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Friday, October 31, 2014

"New Zealand reaffirms commitment to open government"

Australia should emulate the 'reaffirm' part of that headline. 

As well as the sentiments in the announcement by NZ State Services Minister Paula Bennett that New Zealand formally became a member of the Open Government Partnership, with the publication of its Open Government Partnership (OGP) Action Plan.
“New Zealand has a strong and well respected foundation of open and transparent government, and formally joining the OGP gives us a fantastic opportunity to build on these successes,” Mrs Bennett says. “We rank highly on several integrity measures, including first equal out of 182 countries in Transparency International’s 2013 Corruptions Perceptions Index and first out of 132 countries in the 2014 Social Progress index. “Our work in the OGP and with partner countries will allow us to do even more to deliver openness and integrity, so that New Zealanders can be assured government is responsive to their needs and serves them in the best way possible.” A stakeholder-led advisory group will be established to assist the Government with meeting OGP commitments."
The NZ consultative process and earlier indications of the content of the plan came in for some criticism recently- the establishment of the advisory group may improve the mood.
Published information about NZ and the OGP includes
And sure to stun the dedicated guardians of the cabinet room at PM&C in Canberra:
The Abbott government is still 'considering' whether to proceed with the May 2013 notice of Australia's intention to join. 

You would like to think we could cut and paste the NZ case for membership with a one word substitution:
"The OGP is an international organisation, committed to making governments more open, accountable, and responsive to citizens. The OGP objectives resonate with New Zealand values and with our goals for international, economic and social development. By joining the OGP, New Zealand can continue to build and strengthen our system of open government, while also playing a strong leadership role in the OGP by sharing our experiences and expertise. OGP membership will also strengthen New Zealand’s ties with many countries who participate in the OGP. Joining the OPG also provides a platform for the government to further explore new and innovative ways of working with civil society to deliver better public services.


Thursday, October 30, 2014

Senate Committee to look into the case for abolishing the OAIC

I don't think any reasonable supporter of open transparent and accountable government will find the case proven.

A phone call from Canberra from someone who should know:
  • A public hearing will be scheduled in Sydney on 10 November.
  • "There is no appetite among cross benchers to support the legislation."
Thank goodness.

The ALP, The Greens and those on the crossbenches can see recognise a furphy (improbable story) when they see one. 

(Update - Bill introduced in the Senate and debate adjourned until 25 November.)

Tell cross benchers in the Senate, give thumbs down to abolishing OAIC

I've written to the cross bench senators in the following terms and urge you to do the same:
Senator, I strongly urge you and your colleagues to vote against the Freedom of Information Amendment (New arrangements) Bill. Labor and Greens speakers in the House were right in arguing that no case has been made for the abolition of the Office of Australian Information Commissioner. Removing the independent monitor and 'champion' of transparent and accountable government is a retrograde step and will not "reduce the burden on FOI applicants" as claimed by the Attorney General.

For more information see this post yesterday
http://www.foi-privacy.blogspot.com.au/2014/10/can-senate-save-oaic-and-foi-from-giant.html#.VFBCi-d4IUk

And this earlier analysis
http://foi-privacy.blogspot.com.au/2014/05/abolish-oaic-evidence-or-no.html#.VFBTPOd4IUk

Happy to talk at any time

Peter Timmins
www.foi-privacy.blogspot.com.au
0413256777
For others interested: for ease of reference the case against, taken from previous posts:

Wednesday, October 29, 2014

Can the Senate save the OAIC, and FOI from a giant step backwards?

The House of Representatives yesterday (in an hour) passed the Freedom of Information Amendment (New Arrangements) Bill to disband the Office of Australian Information Commissioner with effect from 31 December. Opposition speakers Shadow Attorney Genereal Dreyfus, Sharon Claydon and Graham Perrett and The Greens Adam Bandt spoke against the bill, presaging a situation in the Senate where the cross benchers will decide its fate.

It should be opposed. 

The government's arguments for the initiative, on this occasion summarised by Parliamentary Secretary to the Minister for Communications Paul Fletcher, are weak, revolving around the claimed complexity of the system of review of FOI decisions and the need to simplify and streamline arrangements. 

No one on the government side has explained the leap from a shared view of many including the Australian Information Commissioner that some changes to the review system might overall be helpful to how abolishing the Office will "improve administrative efficiencies" and even more laughably, "reduce the burden on FOI applicants." 

