The Attorney General's Appointments Diary: Tribunal rules his man mostly got it wrong

The first of three related posts.

Justice Jagot in Dreyfus and Attorney General (Commonwealth of Australia) [2015] AATA 995 overturned the decision by the Office of the Attorney General to refuse to process a Freedom of Information application for the Attorney General's appointments diary for the period 18 September 2013 to 12 May 2014. 

Justice Jagot ordered the office to process the application by Shadow Attorney General Mark Dreyfus after a finding that processing would not substantially and unreasonably interfere with the performance of the Minister's functions (Sections 24 and 24AA).
 
Justice Jagot was critical of and disagreed with the approach taken by the office in interpreting and applying the act's provisions on third party consultation, and the calculation of the estimated time involved in order to justify the 'substantial and unreasonable' claim:

76.... this is a case where my conclusion is ultimately based on the onus of proof. It has not been established that processing the request would substantially or unreasonably interfere with the performance of the Attorney-General’s functions having regard to the matters required to be considered in s 24AA(2) of the FOI Act.. 

The evidence before Justice Jagot was provided by Paul O'Sullivan the Attorney General's Chief of Staff, a former DFAT official, High Commissioner to New Zealand and head of ASIO. O'Sullivan is the delegated FOI decision maker in the Attorney General's office.

O'Sullivan had estimated 228-630 hours would be required to process the application including between 130 and 526 hours in consulting persons whose names appeared in the record. 

Justice Jagot ruled most of the consultations were not required by the act and found O'Sullivan's time estimates for other tasks associated with processing the application "unpersuasive", 'generous" and involved "duplication." [74]
  
Justice Jagot said the approach taken by O'Sullivan to the task would defeat the objects of the FOI act, including not only the right of access granted by it but also the express intention of the Parliament that functions and powers are to be performed and exercised, as far as possible, to facilitate and promote public access to information, promptly and at the lowest reasonable cost.

15. Because the process of reasoning involves a hypothetical situation the Minister’s or agency’s assessment will necessarily be based on estimates about which, I accept, reasonable minds might differ. It is fundamental, however, that the process of estimation reflects the requirements of the FOI Act. If, for example, the resources that would have to be used are estimated on the basis of requirements for consultation when the FOI Act does not require consultation, then the capacity to decide if a practical refusal reason exists would be able to be used to defeat the objects of the FOI Act, including not only the right of access granted by the Act but also the express intention of the Parliament that functions and powers given by the Act are to be performed and exercised, as far as possible, to facilitate and promote public access to information, promptly and at the lowest reasonable cost. The same thwarting of the statutory objects and the intention of Parliament would result if, for example, the estimate was based on an expectation that examining the documents would require a detailed and time-consuming exercise of going behind the face of the documents to try to ascertain if any exemption might apply when, on any reasonable view, no exemption could be engaged.

Consultation not required
Justice Jagot rejected O'Sullivan's evidence concerning security risks and the need to consult with bodies such as the Australian Federal Police, State and Territory police or intelligence agencies [34-39]; and rejected his assertion that where the name of business representatives or individuals appear in the diary it would "be necessary in every case to go behind the entry and examine associated documents and undertake a complex process of working out whether, by the disclosure of some pattern or mosaic, the disclosure of the information might unreasonably disclose personal or business information of the relevant kind such as to require consultation with the person concerned.' [40].

Importantly, Justice Jagot said it is not necessary to go behind the face of an entry in the diary of a planned meeting with a business representative in order to try to find if there is any reason which might found a reason to consult [44, 45-48].

The names of public servants disclosed as scheduled to attend meetings was not the basis for a claim that the personal privacy exemption could apply [50] therefore not triggering consultation requirements.

Entries in the diary about cabinet meetings [54-57] and a meeting with the Prime Minister's Office [60] were among examples raised in a sample provided in evidence. Justice Jagot said they did not raise consultation or exemption issues.

