'Yes Minister' proves handy in Senate estimates

There are always lots of Yes Minister moments during Senate estimates hearings and they were there by the bucketload yesterday in Attorney General estimates.

This from the Yes Minister files:

'What's the difference between "under consideration" and "under active consideration"?' I asked. '"Under consideration" means we've lost the file. "Under active consideration" means we're trying to find it!'"

From yesterday (emphasis added)-Senator Singh ALP Tasmania, Mr Wilkins Secretary AGD, Senator Brandis Attorney General:

Senator SINGH: I am interested in the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions. I understand that it released its latest assessment (on Australia) in October 2012, which included a working group on bribery, recommending a number of sufficient resources be given to prosecute foreign bribery cases, of which there were some 33 recommendations needing to be implemented. Has the government looked at the implementation of those recommendations and the issue of facilitation payments in relation to that convention?

Mr Wilkins : Yes.

Senator SINGH: Have we implemented those recommendations?

Mr Wilkins : It is under consideration. Are you talking about facilitation payments?

Senator SINGH: Yes.

Senator Brandis: That is under active consideration. It is something that I have discussed at some length with the department with a view to law reform.

Senator SINGH: And would that law reform look at introducing a ban, in line with the UK?

Senator Brandis: I think it is unwise to anticipate what the final shape of proposed law reform will be until the process of consideration within government has arrived at a final set of proposals. So, for that reason, I will not respond to your question.

Senator SINGH: But part of your consideration will include looking at the UK law?

Senator Brandis: Particularly in an area like this, which has important cross-jurisdictional dimensions, when the government or the department develop law reform proposals they would routinely look at the law of comparable jurisdictions, including the United Kingdom.

Senator SINGH: Do you have a time frame on that law reform proposal?

Senator Brandis: No.

These Q&Non-A sparked by The Greens Senator Ludlam ran a close second:

Senator LUDLAM: ....I have one for you, Mr Wilkins. Can you update us on what work the department has done on data retention and matters attendant on that since the election?

Mr Wilkins : No, I cannot do that off the top of my head. I think I will have to take that on notice.

Senator LUDLAM: Are you aware of any work at all having been done?

Mr Wilkins : No, I will take it on notice.

Senator LUDLAM: Is there anybody at the table or in the room who can deal with this?

Mr Wilkins : No, I do not think so. We will take it on notice.

Senator LUDLAM: You do not need to check? Mr Wilkins, how long will it take for you to identify if there is anything you would like to tell us?

Mr Wilkins : I will do it as soon as I can, actually.

Senator LUDLAM: If we could come back to it later today, that would be good.

Mr Wilkins : It will take more than today. I do not—

Senator LUDLAM: Just to establish whether any work is being done.

Mr Wilkins : I am conscious of the fact that I do not want to give you a half-baked answer—

Senator LUDLAM: Because there is a bit of a history of that regarding this matter, in particular.

Mr Wilkins : You have said that, not me.

Senator LUDLAM: There is a history of questions being—

Senator Brandis: That is a very unfair reflection on the department.

Senator LUDLAM: In this particular matter of data retention I have put questions that have then had to be repeated for corrections, clarifications and contradictions provided on notice, so I do not think it should take more than a day to establish whether the department has done any work in this area. To me that seems a little unreasonable.

Mr Wilkins : I will do it as soon as I can.

Senator LUDLAM: Chair, I will come back a little later when we are in the national security bracket.

.................. 

Senator LUDLAM: Mr Wilkins, is there any update on whether the department is progressing data retention since I was here an hour or two ago?

Mr Wilkins : No.

Senator LUDLAM: You still do not know?

Mr Wilkins : We are still making enquiries. It will be sometime. We are trying to prove a negative.

Senator LUDLAM: Just try and tell me if anybody is working on it or not.

Mr Wilkins : I need to ask everybody and make sure that there is nothing happening in any corner of the department that I do not know about on this one.

Cabinet documents and release to the Royal Commission

Former prime ministers Malcolm Fraser and Bob Hawke are alarmed and the talk is how 113 years of history will be overturned if the Government makes the previous government's cabinet papers available to the royal commission into the abandoned home insulation scheme.

