Reviews of open government laws largely conducted behind closed doors are no exemplar for public engagement

Clearly some who walk the corridors of power think all wisdom resides within.

NSW is a classic case, where a statutory review of legislation disappeared from public view in August 2014 and hasn't been heard of since. More below.

Then there's the Hawke statutory review of the Commonwealth Freedom of Information and Information Commissioner acts in 2012-13 that involved very limited public engagement beyond invited submissions and led to a report in early 2013 that has not been the subject of policy discussion in the public domain since. The one Abbott government FOI initiative, the (ongoing) attempt to legislate to abolish the Office of Australian Information Commissioner was not supported by anything in the review report, on the contrary Hawke concluding the office was doing a good job. That initiative wasn't discussed beforehand outside government and only with a few inside, with no apparent search for options and better answers to whatever problem (allegedly complexity of review processes and cost) the government was considering.
  
Queensland commenced a statutory review of the Right to Information Act and the Information Privacy Act in August 2013 with the issue of a Discussion Paper. Submissions closed in November 2013 but silence (and a change of government) since.

In Victoria where the corridors echoed as the new government arrived with 'Labor will end this secret state and open our doors to the public, because we all deserve to know the details that affect our lives' and 'Under Labor's changes, no future government will ever be able to keep a crisis secret. No more hiding, no more excuses.' This was followed by the 2015-16 Budget  commitment of $4 million this year for the creation (rebranding the FOI Commissioner and then some) and operation of the Office of the Public Access Counsellor. Victoria has had an Acting Freedom of information Commissioner since September 2015. No one including Special Minister of State Jennings has mentioned a much needed review of antiquated Victorian FOI legislation that reflects the best thinking of 1983 but the last mention of "Public Access Counsellor" in the Parliament was in August 2015 when the minister said work had commenced on the necessary legislation. Maybe interested parties have been engaged in this exercise but there's nothing about it in the public domain. 

The Victorian Parliament's Accountability and Oversight Committee Report in December 2015 also made a raft of recommendations which do not appear to have been acted upon or discussed publicly including strengthening powers of the FOI commissioner to obtain documents and boost public and agency engagement; early action on FOI requests by agencies; improving reporting by the FOI commissioner on outcomes achieved; providing people with clearer guidance when appealing FOI decisions of agencies directly to the Victorian Civil and Administrative Tribunal; and supporting the release of information that is the subject of frequent FOI requests, which are likely to be routinely granted.

But back to NSW.

Sean Nichols in the Sydney Morning Herald reminds of the great promise of reforms to the  NSW Government Information (Public Access) Act when introduced in 2009 and the statutory review of the act and the companion Government Information (Information Commissioner) Act required to commence within five years. The reviews are to ascertain whether the objects remain valid and whether the terms of the acts remain appropriate for securing these objectives.

The reviews kicked off with a notice inviting submissions by August 2014 so there was some stirring at the time in the Department of Justice. 

It is still listed on the Justice website as a Current review, confirmed by the Information Commissioner who in her 2014-15 Annual Report on the operation of the GIPA act refers to

"the current statutory review (providing an opportunity) to identify the aspects of the statute that are effective and aspects that could be improved. Significantly, IPC submissions have highlighted the interaction of the GIPA Act with other NSW law including the Public Interest Disclosures Act 1994…."

The report continues

"Public participation is integral to Open Government and the GIPA Act provides mechanisms to support citizen participation and engagement with agencies. Under the GIPA Act, the Information Commissioner has powers to support NSW citizens’ participation in the development of policies and service delivery by government. The IPC will collaborate with NSW citizens and agencies to promote public participation and assist agencies in achieving success in their engagement with NSW citizens." 

The review of the GIPA act was the opportunity to showcase public participation in the development of policy concerning open transparent government and in improving access to information as a government service.

But alas public participation was limited to a brief opportunity to lodge a submission by 29 August 2014. 

No issues paper, no discussion paper, no survey of users of the act, no forum for discussion and debate of issues raised in submissions, and no testing and building on ideas. 

Submissions haven't been published to date even those lodged by the Information Commissioner referred to in her report. (My humble contribution here. I didn't receive an acknowledgement let alone a take up on the offer to discuss.)

Sean Nicholls says Premier Mike Baird has a "big chance to prove he really is committed to open government" by plucking the review out of the black hole and getting rid of current nonsense such as the practice still common of requiring FOI applications to be sent by mail accompanied by a cheque or Money Order. (No kidding, and there are plenty more improvements that should be in the frame.)

I'm hoping when something surfaces from Justice that the Premier and his ministers aren't of the 'all wisdom resides' school.

