use the additional sitting days to consider other legislation."
One other piece of legislation on the Senate Notice paper since October 2014 is the Freedom of Information Amendment (New Arrangements) Bill, the bill that would abolish the Office of Australian Information Commissioner, the independent watchdog and advocate of open, transparent government. The bill which the government has not called on for a vote in 17 months because it does not enjoy majority support will disappear along with others listed at 5pm on 15 April.

Will the bill re-emerge or is this the opportunity to quietly consign this legacy of the Abbott government to the dustbin of history thus providing an indication of serious Turnbull government intent to fully embrace the goals of the Open Government Partnership, goals that the Prime Minister describes as directly aligned with "Australia’s long and proud tradition of open and transparent government"?

Let's hope good government thinking prevails.

Sunday, March 20, 2016

Attorney General Brandis maintains silence over the Government's record on Freedom of Information

In the Senate last week Senator Penny Wong asked about a Freedom of Information request made to the Attorney Generals' Department three months ago which remains unanswered. 

The debate went all over the place from there with Attorney General Brandis darting and weaving over the specific issue before maintaining silence when Senator Joe Ludwig (pictured) made some general observations, about FOI administration. While time expired there are plenty of opportunities for Senator Brandis to set the record as he sees it. Senator Ludwig said:
 "..Senator Brandis presides over the worst administration of FOI that this country has ever seen..
This government wants to dismantle the FOI regime that has been in place for many years. It has legislation sitting on the Notice Paper to do just that. This government does not support the FOI regime we have now, let alone the previous FOI regime. The coalition government is and continues to be unhelpful when it comes to FOI requests...
But, quite frankly, this government does not embrace FOI in any way, shape or form, which prompted me, in fact, to introduce a private senator's bill to encourage this government to embrace FOI, freedom of information, more fully than it currently has. The bill that I sought to introduce would go a long way—if the government agreed to it in the first place—to meet the requirements that are now being sought by Senator Wong. The FOI bill that I put forward would insert section 11D into the Freedom of Information Act 1982 to require government agencies and ministers to publish the exact wording of each FOI request made and a statement of reasons from the decision maker...

The government does not support this measure. Why? I come back to my first submission in this opportunity to speak about question on notice No. 2876. This government has not embraced and does not want to embrace freedom of information at all. You only have to look at the coalition's history on FOI to consider how poor it has been. The bill that I sought to introduce, the Freedom of Information Amendment (Requests and Reasons) Bill 2015, did seek to amend the Freedom of Information Act, as I said, to require government agencies to publish those requests...

Mr Turnbull and Senator Brandis lead a government shrouded in secrecy that has sought to hide what it is doing from the Australian public. The non-answer to question on notice to 2876 again makes the simple point that this government does not have a pro-disclosure culture, does not want light shone on its workings. We on this side of the chamber support a pro-disclosure culture. The government will stop at nothing to avoid scrutiny by the people that placed their trust in its hands.

Again in 2007, Labor in opposition made commitments to: revise the FOI Act to promote a culture of disclosure and transparency, appoint a FOI commissioner, rationalise the exception provisions, publish guidelines with the overriding principle that information is withheld only when to do so is in the public interest, and review FOI and the charges to ensure that they are compatible with the objectives of disclosure and transparency. And of course in government, Labor followed through these commitments and introduced wide-ranging reform in the Freedom of Information (Removal of Conclusive Certificates and Other Measures) Act in 2009, the Freedom of Information Amendment (Reform) Act 2010 and the Australian Information Commissioner Act 2010. They were reforms to the FOI Act that made it easier for applicants to request information and to seek review of decisions.

However, the reformed FOI implemented a presumption of openness and maximum disclosure—that is, while protecting national security and while ensuring personal private information is kept private. But what Labor wanted to do was to ensure that we had an open and transparent government to ensure access to information unless there is an overriding reason why it should not be released. So it was not a position where Labor was advocating wholesale release. Labor ensured that there would be an overriding ability of government to keep matters secret that needed to be kept secret or that needed to be withheld for good reason.