This is flagged in media reports about a letter from Attorney General Brandis to his predecessor, Labor's Mark Dreyfus. The letter said the documents ''will include documents over which a claim for public interest immunity might be made, such as cabinet documents''. In providing the documents the government will indicate that it does not waive its right to claim public interest immunity from their contents becoming public.

At this stage the circumstances - whether the Royal Commission has ordered production, or the government has volunteered - and what will be made available (submissions, decisions, notetakers note books) is not known. What might become public is way down the track.

Cabinet proceedings are not recorded verbatim. The notebooks are "handwritten notes" (yes!) of the proceedings  recorded by the three Cabinet Office staff members in attendance. 

Amid the shock horror and suggestions the government is playing politics in this, it's worth noting that a royal commission has powers to compel production that are at least the equivalent of any judge and probably go further.

 And as Odgers' Australian Senate Practice 12th Edition conveniently summarises, cabinet documents are not extended absolute protection from discovery:

The claim often loosely made that “cabinet documents” are immune from production in the courts is not supported by recent judgments. Only documents which record or reveal the deliberations of cabinet are immune (Commonwealth v Construction, Forestry, Mining and Energy Union 2000 171 ALR 379; NTEIU v the Commonwealth 2001 111 FCR 583; see also Secretary, Department of Infrastructure v Asher 2007 VSCA 272).

Odgers' quotes from the High Court in Sankey v Whitlam and others 1978 142 CLR 1) and refers to other decisions:

In 1984 the High Court ordered the production of Australian Security and Intelligence Organisation (ASIO) documents for its inspection in a criminal trial, Alister v the Queen 154 CLR 404. In The Commonwealth v Northern Land Council 1993 176 CLR 604, the High Court held that the Commonwealth should not have been ordered to produce notebooks containing records of cabinet deliberations to legal representatives of the Northern Land Council. The Court held that: "The production to the court of documents recording cabinet deliberations should only be ordered in exceptional circumstances which give rise to a significant likelihood that the public interest in the proper administration of justice outweighs the very high public interest in the confidentiality of such documents."

In that case the Court went on to say:

 "When immunity is claimed for Cabinet documents as a class and not in reliance upon the particular contents, it is generally upon the basis that disclosure would discourage candour on the part of public officials in their communications with those responsible for making policy decisions and would for that reason be against the public interest. The discouragement of candour on the part of public officials has been questioned as a sufficient, or even valid, basis upon which to claim immunity. On the other hand, Lord Wilberforce has expressed the view that, in recent years, this consideration has “received an excessive dose of cold water”.

(That dose of cold water isn't counting for much in some quarters at the moment-see the reference here to FOI refusal of access to incoming government briefs and the recovered status of 'Frank and Candid.')

Public interest immunity claims refusing to comply with parliament orders to produce are the subject of a current Senate committee inquiry. Former Clerk Harry Evans in a note circulated in 2005, and still accorded weight (by parliamentarians at least) was of the view  that a cabinet document did not automatically qualify.(See Odgers.)

With regard to public access, the FOI act exemptions work to protect cabinet documents The 30 year rule  is dropping in stages to 20, and now at 28. The 1950 Cabinet notebooks, released in 2001, were the first notebooks to be released for public access.

Transparency light in the dark world of surveillance and intelligence

Stephanie age 6

I didn't include surveillance and intelligence matters in my 'straws in the wind' list but they deserve a mention in the context of the government's approach to transparency. 

To generalise, the government doesn't talk publicly about such things. And all Australian intelligence agencies are entirely exempt from the Freedom of Information Act.

 It's quite a contrast elsewhere, even among most of our 'Five Eyes' partners.

Maybe whistling in a dark corner, but the issue of getting the balance right between secrecy and disclosure deserves more discussion than it has received so far.

