More run run, runaround

Same old dog, still chasing tail.

All you can say after reading this decision of the NSW Administrative Decisions Tribunal is that in addition to patience, persistence, time, energy, resources and a passable knowledge of the law, any FOI applicant who may be heading towards independent review also needs a calendar and a prompt system to alert them when an agency has failed to make a determination under the Freedom of Information Act. Otherwise they may find the door well and truly shut.

The applicant in this case was told on 19 March 2008, that the Tribunal had no jurisdiction to hear his application for review of a determination for an FOI application dated November 2006. The NSW Police Service had determined the application 97 days after it was received (statutory time frame 21 days).

The applicant sought internal review 9 days later. The Police Service determined that application on 6 June, 53 days later (statutory time frame 14 days).

The applicant lodged a request for external review with the ADT on 17 July, apparently comfortably within the 60 day time frame.

But no, the Tribunal found the application had been received out of time, because the applicant should have known that the Police Service failure to determine the internal review application constituted a deemed refusal. Time had started to run from 28 April when the decision should have been made. Calculating forward, any application to the Tribunal should have been lodged no later than 4 July. There is nothing to suggest that the Police brought all this to the attention of the applicant at the time or any time thereafter.

In line with earlier precedents the Tribunal decided it had no discretion to consider a late application, although a separate decision to this effect in another case is on appeal.

And finally not a word in the Tribunal decision about the tardy processing of the application by the Police Service. Some reports we have seen suggest that delays in processing there are systemic.

As the Premier, by his silence implies, FOI works well in NSW, particularly after all the helpful guidance provided in the Government's FOI manual, and the 9 years of work that went into it.

Not all smiles at NSW ADT

NSW Attorney General John Hatzistergos MLC

In his overview of the first decade of operations of the NSW Administrative Decisions Tribunal, in the Tribunal's Annual Report 2007-2008, President Judge O'Connor, in wonderfully polite annual report language, highlighted for the Attorney General a few causes of concern:

The apparent absence of policy and principle for what administrative decisions in NSW are subject to review:

In introducing legislation to establish the Tribunal 10 years ago, the then Attorney General

"expressed a broad view as to the administrative decisions that citizens could look forward to seeing reviewed by the ADT. As it has transpired a much narrower range of decisions has been made reviewable. Giving affected persons a right to seek external review remains a choice, in the first instance, for the various portfolios of Government and, ultimately, Cabinet. So far as I am aware, there is no transparent discipline or policy governing the matter. The Tribunal has frequently encountered situations where, within the one Act, there is seemingly inexplicable variation as between the administrative decisions that may be the subject of an application to the Tribunal, and those which may not be. There have been some instances where the review jurisdiction has been removed or reduced by amending legislation, without any public explanation, soon after decisions have gone against an agency."

The failure in NSW to address the issue of further consolidation of existing tribunals:

"While some existing State tribunals were merged into the new ADT, the Attorney noted that as many as 21 State tribunals remained outside its structure. He referred to the values served by consolidation: greater coherence for the public, greater transparency and professionalism, greater ability to introduce good procedures and practices, better use of public resources, avoidance of duplication of similar structures, and the avoidance of perception of conflict of interest where the portfolio department has a substantial involvement in proceedings in a portfolio tribunal. As I have noted in previous annual reports, major reforms reflecting these values have occurred since 1997 in the United Kingdom, Victoria and Western Australia. The Queensland government has announced the creation of a new merged tribunal for that State, commencing March 2009. The one somewhat similar development in NSW since 1997 has been the creation in 2002 of a Consumer, Trader and Tenancy Tribunal, merging three fair trading tribunals."

The matter of the long overdue statutory review of the Act which President O'Connor hoped a year ago was soon to appear.

