Tell cross benchers in the Senate, give thumbs down to abolishing OAIC

I've written to the cross bench senators in the following terms and urge you to do the same:

Senator, I strongly urge you and your colleagues to vote against the Freedom of Information Amendment (New arrangements) Bill. Labor and Greens speakers in the House were right in arguing that no case has been made for the abolition of the Office of Australian Information Commissioner. Removing the independent monitor and 'champion' of transparent and accountable government is a retrograde step and will not "reduce the burden on FOI applicants" as claimed by the Attorney General.

For more information see this post yesterday
http://www.foi-privacy.blogspot.com.au/2014/10/can-senate-save-oaic-and-foi-from-giant.html#.VFBCi-d4IUk

And this earlier analysis
http://foi-privacy.blogspot.com.au/2014/05/abolish-oaic-evidence-or-no.html#.VFBTPOd4IUk

Happy to talk at any time

Peter Timmins
www.foi-privacy.blogspot.com.au
0413256777

For others interested: for ease of reference the case against, taken from previous posts:

Proposed FOI arrangements retrograde not beneficial

With the Freedom of Information Amendment (New Arrangements) Bill listed in the Legislative Program for the current spring sitting of Federal Parliament the following might assist parliamentarians considering whether disbanding the Office of Australian Information Commissioner will improve transparency and benefit users of the Freedom of information Act. 

I have sent a copy of this to senators who take an interest in such issues. You may wish to let senators and your local member know what you think as well. 

The program (pdf) describes the bill as follows.

-establish new arrangements for the exercise of privacy and freedom of information (FOI) functions, including: disbanding the Office of the Australian Information Commissioner; arrangements for an Office of the Privacy Commissioner; making external merits review of FOI decisions only available at the Administrative Appeals Tribunal following compulsory internal review; and providing for the Ombudsman to take over responsibility for investigation of FOI complaints 

Rationale
Apart from claimed cost savings of $10 million over four years, the explanation for the decision in May was that it would bring efficiencies by removing the two tier merits review now available. According to Senator Brandis:

The complex and multilevel merits review system for FOI matters has contributed to significant processing delays. Simplifying and streamlining FOI review processes by transferring these functions from the OAIC to the AAT will improve administrative efficiencies and reduce the burden on FOI applicants.

Dismantling the office goes far beyond what would be necessary to achieve this purpose.

What is proposed will not reduce the burden, financial or otherwise on FOI applicants.

Other options
The Government has overlooked other available options to improve the significant and unacceptable processing delays in merit review at the OAIC. The Office got nowhere over the last two years on the need for additional resources or at least the level of resources identified as necessary before it opened for business in 2010. Or any exemption in full or part from sharp cuts in the form of annual 'efficiency dividends.' Senator Brandis was very interested in exploring these issues two years ago in Senate Estimates. Not these days, apparently.

The OAIC also put forward suggestions for changes to processes that would free up resources but required legislation to which the government, this one or its predecessor, never responded publicly. One was authority for the commissioners to delegate some functions.

Those of us on the outside also had ideas. Beefing up the OAIC, and limiting further review rights to a question of law, as is the case in WA and Queensland is just one of many that could streamline the multi-tiers. Another that might free up resources could be penalties of some kind or powers to be used that might dissuade agencies from resort to exemptions that have no merit and serve only to bide time and waste resources.

Leadership out the window
More broadly, dispensing with the independent statutory monitor and champion role for information access and open government takes us back to the 1995 Australian Law Reform Commission Open government report that identified the absence of such an office as an impediment to the administration of the FOI act.

Federally FOI was leaderless and rudderless until the establishment of the OAIC in 2010. The new arrangements take us back there.

So too synergies
Much was made in 2010 and since of the benefits of combining information access and information privacy functions in the one office, and conferring strategic information management functions on the Commissioner as well. As stated in the Second Reading Speech

The establishment of an Office of the Information Commissioner not only supports the important outcome of promoting a pro-disclosure culture and revitalising FOI, but also lays new, stronger foundations for privacy protection and improvement in the broader management of government information.