Spying and surveillance
So far the public response here to the Snowden leaks is the familiar 'in line with longstanding practice we don't comment on intelligence matters.' With fingers crossed things can't get worse in our relations with Indonesia, and biding our time until the International Court rules on the case brought by Timor Leste. 
(Raoul Heinrichs of the ANU writing in The Canberra Times suggests something completely different:"One option may be to pre-emptively come clean on the damaging material we know Snowden possesses. That may sound a bit like committing suicide for fear of death, and it would be painful and embarrassing in the short-term. But the alternative is to cede the initiative, to stay on the back foot while Snowden's leaks are drawn out over months or even years and timed to maximise damage.")

Closer to home the government has had little or nothing to say about PRISM and reports last year about collection of phone and internet data from other countries by the NSA in accordance with deals with organisations like Telstra, as revealed by the Washington Post.

It goes without saying that surveillance and intelligence gathering are both necessary and important and that there are strong and legitimate reasons for not being completely open about such things.

But that doesn't mean silence. As President Obama said:

" ..there is an inevitable bias not only within the intelligence community, but among all of us who are responsible for national security, to collect more information about the world, not less. So in the absence of institutional requirements for regular debate -- and oversight that is public, as well as private or classified -- the danger of government overreach becomes more acute. And this is particularly true when surveillance technology and our reliance on digital information is evolving much faster than our laws."

He outlined in that speech steps to rein in some intelligence gathering activities as well.

(US) Director of National Intelligence James Clapper later told the Senate Intelligence Committee 

"The major takeaway for us, certainly for me, from the past several months is that we must lean in the direction of transparency, wherever and whenever we can.."

In Europe German Chancellor Merkel continues to lead a strong response in public to reports of US activities.

Here, well mostly silence.

Neither major party supported an attempt by The Greens Senator Ludlam in December to establish a Select Committee to inquire into electronic surveillance and governance of the Australian Intelligence Community, thus scuppering that idea. With ALP (but not government) support Senator Ludlam did succeed with a motion for a Senate committee to look into the Telecommunications (Interception and Access) Act, something recommended by the ALRC six years ago but not acted upon previously.

Freedom of information
And while FOI will never likely deliver anything of the Snowden variety, this also is an area of contrast.

In Australia all intelligence agencies are exempt entirely.  

In all other 'Five Eyes" countries with the exception of some UK counterparts, intelligence agencies generally are subject to access to information laws.

In the US, the FOI act extends to the NSA and the CIA, the latter proclaiming:

The CIA releases millions of pages of documents each year. Much of this is material of historical significance or personal interest that has been declassified under Executive Order 12958 (a presidential order outlining a uniform system for handling national security information) or the Freedom of Information Act and Privacy Act (statutes which give US citizens access to US government information or US government information about themselves, respectively). The Agency handles thousands of cases each year and maintains the CIA’s FOIA Electronic Reading Room to release this information to the public and to provide guidance for requesting information. Some released information of significant public interest or historical value is also available at the National Archives and Records Administration.  

The same goes for Canada and NZ and in the UK for MI5 (Correction-UK security services are exempt-thanks Andrew) but not MI6 and others.

The Hawke review recommends we keep things the way they are as argued by the Australian Intelligence Community (pdf). Bear with me-mostly in their own words:
this level of protection is vital and necessary; relying only on other exemptions in the act concerning national security, defence or international relations on a case-by-case basis would involve decisions that are potentially subject to internal and external review; this review process removes the authority for decisions from those responsible for the protection of particular documents; this can have implications for the intelligence that foreign partners are willing to share with Australia; decisions on whether the exemptions in these sections apply may be difficult to take; the disclosure of apparently innocuous pieces of information relating to the activities of the AIC could result in damage to Australia’s security; such information can aid in building a detailed picture of Australia’s security and intelligence agencies and their activities and can alert groups, individuals or hostile intelligence agencies to a specific intelligence interest in them; any change to the existing exemptions could have serious implications for our information-sharing arrangements with allies, several of which are treaty-level; the confidence of our allies in our ability to protect information that they share with us remains fundamental to our intelligence sharing arrangements; we need to maintain this confidence; this could also have a bearing on the level of trust they extend to us and the undertakings we can make; it could diminish the level of access to important intelligence on which we rely for coverage of threats to Australia’s national interest...

The review accepted this without any meaningful public discussion and debate.

Australian Information Commissioner Professor McMillan for one isn't convinced. 