"The original ADT Act provided for two statutory reviews after a period of experience of its operation. The first was to concern the operation of the Tribunal itself. The second was to concern the operation of the Act as a whole. The first review (under s 146) was undertaken by a Parliamentary Committee from 2000 and 2002, with a final report late in 2002. The second review (under s 147) was imposed on the Minister. The Act fixed the commencement date as 2002 and the report date as 2003. On behalf of the Minister, the Department commenced the review in 2003. The public submissions process ended in 2004. That report is now expected to be delivered in the Spring Session, 2008 in conjunction with a bill making a number of amendments to the ADT Act."

Accommodation and rates of pay for Tribunal members need urgent attention:

"I referred in last year’s annual report to the increasingly unsatisfactory level of accommodation and administrative support for Members. No progress has been achieved. Similarly, there has been no adjustment to their remuneration for several years despite adjustments having occurred regularly in the usual way to the remuneration of full-time judicial officers and full-time State tribunal members doing comparable work."

Support services haven't been too flash either:

"Between 19 December 2007 and 10 January 2008 the Tribunal saw the collapse of the internet and email services supplied by the Department. They returned intermittently during the period, and were fully restored on 11 January 2008. As the Tribunal, unlike the Courts, stays open on a usual basis at this time of the year, this was a major disruption to services."

A couple of FOI/privacy related issues from the report:

Applications for review in the ‘Information Law’ category -Freedom of Information 117, and privacy 36, account for about 40% of the workload of the General Division the same as other recent years. After increasing markedly four years ago, it had since stayed at that level. The President is still keen to see action on serial appellants and intends to make a general submission to the Ombudsman's review of the FOI Act.

Generally time to resolve reviews is slowing :

"As at the end of the current year, the average time from filing to disposal of primary applications in the Tribunal was 0.65 of a year (i.e. 7.8 months). The average time from filing to disposal in the case of an appeal was 0.55 of a year (i.e. 6.7 months). The collective average was 0.64 (i.e. 7.7 months). There has been a decline in the speed of disposal, as compared to five years ago, when the figures were 0.54 for primary applications, 0.31 for appeals, and collectively 0.52 (i.e. 6.3 months). The collective average has now been slowing incrementally each year. The Divisional Heads have been asked to suggest ways in which the turnaround time can be improved."

Apache bravely fights Varanus FOI disclosures - without success

ABC

Four years since the explosion at the Varanus Island gas plant operated by Apache Northwest off the Western Australian coast that had drastic consequences for natural gas supplies in WA, Apache has continued to argue in two jurisdictions against disclosure of documents under freedom of information laws

In the latest development, the Western Australian Court of Appeal upheld a decision to release to Lander and Rogers Lawyers, documents relating to the company and its facilities on the island where a gas pipeline ruptured causing the explosion. Decisions in this case previously by the Information Commissioner and a judge in the Supreme Court had gone against Apache. 

The WA cases are separate from proceedings earlier in the year at the federal level where the Freedom of Information Commissioner upheld, over objections by the company, a decision by a Commonwealth agency to release documents to AFR journalist Geoff Winestock. Winestock reported in April that that decision was being appealed.

FOI related issues concerning access to documents that might throw light on what happened have been swirling around since the 2008 election campaign. The Government released an investigation report and the response from the Department Of Mines and Petroleum in May 2012 having earlier discontinued a prosecution against Apache.  Alcoa for one is suing Apache over the incident. And the FOIs have been rolling...

Where's Wilkie?

I know policy and the legislative business of the government and parliament are far from minds in Canberra at the moment, but this is a lament about the disappearance and missed deadlines for promised Federal whistleblower protection legislation. And the related issue of government silence on an Australian Law Reform Commission Report that it has had since the end of 2009 on Australia's 500+ secrecy laws. A crucial whistleblower related ALRC recommendation was for the repeal of the draconian section 70 of the Crimes Act which makes it an offence punishable by up to two years jail to disclose information without authorisation, to be replaced by a provision that links any criminal offence to an intentional or reckless disclosure that harms a specified public interest.

Has Attorney General Roxon got to the bottom of the red box yet to find these issues sitting alongside papers about the conviction of Allan Kessing and the pardon application under consideration since October 2009?