Labor established the Office of the Australian Information Commissioner and the two statutory positions of the Australian Information Commissioner and the FOI Commissioner to provide independent oversight and review of the FOI regime. The reforms encourage pro-active publication of information under the information publication scheme and this requires agencies and ministers to list information released in response to an FOI request in an online disclosure log subject to reasonable exceptions including the protection of an individual's privacy. All of this is about ensuring that the Public Service and the ministers implementing the will of the people with their warrant would still ensure that it was done in a way that would allow the public to understand and follow what they were doing. The reforms encouraged pro-active publication of information. What this government has done since coming to office is wind all that down. The answer to question on notice 2876 is simply another example of a government that does not want scrutiny.

The 2010 reforms by Labor made it easier and cheaper for requests to be made by simplifying the requests procedure, by abolishing application fees and charges for requests of personal information, and by putting the subtle pressure on agencies to observe request processing time limits. All of this was designed to encourage and slowly move to a pro-disclosure culture. The ambit of the FOI Act was extended to documents held by a contracted service provider delivering services to the public on behalf of the agency. It also made government archival records outside of the FOI Act available for open access progressively sooner.

Finally, the reforms strengthen the review and complaint process by allowing individuals to request the Information Commission to review decisions made under the FOI Act. This encourages agencies and ministers to make sound and justifiable decisions in the first instance. These reforms were implemented with the purpose of revitalising the FOI Act so that it delivered on the important objects of increasing participation in and the accountability of government because, in context, that was after a very long period of Howard administration that had ensured secrecy and the non-disclosure culture within the bureaucracy. What we now have is a government that is seeking to bring back all of that non-disclosure culture of secrecy surrounding the administration.

They are infecting the bureaucracy with that same culture, because they do not want the bureaucracy to be pro-disclosure and they want the bureaucracy not to err on the side of positive release. They want the bureaucracy to maintain the secrecy of government, even when it flies in the face of common sense and where you can have open and transparent government. You do not need the badge of national security to protect it. If it can be protected and it should be protected because of national security or some other reasonable reason, then it can be...

One of the complaints made by this government is that we make too many requests for information and that many of them are duplicate. Each senator is asking, and it is not surprising, similar questions about information that this government holds. If they had a pro-disclosure culture in the first instance—if they published the requests—then in fact they could reduce the duplication themselves. But that is not their purpose. Their purpose of complaint about a duplication is to stymie requests, to block requests and not to provide information.

Under the current framework, requests made under the FOI Act can be refused or documents may be edited with virtually no justification from government agencies or ministers. This does pose a clear threat to the core tenets of transparency and accountability within government decision making. What this government is doing more predominantly is simply not answering questions, or providing answers to questions very late or very close to the next round of estimates so that there is no ability to have time to absorb and read them and find new questions or new parts to follow, given the paucity of information that sometimes comes out of those answers in any event.

....Given the government's record, it came as no surprise when they introduced a bill last year to abolish the OAIC, removing the role of oversight from the independent Information Commissioner and giving it to the government's own minister, Senator Brandis. The bill is yet to be debated in the Senate. However, the estimates last year revealed that the government had already taken it upon itself to close the Canberra office of the OAIC in December 2014, leaving the former Information Commissioner and the former FOI Commissioner to work from home. This is the style and type of government and how it addresses FOI more broadly. It does not want scrutiny, it does not want transparency. What that means is that the remaining office of the OAIC has been sitting in limbo since the introduction of the bill, discharging only privacy regulatory functions. This highlights the problem that this government has....
The most devastating aspect of the bill that the government seeks to introduce will abolish the opportunity that members of the public currently have to request the independent Information Commissioner to review a refusal by government agencies or ministers to provide documents under the FOI Act. What this government wants to do is simply have a minister get up in this chamber and say, 'It's a very complex question that you have asked, Senator Wong, and it will take forever for us to be able to collate the information, put it together and provide it to you. It will be expensive. It will be difficult to do, but we'll try our hardest at some point to be able to do that.' That is what this government wants to be able to respond with to every question which is probing, which is seeking to provide some transparency and scrutiny of this government's operation— Time expired)

Monday, March 14, 2016

Will the siege on the Office of Australian Information Commissioner continue?

With the Federal Government on the receiving end for 'doing nothing' on a range of pressing issues and three sitting days before Parliament rises until the Budget in May, will Attorney General Brandis stick with doing nothing, pull the bill to abolish the Office of Australian Information Commissioner from the Senate or call it on for a vote that he knows the government can't win?