As Adam Bandt (The Greens) said
"..this is not about addressing real issues in the system. It is not about addressing technical questions that have arisen during the brief operation of a system that may have had some flaws and may have introduced some level of complexity. Some might say it needs some tweaking. If that is the case then have a proper review of it and come back with some suggestions to make the system work better. Do not abolish it completely. That is the direction that this government is going."
Parliamentary Secretary Fletcher, apparently with a straight face, told the House the "Abbott government is strongly committed to transparent, accountable and open government." Mark Dreyfus more accurately captured the mood of many of us:
"Unsurprisingly, I regret to say, given its liking for secrecy the Abbott government is now seeking to abolish the Office of the Australian Information Commissioner and to introduce other measures to close the door on open government in our nation—and it is doing so without any mandate from the public that elected it. This is a government that wants to hide what it is doing from the Australian public and, when you look at what we do know about what the Abbott government is doing, you can see why they would want to be hiding. This government has been seeking to work in secrecy and to avoid its obligations under the existing FOI Act since it came to office."
As non government speakers pointed out, the just published OAIC annual report suggests some of the delay problems are dissipating:
In 2013-2014, the Information Commissioner indicated that many problems of backlog had been resolved and the office had improved response times despite a significantly increased workload. In his media statement releasing the annual report, the Australian Information Commissioner, Professor John McMillan AO, said: "The OAIC made excellent progress in resolving freedom of information (FOI) matters, completing 646 Information Commissioner reviews, an increase of 54% from last year. Another success was to reduce the time taken to commence work on new review applications, down from 206 to 40 days."

The OAIC also processed 2,456 extension of time requests and notifications and responded to 1,903 phone and written enquiries about FOI. This dramatic improvement is evidence that in just the first two years of operation the OAIC is making real progress in providing information to the Australian people and helping to ensure open and transparent government. (Sharon Claydon, ALP Newcastle)
No government speaker in the few words uttered to justify the initiative since the surprise announcement in May has mentioned the broader ramifications of disbanding the office.

As Adam Bandt said:
"What we did not hear in the minister's second reading speech was that the abolition of the office is going to remove the statutory monitor of compliance with the scheme. This is very significant. This is a seismic shift in how government decision makers think about the openness of their information. This is not something that ought to have been new to the Australian decision-making system. Back in 1995 the Australian Law Reform Commission recommended that we take action on this front. It took 15 years for the government to act. I commend the previous government for at least acting. Having taken that step that has been called for since 1995 and having had now a couple of years of operation of this, which is generally receiving positive comments, with the caveat that it should be given a bit more time to let it prove itself, the government is now taking us back to the situation before anyone took any steps at all. We are going to have a gap in our system and there will now not be an independent officer charged with driving that kind of accountability and transparency within the government. Similarly—and this was also not referred to—we are going to now not have an officer charged with that provision of strategic advice to the government on the broader questions of information management."
No one outside government was consulted before the May decision or since that I have heard. In the normal course of things a bill like this would be referred to a senate committee for report. Despite expected government howls that the legislation must pass and pass now, given the budget allocation for FOI related functions runs out at the end of December, non government senators should reject the bill or at least insist on a moment or so for close examination of an initiative that goes to central questions about the management of transparency accountability and open government. 

They'll find that apart from the broader world out there that sees the information/foi commissioner role as essential in any information access scheme worth its salt, Queensland, NSW, Victoria and Western Australia all operate versions of the system that the Federal government claims is overly complex and costly and must be disbanded.

How it might be best done is the question the government never asked.



Monday, October 27, 2014

WA Information Commissioner frowns on 'heads up' for ministers in advance of FOI decisions

Maybe there are many instances of agencies around the country that as a matter of routine report to their minister about freedom of information applications received and on hand, and give the minister's office a 'heads up' or more, an opportunity to 'comment', on decisions regarding access to particular documents.

On the last mentioned the Western Australian Information Commissioner in his 2013-2014 annual report said the law is pretty clear there: decisions on access to agency documents are for the agency, the agency alone and not the minister.  

While ministerial responsibility under the Westminster system means it is understandable that an agency would want to ensure that its minister is informed on agency operations, the implications of the legislated FOI differentiation between an agency and the minister are also clear:
"To avoid perceptions of inappropriate influence, it may be prudent not to brief a Minister on any individual matters until the agency has made a decision on access. Where the applicant is an individual, respect for that individual’s privacy would best be served by briefing the Minister in a way which does not disclose the identity of the access applicant. In any event, knowing the identity of the access applicant in a particular mattter is unlikely to assist the Minister discharge his or her executive responsibilities." (Full text below.)
This is along the lines of, but goes further than a protocol issued last year by the Queensland Information Commissioner. The protocol accepts that a reporting system may be established but the circumstances where briefing is required should be limited to where "this is relevant to the minister's responsibilities," and generally, where the giving of access to information requested" will require the minister or Department to prepare for public debate." According to the protocol, systems for reporting to the minister and the director general, where they exist, should be documented in a written policy, the policy must be made available for inspection under s 20 of the RTI act, and in the interests of transparency should be published on the Department’s website. (Anyone up north checked that out?)

The Queensland (and NSW) right to information legislation includes offence provisions for improper interference in decision making by any person. That might serve to limit the persuasiveness of any offered suggestions from on high and keep agency decisions at least in the general direction of the right track.

 Section 23 of the Federal FOI act which at least theoretically means the minister has the option to process any application received by the agency may change things a bit at the national level. (I can't recall it ever being publicly cited. Victoria has a similarly anachronistic provision.) 

