Search This Blog

Tuesday, March 21, 2017

People are talking about integrity; governments should be listening and acting

The Transparency International Australia National Integrity 2017 conference in Brisbane last week brought together 160 government, business and civil society delegates from all corners of Australia, including senior legal figures, heads of integrity agencies, federal, state and local parliamentarians, community groups, corporate leaders and individual TI Australia members.

Lots of energy at the conference and a perceptible whiff that positive change is in the air with more voices calling for improvements in integrity in the public and corporate sectors.

The release of a major paper canvassing key issues for the design of a federal anti-corruption commission was one of many highlights.

Here's me giving a rundown on lessons learned from Australia's experience in developing the national action plan required as a result of the commitment by PM Turnbull in December 2015 to join the Open Government Partnership. Someone told me the only thing missing from the timeline diagram are the snakes and ladders.

And in a panel discussion with Queensland Attorney General Yvette D'ath and James Ensor BHP Billiton.

Hat tip to Queensland for leading the nation on real-time disclosure of political donations, which follows publication of minister appointment diaries, and reporting and publication on lobbying contacts. 
(They should do better with reporting on parliamentarians use of entitlements.)

Hat tip to BHP Billiton- no to political party donations, yes to publicly available information on beneficial ownership of corporate entities, action in reporting on payments to government....
(They and the business community generally are rarely heard on the topic of good government and could and should speak up.)

Monday, March 20, 2017

The Diary Wars; Who ministers plan to meet in the course of their duties should be no state secret.

 Crikey this morning
"A monumental waste of everyone's time." That's how shadow attorney-general Mark Dreyfus has described the three-year battle to release Attorney General George Brandis' diary for the months leading up to the 2014 budget. Brandis has finally released a heavily redacted version of his diary, after challenging Dreyfus' freedom of information request all the way to the Federal Court, which ordered Brandis to hand over the diary in September. So what does it show? The 34-page printout of his Outlook calendar doesn't include any meetings with community legal centres, which had their funding slashed in the 2014 budget. The Attorney-General's office says this isn't the whole story though, as the diary doesn't show meetings made at short notice or by the Attorney-General himself.

The only correction to this and Adam Gartrell's longer piece in the Sydney Morning Herald is that the Federal Court ruled there was no valid reason for the refusal by Brandis' office to  process the FOI application. Six months ago it ordered the office to do so.

The Attorney General took offence in Senate estimates in February at suggestions his office may be in contempt of a Federal Court order to process the application by shadow AG Dreyfus for entries in his appointments diary for the three months before the 2014 budget:
"That is a very serious allegation In order to assert that there has been a contempt of court it is necessary to show that the order of the court has not been complied with. There has been no noncompliance with any order of any court. The order of the full court of the Federal Court was merely that the appeal be dismissed with costs. The order of Justice Jagot in the AAT was—and I will read it to you again: 'That the decision that there is a practical refusal reason be set aside,' so that was set aside, and 'that no practical refusal reason exists'. That is the order. It was not an injunctive order. It was not a direction to me or to the decision maker or to anyone.
It took three years in total for the office to get the job done.

Senator Brandis in Opposition in 2009 of course nailed it with this comment: (Senate Hansard13 August 2009
Senator Brandis.....The true measure of the openness and transparency of a government is found in its attitudes and actions when it comes to freedom of information. Legislative amendments, when there is need for them, are fine, but governments with their control over the information in their possession can always find ways to work the legislation to slow or control disclosure. That is the practice we are seeing now under the Rudd government, whose heroic proclamations of commitment to freedom of information are falsified by the objective evidence of their practice.
 It's not the end of the Diary Wars either

As Sean Parnell reported in The Australian in January the Office of the Prime Minister is off to the Administrative Appeals Tribunal contesting the ruling by Australian Information Commissioner Pilgrim that the PM's official diary for his first day in office 16 September 2015 is not exempt and should be released to the applicant, Parnell.

Commissioner Pilgrim accepted that entries concerning meetings with Coalition members who were not serving Ministers, and entries relating to party political events, are to be treated as exempt. But he rejected exemption claims for entries in the electronic calendar recording a meeting time and the name of the person scheduled to meet the PM.

