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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.

Monday, October 03, 2016

Australian Information Commissioner appointment: some certainty, still short of firepower and support

The announcement last week by Attorney General George Brandis of the appointment of Timothy Pilgrim as Australian Information Commissioner and the renewal of his appointment as Privacy Commissioner brings a degree of certainty to the operations of the Office of Australian Information Commissioner after the wrecking ball launched in May 2014 when the Attorney General announced the office was to be abolished.

While the return to certainty is welcome, and Timothy Pilgrim is a fine public servant the appointment is far from sufficient to re-establish the office on the fully operational, fully funded, firm footing required after the battering of the last two and a half years.

The announcement makes no mention of the Freedom of Information Commissioner post.

The OAIC website says "Mr Pilgrim will carry out functions and exercise relevant Commissioner powers under the Privacy Act 1988, Freedom of Information Act 1982 and the Australian Information Commissioner Act 2010." 

Who calls the shots?
The Australian Information Commissioner Act 2010 establishes an office with three commissioners and prescribes the functions and authorities of each.

if the government intends to proceed with one commissioner, In the court of public opinion at least, this would seem 'smart lawyering' and contrary to the framework established by parliament -three positions, three different functions, three people.

It may raise a legal issue about the exercise of executive power and the public trust responsibilities that go with it including to act in accordance with Section 61 of the Constitution which requires such power be used to execute and maintain the constitution and the laws of the Commonwealth. 

In the case of the Australian Information Commissioner Act, the government's responsibility to execute and maintain the act would seem to require the appointment of three commissioners not one.
Collateral damage
The wrecking ball of 2014 hovered over the OAIC until May 2016.

By this time the Canberra office had closed, staff had left including the FOI Commissioner and the Australian Information Commissioner, some functions were farmed out to the Ombudsman and Attorney General's Department (since returned), and Privacy Commissioner Pilgrim was given five short term appointment acting in the Information Commissioner role.

Funding for the FOI functions of the office has never reflected initial estimates of what was required and remains inadequate. Privacy responsibilities of the office have been extended. No funding has been allocated for information policy functions.

The OAIC has conducted two own motion investigations of agency FOI practices in six years, the most recent two years ago. 

The 2016-17 Corporate Plan doesn't suggest a major change in what has been a low key FOI watchdog role. There are references in the plan that suggest the office is now rebuilding FOI capacity lost in recent times.

Throughout all these tough times the minister hasn't managed a positive word in public on the importance of what the OAIC describes as its "unique role in promoting and protecting two of the fundamental pillars of open democratic government in the information age."

On the contrary Senator Brandis as late as May this year continued to assert that abolishing the office was a good idea. He told Senate Estimates (Q&A pp 42-44) the decision in 2014 to abolish the office was at the time seen as a "good economy measure-and we haven't changed our mind."

The Attorney General also maintained public silence as one public service leader disparaged freedom of information ('very pernicious') and expressed ignorance of its transparency and accountability purpose, and others went public in calling for tighter guarantees of confidentiality for advice. 

Meantime Senator Brandis was arguing an interpretation of the law before the Administrative Appeals Tribunal and the Federal Court of Australia that both rejected in seeking to avoid processing a request for some entries in his appointments diary now some years old.

New positive words and deeds required
Australia's information access law, and policies and practices in implementation of the law badly need comprehensive review, reform and updating. That should include another look at the OAIC and what can be learned from experience, not just its own, but from around the country and internationally where this and other models are in place.

However before we get there, we need words and deeds that confirm this government supports and encourages the open transparent government cause

As Senator Brandis in Opposition in 2009 said 
"..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...."
According to the Prime Minister takeaways from the close election result in July are that the public is disillusioned with government, politicians and the major parties, and restoring trust is a priority for his re-elected government.

Different attitudes and actions - that positively promote transparency and accountability - might help.

Friday, September 30, 2016

Clash of FOI titans

According to IT news former Australian Information Commissioner John McMillan (picture right) has commenced a defamation suit against the Canberra Times and columnist Jack Waterford over what he says are defamatory imputations contained in a December 2015 column. 

Waterford criticised the OAIC and McMillan as Information Commissioner and in his previous role as Commonwealth Ombudsman. 

Professor McMillan and his lawyers "contend the article incorrectly painted him as not being a true supporter of open government and freedom of information law."

My comments on the column at the time are reflected in the heading FOI veteran Waterford lets go with a few wild swings and low bows 

Both McMillan and Waterford have each made enormous contributions to the FOI cause going back many decades.