Doing nothing speaks for itself- a discouraging, dispiriting message for those still looking for signs of real interest in 'good government' and recognition that transparency, accountability and public participation are a big part of the mix.

Withdrawal of the bill would indicate serious intent regarding the Prime Minister's commitment to join and participate-'play a leading role' no less- in the Open Government Partnership. 

Arguing in the Senate in a futile attempt to convince Labor, the Greens and the crossbench senators to support abolishing the watchdog/advocate for open government at the same time we talk of stepping up to the plate on open government would again expose the feeble reasoning behind the move and the inconsistency between this policy position and the PM's enthusiasm for open government.

We live in hope....... 


Monday, March 07, 2016

Reviews of open government laws largely conducted behind closed doors are no exemplar for public engagement

Clearly some who walk the corridors of power think all wisdom resides within.

NSW is a classic case, where a statutory review of legislation disappeared from public view in August 2014 and hasn't been heard of since. More below.

Then there's the Hawke statutory review of the Commonwealth Freedom of Information and Information Commissioner acts in 2012-13 that involved very limited public engagement beyond invited submissions and led to a report in early 2013 that has not been the subject of policy discussion in the public domain since. The one Abbott government FOI initiative, the (ongoing) attempt to legislate to abolish the Office of Australian Information Commissioner was not supported by anything in the review report, on the contrary Hawke concluding the office was doing a good job. That initiative wasn't discussed beforehand outside government and only with a few inside, with no apparent search for options and better answers to whatever problem (allegedly complexity of review processes and cost) the government was considering.
Queensland commenced a statutory review of the Right to Information Act and the Information Privacy Act in August 2013 with the issue of a Discussion Paper. Submissions closed in November 2013 but silence (and a change of government) since.

In Victoria where the corridors echoed as the new government arrived with 'Labor will end this secret state and open our doors to the public, because we all deserve to know the details that affect our lives' and 'Under Labor's changes, no future government will ever be able to keep a crisis secret. No more hiding, no more excuses.' This was followed by the 2015-16 Budget  commitment of $4 million this year for the creation (rebranding the FOI Commissioner and then some) and operation of the Office of the Public Access Counsellor. Victoria has had an Acting Freedom of information Commissioner since September 2015. No one including Special Minister of State Jennings has mentioned a much needed review of antiquated Victorian FOI legislation that reflects the best thinking of 1983 but the last mention of "Public Access Counsellor" in the Parliament was in August 2015 when the minister said work had commenced on the necessary legislation. Maybe interested parties have been engaged in this exercise but there's nothing about it in the public domain. 

The Victorian Parliament's Accountability and Oversight Committee Report in December 2015 also made a raft of recommendations which do not appear to have been acted upon or discussed publicly including strengthening powers of the FOI commissioner to obtain documents and boost public and agency engagement; early action on FOI requests by agencies; improving reporting by the FOI commissioner on outcomes achieved; providing people with clearer guidance when appealing FOI decisions of agencies directly to the Victorian Civil and Administrative Tribunal; and supporting the release of information that is the subject of frequent FOI requests, which are likely to be routinely granted.

But back to NSW.

Sean Nichols in the Sydney Morning Herald reminds of the great promise of reforms to the  NSW Government Information (Public Access) Act when introduced in 2009 and the statutory review of the act and the companion Government Information (Information Commissioner) Act required to commence within five years. The reviews are to ascertain whether the objects remain valid and whether the terms of the acts remain appropriate for securing these objectives.

The reviews kicked off with a notice inviting submissions by August 2014 so there was some stirring at the time in the Department of Justice. 

It is still listed on the Justice website as a Current review, confirmed by the Information Commissioner who in her 2014-15 Annual Report on the operation of the GIPA act refers to
"the current statutory review (providing an opportunity) to identify the aspects of the statute that are effective and aspects that could be improved. Significantly, IPC submissions have highlighted the interaction of the GIPA Act with other NSW law including the Public Interest Disclosures Act 1994…."
The report continues
"Public participation is integral to Open Government and the GIPA Act provides mechanisms to support citizen participation and engagement with agencies. Under the GIPA Act, the Information Commissioner has powers to support NSW citizens’ participation in the development of policies and service delivery by government. The IPC will collaborate with NSW citizens and agencies to promote public participation and assist agencies in achieving success in their engagement with NSW citizens." 
The review of the GIPA act was the opportunity to showcase public participation in the development of policy concerning open transparent government and in improving access to information as a government service.