In unwinding the crucial underpinning of the 2010 reforms three and a half years on, none of this rates a mention.

Counter to trends
Abolishing the OAIC runs counter to international trends and to experience (to varying degrees of satisfaction) with information commissioner schemes with a role in merit review of FOI decisions in Queensland, NSW, NT, and WA and Victoria (FOI commissioners), and under the guise of an Ombudsman with special powers for this purpose in SA and Tasmania. In a report tabled recently in South Australia the Ombudsman recommends the establishment of an independent champion and monitor for FOI, something they have never had to date.

Not supported by evidence
I'm no fan of the Hawke review process but Attorney General Brandis has had the that report in his in-tray since taking office in September last year. There is nothing in the report that justifies the abolition of the OAIC. Generally (page i)

the Review found the recent reforms to be working well and having had a favourable impact in accordance with their intent. It (open government) has engaged more senior people in the process and triggered a cultural change across the Australian Public Service, although there is still some way to go on this aspect. Further effort, driven from the top, will be required to embed a practice where compliance with the FOI Act is not simply perceived as a legal obligation, but becomes an essential part of open and transparent government.

More directly: (page 24):

The Review considers that the establishment of the OAIC has been a very valuable and positive development in oversight and promotion of the FOI Act.

And specifically on the review system cited by the Attorney General as the policy reason for the decision: (page 36)

The current system of multi-tiered review has been in operation for two and a half years. At this stage there is insufficient evidence to make a decision on whether this is the most effective or efficient model for reviewing FOI decisions, particularly in relation to the two levels of external merits review. The Review considers this issue warrants further examination and recommends that the two-tier external review model be re-examined as part of the comprehensive review recommended in Chapter 1.

The government chose to reach for the knife rather than look for evidence.

Costs to individual
A direct hit to the hip pocket is coming for anyone unhappy enough with an FOI decision to want to box on with an external review application. There is no charge for review by the OAIC. But come 1 January complaining types who don't accept often questionable wisdom explained in convoluted and obscure language in an FOI knockback will be up for $861 for starters at the AAT. Demand for review of agency decisions, running at around 500 a year in the OAIC, indicates a high level of ongoing dissatisfaction with agency decisions. Eight hundred and sixty one dollars can be expected to work wonders on the numbers.

Unacknowledged cost to agencies
One of the changes arising from going back to the pre reform era involves reinstating mandatory agency internal review before a matter can be taken to the AAT. This will involve additional unbudgeted costs to agencies, already subject to resource limitations.

Overall it is a retrograde step. The changes wipe the review model adopted in the reform package of 2010, and it's back to where things used to be and we know they didn't work properly then.The OAIC disappointed in a number of respects, particularly the long delay in review decisions and the failure to really get stuck into those not playing fair and square, but it was under resourced and never had the opportunity or clout to really push the message that the government was serious about transparency and accountability-that's assuming it really was.

More powers, more resources and strong ministerial backing is what is needed, not the return to the status quo ante 2009.

FOI and two Ombudsman

Annual reports released recently by the Commonwealth and South Australian Ombudsman both include information about Freedom of Information matters. Review of FOI complaints is part of a broad range of Ombudsman responsibilities. However as the reports reveal, FOI looms larger in the workload in SA.

The Office of the Commonwealth Ombudsman Professor John McMillan received over 45000 approaches and complaints in total during the year, just over 200 or less than 0.5%, concerning FOI matters. 50% of the FOI work involved three agencies- Centrelink, Immigration and the Child Support Agency. Most complaints were about delay, fees and charges and poorly explained decisions.The report comments about failures to assist applicants and too literal reading of applications, both giving rise to avoidable user dissatisfaction. FOI rates one page (116) in the report. Unlike coverage of most other investigatory functions there are no case studies.