Correct approach 
Justice Jagot said the obligation to consult prior to disclosure of information concerning  business affairs of a third party was necessary only if the decision maker concluded that the third party "might reasonably wish to make an exemption contention." The test is not whether it appears that a person might wish to make an exemption contention but the identification of "some rational basis which the agency or Minister can discern indicating that disclosure of the document would, or could be expected to, unreasonably affect such a person adversely" in respect of his or her lawful business or professional affairs (etc) [41-42].

Where names of individuals appeared, similar considerations applied:

49,Where an entry in the diary discloses the name of a person who was scheduled to meet the Attorney-General within the period of the requests and nothing more, I am unable to accept that in the ordinary course disclosure of that fact would or even could “involve the unreasonable disclosure of personal information about any person”. As such, I am unable to see a rational basis upon which it could appear that every one of these person(s) might reasonably wish to make an exemption contention. As above, I do not accept that the decision-maker is obliged to search for something not apparent on the face of the document or not otherwise known. If there is nothing apparent on the face of the document and nothing otherwise known to the decision-maker then it cannot appear to the decision maker that a person might reasonably wish to make an exemption contention. The mere appearance of a person’s name in the diary, in my view, is insufficient for it to be apparent on the face of the document that a person might reasonably wish to make an exemption contention. Where, however, something more is disclosed such as the purpose of the meeting or there is some known sensitivity I accept that further consideration or even consultation under s 27A might be required because the view might be reached that such a person might reasonably wish to make an exemption contention. Again, however, my review of the diary extracts indicates that this will be a rare case....

52. Because it is fundamental to the proper administration of the FOI Act, I should reiterate my view that I consider that it would be wrong to approach the required task on the basis that: (i) some people might be sensitive to or concerned about the fact that they have met a Minister in the Minister’s official capacity or that such people might prefer, even strongly prefer, that the fact of their meeting not be disclosed; or (ii) the decision-maker is subject to some obligation to search for material not known or otherwise apparent from the face of the document to which access is sought to try to find some basis for it to appear that a person might reasonably wish to make an exemption contention. There is no foundation in the FOI Act to perform the functions which it requires with a view to such sensitivities. To administer the FOI Act on some other basis would work against the intention of the Parliament. It would elevate personal sensitivities which on a rational view could not involve an unreasonable disclosure of personal information about any person into something that an agency or Minister would have to assess, thereby running the risk (as in the present case) that the agency or Minister perceives that an extraordinary amount of time and effort would be involved in processing the FOI request. By such means, if permitted, the intentions of the Parliament as identified in s 3 would be thwarted.
53. I should also reiterate the relevance to my conclusions in the present case of the fact that the diary extracts in evidence seem to me to consist, in the main, of a series of brief and anodyne entries relating to appointments and work arrangements of the Attorney-General now more than 18 months old. While an underlying issue which was discussed at a meeting might be ongoing, the entries in the diary merely describe who was to be met, not the contents of the meeting, and are now essentially historical.

 Incorrect estimates
O'Sullivan's estimate of the time involved was "calculated on an incorrect basis. While some consultation might be required because of the personal privacy and business documents exemptions "it has not been proved that anything like 130 - 526 hours might be involved. I consider it likely that any consultation required by the FOI Act will be very many orders of magnitude less than has been proposed."[51]. 


No substantial and unreasonable interference with AG"s performance of functions.
 As to the work involved:

75.... I do not accept that this is capable of involving a substantial and unreasonable interference with the performance of the Attorney-General’s functions. The fact that only one person in the Attorney-General’s Office can perform this function because this person is the only one with the relevant software available (as Mr O’Sullivan indicated) and that the task of deletion involves a number of steps is not particularly material to the performance of the Attorney-General’s functions unless, perhaps, the person doing the deletions is the Attorney-General himself or a senior member of staff, neither of which was suggested to be the case...
77.To the extent I am able to make findings about what work will be likely to be involved I do not consider that work will substantially interfere with the performance of the Attorney-General’s functions. I accept that the work itself will not be trivial or insignificant, but that does not mean that such work is likely to involve a substantial interference with the performance of the Attorney-General’s functions. Nor do I accept that any interference as there might be will be unreasonable. Against this, at the level of principle, I consider that there is a significant public interest in knowing the outline of the daily activities of elected representatives, particularly a senior Minister in charge of such an important portfolio as the Attorney-General. I accept the applicant’s submission that to the extent there is any interference with the Attorney-General performing his functions (which, in my view, has not been proved), the interference would be reasonable having regard to several factors, being:

i) There is considerable public interest in the release of the Attorney’s diary;
ii) No steps have been taken to make the diary public; and

3. The actual diversion of resources involved in responding to the request should be minimal.

78. For these reasons I consider that the decision communicated to the applicant by letter dated 13 June 2014 that a practical refusal reason exists because the work involved in processing the request(s) would substantially and unreasonably interfere with the performance of the Attorney-General’s functions should be set aside and, in lieu thereof, I decide that no practical refusal reason under s 24 of the FOI Act exists in relation to the request(s), with the consequence that the request(s) are required to be processed in accordance with the FOI Act.

Next steps?
It is uncertain whether the Attorney General will appeal the decision, and if not what will be released when the application is processed. 

Justice Jagot's comments about the " significant public interest in knowing the outline of the daily activities of elected representatives, particularly a senior Minister in charge of such an important portfolio as the Attorney-General" provides an interesting backdrop.

Two posts on related matters here and here. 

Government senators claim strong FOI record-don't mention the bill to abolish the Australian Information Commissioner

Debate in the Senate on Senator Ludwig's Private Member's Bill the Freedom of Information Amendment (Requests and Reasons) Bill 2015 resumed for an hour last Thursday and the bill is in the list again for 3 December. 

Speakers didn't add much to what was said in June, except that Senator Xenophon was the first cross bencher to speak in support. 

Government senators spoke in opposition to the bill so it won't get far in the House even if Labor, The Greens and six of eight cross benchers manage to get it through the Senate. 

Senator Seselja and Liberal and National Party speakers rolled out this sort of stuff before getting into the detail

I, along with the coalition government, support the Freedom of Information Act and support transparency in government. It is one of our country's greatest strengths that we ensure the decisions of government are put under scrutiny and, where possible, are out in the open. This government has a strong record over the last two years of making the small improvements to regulations and legislation necessary to make the operations of government simpler and more transparent

"Strong record", "small improvements", "regulations and legislation" ???? I'm struggling to remember chapter and verse.

None mentioned or sought to explain how the bill to abolish the Office of Australian Information Commissioner and the squeeze on funding while it sits (14 months and counting) in the Senate list squares with these fine sentiments.

Labor speakers and Senator Xenophon didn't miss the opportunity.

While government speakers could have used it to support their claim of serious intent regarding  transparency and accountability, word obviously hadn't reached them that the Department of Prime Minister and Cabinet had announced Australia had recommitted to the Open Government Partnership. 

Senator Xenophon was in the dark as well urging the government:

To be a truly consultative and open government, as the Prime Minister said—and I take him at his word about his desire to do so—embrace the OGP; embrace reform to the FOI laws, such as the bill that Senator Ludwig has put up, which I think will lead to greater transparency and greater efficiency in FOI; and ensure there is appropriate funding for the Office of the Australian Information Commissioner.

The bill would require government agencies and Ministers to publish online the exact wording of freedom of information requests and the statement of reasons for the decision to allow or refuse release, and require information in released documents to be available for downloading from the web, a tightening of the current situation.
   
Attorney General Brandis is yet to speak, but if he gets to his feet to argue against the bill this week before the Senate adjourns for the year, an announcement that the government will pull the plug on the Freedom of Information Amendment (New Arrangements) Bill would soften some of the criticism of that claimed strong FOI record.