You can add quite a few of the rest of us who think blanket exemptions - including for the parliamentary departments - leave large unacceptable holes in the transparency and accountability framework.

The attachment to secrecy isn't just out of concern about current activities. 

The government no doubt at the urging of an intelligence agency or two is currently arguing against disclosure of Australian diplomatic papers and intelligence on Indonesian military operations in East Timor more than 32 years ago. 

Obviously it is a difficult time to disclose what we knew, when we knew and how we knew about the massacre of several hundred East Timorese civilians.But you have to wonder how long is long enough.

A few suitable topics in all this for Attorney General Brandis' debate about freedoms?

Ill wind in Canberra on the transparency front

It's still summer, it is not completely dark and gloomy (this Freedom of Information disclosure by Defence to Sean Parnell of The Australian is one to keep hope alive) but these straws plucked from the mist are telling:

ABC

.Tone at the top - public servants (and the rest of us) are yet to hear an Abbott government minister on the public record about the importance attached to transparent, open government. Au contraire, the impossible to miss messages from Minister Morrison. Leadership along the transparency and accountability path is crucial. It stopped coming from Labor after a good start in 2007 and Prime Minister Gillard's 'let the sun shine in' proclamation in 2010. Prime Minister Abbott and Attorney General Brandis, their interest in "Freedom wars" to one side, have not put T&A up in lights in five months in office.

. Silence during this period also on the previous government's commitment in May last year to join the Open Government Partnership. As Attorney General Dreyfus said at the time

The Open Government Partnership is a multilateral organisation that promotes transparency in government, encourages citizen participation and tackles corruption. ”Australia shares the values of the Open Government Partnership and we have a wealth of knowledge and experience to share with other nations in the partnership,” Mr Dreyfus said. “We believe that greater openness and accountability in government promotes public participation in government processes and leads to better informed decision-making.The Open Government Partnership provides an international forum for countries, civil society and the private sector to stand together to address the challenges of governance in the 21st century.....  

Hard to imagine that this could be seen as anything but a bi-partisan cause. Of comfort to the Abbott government should be that similarly disposed conservative governments including the UK, Canada and NZ are among the 63 members or intending members. The OGP has Australia down to formally complete preparations to join in April 2014 when the Steering Committee meets in, ahem, Indonesia, the current lead co-chair. An intending member needs to endorse the Open Government Declaration and submit a national action plan developed through a government-civil society partnership. We appear to have no chance now to meet this deadline as any work undertaken within government in preparation of a draft has not been shared with those interested on the outside. An about face and withdrawal from the OGP would see Australia join Russia as the only countries to do so. 

.The impediment to 'prompt access' to documents - one of the objects of the Freedom of Information Act - occasioned by the usual agency runarounds, compounded now by long delays in external review at the OAIC extending beyond a year in many cases and two in some.
 
. Refusal of access to the incoming minister briefs- a complete uniform turn around by all agencies from  2010. That turning point (Treasury (pdf) led the way) has seen renewed public service take up of the argument that 'frank and fearless' advice depends on confidentiality, drawing on words used in two decisions from the Office of Australian Information Commissioner (Crowe and  Cornerstone). The Treasury model has been sharpened as in this internal review decision (pdf)  (thanks Delimiter) by the Department of Communications. A class claim is in the making here: in effect disclosure of anything in advice documents such as the brief  (now six months old) would endanger the development of a trust relationship with the minister, mean public servants in future will offer limited bland rather than frank honest advice, and operations of the department will suffer substantial adverse effect. The countervailing public interests for example in transparent accountable government, in all of us knowing what the experts within government know about the real state of the game, and the contribution disclosure of information of this kind would make to informed public discussion of the issues don't get much of a run.

. Non-compliance with Senate orders to produce documents, not just in relation to Operation Sovereign Borders but in nine of ten instances to date.

. Some always doubtful exemption claims only exposed after the applicant waited 12 months or more in the queue for a decision from the OAIC, and the Australian Information Commissioner's admission that some agencies are gaming the system. The extent of this is unknown to any of us on the outside. Apparently because of resource constraints the OAIC has undertaken only one Own Motion Investigation since it commenced at the end of 2010.