Pity it has come to this.


Wednesday, September 28, 2016

Sunshine and rain on Right to Know Day

Right to Know Day 28 September- great to see traffic on the twitter feeds including plenty from Australia at #RighttoKnow

While observance has been trending in the right direction in recent years, its another step in the right direction given Right to Know Day often passed virtually unnoticed here.

Something positive from the highest levels of government on the importance of the right to know would be a welcome development but alas..

So too, with three ministers in New York last week, an Australian presence at the Fifth Anniversary Celebration of the Open Government Partnership would have indicated strong interest and commitment as well.

Alas again....

Further rain amid the sunshine:
 The Center for Law and Democracy in Toronto and Access Info Europe used the occasion to publish an updated Global Right to Information Rating, analysing the quality of the world's access to information laws.

The Australian legislative framework (the Federal Freedom of Information Act) comes in 56 of 111 rated, down four places since the previous assessment.

Mexico tops the list, and of particular interest UK 33, NZ 40, Canada 48 and USA 55.

Among the eye raisers, Russia 34, China 80, Japan 90, France 94, Germany 105 and Austria 111.

You can quibble with some of the scoring in the Australian assessment where we receive 83 points of a possible 150-in a few areas the assessor in my opinion has been off the money -  but  overall the act, hailed in its time in 1982 as up there with the best, is no better these days on these criteria than middle of the pack.

That's before attention to matters beyond the scope of the rating including
  • outdated features of the act that reflect the 70s rather than the twenty teens, for example one of many, Section 17,
  • the Office of Australian Information Commissioner first under threat of closure, then the government's failure to fill positions established by Parliament or fully fund the FOI watchdog role and the office information policy functions,
  • the 'tone at the top'  as a result of the absence of positive leadership and support for transparent accountable government at the same time as senior public servants speak out critical of the law generally ('very pernicious') and about its impact on their capacity to do their job, 
  • the interpretation and practical application of the law in some agencies that give rise to the epithet 'freedom from' rather than 'freedom of' information. Sarah Gill of The Age on Fairfax Media yesterday in "Have we reached peak secrecy?" pulled together some examples, arguing
"Despite the Turnbull government's professed enthusiasm for transparency and accountability, (ie membership of the OGP) this year – marked by a shroud of secrecy over border protection, the targeting of whistleblowers, and the intransigence of the Attorney-General around the release of his diary – could well be the low point for open government in Australia since Freedom of Information laws were introduced three decades ago."
Andrew Dyson SMH
Peak Secrecy? Give hope a chance?
Despite the validity of the examples cited and others that could be added, there are plenty of contenders for the 'peak secrecy' award over the last thirty years that IMO, would beat out the 15 months of the Turnbull era on display so far. The implacable attachment to the conclusive ministerial certificate during the Howard years and the eleven years it managed to ignore any positive reform for example.

As I commented at the six month mark, the record of the Turnbull government suggests hope as well as disappointment.

Six months on, membership of the Open Government Partnership, the yet to be completed National Action Plan of commitments to reform, and the Prime Minister's endorsement of the goals of the OGP as consistent with "Australia's long and proud tradition of open and transparent government" gives hope some chance.

Saturday, September 24, 2016

Voice Up: Right to Know Day 28 September

Australia’s State and Commonwealth Information Commissioners have joined together to promote their commitment to the importance of Open Government and the right to access government-held information and data on International Right to Know Day, 28 September 2016.
The right to information and our ongoing commitment to Open Government is a cornerstone of modern democratic society.
Right to Know Day is an opportunity to encourage the public sector and the community at large to think about exploring the possibilities of Open Government. When done well it increases access to information and data which results in better and more responsive services to the community, as well as increased accountability and the promotion of public participation in government decision-making.
We are pleased to come together to promote the importance of this message and we invite all members of the Australian community to join us in celebrating Right to Know Day on 28 September 2016.
Co-signed by:
Sven Bluemmel, Western Australian Information Commissioner
Richard Connock, Tasmania's Ombudsman
Michael Ison, Acting Victorian Freedom of Information Commissioner
Timothy Pilgrim, PSM, Acting Australian Information Commissioner
Rachael Rangihaeata, Queensland Information Commissioner
Elizabeth Tydd, NSW Information Commissioner and Open Data Advocate.