The Commissioner found
  • that  some entries reveal information that would, or could reasonably be expected to cause damage to the international relations of the Commonwealth and could be redacted for that reason
  • that information is unlikely to cause damage to the relations between the Commonwealth and a State, particularly as those entries do not record the content of the proposed discussions. "Other than asserting that damage would occur, PMO has not provided any real and substantial grounds for expecting damage to occur, nor has it provided any evidence supporting this contention
  • that the entries recorded do not contain opinion, advice, recommendation, consultations or deliberations that have taken place. In its confidential submissions, PMO essentially reiterates its reasoning in its decision, and contends that the document functions as a means for deliberation about the management and use of the Prime Minister’s time.I do not agree with PMO that a diary is used for deliberation about the management of a person’s time. This, in my view, is not a weighing up or evaluation of the competing arguments or considerations, and is not a deliberative process for the purposes of s 47C.
The Commissioner did not agree with PMO that disclosure of personal information in this case would be unreasonable. 
"The document records scheduled meetings between the Prime Minister, Ministers, and various individuals. It is my view it would not be controversial or a surprise to anyone that the Prime Minister had scheduled such meetings on his first day in office. Further, there is nothing in the document that would suggest that the personal information is uniquely private or sensitive. Accordingly, I am satisfied that the disclosure of the names of the individuals in this case would not result in an unreasonable disclosure of personal information."
 The Commissioner ruled to the same effect on an application by Josh Thomas Taylor (apologies) for Communications and Arts Minister Mitch Fifield’s diary entries for a three month period in 2015. 

There's a better way than this of course-publish appointment diaries as Queensland and the NSW government and many others do.

Friday, January 13, 2017

Has the PM answered the call: An integrity agenda for 2017?

The Prime Minister in conjunction with the resignation of Health minister Sussan Ley has announced a commitment to further changes to the parliamentary entitlements system.

The changes go beyond the recommendations in the Conde report already accepted in principle and according to an earlier announcement to be acted upon in the first half of 2017.

The PM:
"Australians are entitled to expect that politicians spend taxpayers' money carefully, ensuring at all times that their work expenditure represents an efficient, effective and ethical use of public resources," he said. "We should be, as politicians, backbenchers and ministers, we should be as careful and as accountable with taxpayers' money as we possibly can be." Mr Turnbull also announced that a new body overseeing parliamentary expenses would be created.
"The Government believes that the work expenses of parliamentarians, including ministers, should be administered and overseen by an independent agency," he said.
"An independent parliamentary expenses authority will be a compliance, reporting and transparency body. It will monitor and adjudicate all claims by MPs, senators and ministers, ensuring that taxpayers' funds are spent appropriately and in compliance with the rules."

Describing transparency as key, Mr Turnbull said the new system would allow the public to view expenses in "as close to real time" as possible. "The system that manages entitlements will be modernised to allow monthly disclosure of parliamentarians' expenses in an accessible — that is to say, searchable — format," he said."[Currently] Most of the forms are filled in by the politicians by hand. It is all paper-based. The reports that you do find on the Department of Finance website are big PDF files. They are, you know, months out-of-date when they are posted."
Welcome news.

As per usual the devil is in the detail, yet to come.

A few thoughts:
  • Apart from Conde there are recommendations not acted upon in a number of auditor general reports stretching back to 2001-2002 and from the Belcher committee report in 2010. Hopefully they haven't been lost in time.
  • No mention so far of a Code of Conduct for Parliamentarians. Maybe the legislation the PM has in mind will go further than a code when it comes to responsibilities. Great. However the Coalition in 2010 wouldn't have a bar of it when John Faulkner tried to persuade Parliament to introduce a code.
  • "Parliamentarians entitlements"paid by Finance are only part of the picture. Some payments are made to or on behalf of members and senators by the Parliamentary departments, including support for and the cost of hospitality incurred by the Presiding officers. These payments currently are not  published. Parliament in 2013 excluded the parliamentary departments from the Freedom of Information Act.
  • Each department pays for the costs involved in supporting its minister, including official hospitality and who knows what else. These expenditures currently are not published.
  • The PM is right to state parliamentarians must be "as accountable with taxpayers' money as we possibly can be."Transparency and accountability should also extend to searchable information about declarations of interest (PM- they're in PDF files), contact with lobbyists ( PM-not published), and political donations (PM-can be published up to 18 months after the event.)
  • A parliamentary expenses authority should help keep things within reasonable limits. However a government serious about integrity would accept that a Federal anti-corruption body is also much needed.
As Peter Hartcher in making similar points in Fairfax Media recently said
"The cause of cleaning up Canberra is an inevitable one. The only question is who will best do it, and whether the energy will be channelled constructively to fix our democracy or destructively to make it weaker."
Trust and confidence 