. Inventive, creative reasoning. As in NBN Co's claim in response to the Sydney Morning Herald that releasing the names of directors who attended a board meeting last September could "damage a given director's personal reputation and ability to sit on other boards" and "negatively impact on NBN Co's ability to attract top-level directors" which could in turn affect NBN Co's commercial activities.. and as such put the names of the directors outside the scope of the FOI act. For good measure, so too the names of staff and third parties who attended because disclosure might enable someone to work out agenda items for the meeting. The article cites other recent knockbacks: to the Foreign Investment Review Board's 37-page report on the proposed takeover of GrainCorp, and Airservices Australia's refusal of access to the flight records of a private jet which "has in the past been a routine matter."

(Minister for Communications Malcolm Turnbull for one won't be surprised at the NBN Co decision. During debate in Parliament in 2011 on amendments designed to bring NBN Co partially under the FOI act he said The Greens Adam Bandt, who moved the amendment with ALP government support had been conned. Mr Turnbull said because NBN Co is a business, all of its activities are conducted on a commercial basis and it would remain "exempt in respect of documents right across its entire business." NBN Co may be proving the minister right. An experienced FOI user told me last week "since the Coalition came on board it's been a shocker with FOI. Everything is locked up as tight as possible. NBN Co is the worst.... To my mind, unless you're after very basic, non-sensitive materials, the FOI Act is basically useless at this point...Truly a New World Order.")

.  'New world order', wither the spirit? A query prompted by countless overly bureaucratic agency responses on display at Righttoknow. And by this Department of Health refusal of a request from Delimiter for a report reviewing the Federal Government’s Personally Controlled Electronic Health Records project, claiming on 31 January that it did not have a copy of the document on 5 January when the FOI application was received. Some head scratching given the fact that Health Minister Peter Dutton issued a Media Release on 20 December on receiving the report. Maybe the minister hadn't passed on a copy by the fifth; yes relevant documents are those held at the time an application is received not those that are created or received at a later date, so if it was received in the department on the sixth or any time before the thirty first, technically access could be refused on "not held' grounds. But the decision letter(pdf) is as curt, short, sharp and unhelpful as they come. 

Autumn, a brilliant time of the year in Canberra, is near at hand. May it prove somewhat kinder to the cause.

(Republished with permission at freedominfo.org)

(Update: on related issues of transparency/surveillance/intelligence)

External review failings bring 'prompt' access objective into serious question

Michael West in the Sydney Morning Herald Business Day column on Saturday (Here's an office that's hardly free with information) gives the Office of Australian Information Commissioner a real pasting, drawing on the annual report to argue too many speeches, not enough timely Freedom of Information review decisions. 

There are some unfair shots and omissions. West for example makes no mention of the office's responsibilities apart from FOI reviews and complaints. Privacy is a biggie with a heavy caseload of inquiries and complaints, and significant changes to the Privacy Act that come into effect on 12 March. Quite a few of those 59 speeches and presentations West highlights were likely in the cause of promoting discussion and awareness of those changes.

His one liner about Will Matthews and OAIC silence on an FOI case running for 10 years didn't have legs last year when I followed it up. Presumably there isn't much point to the rerun West gives it this time round.

But he is right about unacceptable delay with FOI external review, delay that casts a shadow over the worthy object of the act, ‘to facilitate and promote public access to information, promptly and at the lowest reasonable cost.'

As to why this is occurring, on the demand side applications for external review grew from 110 applications to the AAT in 2009-10 to 456 to the OAIC in 2012-13 - which among other things may say something about agency decision making. Australian Information Commissioner Professor McMillan has been pointing to the shortage of staff to cope, this a year ago and again more recently. I have no idea whether  efficiency shortcomings at the OAIC contribute - the Hawke review report didn't disclose any serious digging, and his first recommendation is that someone undertake a comprehensive review of the legislation and how it is working-something he didn't do.

I'm sure in Opposition current government ministers particular Senator Brandis would have been up in arms over this. One way or another the situation needs fixing. 'Promptly' comes to mind. 