But alas public participation was limited to a brief opportunity to lodge a submission by 29 August 2014. 

No issues paper, no discussion paper, no survey of users of the act, no forum for discussion and debate of issues raised in submissions, and no testing and building on ideas. 

Submissions haven't been published to date even those lodged by the Information Commissioner referred to in her report. (My humble contribution here. I didn't receive an acknowledgement let alone a take up on the offer to discuss.)

Sean Nicholls says Premier Mike Baird has a "big chance to prove he really is committed to open government" by plucking the review out of the black hole and getting rid of current nonsense such as the practice still common of requiring FOI applications to be sent by mail accompanied by a cheque or Money Order. (No kidding, and there are plenty more improvements that should be in the frame.)

I'm hoping when something surfaces from Justice that the Premier and his ministers aren't of the 'all wisdom resides' school.
Eva Rinaldi from Sydney

Update:  Justice plowing on, and on and on.....
From a NSW Parliamentary Committee hearing of the Information and Privacy Commission 3 March 2016

Mr PAUL LYNCH: There is meant to have been a review of the Government Information (Public Access) Act, due in 2014.I do not suppose you have any idea what has happened to it?
Ms TYDD: We are in regular contact with the department in relation to the progress of that statutory review. It is a meaningful review from the standpoint of the IPC. We have taken the opportunity to ensure that we provide submissions to that review and the department has continued to accept them.
 The opportunity that has presented itself at office level and direct to that statutory review is also informed by the statutory reports and this year's section 37 report makes specific mention of some of the considerations that could be taken into account in conducting that review. We certainly remain available and supportive of progress in that regard.
Mr PAUL LYNCH: Has anyone given you the slightest
hint about when it will be completed?
Ms TYDD: No, I do not know when it will be completed.

Friday, March 04, 2016

Top government record keeper argues for transparency and professional information management

Take it away David Fricker Director General National Archives Australia, as reported in The Canberra Times:
"There seems to be an accepted position that the general public must always resort to freedom of information legislation to obtain the information it needs to hold the government to account," he told an audience at the National Press Club.
"Presumably [that is] because there is a general feeling the public service is either unwilling or perhaps unable to retrieve, collate and provide the information that should [be] in the public domain."
Mr Fricker said he was sympathetic to the view the government had not prioritised transparency given lengthy and often costly battles for public information.
He said the growing demand for information had placed pressure on many public servants with ministers eager to respond to concerns in the media at short notice.
"Day by day we are seeing more and more calls for greater transparency and accountability with expectations for increased scrutiny and faster access to government records as public information," he said.
"A government which is too slow in response or is incapable or showing leadership in the public discourse will lose its connection with people and its capacity to effectively and successfully implement policies and programs

To improve transparency, Mr Fricker called for a more professional approach to information management and the hiring of specialists rather than generalists.
"One of my hobby horses is that across the Australian public service we are getting a bit too generalist in a lot of areas where we do need quite sharp and professional expertise and information policy is one of those," he said.
"We recognise the need for certified professionals located in every agency to make sure that the chief executive and the secretary are getting the right advice and the right time and the right management of information holdings."
He also referenced former Department of Prime Minister and Cabinet Peter Shergold​'s recent review of government failing, which found there was a need to further improve access to information.
In the report, Mr Shergold blamed major policy failing on the public service's inability to provide frank and fearless advice to ministers.
"There is a strong public interest case for citizens being able to know the basis of decisions that affect their access to services," the report said.
"There is considerable value, too, in publishing as much publicly-collected data as possible and making it available to citizens to use and apply as they want through a 'creative commons' licence."
More  in another post on Peter Shergold's report in which he argues confidentiality is essential for frank and fearless advice. 

Of direct relevance to Fricker's patch, Shergold said
A requirement to create records is implied, though not explicitly stated, in the Archives Act 1983. The ANAO notes the lack of a single clear and explicit requirement for the public servants to create records of all of its key business activities and decisions, although some categories of records are now specified under the PGPA Act. Given the lack of consistency on record keeping, the National Archives of Australia should issue updated APS-wide guidance on the creation of new records, especially digital material, which should be endorsed by Secretaries. The foundation work to support such guidance is already underway.