Andrew Wilkie MP sounded like someone who would surely hold a few feet to the fire on issues such as these, and he did put whistleblower protection in as part of the queen-maker deal after the August 2010 election. But publicly at least it's been silence since as deadlines passed. I couldn't find any reference to whistleblower protection on his website but the site does remind how he first came to national prominence: 

"his decision to resign from the Office of National Assessments (ONA) on 11 March 2003 in protest over the Iraq war. He was the only serving intelligence official in Australia, the UK and US to resign publicly before the invasion." 

Wilkie may now not be as influential as he was in 2010. And perhaps WikiLeaks/Julian Assange has effected more influence (in a cautionary sense) on the government  than he, without even trying. The government and parliament have been busy, busy, busy of course-266 bills passed and all that. The odds on a new order of things after Monday are not great I'm afraid unless Wilkie and others like minded make it an issue.

A recap on the timeline for whistleblower reform and some relevant information and statistics drawn from the State of the Service Report published last year:

Australian Information Commissioner on the job

Final decisions on Freedom of Information review applications have been pouring out of the Office of Australian Information Commissioner, relatively speaking. In 2012 the OAIC published 35 decisions. In the first two months this year (to 8 march) it published 20. 

Internal audit reports
A decision of particular interest, and wide import is Besser and Department of Infrastructure and Transport [2013] AICmr 19 concerning an application for 10 internal audit reports for the financial years 2007–08, 2008–09 and 2009–10. 

The Department had granted access to the Executive Summary in each case, including the background, scope of the audit, objective, summary of results and management's response. The remainder were claimed exempt as deliberative documents (s 47C) and documents, the disclosure of which would, or could reasonably be expected to, prejudice or have a substantial adverse effect on its operations (ss 47E(a), (b) and (d)).

With regard to the deliberative documents claim [10-16] Acting Information Commissioner Pironi decided internal audit reports in their final form are by definition not documents of this kind. While a final internal audit report "may be part of an ongoing process of assessing compliance within Australian Government agencies, each individual audit report is itself final and reflects the state of an agency's practices and processes at a particular point in time[14]. 

On the other claims the Acting Commissioner accepted that the disclosure of the sampling methodology used in three of the reports that had not already been disclosed in the summary released, would, or could reasonably be expected to, prejudice the effectiveness of sampling methods used by the Department when undertaking future internal audits. Disclosure of this information would on balance be contrary to the public interest.

No go for Frank and Candid
As to the rest, Acting Commissioner Peroni was not persuaded that the adverse effects claimed would eventuate, and wasn't impressed even by Frank and Candid. The Institute of Internal Auditors won't be pleased.

22. The Department also relied on s 47E(d) in its decision on the basis that ‘line areas being investigated in audits would not be as candid and forthright in the provision of information to the auditors'.
23. The (OAIC) Guidelines provide that:

    [t]he predicted effect must bear on the agency's ‘proper and efficient' operations, that is, the agency is undertaking its expected activities in an expected manner. Where disclosure of the documents reveals unlawful activities or inefficiencies, this element of the conditional exemption will not be met and the public interest factors of accountability and transparency are further weighted towards disclosure.[6]

24. As the applicant noted, the Department should not be dependent on the good will of its staff when undertaking audits. In fact, I would consider it an obligation of APS employees to assist their employer in relation to audits being conducted into the agencies activities in accordance with the APS Values and Code of Conduct.
25. I am not satisfied that it would, or could, reasonably be expected that, given the release of the executive summaries, the disclosure of the remainder of the reports would result in the outcome claimed by the Department.
26. In my view, the disclosure of the documents the subject of this IC review cannot reasonably be expected to have a substantial adverse effect on the proper and efficient conduct of the operations of the Department. 

OAIC pressure brought to bear
On an FOI matter that didn't get to a final OAIC decision but in which it apparently played a key role, Linton Besser and Deborah Snow in Fairfax Media on Saturday wrote about the results of a two year battle over access to reports by the Internal Affairs branch of the Customs and Border Protection Service. They reported that Customs, as a result of a year of pressure by the Information Commissioner and the Herald, had released thousands of individual records created by its professional standards staff investigating 930 cases. The documents expose "a stunning range of misconduct and laid bare the scale of the corruption threat facing Customs."