An update on the stats West plucks from the annual report is contained in the September-December quarterly summary (pdf). 

The average time to complete an FOI review decision in the year to date was 250 days (2012-13, 169 days); the age of the oldest case then on the books 1057 days, and the age of the oldest unallocated case 301 days. At the end of December 315 case files had been open for more than 150 days. On the plus side, 257 reviews were completed in the period July-December compared to 419 for the year 2012-13. (And in the privacy space, territory West didn't explore, the office received 4929 phone and 1033 written inquiries, completed work on 1104 complaints and six own motion investigations, issued 31 data breach notifications, gave 42 policy advices and made eight submissions.)

Agencies and ministers' offices know the situation. As Professor McMillan told The Guardian recently:

 ... agencies could be “gaming the system.” It now takes close to 200 days to allocate an application for information commissioner review. He said: “I’m not going to name individual cases, but I have a great concern that agencies will say, ‘Let’s just deny it. The person can appeal to the OIC, it may take them a year or two to get around to it,’ in which case the sensitivity will go out of the issue. "I accept that that happens at the moment. So there is gaming of the system going on.”

Immigration, AGD, DFAT, and NBN Co have some form from my vantage point.

Published IC decisions this year are matters that have all taken 12 months, some far longer. These brought gaming to mind:

BB: the review application was with the OAIC for 13 months while the Department of Human Services argued, unsuccessfully in the end, about release of names of staff.

Welch: in the hands of the OAIC for 26 months, before the commissioner largely upheld the DFAT decision. In October 2011 the department told the applicant that it would not confirm the existence or non-existence of the requested documents, but if they did exist they would all be exempt. In December 2013, just before the IC review decision it revised the decision and released 18 pages in part.

AY: in the OAIC then the AAT previously and back on this occasion over charges after the AAT decided the ABC should think again.The commissioner sided with the ABC on the charges issue but the matter has been kicking around since the application was made in 2011.

AX: took the OAIC 18 months to decide The commissioner upheld some parts of the Civil Aviation Safety Authority decision to deny access to details of CareFlight Fixed Wing Operations. But not the identity of the individual approved as check pilot (publicly available on the website of the company); the identity of the individual appointed as chief pilot (not publicly available however disclosure not unreasonable as the individual has been appointed to that role by CASA); the identities of the general managers and directors of the company and CareFlight NSW which are listed on their websites and is publicly available information; the name and Air Operator’s Certificate number of the company which is  publicly available on the CASA website; and information that an agreement for the company to provide checking and training services had been executed because it is not personal information as claimed.

Talking of gaming, on a personal note, I'm still in the OAIC queue waiting for a decision on Attorney General's Department refusal of access in July last year to anything contained in a briefing note for the Secretary in August 2012 setting out the stage reached in work on a government response to an Australian Law Reform Commission report completed at the end of 2009.

The subject?

The 506 secrecy provisions in 176 pieces of legislation, including 358 distinct criminal offences and the Commission's 61 recommendations for reform. In publishing the report the commission observed:

Secrecy laws that impose obligations of confidentiality on individuals handling government information—and the prosecution of public servants for the unauthorised disclosure of such information—can sit uneasily with the Australian Government’s commitment to open and accountable government. Secrecy laws have also drawn sustained criticism on the basis that they unreasonably interfere with the right to freedom of expression.

Attorney General Brandis is very concerned about interferences with freedom of expression.

Maybe he'll remove the need for me to box on with my FOI knockback in the OAIC by telling us all where things stand in consideration of a report that has now been sitting in his department for four years.

You've got to love 'em!

How goes Victoria's FOI review experiment

Victoria charted new Freedom of Information territory in 2012 when it abolished the internal agency review option, allocating the review function for most purposes to the Freedom of Information Commissioner. 

The Rattenbury bill proposes something similar for the ACT.

The 30 day time frame for review decisions by the commissioner's office was commendable but always going to be ambitious unless accompanied by speedy, streamlined access to agency documents the subject of review, and plenty of skilled resources to do the job.

A failure to make a decision within time or agreed extended time (the act provides for extra time with the consent of the applicant) is deemed confirmation of the agency decision (s 49J) and grounds for a review application to the Victorian Civil and Administrative Tribunal (s 53).