But the Department of Prime Minister and Cabinet FOI Processing Milestones (pdf) (as they existed in 2013) leave you wondering why the PMO needs to be informed at every step of the way. My summary of the internal communication instructions:

1.  Every FOI request received is to be notified by email to: the Secretary of the Department; The Prime Minister's Office (Adviser on FOI); the First Assistant Secretary (relevant line area); the identified decision maker; and relevant contacts as identified by A&AR (eg FAS, Cabinet Division.) The email notification provides, among other things "an opportunity for the Secretary and PMO to indicate their interest in being engaged in consultations."
 2. As the process rolls on, "all internal parties (the Secretary, PM&C line areas, PMO, other ministerial offices in the portfolio) are consulted as appropriate.The Deputy Secretary and FAS of the line area should be kept consistently informed of all sensitivities."
3. As documents are gathered for decision "the decision maker must consider whether a brief on documents being considered for potential release should be provided to the Secretary to allow him an opportunity to provide comments or insights, prior to a decision being finalised." 

4. As the decision maker forms a clear view on information to be released, a number of further consultation steps are required including with the Secretary "if appropriate," and with the PMO which "should be given three days to provide final comment." 

5. "Three days before release, the decision maker should send a copy of the decision letter and documents for release to the Secretary with a noting brief advising of consultations and any sensitivities and email copies to the relevant Deputy Secretary, First Assistant secretary and PMO contact/s. If the Secretary hasn't been consulted previously and needs more time to review the documents it may be necessary to negotiate a brief extension of time with the applicant."


Some of those 'comments' if they are recorded might make interesting reading.

Then there is what we know about Immigration. The Cornall Report on FOI processing revealed that similar to the situation in Victoria, five days notice of decisions on access to non-personal documents is given to the minister's office. The Australian Information Commissioner noted in his report of an own motion investigation that the department advised that the process is so  the Minister's office "can understand the nature of the documents intended to be released and comment can be given" (emphasis added.)

As to other agencies,who knows?

In WA in any event agencies can see the Information Commissioner frowns on this.

The text of the WA annual report item follows

The Greens roll the dice in pushing for publication of Packer's casino agreement

Sean Nicholls reported in the Sydney Morning Herald last week on the tussle between the Executive and the Legislative Council over public access to the NSW government's "VIP gaming management agreement" with James Packer's Crown Resorts. 

This is a rare, maybe the first instance of a challenge to the long standing NSW system for resolving disputed public interest immunity/ executive privilege claims arising from an order to produce documents.

The Greens John Kaye is seeking to contest the opinion of the independent arbiter that parts of the agreement concerning preventing organised crime infiltration and corruption at the casino qualified for privilege and should not be publicly released.The arbiter rejected other claims for privilege. The matter has been referred to the Privileges Committee.

The NSW system has been hailed as the best in the country for dealing with such issues. As is well known the Senate has no system for resolving such disputes. 

So far despite the spark to Senate assertiveness from the enlarged third party and independent crossbenches there has been no visible sign of interest in this parliament in doing anything about it.

Each Procedural information Bulletin includes a section on Senate orders for production of documents.

Friday, October 24, 2014

Annual report season: wading through

More on content soon.

But the absurdity of Federal Government plans to disband the Office of Australian Information Commissioner is striking, given that the OAIC handled record numbers of complaints and review applications while managing to increase the closure rate of matters, and can point to important achievements in pursuing FOI and privacy themes and responsible information management in the digital age. With leadership on many fronts including culture change to break down excessive secrecy out the door, if parliament passes the bill it's advance Australia backwards.

The Reports published to date cover different ground:
Some comprehensively cover the operation of information access and privacy protection legislation including the commissioner functions and agency compliance:
Office of Australian Information Commissioner
Office of Information Commissioner (Queensland)(pdf)

The Information and Privacy Commission (NSW) report covers the functions of both commissioners but not agency compliance - statute requires a separate report on the operation of the GIPA act generally.

In Victoria there are reports from the Freedom of Information Commissioner (Victoria) and the Office of Privacy Commissioner (Victoria) (pdf). (From 17 September 2014 the OPC was replaced by the Office of the Commissioner for Privacy and Data Protection (Privacy and Data Protection Victoria)).

The Office of the Information Commissioner (Western Australia) reports on FOI related matters. There is no WA privacy legislation that covers state and local government agencies.

The Ombudsman Tasmania (the state has no information or privacy commissioner as such but the Ombudsman has information access and privacy protection oversight and merits review functions) and the Ombudsman SA who has an information access merits review function are yet to report,. So too State Records SA, responsible for the annual FOI report and Privacy Committee report; and the Office of  Information Commissioner Northern Territory.

Wednesday, October 22, 2014

Whitlam, political giant, first to promise 'open government'

Forty six years ago "Open Government" first featured in political debate in Australia.It's a long journey.

From Whitlam's famous ALP launch speech 1972:
We want the Australian people to know the facts, to know the needs, to know the choices before them. We want them always to help us as a government to make the decisions and to make the right decisions. Australia has suffered heavily from the demeaning idea that the government always knows best with the unspoken assumption always in the background that only the government knows or should know anything. Vietnam was only the most tragic result of that belief; the idea that the government must always know best permitted the Liberals to lie their way into that war. They could never have got away with it otherwise. Over the whole range of policy at home and abroad this corrupting notion of a government monopoly of knowledge and wisdom has led to bad decisions and bad government. The Australian Labor Party will build into the administration of the affairs of this nation machinery that will prevent any government, Labor or Liberal, from ever again cloaking your affairs under excessive and needless secrecy. Labor will trust the people.
Whitlam's plan to legislate a freedom of information act 'along the lines of the US act' eventually came to pass ten years later when Malcolm Fraser finally overcame the forces of resistance, although that was the start not victory in the ongoing attempt to overcome 'excessive and needless secrecy.'