ACT FOI bill best of breed by far but will it fly?

Markus Mannheim in The Canberra Times recently drew attention to the Freedom of Information bill drafted by Shane Rattenbury, the sole Greens MLA in the ACT Labor-led government. 

Mannheim was right to suggest passage of the bill would make the territory the most transparent jurisdiction in Australia. The bill in its current form is not available and is still subject to negotiation with the Labor Party, but Mr Rattenbury tweeted that it is the draft tabled for consultation over 18 months ago with a few changes.

See my comments in February 2014 with a link to the bill as it stood at that time.

Now years in the making, can the bill get across the line?

 @smbounds @MarkusMannheim Exposure draft on ACT Leg Reg at https://t.co/qaLhHh0fey Few changes since but basically same.

— Shane Rattenbury (@ShaneRattenbury) October 27, 2015

The Saturday Paper: Plan to abolish OAIC part of bigger secrecy picture.

Sophie Morris links the plan to abolish the Office of Australian Information Commissioner with other developments in Abbott weakens FOI and public service disclosure  

Extracts 

The weakening of the freedom of information regime has occurred without fanfare, eroding an important mechanism for holding governments accountable and safeguarding against abuse of power and wrong decisions.

The government announced in the budget last year that it planned to wind up the OAIC. Ostensibly, this was a savings measure, worth about $10 million over four years, but it was also a ploy to limit FOI requests and appeals.

When it was clear the senate would baulk at passing the legislation, which Labor and the Greens argue will reduce oversight of government actions, McMillan was left in limbo, limping along on rationed resources.

His Canberra office, where 25 staff used to work, closed in December. His departure will further weaken the office, which opened in 2010. A year earlier Labor’s special minister of state, John Faulkner, said: “These reforms will change the law, but they will also demonstrate the government’s commitment to culture change, to a shift from a culture of secrecy ... to one of openness and transparency.”

FOI laws had existed since 1982, but the Faulkner reforms were the first attempt to make them really work. Faulkner pursued his reforms despite resistance from within the then Labor government and the public service.

His aspiration was at least partially achieved. The biggest sign of change was in 2010, when departments published, in response to FOI requests, the briefings they had prepared for the incoming government, providing information about the policy challenges ahead. After the Coalition came to power at the 2013 election, requests for these documents were denied, in an early sign of the tide turning against transparency. Under legislation prepared by the Abbott government, Attorney-General George Brandis and his department will take over some of the FOI functions and appeals will again be sent to the Administrative Appeals Tribunal, attracting an $860 filing fee, which will deter many applicants.

Timmins says the public service culture has already shifted back in favour of non-disclosure.“I think there’s been a fair bit of gaming of the system on FOI,” he says. “With the OAIC thought to be on death row, agencies have worked on the basis in some cases, I think, that if you knock back a [FOI] request, you won’t have to worry too much about someone taking you on. These days, there’s no great incentive to make a correct and proper decision.”

Senior bureaucrats have also mounted the case for a further weakening of FOI laws. Most notable were the comments from John Lloyd, the new public service commissioner, who set the tone for the rest of the bureaucracy in his first public speech in March.

 “FOI laws are very pernicious,’’ said Lloyd, whose past roles include serving on the Australian Building and Construction Commission, the Australian Industrial Relations Commission and as director of workplace relations and productivity at the Institute of Public Affairs.

“I think they [FOI laws] have gone beyond perhaps what they intended to do, and I think they do make us a bit over-cautious and make some of the advice more circumspect than it should be, and I hope the government will address that and perhaps reassess the extent of some of those FOI laws.”

Brandis’s office did not respond to inquiries about whether anyone would be appointed to replace McMillan or whether he agreed with Lloyd’s description of the FOI regime.

 

Estimates a missed opportunity to quiz public service leader on 'FOI very pernicious' remark

Senate Estimates run for hours, days, weeks with some penetrating questions and plenty of banal ones as well. Unfortunately important questions often get crowded out or for other reasons never get asked.