Before the 2016 election campaign got underway the Roy Morgan Annual Survey revealed Federal Politicians are rated highly on Ethics and Honesty by 17% (up 4% in a year), putting them 23 of 30 professions included in the survey.

As scored on ABC Vote Watch the Prime Minister finished the election campaign in July with a personal trust rating of 4.5 out of 10, Bill Shorten 3.7 and Greens leader Di Natale 3.9.

According to the ANU Post Election 2016 Survey 74% agree "People in government look after themselves." Only 26% say "People in government can be trusted."

The PM knows all this. As he said in July last year:
"There is no doubt that there is a level of disillusionment with politics, with government, and with the major parties. Our own included. We note that. We respect it," Turnbull said. Now, we need to listen very carefully to the concerns of the Australian people expressed through this election. We need to look at how we will address those concerns that's what the Deputy Prime Minister and I have been discussing today. There are lessons to be learned from this election."
On the other hand we've heard good intentions before.

Tony Abbott before the 2013 election as reported in the Sydney Morning Herald:
Abbott's first priority if he wins the election will be to seek to rebuild Australians' confidence in government and restore civility to the national political discourse after three bruising years of minority government.
''The greatest deficit in our country at the moment is the trust deficit. Sure we have got a very serious budget deficit, but the trust deficit is even more serious. I would hope that, should we win the election, I would be able to so conduct myself and my team would be able to so conduct themselves that by the end of the first term people would have once more concluded that Australian government was competent and trustworthy
 We live in hope for 2017.

Saturday, December 24, 2016

Happy days!

Dear Neglected Reader,

I've been otherwise occupied for large chunks of this year in my role as interim Convener of the Australian Open Government Partnership Network.

Postings in this our tenth year suffered I'm afraid.

Loads of things I planned to bring to your attention... but alas, 140 characters was sometimes the best I could manage. (Follow @FOIguru)

The good news is that after a a bumpy, frequently interrupted less than perfect process, Australia now has a national action plan with 15 commitments that constitute a broad program of reforms. 

Some of those commitments will be of particular interest to you:

1.3 Extractive industries transparency
Australia will enhance disclosure of company payments and government revenues from the oil, gas and mining sectors. We will do this by implementing the Extractive Industries Transparency Initiative (EITI) Standard (including working to enhance company disclosure of payments to governments for the sale of petroleum and minerals) and by continuing to support the application of EITI principles around the world.

2.1 Release high-value datasets and enable data-driven innovation

Australia will continue to make more public data openly available and support its use to launch commercial and non-profit ventures, conduct research, make data-driven decisions, and solve complex problems. As part of this, we will work with the research, not-for-profit and private sectors to identify the characteristics of high-value public datasets, and to promote innovative use of data to drive social and economic outcomes.

2.2 Build and maintain public trust to address concerns about data sharing and release

Australia will build public trust around data sharing and release. We will do this by actively engaging with the public regarding how open data is being used to better communicate the benefits and understand public concerns, and we will improve privacy risk management capability across government.

3.1 Information management and access laws fit for the 21st Century

Australia will ensure our information access laws, policies and practices are modern and appropriate for the digital information age. As part of this, we will consider and consult on options to develop a simpler and more coherent framework for managing and accessing government information that better reflects the digital era, including the Freedom of Information Act 1982 (FOI Act), the Archives Act 1983 (Archives Act) and, where relevant, the Privacy Act 1988 (with primary focus on the Archives Act and FOI Act), which is supported by efficient and effective policies and practices.