And personal recollections:

In 1965, as a freshly minted recruit in the then Department of External Affairs and playing rugby for ANU alongside his son Tony, Gough then Opposition leader, presenting the prizes at our end of year function. I didn't win one, but loved the speech to a grand final losing team.

Ambassador Ralph Harry, me in background Vietnam 1969.
In 1969, as Second Secretary at the Australian Embassy Saigon and a freshly minted Vietnamese language graduate from the RAAF School of Languages at Point Cook, interpreting for Gough on his visit to Vietnam including with then Prime Minister Tran van Huong. Huong's deep southern accent was hard to follow even for the locals, let alone someone not long in Saigon who'd spent a year of instruction from teachers who spoke with impeccable northern accents. Talk about white knuckles!

December 1972 as an officer in External Affairs Canberra where just about everyone was excited at the newly elected PM's foreign policy agenda, not to mention social reforms.

In 1973, as First Secretary at the Australian Embassy Washington, being part of the team kept wondering for a while whether newly minted Prime Minister Whitlam would get the traditional audience with Nixon as ALP ministers poured a bucket on Nixon and Watergate engulfed the administration. Then when he did arrive, as the Embassy's man on Capitol Hill accompanying him on the visits to congressional leaders. Gough had them in the palm of his hand, recounting little known facts about US history that some of his interlocuters had never heard. Being at his National Press Club speech when Edward Gough Whitlam was introduced by longtime US based Australian correspondent the late Peter Costigan as "E Go Whitlam" to the amusement of the Australians present. Gough seemed not to notice. And after the visit trying to find out from contacts at the White House what Kissinger said to Gough when he asked everyone else in the room to leave as he wanted to speak to the PM alone. My contact didn't know either, but said that was a Kissinger standard tactic-he did it the previous week with the president of malawi-to duchess the visitor into thinking he was really special. I never found out if it worked on Gough.  

Vale, a giant who makes many before and since look miniscule.


Senator Wong: Some PM&C barriers to FOI requests "do not meet laugh test."

In Senate Estimates for the prime minister's department on Monday Opposition Senator Wong had a few moments to raise questions about the handling of her Freedom of Information applications, and wasn't moved by the standard response: the department takes its FOI responsibilities seriously.

Senator WONG: Sure. I actually have a number of questions on FOI for Ms Kelly. Ms Kelly, these are some of the various answers I have been getting to freedom-of-information requests. 
One was that the department stopped the clock to ask whether 'transmitted from the department to the PM's office' included providing the document to the DLO. That is how documents get transmitted. 

It took the department nearly five months to make a decision, when the statutory time frame is 30 days. I did get a statement saying, 'I regret the delay.' 

It took three months to make a decision in relation to an FOI regarding the appointment of Ms Mirabella to the board of the ASC. 

The department has refused to provide the order of precedence on privacy grounds, on the basis that this would reveal the names of ministers—I thought that was a novel response!—and refused to agree to an order for the production of documents on the basis that there had been an FOI request lodged. Perhaps I will leave that. 

But, just on the first four, what is the issue? Why is the department being so difficult in relation to freedom-of-information requests? Honestly, to say to me: does 'transmitted from the Department of the PM&C to the PM's office' include the DLO? Anyone who has worked in a minister's office knows, frankly, that is a ridiculous suggestion.
 
Ms Kelly : I am not able to deal with those four requests in globo. In relation to each individual request, I would need to have the documents in front of me to refresh my memory in relation to the details of that specific request. The department does take its responsibilities under the act—
Senator WONG: You keep telling me that—
Ms Kelly : seriously.
Senator WONG: You keep telling me that, and I keep saying accountability is serious. But my observation—and you can correct it if it is wrong—is that as many barriers as possible are put up in relation to FOI requests. I am happy to discuss this on another occasion. But that is my observation as somebody who has made a number of requests. Some of these do not meet the laugh test: you do not want to release the names of ministers? They are released; they are public!
In this post 18 months ago I suggested the department's FOI procedures bring into question what inputs from the PM's Office and from senior officers may influence decisions and who in fact makes the decision, but also efficiency and cost given their elaborate nature. It's quite a process. 

Senator Wong's experience isn't unique based on a quick glance at Righttoknow applications to PM&C.