For example Estimates for Department of Prime Minister and Cabinet last week included one hour of questioning (Transcript 122-134) of Australian Public Service Commissioner John Lloyd.

Senator Ludwig showed particular interest in the commissioner's speeches.

The commissioner said he had given many speeches since assuming office but didn't think any had been posted on the web as he tended to speak off the cuff.

When Senator Ludwig asked 

"Were the comments that were made to the public servants at the National Portrait Gallery on 11 March an off-the-cuff speech?" 

I thought, terrific, the senator is onto Mr Lloyd about his reported remark on that occasion that Freedom of Information laws are "very pernicious," to which he added

"I think they have gone beyond perhaps what they intended to do and I think they do make us a bit over cautious and make some of the advice more circumspect than it should be, and I hope the government will address that and perhaps reassess the extent of some of those FOI laws.”

At the time Senator Ludwig said

"It's unbelievable that the head of the Commonwealth public service would call the FOI laws 'pernicious' – he either has no understanding of the importance of FOI laws in a modern and transparent democracy or he is trying to undermine the legislation with his comments."..
"FOI laws simply provide a window into the decisions and process of government. If the Public Service Commissioner has confidence in the professionalism and integrity of public service staff, then he has nothing to fear from FOI laws."

Mr Lloyd responded to the question explaining it "was a speech where I had notes and I spoke. I was asked questions at the end of the speech and I responded to questions. It was a typical session. I think it was an IPAA speech. The Institute of Public Administration of Australia was the organiser of the speech."

Go Senator Ludwig, I'm thinking, follow on with
Were your remarks about FOI laws accurately reported? 
What did you mean by "very pernicious?" 
What was the basis for the claim?
In what way has the law gone beyond what was intended?
Have you raised the issue with Minister for the Public Service Abetz?"
What action do you suggest is needed?
Have your views changed since you took up your position after working at the Institute of Public Affairs where your then colleague now Human Rights Commissioner Tim Wilson made 750 FOI applications to one agency in a four month period including 440 on one day? 
(I could go on......)

Alas, not even close.

No questions for the commissioner from Senator Ludwig or anyone else moved beyond the two topics the senator pursued, Lloyd's remarks regarding 'hangover' day sickies, and leaks about military pay offers.

Until corrected 'tone at the top' set by the commissioner on integrity and transparency is that FOI is "very pernicious," that is "extremely harmful, damaging, detrimental, deleterious."

Victoria to rebrand FOI commissioner and extend powers.

In its first budget the Andrews government in Victoria transfers privacy regulation and the Freedom of Information Commissioner from Justice to the Premier's portfolio to be part of the Department of Premier and Cabinet Public Sector Integrity output. 

Special Minister of State Gavin Jennings in a Media Statement said

"The Budget also contains $15.9 million to establish and administer the Office of the Public Access Counsellor, which will support Victorians’ rights to access vital Government information previously hidden from view. The new, independent Office will maintain all existing powers of the Freedom Of Information Commissioner, and will gain the authority to review Departmental and Ministerial decisions, including those on the grounds of Cabinet-in-Confidence."

That $15.9 million is $16 million on page 92 of Budget Paper 3 and of course it's spread over four years.

The Counsellor will also set FOI professional standards currently set by the Attorney General.

Legislation will be necesssary to create the Office and confer powers. 

The Freedom of Information Commissioner's modest output measures are on page 309 of BP 3.

Here's what Labor said about this before last year's election “LABOR’S FOI CHANGES TO END NAPTHINE’S SECRET STATE”

The title 'Public Access Counsellor' is new here -  Illinois has the only one I could find.
Maybe someone's study tour included Chicago?

A comprehensive review of the Victorian FOI act - which shows all the signs of 1983 thinking - should be on the list of priorities but yet to hear anything along those lines.

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.

What goes in Canberra on the OGP?