3.2 Understand the use of Freedom of Information
Australia will better measure and improve our understanding of the public’s use of rights under freedom of information laws. We will do this by working with states and territories to develop uniform metrics on public use of freedom of information access rights, and by collecting and publishing this data.

3.3 Improve the discoverability and accessibility of government data and information

Australia will make it easier for the public to find, access and use government data and information. We will do this by making greater use of central portals, digital platforms and other tools to improve discoverability and accessibility.

4.3 Open Contracting

Australia will ensure transparency in government procurement and continue to support the Open Contracting Global Principles. As part of this, we will publicly review the Australian Government’s compliance with the Open Contracting Data Standard.

The complete plan was published on 7 December.

If you support more open transparent government please give consideration to joining the like minded who have pushed the government hard on this over the last 12 months and plan to stick with it as attention moves to implementation. See the Get Involved Tab on the Network Homepage

Now time for a bit of a breather so best wishes.

Will be back in the new year, refreshed and with best intentions to do a better job on Open and Shut in 2017.

By Anne Dirkse ( (Own work) [CC BY-SA 4.0 (], via Wikimedia Commons

Friday, December 02, 2016

Freedom of Information: 250 years since Sweden laid the first cornerstone

On 2 December 1766 Sweden enacted what is regarded as the first freedom of information law.

The most recent translation into English was done by Ian Giles and Peter Graves, Scandinavian Studies, University of Edinburgh and released on 7th October 2016 in Edinburgh.

The Australian information commissioners and the New Zealand Ombudsman have issued the  statement below to mark the occasion.

From the Australian perspective as we wait for release of the government's first Open Government Partnership National Action, thought to be next week, let's hope for a commitment to necessary reforms that truly recognises the right to access government information "is a cornerstone of modern democratic society." 

Cornerstone- a foundation stone, mainstay, linchpin, centrepiece, core, heart, backbone, anchor.

Submissions on this aspect of the draft commitment released by the government for public comment on 31 October suggested the cornerstone is in need of close inspection, fundamental repair and some design work to make it fit for the 21st century.

Joint Media Statement

"The right to access government held information and our ongoing commitment to Open Government is a cornerstone of modern democratic society. 

We mark the occasion of the 250th anniversary of the first freedom of information legislation on 2 December 2016. We do this to acknowledge the important contribution that freedom of information has made to the effectiveness of democratic government across the world since 1766. Freedom of information enables citizens to access information held by governments and their agencies. Having access to Government held information is critical to citizens being able to meaningfully participate in Government decision making.

Access to information and participation in government processes contributes to the transparency of government – promoting better decision making, accountability and greater public trust. This is the key contribution freedom of information has to make to our modern democratic government."

Co-signed by:

Sven Bluemmel, Western Australian Information Commissioner

Richard Connock, Tasmania’s Ombudsman

Michael Ison, Acting Victorian Freedom of Information Commissioner

Wayne Lines, South Australia’s Ombudsman

Brenda Monaghan, Northern Territory Information Commissioner

Timothy Pilgrim, PSM, Australian Information Commissioner

Jenny Mead, Acting Queensland Information Commissioner

Elizabeth Tydd, NSW Information Commissioner and Open Data Advocate

Judge Peter Boshier, New Zealand Chief Ombudsman

Leo Donnelly, New Zealand Ombudsman

Tuesday, November 01, 2016

Australian National Audit Office taking a peek at FOI efficiency and effectiveness

We know auditors go about their work quietly....

Even so I was surprised to learn recently that the Australian National Audit Office has underway a performance audit Administration of the Freedom of Information Act:

Entities: Attorney-General’s Department; Office of the Australian Information Commissioner; Department of Social Services; Department of Veterans' Affairs.
Objective: To assess the effectiveness and efficiency of entities’ implementation of the Freedom of Information Act 1982.

Audit Criteria:
  1. The Attorney-General’s Department and Office of the Australian Information Commissioner effectively and efficiently perform their respective roles in providing guidance and assistance to entities and monitoring compliance with the FOI Act.
  2. The selected entities effectively and efficiently process FOI document access requests.
  3. The selected entities release relevant information under the Information Publication Scheme (IPS).
Wikimedia Commons:Paty Montano
Mention of the audit first appeared on the ANAO website in August in their yearly work plan.It likely passed unnoticed the rest of us who take an interest in the subject and those with relevant experience with the selected entities who might have something useful to contribute on the score of efficiency and effectiveness.