Tuesday, October 14, 2014

NSW Premier Baird takes a step towards restoring trust

NSW, already with the toughest laws in the country regarding political donations is to go further. If the Federal and other state governments don't follow please ask why:
Legislation to be introduced into Parliament today will:
  • Broadly double penalties for a range of offences under the Election Funding, Expenditure and Disclosure Act;
  • Prohibit third party arrangements being used to avoid donation and expenditure caps – carrying a maximum penalty of 10 years imprisonment;
  • Allow for prosecutions for all future offences to be commenced up to 10 years after the offence was committed – up from the current three years; and
  • Require parties to disclose political donations received from 1 July 2014 to 1 February 2015 – this disclosure must be made within one week of the end of this period to the Electoral Funding Authority, to be made public before the election.
Mr Baird said a new, fairer public funding model will be introduced to reduce the corrosive influence of donations in the political system. Under changes to be introduced, the government will lower caps on political donations and spending caps for political parties and third party campaigners while a new model of public funding will be introduced that rewards performance rather than spending.
Update-Parliament passed the bill on 21 October. A fair bit of criticism as reported by Sean Nicholls  including late changes that do not reduce the amount of private donations able to be raised and spent by parties. On the transparency front parties will have to disclose donations received between July 2014 and March 1, 2015 before the election on March 28 next year. The initial proposal was for the disclosure period to end on February 1.

Prime Minister gives Indonesia thumbs down on OGP twice in four months

The Prime Minister plans to 'shirt front' President Putin at the G 20 meeting next month but when it comes to the Open Government Partnership, well, we just don't front.

Prime Minister Abbott twice knocked back invitations from Indonesian President Yudhoyono to attend OGP events this year.

First to the Bali Asia Pacific Regional Conference in May, when he was busy with budget preparations, but we did manage to send an official from Finance.

And then last month to the High Level Meeting in New York, this time with no mention publicly of the invitation or why he or Foreign Minister Bishop, both there on 25 September, or someone senior from the accompanying party or from our UN Mission couldn't join ten heads of state/government, more than 30 ministers and hundreds of others who managed to find the time.

The Prime Minister is off to the inauguration of the new president in Jakarta next week.

President Yuhoyono got nowhere in seeking visible support for the OGP from Australia, valuable in itself, but also as encouragement for strengthening democratic institutions throughout the region. 

President elect Joko Widodo seems similarly committed to the cause. But on form to date the OGP seems unlikely to rate a mention in PM Abbott's briefing book for the visit.

While nothing has been said publicly to explain the government's position it seems that somewhere close to the highest level of government there may be opposition to proceeding to membership of the OGP as a matter of principle or perhaps because of the perceived difficulty of reconciling a membership application with the government's position on a number of fronts here at home. 

The OGP is a platform for reformers, governments interested in the social and economic benefits of open government and in improving governance and public participation and fighting corruption through enhanced transparency and accountability. And who recognise that the task is best undertaken in partnership with civil society.

At some point the OGP Support Unit or the Steering Committee now chaired by Mexico and South Africa will raise the question where Australia stands, with the Dreyfus letter of intent of May 2013 still on the public record.

Russia is the only government to withdraw from the OGP to date. Sixty four other governments have signed up or are in the process of doing so. Here's one enthusiast who found time to say a few words to the New York gathering.

Incredibly ironic in the circumstances if Russia and Australia both shirt front the OGP, chorusing "nyet, spaseeba.” 





Friday, October 10, 2014

Voices for integrity, transparency and accountability

Are politicians everywhere listening?  

Senator John Faulkner in his address Public Pessimism, Political Complacency: Restoring Trust, Reforming Labor (pdf) and the NSW Panel of Experts chaired by Dr Kerry Schott in the Interim Report-Political Donations sang from the same integrity, transparency and accountability songbook this week with a refrain that should be heard in the Federal and all state jurisdictions: the current rules regarding political donations erode public trust and confidence and contribute to the perception of corruption. 

Senator Faulkner (who had plenty to say also about reform of the Labor Party) recalled his reform proposals of 2009 (that never made it through the Senate) including measures
  • to reduce the donations disclosure threshold from its current level of $12,800 to $1,000 and remove indexation;
     
  • prohibit foreign and anonymous donations;
     
  • limit the potential for 'donation splitting' across branches, divisions or different units of parties;
     
  • require faster and more regular disclosure of donations; and
     
  • introduce new offences and significantly increase penalties for the breach of electoral law.
The Panel established by NSW Premier Mike Baird indicated action is needed to ensure closer to real time time disclosure of reportable donations so that voters are aware of fundraising activity before an election; increased penalties for serious breaches of election funding laws, a longer time period for commencing prosecutions and a new anti circumvention measure-disqualification from office for those who deliberately seek to avoid election finance laws; and mandatory education programs for candidates and members of parliament on ethical conduct and compliance with the Election Funding, Expenditure and Disclosures Act (NSW). A final report with recommendations is due in December; the NSW state election in March 2015.

Wednesday, October 08, 2014

Victoria beefs up FOI Commissioner, Commonwealth scraps the function.

Someone's headed in the wrong direction on the transparency journey, no prize for guessing.

As Federal Attorney General Brandis rolls out legislation to abolish the Office of Australian Information Commissioner, scotching the right to free external review of freedom of information decisions among other retrograde consequences, "in order to reduce the burden on FOI applicants", Victorian Attorney General Robert Clarke announces the appointment of two Assistant Freedom of Information Commissioners to "further strengthen the work of the FOI Commissioner" in handling reviews and complaint. 