In an attempt to find out what is happening behind the stony wall around consideration of Open Government Partnership issues and the draft national action plan that Attorney General Brandis said in Senate estimates is "in development" I sent the following request to Attorney General's Department today. 

You can follow the bouncing ball at Rightoknow:

Dear Attorney-General's Department,

I am seeking access to the record of each of the inter agency meetings on the Open Government Partnership held on 17 July 2013, 29 October 2013, and 5 November 2013, dates meetings were held as indicated by Senator Brandis in Senate estimates, and of any subsequent  inter agency meeting or meetings.

Please treat this request for specific documents as an administrative access request of the kind suggested in guidance from the Office Of Australian Information Commissioner.

If you are unable to deal with the request in that way please treat
it as an application under the Freedom of Information Act.

If this proves necessary I seek waiver of any charges on public interest grounds, noting the announcement of the decision of intention to join the OGP in May 2013, the limited public references to the initiative in the period since, the potential for transparency and scrutiny to encourage efficient public administration, and if access is granted, the contribution disclosure of the records would make to informed public discussion about the way Australian democratic practices could be improved.

My address for the service of notices is this email address.

Thank you in anticipation.

Peter Timmins.

By the way anyone on the outside interested in the OGP who isn't on our invitation only Google List that encourages dialogue about the issue please contact me at peter.timmins1@gmail.com

FOI -15 months from start to finish

Two points from this recent decision Combined Pensioners and Superannuants Association of NSW Inc v Deputy Prime Minister and Treasurer [2013] AICmr 70 (3 September 2013) by Freedom of Information Commissioner Dr Popple:
 One, patience is a virtue, and for determined applicants prepared to do the time, 12 months in the review queue at the Office of Australian Information Commissioner can be worth the wait they shouldn't have to endure.
Two, and the time has surely come for the public service to discard the old chestnut that disclosure of analysis and options for consideration after decisons have been made will inhibit public servants doing their job in future.

At issue was a brief, apparently prepared by the Treasury, titled ‘Government run aged care home credit scheme’. The brief provides an overview of the scheme proposed in a Productivity Commission report, including information about its scope and delivery as well as a discussion of possible risks and benefits. It was prepared for the purpose of briefing a small group of Ministers about the proposed scheme, presumably during the finalisation of the Government’s response to the report. The subsequent published Government response to the report rejected the PC recommendation for such a scheme but did not provide reasons.

The Office of the Treasurer claimed that disclosure of the document would be contrary to the public interest because it would be ‘likely to inhibit the full canvassing of issues and options in the development of Cabinet material’. The Office also said that ‘there is a strong public interest in maintaining a confidential relationship between Ministers and agencies so as to allow agencies and Ministers the scope to explore and develop appropriate policy responses in relation to significant and sensitive policy issues’.

Dr Popple [17-20] 

• agreed on the importance of some confidential thinking space - when policy is being developed, 

• didn't regard the brief as in any way sensitive, 

• described it as is an objective, professional analysis of the proposal that discusses options, but does not favour one option over another, 

• listed a number of public interest factors that favour disclosure including promote the objects of the FOI act; inform the community of the Government’s operations; reveal further reasons for a government decision and background or contextual information that informed that decision; and enhance the scrutiny of government decision making. And did not identify any public interest factors against disclosure.

So the brief is to be released 15 months after the FOI application was lodged with the Treasurer in June 2012. 

Time and taxpayer money spent arguing a legitimate concern, or gaming the system?  You be the judge.

Calling "damage to international relations", with mixed results

Agencies other than Foreign Affairs and Trade get to try their hand from time to time at Section 33 of the Freedom of Information Act and whether disclosure would, or could reasonably be expected to, cause damage to the international relations of the Commonwealth. With contrasting results as seen in two recent review decisions by the Office of Australian Information Commissioner. The Australian Broadcasting Corporation, in the unusual position of being against disclosure, unsuccessfully argued that damage would result from release of information about a Solomon Islands media assistance project it manages for AusAID. The Bureau of Meteorology on the other hand provided enough evidence to convince the Acting Freedom of Information Commissioner to affirm its decision to refuse access to documents concerning a peer review undertaken of a NZ government research agency report on temperature changes.