The ANAO last had a look into FOI functions in Administration of Freedom of Information Requests in 2004.

The audit page on the website until 31 October invited public contributions to the current audit.

Contributions are now closed.

In a hurry I managed to make a few suggestions about what ANAO should look into before the office continued quietly on its business:

See insights into agency practices from the correspondence arising from applications made through Right to Know

"Tone at the top" in light of the absence of positive supportive statements from ministers and negative comments from senior public servants including Public Service Commissioner Lloyd who described FOI as 'very pernicious' and told a parliamentary committee that in his view the original purpose of FOI was to enable access to the individual's personal information.

The effect on efficiency and effectiveness of funding decisions since May 2014 on the operations of the Office of Australian Information Commissioner including the pattern of acting appointments and the decision recently to appoint one commissioner not three as prescribed by the Australian Information Commissioner Act.

The effect on compliance, efficiency and effectiveness if the agencies concerned follow the practices revealed in the Cornall Report on FOI processing in Department of Immigration: by providing five days notice of decisions on access to non-personal documents to the minister's office. 

The effect on efficiency and effectiveness in managing the FOI functions separately in a Legal Branch or Division rather than as part of a broader information management framework

FOI practice at the Attorney General's Department and what this might say about culture: See case study.

Whether the agencies reviewed have an administrative access scheme as recommended by the OAIC and if not the effect on efficiency and effectiveness as a result of processing all applications as formal requests under the FOI act.

The extent to which unnecessary third party consultation is undertaken including with other agencies

Whether the agencies regularly review pro-active release of information beyond statutory publication requirements and the scope for efficiency gains from such a management practice. As an example the FOI publishing requirement does not extend to the Gift Register. These agencies (and others) do not publish information of this kind.

The extent to which decision makers are encouraged to reach the right decision the first time and the cost savings that could be achieved compared to the cost of contesting, often conceding ground at internal review, OAIC review, in the AAT or in the courts.

Whether these agencies seek to ascertain what information key stakeholders might nominate for improved access, or seek feedback from FOI applicants on the way an application was handled-responses could lead to efficiency savings and improvements in effectiveness.

The practice in Attorney General's of not publishing released documents on their Disclosure Log contrary to OAIC guidance to agencies

Monday, October 31, 2016

Input invited on draft OGP National Action Plan

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

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

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

The draft Plan can be accessed/downloaded here:
As the minister states, the draft was developed through a consultation process that began in December 2015 and was informed by an interim working group established in August 2016. 

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

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

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

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

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

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

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

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

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

RSVP by emailing

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

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


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

Friday 4 November, TBC

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

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

Tuesday, October 25, 2016

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

Heath Aston  in The Sydney Morning Herald
A one-page letter that the federal government has spent a year and a half and tens of thousands of dollars trying to keep from public sight raises explosive questions about Barnaby Joyce's conduct and "integrity". The March 2015 letter written by Paul Grimes, the former head of the Agriculture Department, was sent 10 days before he was sacked amid fallout from the so-called "Hansard-gate" affair in which the transcript of some of Mr Joyce's statements in Parliament were quietly altered.
Australian Information Commissioner Pilgrim in March decided the letter sought under the Freedom of Information Act by Opposition front bencher Joel Fitzgibbon (and seperately by the Herald and Weekly Times) was not exempt. As Aston writes:
Mr Joyce's department fought that ruling, spent $80,000 on engaging Ernst & Young to review its public information processes, and then fought the matter through the Administrative Appeals Tribunal before giving up the fight just after Parliament rose for two weeks on Friday.
An agency changing its mind on the steps of the tribunal raises the question whether all that time energy and cost to the taxpayer could have been avoided way back when the application was made in June 2015 or when Commissioner Pilgrim made his review decision in March 2016.  