SOLOMON LECTURE: This year, Queensland's annual Solomon Lecture will be the centrepiece of the Right to Know campaign. The Lecture will be live-streamed on Right to Know Day, 28 September 2016. The lecture topic is "Collaboration in Place: The central role of information and data in securing Queensland's future prosperity", presented by Professor Anne Tiernan, Director of the Policy Innovation Hub at Griffith University.
Watch the event live online (9am) @ or register to be in the audience at the State Library of Queensland, Stanley Place, Southbank @

If you are in Sydney celebrate at the monthly OpenAustralia Foundation Pub Meetup Tuesday 27 September Upstairs at Trinity Bar 505 Crown St Surry Hills from 6.30 pm.


Wednesday, September 07, 2016

"Brandis diaries case shows how Freedom of Information has been deliberately neglected"

Rick Snell, University of Tasmania makes a welcome return to the commentariat 

"Federal Attorney-General George Brandis has lost a two-year bid to keep the summaries of meetings in his ministerial diary from being considered for release under the Commonwealth Freedom of Information Act.

A Federal Court judge in the Administrative Appeals Tribunal (AAT) and a full Federal Court bench decided the reasons advanced on Brandis’ behalf to not process a Freedom of Information (FOI) request were less than persuasive.

Shadow Attorney-General Mark Dreyfus, who originally filed the FOI request, called the decision “a victory for transparency and accountability” and has hailed the case as a landmark. Yet as a “landmark” decision, it speaks more forcefully to how both the Abbott and Turnbull governments have allowed the Commonwealth FOI Act to fall into a state of neglect.

The Brandis decision laid bare the inadequate and flimsy nature of the exemption claims made by the Attorney-General’s Department. Ironically, in the first two decades of the Commonwealth FOI Act, the Attorney-General’s Department was regarded by many as its fiercest advocate and guardian. Under Brandis it has forsaken that worthy heritage.

The sad thing was that the information in question was so basic and simple. The weekly summary of a diary produced in Microsoft Outlook contained the barest fragments of information about Brandis’ meetings – date, time, duration, location, and purpose of meetings.

Detailed information and supporting documents related to the meetings were not requested. There were 1930 individual entries Brandis and his staff needed to consider for release.
In terms of FOI decision-making, the “diary case” is one of the easiest jobs any government department could be asked to undertake. The majority of entries would not trigger any exemption claims under the FOI Act. If exemptions were technically triggered they would end up being released in the public interest or fail to justify the claim for secrecy.

Yet Brandis was prepared to spend two years, the resources of the public, an estimated A$50,000 in taxpayer funds for lawyers and the time of four Federal Court judges in preventing their release.
The basic arguments were that the information was prima facie sensitive, would take too long to look at, and unreasonably divert the time and resources of the department. It was, and is, a task a first-year law student could do in a couple of hours.

The reasoning by Justice Jagot in the AAT and the full Federal Court was sound. Their interpretation of the FOI Act was crystal clear; no Commonwealth FOI officer could justify making these arguments in the same circumstances in the future.

But this was exactly where the law and good practice stood in June 2014 when this saga commenced.

In a report released in December 2015, the New Zealand Ombudsman criticised the game playing of some New Zealand government agencies. In Australia it seems the federal government is prepared to play the game simply to hide information for as long as possible.

Under the Abbott government, funding to the Australian Information Commissioner and FOI Commissioner was terminated at the end of 2014. No legislation abolishing the positions was ever passed but the funding was not restored. The FOI Commissioner left and the Information Commissioner worked for several months from his own home – a script worthy of Yes, Minister, or Utopia.

Eventually some funding was reallocated in 2015, but not enough to restore staffing to previous levels. Since the middle of 2015, the Privacy Commissioner has been continually appointed as acting Information Commissioner.

Last century Malcolm Turnbull earned his stripes as a public interest advocate in the Spycatcher case. Yet he now presides over a poorly funded and hamstrung Office of the Australian Information Commissioner. In addition, Turnbull has allowed Brandis to waste taxpayer dollars on arguments that failed to gain any traction. Australia’s information policy settings have corroded.

The best, benign neglect of FOI policy by the Abbott and Turnbull governments has undermined the institutional capacity to deliver effective, informed and high-quality advice.

If an attorney-general is prepared to stonewall, for two years, access to bland diary summaries, it is little wonder that the release of more vital information like the Nauru files only happen via leaking. Brandis’ actions undermine accountability and the ability of people to participate in democratic debate in an informed manner.

The latest decision on the Brandis diaries is important. At the very least, it acts as encouragement to those refused information under the FOI Act that there is a chance to play the information game under a fairer set of rules than those used by the Australian public service and government ministers."