Ministers and "engagement" in the FOI process

The release of guidelines in Queensland about reporting to and briefing the minister and senior officials on information access applications sets a new standard in transparency about such things.

In all jurisdictions these aspects of the Freedom of information /Right to information process aren't discernible to those on the outside generally, or in a particular instance.

However recent glimpses of what happens or may happen in two major Federal agencies, Prime Minister and Cabinet and Immigration, raise questions about the extent to which senior officer and ministerial involvement and influence could be, or is brought to bear on the decision maker. Both would likely fail to meet the Queensland standard. 

The PM&C FOI Milestones document recently released to a Righttoknow FOI applicant Mr G King, outlines procedural steps that ensure many eyes are looking for "sensitivities" in requested documents and that the Prime Minister's Office and the Secretary of the Department have plenty of opportunity to comment before a final decision is taken.

With offence provisions in the law to reinforce independent decision making (replicated in NSW and Tasmania) now supported by guidelines regarding ministerial and senior officer engagement in the process, Queensland is well ahead of the rest. The Commonwealth lags on both fronts. (Dr Hawke?)

FOI Classic: 'voluminous and complex' request turns up single document

The document contains one sentence of relevant information that was already in the public domain.

The agency had assured several times that it would make a 'quality decision' on my freedom of information application. At least it delivered on that, releasing the sentence in full.

Based on my 30 years experience, the Department of Foreign Affairs and Trade in this case is in the gold star class for bureaucratic, time wasting, costly administration of the FOI act. On this basis no wonder FOI costs $41 million, Dr Hawke.

The application to DFAT was as simple and straightforward as I could make it: the most recent assessment of the pros and cons of Australia joining the Open Government Partnership, limited if they couldn't handle that easily, to anything relevant received or created since 1 October.

Two and half months later, following one consent to extra time, two extensions granted by the OAIC because the application was "complex and voluminous", and because the department said another agency needed to be consulted, DFAT found one document that mentions the Open Government Partnership, and apparently nothing relevant to what was requested.

The document is a message from the Australian Embassy in Washington about release of the Publish What You Fund Aid Transparency Index that includes a sentence that the report "recommends Australia consider joining the Open Government Partnership."
(By the by, anyone in DFAT or AUSAID reading Open and Shut (in my dreams) last October would have known this two days before Washington reported on the subject.)

If we can believe DFAT made a thorough search, by 18 November, the date of my application, not another fact, thought, advice or opinion had been committed to paper across the entire fudge factory on the substantive issue of the case for Australian membership of the OGP.

In November in response to a separate request the Attorney General's  Department had released an assessment of the pros and cons of Australian membership submitted to the Attorney General in May 2012. The only negative identified at that time was potential overlap between the OGP and other international initiatives. That was a misreading of the unique government-civil society nature of the OGP, and in any event something that hadn't stopped 46 countries joining up. The Attorney General responded at the time to the brief  suggesting a letter to other ministers proposing we join.

What happened thereafter hasn't emerged, but DFAT certainly wasn't stirred into action. Nor the Minister's office either. I wrote to the Minister (via his aph email) on 20 October suggesting he ask the Department for a briefing on the OGP after having offered a few thoughts why Australia should join on foreign policy and other grounds. Apparently not a scrap of such a paper exists, so presumably he didn't and the department didn't think he needed to know anything about the OGP either.

The DFAT FOI case study, recounted in detail below also shows the Office of Australian Information Commissioner was easily hoodwinked into granting more time on the basis the request was not one or the other, as s15AB allows, but as DFAT submitted, both complex and voluminous. Twice.

DFAT's claim that another agency, AUSAID, needed to be consulted about something as innocuous as this is also spurious.