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

The issue before Commissioner Pilgrim was whether the one page letter was exempt under s 47C-.
".would disclose matter ( deliberative matter ) in the nature of, or relating to, opinion, advice or recommendation obtained, prepared or recorded, or consultation or deliberation that has taken place, in the course of, or for the purposes of, the deliberative processes involved in the functions of: (a)  an agency;or (b) a Minister; (c) the Government of the Commonwealth."

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

However the material had not been prepared or recorded in the course of, or for the purposes of a deliberative process:
  1. The Guidelines explain that a deliberative process involves the exercise of judgement in developing and making a selection from different options:
The action of deliberating, in common understanding, involves the weighing up or evaluation of the competing arguments or considerations that may have a bearing upon one's course of action. In short, the deliberative processes involved in the functions of an agency are its thinking processes – the processes of reflection, for example, upon the wisdom and expediency of a proposal, a particular decision or a course of action.[7]
  1. In my view, the letter clearly states the former Secretary’s settled opinions on the issue relating to his professional relationship with the Minister. It also conveys the subsequent processes he had put into place to ensure his Department could effectively support the Minister. As these processes had been settled and put in place by the former Secretary at the time the letter was written, it appears that the purpose of the letter to the Minister was to advise of these arrangements. Therefore, it was clearly not seeking the Minister’s views or consideration of the opinions reached by the former Secretary or the subsequent processes he had put in place.
  2. Further, I do not agree with the Department that the letter particularly outlines possible means by which the ‘questions posed’, those being related to the ‘discharge of the functions of the office of the Secretary as it relates to supporting the Minister’ at that time, might be resolved. Rather, in respect of that issue, it merely identifies that there are available processes under the Public Service Act 1999.
  3. In this regard, the Department contends the possibility that the former Secretary may not continue in that role generated a deliberative process in relation to the ongoing Secretary role. I am not persuaded by this argument. In my view, there is nothing in the letter that goes to show the necessary weighing up or evaluation of competing arguments or considerations that may have had a bearing upon a course of action. The fact that a course of action then followed resulting in the Secretary being replaced does not, in my view, demonstrate that the letter in of itself was prepared for a deliberative process. Therefore, this element of s 47C(1) has not been met.
As the letter was not conditionally exempt, there was no need to consider whether giving access would, on balance, be contrary to the public interest. 

Sunday, October 23, 2016

Call to arms: Australians should own their own history.

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

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

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

$17k and counting....

Thursday, October 20, 2016

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

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

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

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

No intention of appointing a Freedom of information Commissioner: 
Attorney General Brandis said the government intends to leave the position vacant:
"The reason is that there is already, in the absence of a freedom of information commissioner, a comprehensive architecture for freedom of information applications and review of such freedom of information decision-making." "The consolidation into one person, or one officer, of the statutory offices of Australian  Information Commissioner and Privacy Commissioner has occurred after discussion with Mr Pilgrim and with his concurrence. The functions that the Freedom of Information Commissioner could have performed may be carried out by Mr Pilgrim as well, in his capacity as Australian Information Commissioner.
There was something of a logjam of positions in relation to, essentially, the same policy space, and we are finding, and I think this is evident from Mr Pilgrim's statement, that now that his position has been regularised—I am very happy about that and I want to congratulate him on his reappointment—that the whole issue of government information and privacy can be disposed of at less expense and much more efficiently."
Commissioner Pilgrim backed this up:
"I have had discussions, primarily with the Attorney-General's Department, about the current structure and I am of the view that both the functions under the FOI Act and the function of Privacy Commissioner can be undertaken by the one position. This is not an uncommon model in other jurisdictions around the world. If I could turn to that momentarily I would say that in the United Kingdom the information commissioner's office is headed up by the information commissioner—one statutory officeholder—and supported by two deputy commissioner positions. I have undertaken to do something similar in our office. I have recently  appointed a deputy commissioner position, and Ms Falk has recently been appointed to that position. I also have an assistant commissioner to support me."
(Comment: Parliament decided in 2010 that the Office should have three commissioners with defined functions, not two. That legislation remains in force. The decision that two will suffice apparently based on discussions between the commissioner and the Attorney General's department hardly seems in line with executive government responsibility to execute and maintain the laws of the Commonwealth. Whether the decision is based on the rich body of experience in Australia and overseas about models for "an information champion, with a comprehensive range of powers and functions to promote open government, protect information rights and advance information policy" and whether effectiveness as well as efficiency was a consideration is unknown. In this submission to the Hawke review in 2012 then former Australian Information Commissioner Professor McMillan and then FOI commissioner Popple suggested legislative and other changes that would improve efficiencies and operations. None have been acted upon.)