This report today in Herald Sun online about Leader Newspapers’ experience in asking for review of a decision by Ambulance Victoria was prompted by the commissioner seeking two time extensions. The Leader found plenty of support for the proposition that delay is 'completely unacceptable.' Professor Johan Lidberg of Monash University said “The whole point of the commissioner is to speed up the process but that is not working at all.”

The only published information about how it is working out is the Commissioner's Annual Report 2012-13 covering the first seven months of the scheme. The statistics are now eight months old. Things may have got better or worse.

Meeting that 30 day deadline is proving a struggle. Of the 92 review decisions made by the commissioner's office during the period, one third were within the statutory 30 days. 
Applicants agreed to extension of time in 94 reviews and to 121 extensions in total. 

There are no published decisions on the website. Some reviews are no doubt complex and speedy access to the documents in dispute is likely to be an issue in some cases.

The commissioner received 258 review applications in total; 51 were not accepted for one reason or another; 47 were dismissed, 20 after informal resolution and with the consent of the applicant. 

One hundred and ninety review applications were completed. Fifty one decisions (68%) were the same as agency decision, 33 differed in full or in part.

Two agencies feature prominently amid the numbers. Victoria Police, subject to 35 review applications had 20 decisions affirmed, a different decision in 8 cases while 7 applications were dismissed. Worksafe Victoria was the subject of 16 review applications: 8 affirmed, 5 differed and 3 dismissed. 

As to efficiency and effectiveness, the report is not enlightening. Performance measures for the FOI Commissioner's for what they are worth appear only in the Department of Justice Annual Report. The only indicator in the report apart from process numbers is "High" for "Satisfaction with services performed." But nothing about how this was obtained.

There is still plenty of FOI business for VCAT:166 FOI appeals were lodged with VCAT during the period.

The report also contains stats regarding agency experience in dealing with FOI applications including something I haven't seen elsewhere- Appendix E (pdf) lists the names of agency decision makers and a mini scorecard for each of the number of FOI decisions made,  access granted in full or part, and access refused.

On the really big Victorian picture, back to Professor Lidberg:

“Victorian Freedom of Information is one of the poorest functioning access to information laws in the country,” Mr Lidberg said. “It’s slow, cumbersome and expensive to use.”

You can add very dated to that.The 1983 act shows the finest thinking of the nineteen seventies and eighties. Other than a new review system on which the jury is still out, it shows none of the more expansive thinking of more recent times about transparency and open government.

Australia slips two spots in Press Freedom rankings

Australia ranked 28 of 180 countries in the 2014 Reporters Without Borders World Press Freedom Index, down two places from last year. With Attorney General Brandis heading the Freedom Wars on the one hand and transparency clouding over on the other, the 2015 rating should be particularly interesting.

Finland, Netherlands and Norway are at the top, with other rankings of interest New Zealand 9 (down one place) UK 33 (down 4), US 46 (down 14), and in the region PNG 44, Japan 59 (down six), Indonesia 132 (up seven) India 140, Cambodia 144, Malaysia 147, Philippines 149, Vietnam 174 and China 175.

There are no country reports released with the index but we rated this mention in the Asia region report: 

In Australia, the lack of adequate legislative protection for the confidentiality of journalists’ sources continues to expose them to the threat of imprisonment for contempt of court for refusing to reveal their sources. No fewer than seven requests for disclosure of sources were submitted to the courts in 2013 alone

Since these surveys began in 2002 the first was our best (12), the next our worst (50), with significant movement within these tram-tracks since. In 2007 when the media coalition Australia's Right to Know was formed to address concerns about free speech our ranking was the same as this year, 28. We managed 16 in 2009 then 18, 30 and 26 last year.

Professor of Journalism and Social Media at Griffith University Mark Pearson lists himself as Australian correspondent for RTF. The report itself doesn't identify those involved in country surveys and reports.

Some coverage in The Australian and Crikey (subscription).