South Australian Ombudsman Richard Bingham reports his office considered 2543 cases in total, including 221 or about 8%, and more than his Commonwealth counterpart, concerning FOI. (The total number of approaches to the Office are estimated at around 12000). The FOI chapter of the report runs to 24 pages, consisting mainly of case studies and comments about matters investigated. These include an ongoing issue whether the Legal Practitioners Conduct Board is subject to the Act and whether Board documents attract legal professional privilege (an issue before the District Court); the status of information about contractual arrangements and work performance of a former chief executive of a rural health service; commercial in confidence information held by the Department of Health (also before the District Court); and several cases involving the Cabinet documents exemption including the Ombudsman's observation that Clause 1(1)(e) which exempts information concerning any deliberation or decision of Cabinet is too widely drawn. On this the Ombudsman says:

As a final comment, I note that interstate and Commonwealth FOI legislation apart from NSW, does not have such a broad exemption as clause 1(1)(e). I consider that an exemption worded to exempt access to documents revealing rather than concerning a decision or deliberation of Cabinet would be more appropriate, and would protect Cabinet confidentiality and also conform to the objectives of the FOI.

The NSW Government Information (Public Access) Act to commence early in 2010 contains a presumption of an overriding public interest against disclosure of a document prepared after a Cabinet deliberation or decision that would "reveal or tend to reveal information concerning any of those deliberations or decisions" (Clause 1 Schedule1). This is an improvement on Clause 1(1)(e) in Schedule 1 of the FOI Act. The exemption for disclosure of information concerning any deliberation or decision of Cabinet was interpreted by the NSW Administrative Decisions Tribunal as broad enough to cover a document that predated cabinet consideration of a matter, something the new formulation would rule out.

Genuine privacy fears from FOI reform- or something else?

The headline "Privacy fears over FOI law reform" to Chris Merritt's article in today's Australian seems ironic given that the paper has, in the "Your right to know " campaign, urged Freedom of Information reform, and been dead against the idea of a statutory cause of action for breach of privacy, proposed as one aspect of reform of privacy laws. But the body of the report was limited to reporting the NSW Law Reform Commission's claim referred to here yesterday, that some of the recommendations put forward by the Ombudsman in his review of the NSW Freedom of Information Act "may weaken the protection of individual privacy."

The only issues specifically raised on the subject in the Commission's 27 page submission to the Attorney General are the recommendations for an Information Commissioner, to be located in the Ombudsman's office, to oversee FOI, and for consideration by the Government of transferring the Privacy Commissioner functions there. There isn't anything much to back up the claims of perceived problems arising for privacy protection, and on the last-mentioned the Commission thinks combining FOI and privacy could work- anywhere except in the Ombudsman's office:

"Provided the independence of both offices is supported by clear statutory provisions, we would not oppose a model involving some form of common oversight of privacy and FOI. A similar model was endorsed by the current federal government as part of its election commitment. The proposal was to establish an independent FOI Commissioner, preserve the existing role of the Privacy Commissioner, and create an over‐arching office to be known as an Information Commissioner, with responsibility for overseeing all aspects of data protection and information management."

Thinking through the best model would benefit from some open discussion and debate about the options- there is no one right answer- that will deliver the best result- and the lessons from experience.

Maybe for NSW the next step is an Information Commissioner, as proposed in Canberra (was any consideration given there to putting it all together in the Ombudsman's Office?) and in line with the UK, Canadian provinces such as Alberta, British Columbia, Ontario etc. Maybe its combining the two and putting the function with the Ombudsman as in New Zealand and the Canadian province of Manitoba.

There is no question that while governments in this state since 1991 ran for cover, the NSW Ombudsman's Office flew the flag vigorously for open, transparent and accountable government and for FOI law reform. It also has knowledge, experience, skills, and stature in the FOI area, public administration and complaint handling that will be hard, and take time and resources to replicate, if the Information Commissioner is established as a separate office. There are also efficiencies that present themselves in the event of combined functions. The NSWLRC and the Privacy Commissioner have run up the "downsides."