Update: Fairfax Media- Victorian Labor says it would go further, enhancing the commissioner's role and extending powers. 


Tuesday, October 07, 2014

On the other hand public servants carrying out routine work functions should be publicly accountable

Public servants, like the rest of us have a right to privacy and protection of personal information. But when it comes performance of functions in the normal course of duties of office, privacy should rarely enter into it. Sensitivity about names should usually take a back seat  to transparency, responsibility and accountability.

The issue arises in the context of freedom of information applications. In some agencies, notably the Attorney General's Department the practice is that names and contact details of senior officers mentioned in requested documents will generally be released but not the names of 'junior' officers of the department and other government agencies. 'Junior' appears to be anyone below SES level.

This is the paragraph that appears in the AGD standard acknowledgement of receipt of an FOI application:
It is the usual practice of the Department to not release the names and contact details of junior officers of the Department and other government agencies, where that personal information is contained in documents within scope of a request.We will take it that you agree to the removal of junior officers’ personal information unless you advise that you would like us to consider releasing that information as part of the documents you have requested.
As the applicant doesn't know at this stage what a requested document contains or whose name might be mentioned, most probably simply shrug 'OK.' AGD then redact the details under s 22 as not relevant to the application. 

Now no great public purpose usually will be served by disclosing names of public servants who simply perform administrative support functions or are peripheral to the main game.

However the assumption of non disclosure in all instances is a bit precious when the 'junior' officer concerned is the officer responsible for carriage of a particular matter.

Given AGD (through the Attorney General) is set to become the source of government wide guidance on the FOI act once the government persuades the Parliament to abolish the OAIC, you have to wonder whether 'privacy creep' might see the non disclosure of names become routine across the service possibly broadening out beyond 'junior officers.'

Take the following two AGD examples from personal experience. 

AGD deleted the name of whoever drafted this briefing note for the Secretary in August 2012 about the government response to the Australian Law Reform Commission report Secrecy Laws and Open Government. The briefing note was signed by then Assistant Secretary Glenn (the decision maker took the trouble to delete his phone number as well) and went through two named first assistant secretaries Matt Minogue and Geoff McDonald on the way to the then secretary. 'No name' obviously knew all about the ins and outs of the topic - that the agency best sit on the report rather than respond to its recommendations publicly - but is not mentioned.

And in response to this request for documents about meetings of agency officials regarding Australia and the Open Government Partnership, AGD deleted the names of 'junior officers' who attended a meeting but that happened to be everyone from four agencies represented, Ausaid, DBCDE, Finance, and PM&C. None of those attending from those agencies were  named in the document released. 

It is a Queensland case but this post three years ago canvassed the issue following a decision by Assistant Information Commissioner Henry (The Amanda Flynn Charity Ltd and the Crime and Misconduct Commission) who said:

22. The routine personal work information of public service officers is personal information within the meaning of the RTI Act, however, the potential harm that could be caused by its disclosure is, in most circumstances, minimal or nonexistent. This is due to a number of factors including:

  • the requirement that government departments be open and accountable in their operations
  • that public service officers are employed in the business of government which delivers services to the public and the public is generally entitled to know the identity of the service deliverers, advice givers and decision makers
  • the publication of public service officers' appointments in the Government Gazette; and
  • that a reasonable public service officer would expect that information that is solely their routine personal work information would be made available to the public.
In an earlier post (which needs a little updating to reflect Commonwealth reforms enacted since) I commented confidently:

...it's clear that generally names will not be exempt. (In the usual situation) the routine disclosure of information about the names, and positions of government employees in the conduct of public functions is now an important accepted element in the transparency and accountability framework within which government operates in Australia.
And referred to this example of one jurisdiction that leaves no doubt about the issue:
The Freedom of Information Act of Western Australia (Schedule 1 Clause 3) provides the clearest statement of the situation. The act provides specifically that matter is not exempt for the purposes of the personal information exemption merely because its disclosure would reveal, in relation to a current or past  officer of an agency, prescribed details relating to the person; the person’s position or functions as an officer; or things done by the person in the course of performing functions as an officer.  Prescribed information (Freedom of Information Regulations Clause 9) includes details of the person’s name; any qualifications held by the person relevant to the person’s position in the agency; the position held by the person in the agency; the functions and duties of the person, as described in any job description document for the position held by the person; or anything done by the person in the course of performing or purporting to perform the person’s functions or duties as an officer as described in any job description document for the position held by the person.
Intimidation, harassment or threat to life and safety understandably change the equation. 

But public servants who are key players in the policy process regardless of seniority should be made of sterner stuff than the FOI decision makers at AGD think is warranted.

Monday, October 06, 2014

Is alleged misconduct by a public official deserving of privacy protection?

I'd suggest the intuitive response from most of us is no, and some might firm this up with a 'never', or 'rarely'. 

But of course it all depends on a whole range of circumstances: who is involved and the nature of the alleged conduct; in those jurisdictions that have an anti corruption body whether the misconduct is of a kind requiring notification, otherwise the stage reached in any investigation; the impact disclosure may have on further investigation, etc, etc. If an investigation has concluded, is there a difference if it found misconduct occurred or didn't occur? Was the investigation thorough and appropriate, did it reveal systemic issues, etc, etc....