The Conversation
Rick Snell, Associate Professor - Acting Dean of Law, University of Tasmania
This article was originally published on The Conversation. Read the original article and comments from readers.

Monday, August 15, 2016

Guardian Australia argues the FOI case: boat turnbacks don't involve security

Paul Farrell of Guardian Australia was not only busy on the Nauru files in recent weeks , he's also been a very interested party in the challenge in the Administrative Appeals Tribunal to refusal of his Freedom of information application for documents about boat turnbacks.
We will have to wait until the AAT decision for the detail but among a number of issues the case is testing is the meaning of “security of the Commonwealth” in the FOI act. According to this report
"Farrell’s barrister pushed the point that “national security” was not relevant for operations that were unlawful and the government’s incursions into Indonesian waters, which were covered in some of these logs, were unlawful in his view."
Guardian Australia’s barrister Tom Brennan told the hearing:
“Security in the Asio act goes beyond that which is dealt within the FoI act, because it’s not limited to the security of the body politic. It’s directed also to the security of people.“There can be no doubt that people-smuggling activities are a matter of significant public interest … they are not in my submissions ones that rise as high as touching the security of the commonwealth.”
According to the report Major General Bottrell, Commander of Operation Sovereign Borders testified
“Our greatest asset now is the scepticism of the potentially illegal immigrants..” “Much of our effort is aimed at educating people sitting there, that people smugglers are convincing to get on boats.”People smugglers would use the information about turnbacks to inform asylum seekers about how close they had got in their previous attempts to reach Australia. “Our efforts are to educate them about the dangers of that journey.” Bottrell argued that hiding this information from the public and from people smugglers was essential as part of that education effort.
"Security of the Commonwealth"
The exemption relied upon according to these reports (there may be others) is Section 33(a)(i) of the FOI Act: “A document is an exempt document if disclosure of the document under this Act:(a) would, or could reasonably be expected to, cause damage to: (i) the security of the Commonwealth...

The exemption is absolute- there is no weighing of public interest or other considerations that might favour disclosure. 

The meaning of terms used in the exemption received the usual thorough analysis recently from AAT Deputy President Forgie in Prinn and Department of Defence. [58-96] citing many precedents from court decisions but none that appear directly to address the argument reportedly advanced by Tom Brennan.

Guidelines issued by Australian Information Commissioner
Also of interest in the Prinn case [47-57] Deputy President Forgie parted company with Senior Member Popple (as she had last December in Wood) who most recently in Jones said
"The FOI Guidelines are not binding, but decision makers, including this Tribunal, should apply the FOI Guidelines unless there are cogent reasons to the contrary."
Deputy President Forgie:
53. I agree that they are not binding but I disagree that decision-makers, including this Tribunal, “should” apply the Guidelines. The obligation is to have “regard” to them i.e. “... to take into account; consider. ...”.[35] It is not to “apply” them i.e. “... bring to bear, put into practical operation, as a principle, rule, law, etc ...”.[36] Regard can only be had to them if they are made lawfully i.e. within the scope of the power conferred by s 93A and consistently with the FOI Act. Decision-makers cannot be required to have regard to the Guidelines in so far as they relate to the interpretation of the FOI Act. Section 93A(2) limits the power to issue Guidelines for the purposes of the performance of a function or the exercise of a power under that legislation. For those purposes, regard must be had to them and there can be no doubt about that. A modern statement of the importance of guidelines of this sort has been made in Plaintiff M64, to which I have referred at [50] above.

Wednesday, August 10, 2016

You can bet FOI wouldn't deliver the Nauru Files

The freedom of information system wouldn't produce anything like the Nauru Files
published by Guardian Australia today following a leak of more than 2000 incident reports from the Immigration detention centre

After all, when Guardian Australia had a crack at formally obtaining the Detention Logs a couple of years ago, 'smart lawyering' not transparency and accountability prevailed. And that was before the issue of exemptions even arose.

Hat tip this time to Paul Farrell, Nick Evershed and Helen Davidson and the unknown person or persons risking up to two years imprisonment under Section 42 of the Australian Border Force Act 2015 for secreting this cache out of the system. 

There is no defence to the charge of disclosure of protected information (any information obtained in the performance of duties) by an entrusted person (employee,contractor or consultant) regardless of the significance or insignificance of the information.

The reports published "set out as never before the assaults, sexual abuse, self-harm attempts, child abuse and living conditions endured by asylum seekers held by the Australian government, painting a picture of routine dysfunction and cruelty."