Eva Rinaldi from Sydney

Update:  Justice plowing on, and on and on.....
From a NSW Parliamentary Committee hearing of the Information and Privacy Commission 3 March 2016

Mr PAUL LYNCH: There is meant to have been a review of the Government Information (Public Access) Act, due in 2014.I do not suppose you have any idea what has happened to it?
Ms TYDD: We are in regular contact with the department in relation to the progress of that statutory review. It is a meaningful review from the standpoint of the IPC. We have taken the opportunity to ensure that we provide submissions to that review and the department has continued to accept them.
 The opportunity that has presented itself at office level and direct to that statutory review is also informed by the statutory reports and this year's section 37 report makes specific mention of some of the considerations that could be taken into account in conducting that review. We certainly remain available and supportive of progress in that regard.
Mr PAUL LYNCH: Has anyone given you the slightest
hint about when it will be completed?
Ms TYDD: No, I do not know when it will be completed.

Queensland information Commissioner

I didn't see any media release but a reader noticed the First Assistant Information Commissioner has been appointed Information Commissioner in Queensland:

Rachael Rangihaeata has "extensive experience and expertise to the position having held senior leadership positions across all functions of the Office of the Information Commissioner since 2005, including Acting Information Commissioner.  Rachael led the OIC Implementation team responsible for establishing new OIC functions and providing extensive information and training resources for public sector agencies when the Right to Information Act 2009 and the Information Privacy Act 2009 were introduced. Rachael has also worked in various roles within the Queensland State and Commonwealth public service, primarily in strategic and legislative policy. Prior to her appointment Rachael held the position of First Assistant Information Commissioner since 2006, and most recently led the Assistance and Monitoring functions of the Office.

It took 13 months to fill the position. 

Best wishes to the commissioner and Queenslanders all.

Blue book 2010 decision likely to be compulsory reading for FOI decison makers

In making some observations yesterday about incoming minister briefs - the Blue books - I was oblivious of the Freedom of Information review decision two weeks ago by Australian Information Commissioner Professor John McMillan, Crowe and Department of the Treasury [2013] AICmr 69 (29 August 2013). Thanks to a reader for the heads up.

The document in question in this case consisted of some pages from the Blue book prepared by Treasury in 2010 for an incoming Coalition government following that year's election, an eventuality that never happened. 

Contrary to usual Treasury practice of destroying (!) such a document immediately after the election, copies were kept through the period of uncertainty leading to the formation of the Gillard government by which time another applicant had lodged an application and the matter was in the AAT when Mr Crowe applied. Treasury settled with the applicant in the AAT by providing a redacted copy, but not the pages sought in this case.

(Of some relevance to the present, Professor McMillan makes passing reference to the fact that back in 2010 "the Treasury noted the strong views of the Leader of the Opposition, the Hon Tony Abbott MP, that the release of incoming government briefs would contravene the Westminster conventions." Interesting times.)

In the matter before him Professor McMillan affirmed the decision to refuse access on the basis that the pages are conditionally exempt under s 47C (deliberative process) and disclosure would on balance be contrary to the public interest.

The special circumstances of the case are highly relevant to the decision. Professor McMillan avoids pre-judging any issue that might arise in connection with refusal of access to September 2013 incoming minister briefs, although in a first, he acknowledges that a class claim can be raised and considered under s 47C [45].

The decision also contains plenty of ammunition for those who might now or soon be casting around for reasons to block applications likely to be forthcoming for these briefs: the summary of Treasury's submissions [13-28]; consideration of broader issues [33 -72]; discussion of the deliberative process and operation of agency exemptions and the associated public interest factors [73-96] that includes some heartening news for 'frank and candid' fans [46-59]; and of less immediate relevance, the law in Queensland which provides a 10 year exemption and the submission from Professor McMillan and the Freedom of Information Commissioner to the Hawke review, and reflected in the report, that a similar approach be taken in the Commonwealth [97-101].

Agencies are likely to cherry pick from the decision reasons to claim exemption in 2013 for departmental commentary and advice on the incoming government's policies and priorities, and on implementation issues, opportunities and challenges.

But there is less here to help those arguing exemption for information about structure and functions of a department, key personnel, facts and statistics, and upcoming events. In addition the public interest factors for disclosure in order to inform discussion and debate  are arguably strong where the information concerns the state of the nation or slices of it, relevant national and international trends, work underway in the department and the challenges facing the government. 

On the separate issue of delay raised in another post yesterday  Mr Crowe's FOI application was lodged with Treasury in December 2010 and has been before the OAIC since January 2011. While this case involves complex questions, this is not speedy access to independent external review.