(This current UK case is slightly off subject but rather special: a disgraced Royal Navy captain is suing the Ministry of Defence because he says his human rights were breached when a military press officer leaked the story of how his verbal abuse of junior officers led him to be relieved of the command of the warship HMS Somerset. The press officer was also charged with misconduct in public office for selling stories to the press!) 

Federal public servants

So put to one side what might be said about the issue and elected officials - our federal parliamentarians don't have a code of conduct by the way..

The Australian Public Service Commission is seeking comment on a discussion paper about the extent to which information about the outcome of a misconduct complaint should be disclosed to the complainant and to others. Public servants are bound by the APS Code of Conduct, set out in section 13 of the Public Service Act 1999 (the PS Act), which codifies required standards of behaviour.
(You'll need to be quick with a submission - the paper seeks  comment by 7 October 2014 to the Ethics Advisory Service: ethics@apsc.gov.auor by post to: Ms Karin Fisher Australian Public Service Commission 16 Furzer Street Phillip, ACT 2606.)

Agencies tend towards non disclosure

Apparently a 2008 APSC guideline that outlines in broad terms the issues relevant to disclosure of information to the complainant and disclosure more generally isn't doing the job. The discussion paper notes
"recent cases, as well as enquiries to the Commission's Ethics Advisory Service, have highlighted a tendency across the APS to err on the side of non-disclosure—a tendency apparently underpinned by agencies' concern that providing more than the minimum of information could constitute a breach of the Privacy Act 1988. Agencies' hesitancy to provide information about the outcomes of misconduct complaints has left them vulnerable to criticism by the public and by the Courts, which risks undermining public confidence in the administration of the APS."
Questions posed in the paper:
  • What information should be provided to people, including members of the public, who allege breaches of the APS Code of Conduct about the outcome of their complaints?
  • Should information about proven misconduct be disclosed to people other than complainants, such as the wider agency workforce?
  • If information should be disclosed to people other than the complainant, under what circumstances?
  • What do agencies need to consider in making decisions about these matters?
 Privacy, FOI, PIDS?
The privacy framework that applies to APS agencies and employees "recognises that employees' personal information can sometimes be disclosed, and may need to be disclosed where doing so would serve the broader public interest." Provisions of the Freedom of Information Act 1982  and the Public Interest Disclosure Act 2013 may be relevant in particular instances.

Recent cases

The paper summarises recent cases that indicate "a greater degree of disclosure is acceptable to the community than the Commission's existing guidance suggests:
In Banerji v Bowles [2013] FCCA 1052 (dealing principally with public comment and the right to freedom of expression rather than the right to privacy) it was noted by the Court that the applicant had previously made a complaint against another employee in the agency, whose conduct was investigated as a result, and had been given a letter advising her that ‘appropriate action’ had been taken by the agency in relation to her complaint but that the Privacy Act prevented disclosure of any relevant details. In commenting on this matter, Neville J said:
the letter is (a) less than informative (or otherwise illuminating), and (b) classic ‘Yes Minister’ speak.
The judge questioned how a complainant might obtain any relevant information or raise any questions about a matter that involved serious misconduct if they were told that no relevant information could be provided, and noted that ‘such an information vacuum might understandably give rise to a certain angst or tension in the workplace, which is not necessarily of the complainant's making.’
Similarly, in ‘J’ and Department of Health and Ageing [2013] AICmr 21 (8 March 2013), which concerned a complainant's request for information about the outcome of an investigation, the Australian Information Commissioner stated:
[T]o the extent that … a disclosure demonstrates that an investigation has been properly undertaken, that disclosure will improve general confidence in an agency's capacity to conduct future investigations.
Importantly, the Information Commissioner also noted that the result of the complainant's freedom of information request might have been different if the agency had provided more information and more detail—‘not necessarily in written form’—in the first instance about the outcome of the investigation.
This case also referenced Carver and Fair Work Ombudsman [2011] AICmr 5, in which it was noted that wide disclosure of evidence provided to misconduct investigations
could reasonably be expected to affect the willingness of people to provide evidence for future Code of Conduct investigations which, in turn, would have a substantial adverse effect on the management … of the agency's personnel.

Friday, October 03, 2014

Abolish information commissioner bill may be in trouble in the Senate.

Michael McKinnon FOI Editor ABC reports that the Freedom of Information Amendment (New Arrangements) Bill could be blocked in the Senate, raising the question what will happen with reviews if the OAIC continues but the money runs out by the end of the year.

Accountability Roundtable raises the trust deficit in lead up to Victorian election

Colleen Lewis on The Conversation writes that the Accountability Roundtable has sent a letter (with detailed attachments) to the leaders of Victoria’s major political parties seeking a pre-election commitment to act on three serious issues after the November 29 poll. The Roundtable seeks a commitment to support:
  1. Giving greater powers to Victoria’s Independent Broad Based Anti-Corruption Commission (IBAC)
  2. Holding an inquiry into public funding of political parties, individual members of parliament and political candidates
  3. Strengthening the public’s right to know, with improved Freedom of Information rules.
The Accountability Roundtable draws attention to excessive secrecy and heightened concern about opportunities for corruption as well as the fact that open and accountable government is critical for economic growth, reflected in the expansion of the Open Government Partnership to 64 countries in three years (and on which the Federal government continues to maintain stony silence).