ACT FOI bill 'best of breed' so far

The draft ACT Freedom of Information Bill 2013 tabled by The Greens Shane Rattenbury last November for public consultation can lay claim (so far, and with no challengers in sight)) to the Australian 'best of breed' title, drawing as it does on reforms elsewhere in the 2007-2010 period.

Mr Rattenbury's support enabled the ALP to form government after the 2012 election. He is Minister for Territory and Municipal Services, Minister for Corrections, Minister for Housing, Minister for Aboriginal and Torres Strait Islander Affairs, Minister for Ageing. FOI might be beyond his portfolio responsibilities, but that didn't stop him taking this step.  It remains to be seen where this goes now - consultation closed on 1 February.

Looming stoush in Canberra over accountability to parliament

The stand off over the government's refusal to provide documents concerning 'on water operations' by the border protection task force as part of Operation Sovereign Borders will be a high profile issue in the parliamentary sitting that commences tomorrow. 

But other Senate orders to produce haven't been complied with either.

Public interest immunity claims will be seen as part of the bigger picture of the general approach to transparency and accountability by the Abbott government.

In the four weeks in November-December that Parliament sat following the September election, the Senate issued 10 orders for production of documents, all with deadlines before the end of 2013. As at the end of January the Government had not complied with nine.

The orders issued in this period are at pages 42-46 of this answer to a question on notice by the Clerk.

The one instance of compliance involved the WestConnex project and documents provided to Infrastructure Australia by the New South Wales Government. When the Senate Procedural Information  Bulletin was published and the non-compliance rate with orders of the 44th Parliament stood at 100%, the Bulletin labelled it "an unprecedented situation."

At the Committee hearing on the OSB public interest immunity claim Immigration Minister Morrison said the documents sought in the Order contain

"operational information, which includes but is not limited to on-water tactics, training procedures, operational instructions, specific incident reports, intelligence, posturing and deployment of assets, timing and occurrence of operations and the identification of individual attempted voyages, and passenger information including nationalities involved in those voyages."

Disclosure to the Senate would "prejudice current and future operations, put people at risk who are involved in our operations and unnecessarily cause damage to Australia's national security, defence and international relations."

The Legal and Constitutional Affairs References Committee will report by 21 February.

As the Clerk of the Senate told the committee the big picture comes down to the

"means to balance competing public interest claims by governments on the one hand, that certain information should not be disclosed because disclosure would harm the public interest in some way, and by parliament's claim, as a representative body in a democratic polity, to know particular things about government administration, so that the parliament can perform its proper function of scrutinising and ensuring accountability for expenditure and administration of government programs.."

Senate powers to enforce an order are limited. Failure to respond to an order to produce is treated as a "a political question." The Clerk: 

"We have no powers to sort out the political questions. We suggest the parties go away and do what they can to sort the matter out." 

Hardly satisfactory you would think, particularly in light of the failure over the years to sort many such matters out even when the Senate seeks to impose procedural penalties as the Clerk explained in this letter of advice.  But preferable apparently to the other available options, for the Senate to vote to impose a term of imprisonment for a contempt or impose a fine, powers that have never been exercised. 

In response to questions about what else could be done, Dr Laing identified the NSW Legislative Council as having

"the best system around at the moment for adjudicating these matters They have chosen a system of adjudication and the council has a process whereby if there is a claim like a public interest immunity claim made in response to an order for production of documents, the process nonetheless involves the documents being handed into the custody of the Clerk and if there is a contested subset of those documents then an independent arbiter is appointed to assess the documents in the light of the claim of public interest immunity that is made and then to provide a report. It is then a decision of the council whether to publish the arbiter's report and a further decision of the council whether to then publish any of those documents.

It's not as if we haven't seen unresolved disputes over production of documents in the past including plenty in the Rudd/Gillard years. The first 44 pages of the Clerk's answer referred to above, include details of Senate Orders for documents and the outcome in recent years:
2008-2010: 33 orders not complied, nine partially; 17 complied with. 2010-September 2013 -26 not complied with, seven partially; 19 complied with.

All the parties in the Senate should share an interest in charging an independent arbiter with responsibility to sort these things out, but that would amount to a shared interest in good governance in the public interest. Both major parties threw cold water on the idea in 2009-2010. What odds?