Remembering my experience with DFAT in 2011 when publicly available information was initially withheld for reasons akin to "the end of the world as we know it", either I'm just having a bad run or what goes at DFAT as normal FOI needs a serious close look.

The 2011 episode suggested a culture of excessive secrecy and an abundance of caution. That also comes through in DFAT's submission to the Hawke review- more on that another time. 

This latest, even being generous about the impact on available staff of the annual Christmas/ New Year flight from Canberra, suggests a bureaucracy that prefers to fire off letters from the precedent box rather than taking steps to respond helpfully, fully and promptly in accordance with the spirit and intent of the act. How much of the unnecessary time spent on this ends up charged to the cost of administering FOI should be interesting, if it can be unearthed.

Given that the OAIC has issued over 4000 approvals for extra time you also have to wonder what serious consideration is being given to agency applications there before they reach for the "Granted" stamp.

In this case the agency reasons all along sounded like poppycock to me.

For those seriously interested in the tortuous path to nothing much at all.....

Memory lane and present and future challenges feature at FOI anniversary

The 30 year Anniversary event organised by the Office of Australian Information Commissioner in Canberra yesterday was an interesting walk down memory lane, and a look at today and the future.  

Commissioner Professor McMillan can take you back to his pre-FOI activist days, Dr David Solomon found FOI in his in-tray while working for Prime Minister Whitlam, AGS CEO Ian Govey's first job in AGD was with the task force developing legislation, and Alan Rose was a member of that group while at PM&C, and later president of the ALRC at the time of the Open Government report in the mid nineties.

(While on memory lane I was at the Australian Embassy in Washington from 1973 to 1976 when US experience with FOI, pre and post Watergate, was something Canberra wanted to know more about as it wrestled with the unknown beast.)

Alan Rose said the culture change recognised as necessary since 1982 is still to arrive.
He evidenced this with a number of examples of personal experience and drew attention to   the refusal of access to plans claimed to justify a grant to a car manufacturer, and what was put to the government by lobbyists. Rose emphasised that the object advanced in the 1995 ALRC report that government information is a national resource must be taken seriously. Census material for example. More creative minds could do more with it. Real time access was essential. The closed period for government information should be reduced to something like five years to let our Bill Gates and Steve Jobs see what they could do to fully utilise government information for the benefit of all.

FOI Commissioner Dr Popple gave a generally positive account of how things are working-access was easier and cheaper, most agencies were doing reasonably well and "people are generally aware of their rights." (It turns out this is a "feeling" not based on anything more that frequent references in the media-I don't think government has done anything on the demand side for yonks.) However issues concerning delay and the OAIC model both require attention. The OAIC has received 4194 applications from agencies for extension of time, and 285 complaints and 872 review applications, all far in excess of what was anticipated.

Former Queensland Information Commissioner Julie Kinross provided a global perspective, noting in particular the rights focus clearly driving developments elsewhere, but barely heard here, and other forces at work promoting transparency including anti-corruption, environmental concerns, accountability and development assistance, and technology. Kinross highlighted the absence of any regional Asia Pacific right to information activity of the kind obvious in Europe, Latin America and other regions. Australia was well placed to play a role in this. (Why was I thinking about the OGP at this stage?)

Professor McMillan spoke of the broadening information agenda and the need for a new open government policy framework. Roxanne Missingham, the former Parliamentary Librarian now in a similar position at ANU provided reasons for some urgency in this citing the dramatic decline in government publications listed in the National Bibliographic Database, and the limited retention of history (including government policy documents over time) on the National Library's Pandora system. She gave a spirited account of why leaving agencies to their own devices in this area was a grave error. And gave short shrift to copyright laws created in another era that are holding us back.

As to me, I had 10 minutes for Leading Cases?

Stephanie Forgie and Michael McKinnon should know I was only joking.

My notes, should you be interested-and it's not a list of leading cases.