The FOI story of a long drawn out process will sound familiar to many, but Besser and Snow acknowledge the key role played by the OAIC in making these disclosures happen.  But there's no getting away from the fact that two years is a long time to wait. Another illustration that we don't have the incentives and disincentives in place to get the right decision made promptly by the agency first up.

Detail here.

Should ministers be in the know about access applications?

Sydney's Daily Telegraph at the weekend under the headline"Barry O'Farrell's secret Freedom of Information warnings" reported that NSW Premier in one of his first acts in power following the March election, set up a system "to ensure secret tip-offs about public efforts to access embarrassing government information" and potentially more seriously, that his department suggest he lie if asked about the system in parliament.

"Documents obtained under FOI have shown the Office of the Premier installed a system on May 19 to receive weekly status reports from his department on requests from the media, opposition and general public."

I don't know what system Premier O'Farrell set up, but for many years, the Premier's department has required each agency to provide a fortnightly report on FOI applications on hand, and I would be surprised if this in some form doesn't form part of a regular briefing for each minister concerning portfolio agencies and to the Premier overall.

On a side issue, I'm not aware agencies refer to this possible use or disclosure of personal information in any privacy notice in their GIPA material, as they should where the applicant is an individual. It would be better still not to include personal information in any such report if a minister insists on continuing the practice. Let's hope this close ministerial interest extends to whether their agencies are living up to the spirit and intent of the law. And that applications by journalists and the opposition once identified aren't singled out for differential slow and tougher decisions as Alisdair Roberts discovered a few years ago in Canada. (Is there a double standard on access to information?)

The Telegraph seems to be confusing communication with a minister's office about the status of access applications, with communication inviting, encouraging or allowing the minister or staff to influence or direct a decision to be made in an agency officer's name. The "lie" claim reflects this confusion.

ACT about to join the FOI reform movement

The Canberra Times reports ACT Chief Minister Katy Gallagher is planning to demystify the cabinet process and overhaul the territory's freedom of information regime as part of a new era of accountability reform to be revealed in the ACT Legislative Assembly this week.

No further detail in the CT but it looks as if Territorians are about to hear a response to recommendations in the Legislative Assembly Standing Committee on Justice and Community Safety report on Freedom of Information completed in March this year.  The report was a long time coming-the Assembly commissioned the inquiry in December 2008. Once the inquiry got going (I last looked in February 2010 when nothing had happened) it seems to have proceeded ever so quietly: a total of just six public submissions, and three committee hearings in September/October of a few hours each, one with an all government line up consisting of the Attorney General and government staff, the others with the Australian Information and Privacy commissioners together, and the Queensland Information Commissioner separately. (Not a user of the act, an outside government type, or one of the few submitters in sight.)

The report proposes legislative reform to incorporate the key features of the 2009/2010 Commonwealth reforms including the "push model" but with some ground breaking variations in the approach to exemptions; the establishment of an ACT Ombudsman/Freedom of Information Commissioner/Privacy Commissioner replacing services provided to date by the Commonwealth; and ACT privacy legislation to replace the Commonwealth Privacy Act 1988 currently in force.

The significant FOI exemption features that would differ from Commonwealth law include:

Cabinet documents

[13] ACT legislation should follow the example of the New Zealand Official Information Act 1982. The report notes:  "The Act does not list any categorical exemptions for cabinet documents and, in fact, does not use the word ‘cabinet’ at all."The act should "provide a clear basis, upon which cabinet documents may be released or made exempt from release under the provisions of the Acts."

Exemptions generally

[14] All other exemptions be re-cast so that they are subject to a single consistent public interest test that is subject to merits review.

Deliberative documents

[17]: An exemption on grounds that release may reveal the decision-making processes of government agencies should no longer apply in the ACT.

What the Gallagher government makes of all this should be clear later in the week-and what might have been remains for another post.

The full list of Committee recommendations follow.