One thing that hasn't worked in NSW, in the interests of privacy protection, is a stand-alone privacy commissioner with an act full of holes; an under-resouced office; "independent of government" according to the NSWLRC, but operating as a business unit of the Attorney General's Department; lacking visibility and much clout; and responsible to successive attorneys general who appeared disinterested in the subject. Until someone raised the possibility that the function be removed to elsewhere in government? So leaving it alone, as is, makes no sense at all to me.

The Merritt article quotes Attorney General Hatzistergos (last time I looked he wasn't the minister responsible for FOI) as agreeing with the need for independent FOI oversight and saying the Government would release a draft reform bill for consultation "in coming weeks."

Hopefully the review function issues won't be in concrete, having been settled behind closed doors.

One aspect of " weakening privacy protection" in the name of FOI reform that The Australian missed, but presumably wouldn't complain about, is the Federal Government proposal that the personal information exemption in their FOI Act is to be amended to incorporate in addition to a test of unreasonability, a requirement to consider whether disclosure on balance, would be contrary to the public interest.

The emerging integrity branch of government- so far "more by good luck than good planning"

At the AIAL National Administrative Law Conference in Adelaide last month, Deputy NSW Ombudsman Chris Wheeler spoke to this paper "Review of Administrative Conduct and Decisions in NSW since 1974-an ad hoc and incremental approach to radical change." (Box)

 At 38 pages it's a big but worthwhile and informative read including observations about changing attitudes within government to openness and transparency, and whistleblower protection.

 One of his two main points picks up on a theme advanced by then NSW Chief Justice James Spigelman in 2004, and by the Commonwealth and Victorian Ombudsman and others including NSW Ombudsman Bruce Barbour in this 2010 speech, that it is time to recognise a fourth branch of government – the ‘ Integrity’ branch."The role of the agencies within that Branch would be to ensure proper practice on the part of the organisations within the other branches of government." Wheeler argues for a review, clarification about where review bodies best fit, and some rationalisation and simplification.

Two extracts:

Abolish OAIC, evidence or no.

The Government claims this decision to abolish the Office of Australian Information Commissioner will save $10 million over four years. Not mentioned is the cost to transparency, accountability and the open government cause certain to be of a high order  but impossible to quantify in dollar terms.

Attorney General Brandis announced the decision in the broader context of a move to simplify, streamline and improve efficiency and effectiveness in the conduct of merit reviews.

The claim is that these broader changes will deliver total savings of $20 million over four years.


 
Government goal
According to Senator Brandis:

The complex and multilevel merits review system for FOI matters has contributed to significant processing delays. Simplifying and streamlining FOI review processes by transferring these functions from the OAIC to the AAT will improve administrative efficiencies and reduce the burden on FOI applicants.

Dismantling the office goes far beyond what would be necessary to achieve this. What is proposed will not reduce the burden, financial or otherwise on FOI applicants.

Other options
The Government has overlooked other available options to improve the significant and unacceptable processing delays in merit review at the OAIC. The Office got nowhere over the last two years on the need for additional resources or at least to get the level of resources identified as necessary before it opened for business in 2010. Or any exemption in full or part from sharp cuts in the form of annual 'efficiency dividends.' Senator Brandis was very interested in exploring these issues two years ago in Senate Estimates. Not these days, apparently. 

The OAIC also put forward suggestions for changes to processes that would free up resources but required legislation to which the government, this one or its predecessor, never responded publicly. One was authority for the commissioners to delegate some functions.

Those of us on the outside also had ideas. Beefing up the OAIC, and limiting further review rights to a question of law, as is the case in WA and Queensland is just one of many that could streamline the multi-tiers. Another that might free up resources could be penalties of some kind or powers to be used that might dissuade agencies from resort to exemptions that have no merit and serve only to bide time and waste resources.