The Roundtable urges action to give effect to the long standing, but forgotten, common law and ethical principle that public office is a public trust, and that holders of public office must, in exercising the powers entrusted to them, give priority to the public interest over their personal interests.
  
Effective laws properly administered are crucial ingredients in the mix but FOI in Victoria is stuck in the dark ages. Both this government and Labor when it had the chance haven't done much to bring it into the 21st century. The Greens can point to a long consistent record of advocating change but with no opportunity so far to bring those changes about. 

Government fails to make the case for abolishing information commissioner

In introducing the Freedom of Information Amendment (New Arrangements) Bill 2014 in the House yesterday the government argued that the Office of Australian Information Commissioner should be abolished primarily because of complexity in the system of external merits review for FOI matters. 

If complexity was the issue it had a number of options to improve on the model adopted in 2010, short of junking the whole thing, should it have taken the trouble to look, think and discuss beyond the confines of the Attorney General's Department. 

After all, the limited review of the FOI act in 2012-13 by Dr Hawke (still without a response 18 months later) concluded that the establishment of the OAIC "has been a very valuable and positive development in oversight and promotion of the FOI Act." (page 24). 

And specifically on the complex review system cited by the government as the major policy reason for the decision: 
"The current system of multi-tiered review has been in operation for two and a half years.  At this stage there is insufficient evidence to make a decision on whether this is the most effective or efficient model for reviewing FOI decisions, particularly in relation to the two levels of external merits review.  The Review considers this issue warrants further examination and recommends that the two-tier external review model be re-examined as part of the comprehensive review recommended in Chapter 1." (Page 36)
Apart from 'removing complexity' the government claims measures in the bill will save $10.2 million over four years, "part of the government's continuing commitment to repair the budget" and the Explanatory Memorandum adds that it "furthers the government's commitment to smaller government."

There is no mention in the Second Reading speech that abolition of the office will remove the independent statutory monitor of compliance with the FOI scheme, the leader responsible for promoting a pro-disclosure culture in government and awareness of the right to access government information more broadly. Resource limitations and other factors may have limited the office capacity to get far in all this, but abolishing it certainly won't advance us on this never ending journey.

The absence of such an office was identified as an impediment to effective administration of the FOI Act as long ago as the joint 1995 Australian Law Reform Commission and Administrative Review Council Open Government report and later by the Commonwealth Ombudsman. It took 15 years for government to act on this. The Abbott government is taking us back to the dark days where FOI has 'orphan' status within 12 months of taking office.

No mention also of the cost to agencies of the reintroduction of mandatory internal review before an application for full independent merits review to the AAT, or the cost to applicants if they seek to take matters further with an AAT application fee in most instances of $861. 

No mention also of the abolition of the commisioner's function to provide strategic advice to Government on broader information management policy and practice, or abolition of the Information Advisory Committee.

Whereas up to now an agency has been required to have regard to guidelines issued by the independent commissioner in administration of the FOI act, in future those guidelines are to be issued by the Attorney General.

Debate was adjourned after the minister's second reading, but there is no doubt it will sail through the House. Let's hope there is some real scrutiny in the senate of what is a retrograde step for transparency and accountability.

Paul Farrell has written this in The Guardian today.

In short: 
The Office of the Australian Information Commissioner (OAIC) will be abolished. 
The Australian Privacy Commissioner will continue to be responsible for functions under the Privacy Act 1988 as an independent statutory office holder within the Australian Human Rights Commission.
The Administrative Appeals Tribunal will have sole responsibility for external merits review of FOI decisions.
Those waiting in the OAIC queue for review will be transferred to the AAT-no application fee for them.
Mandatory internal review of FOI decisions required before a matter can proceed to the Administrative Appeals Tribunal. The tribunal will receive a funding boost to assist with processing FOI reviews.
(Oh almost forgot: Continuation of the situation that there is no right to internal review of a decision made by a minister or the principal officer of an agency.
The only extension of time for dealing with an application to an agency or minister is where this is agreed with the applicant. The only 'incentive' for an agency or minister to make a decision in time is that no charges can be imposed for dealing with the application, but that hasn't produced uniform on time decisions so far.
And a deemed refusal - when a decision is not made within the statutory time-frame - is taken to have been made by the minister or principal officer.
In all these cases the only recourse for an aggrieved applicant (or aggrieved third party with an established interest in the matter) apart from a complaint to the Ombudsman in the case of an agency is to seek merits review from the AAT,)
The  Ombudsman will be responsible for investigating complaints about actions taken by an agency under the FOI act-but apparently isn't to receive additional resources for this purpose.
The Attorney-General will be responsible for FOI guidelines and collection of statistics on agency and ministerial FOI activity.