There is plenty of shock, outrage and sense of shame voiced on the Twitter feed #naurufiles and no wonder.

 David Marr comments on 'official secrecy' and its political purpose:
Parking refugees on distant islands worked last time to keep their predicament hidden. But secrets are so much harder to keep these days than they were in John Howard’s time...Canberra’s passion for secrecy has always been contradictory. Surely the more the world knows of the fate of refugees in these island camps, the more the deterrent power of holding them there? But secrecy has its purpose. It helps hold the political consensus together. The truth is terrible. The regime of official secrecy allows us – even when so much is known – not to face the facts. It’s a service for the squeamish.
Guardian Australia has commendably self censored personal information from the published reports:
The Nauru files contain a large amount of personal information about asylum seekers and detention centre staff. The Guardian has adopted a stringent approach to redacting the documents, including several layers of editorial and technical checks of the data. The general approach we have taken is to remove:
• The names of all asylum seekers and staff
• Personal identification numbers of asylum seekers (their six-digit “boat arrival numbers”)
• Ages of the asylum seekers named in reports
• Signatures of detention staff
• Nationalities with small population groups
• Residential tent numbers
• In some cases further identifying information has been removed 

Tuesday, July 26, 2016

Sunlight shone on Northern Territory prison practices leads to a Royal Commission

How the damning material in videos about the treatment of young boys in the Northern Territory Don Dale Youth Detention Centre came into the hands of ABC Four Corners is not known but with a Royal Commission to investigate the system all may/will be revealed in due course.


The public record includes The NT Children's Commissioner Don Dale Youth Detention Centre Report to Minister September 2015 pdf that provides details of one of the worst instances of mistreatment but not the videos. 


Almost certainly the video footage wasn't offered up by those responsible for the system or delivered on a plate via the Information Act 2002.


If someone on the inside thumbed through the Public Interest Disclosure Act beforehand he/she would know it provides protections for reporting through official channels but none for public disclosure to the media or anyone else for any reason, falling short of what is regarded as best practice. 


A look further to the Northern Territory Criminal Code Act Schedule 1 Clause 76 would remind that unlawful communication of confidential information could get you three years in another detention centre. 


And there is no available defence to a charge such as absence of harm or the importance of disclosure in the public interest:

Disclosure of official secrets
(1) Any person who, being employed in the public service or engaged to do any work for or render any service to the government of the Territory or any department or statutory body thereof, unlawfully communicates confidential information coming to his knowledge because of such position is guilty of an offence and is liable to imprisonment for 3 years.
 (2) If he does so for purposes of gain he is liable to imprisonment for 5 years. 

A provision in similar terms is S 70 of the Commonwealth Crimes Act.  

Recommendations for repeal and reform first floated in 1991 reinforced in 2009, have been ignored by governments since. 

Review of information access law in NSW grinds on, missed deadline notwithstanding

This post in March commented on the slow, closed door approach to review of open government legislation in NSW and elsewhere.

The NSW Parliament imposes deadlines but they pass... and pass.

The Government Information (Public Access) Act 2009 and the Government Information (Information Commissioner) Act 2009 include a requirement for a statutory review to be undertaken by the Minister administering the act "as soon as possible after the period of 5 years from the date of assent to this Act" with a report to be tabled in each House of Parliament within 12 months after the end of the period of 5 years.

The review is to determine whether the policy objectives remain valid and whether the terms of the Acts remain appropriate for securing these objectives. 

The date of assent for both acts was 26 June 2009, the date of commencement 1 July 2010.

Five years after the date of assent takes us to 26 June 2014. A period of 12 months after the end of 5 years for the report to be tabled means the deadline was 26 June 2015.

Shadow Attorney General Paul Lynch in a Question on Notice on 3 May 2016 asked the Attorney General "when the review would be completed." Attorney General Gabrielle Upton on 7 June answered (2944) "The review is currently being carried out and a report will be provided in due course." 

No report has been tabled as at 26 July 2016.

In May, in a welcome development the attorney general's department invited me and a few others to a roundtable, informing invitees that the department was interested in input into the review from outside government as most of the 80 submissions received had come from government agencies and local councils.  

Participants had no input into the agenda but a couple of hours chat ensued about the issues the department wanted to talk about-something at least.
Thirteen months and counting for a review report to be tabled isn't too bad when you look at deadlines listed by Justice as Reviews in Progress. The report on the review of the Workplace Surveillance Act 2005 was due no later than June 2011 and for the Defamation Act 2005, October 2011.

One of these days.....