Leadership out the window
More broadly, dispensing with the independent statutory monitor and champion role for information access and open government takes us back to the 1995 Australian Law Reform Commission Open government report that identified the absence of such an office as an impediment to the administration of the FOI act. 

FOI was leaderless and rudderless then and for the next 15 years until this and more than 100 other recommendations were considered and acted upon in 2008- 2010.

So too synergies 
Much was made of the benefits also of combining information access and information privacy functions in the one office, and conferring  strategic information management functions on the Commissioner as well. As stated in the Second Reading Speech

The establishment of an Office of the Information Commissioner not only supports the important outcome of promoting a pro-disclosure culture and revitalising FOI, but also lays new, stronger foundations for privacy protection and improvement in the broader management of government information.

In unwinding the crucial underpinning of the 2010 reforms three and a half years on, none of this rates a mention.

Counter to trends
Abolishing the OAIC runs counter to international trends and to experience (to varying degrees of satisfaction) with information commissioner schemes in Queensland, NSW, NT, and WA and Victoria (FOI commissioners), and under the guise of an Ombudsman with special powers for this purpose in SA and Tasmania.

Not supported by evidence
I'm no fan of the Hawke review process but Attorney General Brandis has had the that report in his in-tray since taking office in September. There is nothing in it that justifies the abolition of the OAIC. Generally (page i)

the Review found the recent reforms to be working well and having had a favourable impact in accordance with their intent.  It (open government) has engaged more senior people in the process and triggered a cultural change across the Australian Public Service, although there is still some way to go on this aspect.  Further effort, driven from the top, will be required to embed a practice where compliance with the FOI Act is not simply perceived as a legal obligation, but becomes an essential part of open and transparent government.

More directly: (page 24):

The Review considers that the establishment of the OAIC has been a very valuable and positive development in oversight and promotion of the FOI Act.

And specifically on the review system cited by the Attorney General as the policy reason for the decision: (page 36)

The current system of multi-tiered review has been in operation for two and a half years.  At this stage there is insufficient evidence to make a decision on whether this is the most effective or efficient model for reviewing FOI decisions, particularly in relation to the two levels of external merits review.  The Review considers this issue warrants further examination and recommends that the two-tier external review model be re-examined as part of the comprehensive review recommended in Chapter 1.

The government chose to reach for the knife rather than look for evidence.

Costs to individual
A direct hit  to the hip pocket is coming for anyone unhappy enough with an FOI decision to want to box on with an external review application. There is no charge for review by the OAIC. But come 1 January complaining types who don't accept often questionable wisdom explained in convoluted and obscure language in an FOI knockback will be up for $816 for starters at the AAT. Demand for OAIC review (pdf) of agency decisions, running at around 500 a year in the OAIC, indicates a high level of ongoing dissatisfaction with agency decisions. Eight hundred and sixteen dollars can be expected to work wonders on the numbers. 

Unacknowledged cost to agencies
If as might be expected one of the changes arising from going back to the pre reform era will involve reinstating mandatory agency internal review before a matter can be taken to the AAT, there will be additional costs to agencies, already subject to resource limitations.
............

I'm looking forward to the Government's elaboration if the OAIC decision crops up in Estimates this week or when the significant changes to legislation to give effect to the proposal make their way into Parliament. And what Labor, The Greens and the cross benchers make of it all.

If you are concerned drop your local member a line. Mine, Malcolm Turnbull, will be hearing from me.