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

Relevant extracts from the Estimates transcript follow.

Tuesday, October 11, 2016

Sharing FOI wisdom: US journos show the way

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

It's a different matter elsewhere.

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

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

Features of the FOIA Wiki include:
  • Pages on all aspects of FOIA, including exemptions, fees, and administrative issues. Thanks to a collaboration with the FOIA Project at the Transactional Records Access Clearinghouse (TRAC), most of these pages automatically display a list and summaries of all recent federal district court cases on the page’s topic, as well as including links to the full text of those opinions on the FOIA Project’s website.
  • A forum where users can post questions and answers about FOIA, as well as discuss problems or thoughts regarding particular records or agencies.
  • Entries on federal agencies, departments, and sub-components, which include contact information, links to FOIA regulations, and more. With the assistance of Muckrock, these agency pages pull in real-time statistics from people making requests via Muckrock’s services, including the agency’s average response time, the percentage of requests that incur fees, and the average success rate of requesters. Agency pages also link to the corresponding page in FOIA Mapper, a resource that details the agency’s information systems, helping requesters specify where agencies are likely to have responsive records. Finally, the agency pages also pull in the latest district court opinions from the FOIA Project, so users can see what has been happening in case law specific to that agency.

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

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

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

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

A few points:

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

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

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

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

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

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

Can we ask you to respond by 18 October 2016?

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

Mendel said those not on FOIANet may email responses to him: <

Tuesday, October 04, 2016

The Mandarin: Government "sees little value" in OAIC

 The Mandarin (subscription)
Last Thursday, Attorney-General George Brandis confirmed once again that the current government sees little value in the Office of the Australian Information Commissioner, which oversees both freedom of information and privacy. In announcing Timothy Pilgrim’s re-appointment as privacy commissioner, Brandis confirmed Pilgrim is now also the permanent Information Commissioner, a role he has acted in since July 2015. The announcement confirms the current government has no intention to appoint two separate commissioners, as the office was originally intended to have. Brandis gave no indication he intends to appoint anyone as FOI Commissioner, leaving the third post in the OAIC still vacant for the time being....
On a related topic, The Mandarin reports
University of Melbourne data and privacy researcher Dr Suelette Dreyfus...sees an inconsistency in the attitudes of politicians and public servants to privacy in different contexts. In FOI releases, public servants display a very strict attitude towards privacy, making sure that the names of public servants and other stakeholders mentioned in the documents are blacked out wherever allowed by the FOI legislation.But when it comes to the collection, linkage, sharing, analysis and publication of large amounts of data — which can no doubt provide significant public value — the attitude is often more risk-based and dismissive of concerns as being overblown. Public servants might believe the public value of open data and metadata retention outweighs privacy concerns in specific cases or in general, but the point is they must convince citizens. She also sees a major imbalance with the way governments work with big data — and the large amount of communications metadata government agencies want to access — versus the amount of information it is prepared to release under FOI. "Government’s intrusiveness into the citizen’s privacy has become very pervasive but the citizen’s ability to call government to account through FOI is miniscule in the amount of information that can be gleaned from that,” Dreyfus said

Taxpayers dudded in $700k savings on commissioners at OAIC

The Canberra Times Public Eye reflects on how the public is the loser from government saves of $700k by appointing one commissioner instead of three to the Office of Australian Information Commissioner:
Long-time privacy watchdog Timothy Pilgrim was appointed Information Commissioner last week, a role he'd acted in for more than a year. He certainly deserves the honour. However, he doesn't deserve the government's treatment of him and his office. Pilgrim has been left to fill three statutory roles for the price of one: Information Commissioner, Privacy Commissioner and (acting) FOI Commissioner. This is despite the relevant legislation clearly intending that the jobs be held by different people.

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

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