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

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

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

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

Audit Criteria:

1. The Attorney-General’s Department and Office of the Australian Information Commissioner effectively and efficiently perform their respective roles in providing guidance and assistance to entities and monitoring compliance with the FOI Act.
2. The selected entities effectively and efficiently process FOI document access requests.
3. The selected entities release relevant information under the Information Publication Scheme (IPS).

Wikimedia Commons:Paty Montano

Mention of the audit first appeared on the ANAO website in August in their yearly work plan.It likely passed unnoticed the rest of us who take an interest in the subject and those with relevant experience with the selected entities who might have something useful to contribute on the score of efficiency and effectiveness.

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

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

Contributions are now closed.

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

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

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

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

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

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

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

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

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

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

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

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

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

FOI -$41 million well spent?

Effectiveness - results, outcomes - features in the the Terms of Reference for the Hawke review of the Freedom of information Act and related acts.

Efficiency is not mentioned.

However Dr Hawke was directed to consider “the role of fees and charges’ and “the desirability of minimising the regulatory and administrative burden including costs, on government agencies.” The Attorney General managed to turn that into this in her Media Release: 

"$41 million of taxpayer money was spent across the Federal Government in 2011-12 processing FOI requests.The review will consider how the Government’s FOI costs could be reduced, including the Information Commissioner’s recent recommendations regarding the current charging regime."

In my submission (now published with a few other new ones) I argued that it is clearly desirable to minimise costs and the administrative burden through efficiencies while seeking to achieve desired outcomes and results. 

Efficiency requires an assessment of how well systems and resources are utilised and applied in the implementation of the laws. 

We don't know much about this.

Dr Hawke should do some digging for information that would throw light on what resources are allocated to the information access function, whether agencies fully utilise available technology, what constitutes good practice and whether agencies apply such methods and practices.

The $41 million cost estimate for the FOI function in 2011-2012 included staff costs of $33.8 million, and $6.5 million in legal advice and litigation costs.

The averaged agency cost per request was $1876, up from $1799 the previous year and double the cost in 2007-2008.

It is unclear what gave rise to the increase. Or what agencies are doing to reduce costs.

Responding to requests for information is a cost of doing government business in a democratic society. The public has rights and cost should not be a significant barrier that stands in the way of exercise of those rights. 

The public also has a right to enjoy lowish costs as one of the dividends flowing from the hundreds of millions spent on improved information management systems within government over the years. In fact there should be another dividend- access to tools that assist in knowing more about what information government holds, to better inform requests from outside the loop.

The available evidence suggests some agencies are not operating optimally. 

The Auditor General for example has drawn attention to record management shortcomings over the years, shortcomings that must significantly impact on FOI administration.

The Cornall report on DIAC refers to aspects of poor process, leading to long delays and presumably high cost to the agency.

At the National Information Law Conference in Canberra in November the officer in charge of FOI at Foreign Affairs and Trade described the FOI unit as resembling a craft shop when he assumed responsibility, with officers utilising tape and pen to redact information by hand from documents prior to release. Software for this purpose had been utilised subsequently. How widespread “craft shop” practices are in FOI administration across government is unknown.

The degree to which ministers and public servants purposefully game the system, and the resulting effect and cost is also unknown.  And we don't know to what extent an abundance of caution in interpreting the law, delay in responding to requests, inadequate searches for relevant information and poor decisions based on the premise that the applicant is unlikely to challenge add to cost.

What this FOI matter cost the Department of Industry, Innovation, Science, Research and Tertiary Education is unclear but it is certain to be in next year’s cost statistics. It wasn’t brought on by the applicant’s behaviour.

A major efficiency issue is whether the right decision is made on an application the first time. Information about the extent to which original decisions are consistent with the law is limited and only comes to light in the event the matter receives later visibility through the review process.Most matters are settled before final decision-we don't know how many poor decisions show up. And many applicants may simply live with the results of a poor decision and walk away at that stage.

So in my submission, Dr Hawke should look into all this while considering “the role of fees and charges’ and “the desirability of minimising the regulatory and administrative burden including costs, on government agencies.” The Attorney General could of course have given him terms of reference that put efficiency much more clearly in the frame.

As to the future regarding charges Professor McMillan’s report is a good start to discussion.

However the proposed flat 40 hour cut off, without more, needs rethinking. The proposal is an attempt to put more certainty around the substantial and unreasonable diversion of resources provision that has been in the FOI act since it commenced. It's origin is a NSW ADT decision years ago that interpreted similar words in the NSW act to mean that anything that involved 40 hours processing time was getting into substantial diversion of resources territory. However it was not a strict rule and other factors, including the nature of the information sought needed to be considered.