Relevant media and other comments, for convenience:

The unhappy state of incoming state government briefs

Most Commonwealth government agencies broke new ground in publishing, or releasing in response to Freedom of Information applications, some information provided to the Gillard government in incoming government briefs in 2010, a welcome development that to varying degrees encouraged and informed discussion and debate on matters of importance. But it was mostly the more familiar story at state government level in the states that have held elections since. NSW and Victoria appear to have locked up completely. In recent decisions the SA Ombudsman decided documents that didn't qualify as cabinet documents should be released in the few instances when public interest considerations were relevant. However the Ombudsman made clear what he really thought about the importance of fuller disclosure:

In my view, there are reasons why the agencies might give access to parts of the portfolio briefs and other briefing documents, notwithstanding that they are exempt.....I consider that there is a strong public interest in members of the public being aware of policy initiatives and other issues that the agencies consider important to South Australia. In my view, access to such information would enhance public participation in discussions about South Australia’s future, and would be consistent with the objects of the FOI Act of promoting openness and accountability, as well as the principles of administration. I consider these public interest factors to be strongest with respect to generic documents, that is documents prepared with either a returning Labor or an incoming Liberal government in mind

Queensland is the next state to go to an election sometime next year. Don't hold your breath about disclosure of incoming government briefs there.The Right to Information Act uniquely provides: "Information is exempt information for 10 years after the appointment of a Minister for a department if the information is brought into existence by the department to brief an incoming Minister about the department." 

FOI veteran Waterford lets go with a few wild swings and low blows.

When Jack Waterford Editor- at- Large at The Canberra Times talks Freedom of Information, the rest of us listen. 

After all Waterford has been on this beat from the very beginning, lodging a raft of FOI applications on 1 December 1982, the day the Commonwealth FOI act commenced, followed by hundreds in the years since including two that went all the way to the High Court; was named the Graham Perkin Australian Journalist of the Year in 1985 for his work on FOI, and in 2007, Canberra Citizen of the year and a Member of the Order of Australia.

His opinion piece last week "FOI laws are resented and resisted" is as usual a good read, including some history about John Wood, another FOI champion, and commentary on the AAT decision in Wood and PM&C, the subject also of an earlier report by Chris Knaus about access to documents concerning the Ombudsman in 2011, Alan Asher.

Waterford on a roll
Waterford goes on to give the government a justified serve over the attempt to abolish the Office of Australian Information Commissioner, criticises the attacks on information access including by Public Service Commissioner John ('FOI very pernicious') Lloyd, and delivers a tough assessment of former Australian Information Commissioner Professor John McMillan and the OAIC generally, stating

"I could never be convinced that most of the quasi-judicial officers of the office of the Australian Information Commissioner were ever very much in favour of FOI or, in practice, very likely to cause disclosure to occur, at least within a reasonable period of time."

That's a wild swing, low blow or both.

In getting stuck into the OAIC and McMillan, Waterford makes no mention of the factors beyond control of the office that impacted on performance of the OAIC since establishment in November 2010 and tops it off with an error about the earlier IC decision in Wood.

Wood case
Recounting the background to the AAT decision, Waterford writes that PM&C's arguments for keeping the document in dispute secret when the matter came before the OAIC a year previously "very much impressed the FOI Commissioner and received his fairly usual rubber stamp."

Well mostly, the arguments didn't impress the commissioner at all.

Deputy President Forgie in a decision that Waterford praises reached exactly the same decision as then commissioner Popple who he criticises: that subject to two deletions the document is not exempt:

80.For the reasons I have given, I affirm the decision of the Information Commissioner dated 19 December 2014...

(Of course Deputy President Forgie takes longer to get there adding along the way valuable guidance about the interpretation and application of the FOI act.)

Waterford in making the rubber stamp remark does not mention that the commissioner in that 2014 decision [83-119]  rejected the deliberative process exemption claims by PM&C for seven other documents consisting of briefs, question time briefs and briefing notes for Senate estimates hearings and a record of conversation between the Ombudsman and Secretary of the Department.

PM&C had argued disclosure would be contrary to the public interest, the end of 'frank and candid' with flow on dire consequences. Having not impressed or persuaded the commissioner the department did not seek further review of those parts of the commissioner's decision. Presumably departmental officers soldier on providing Prime Minister Turnbull (three prime ministers on from the one who received the briefing note) with frank and candid advice despite it all.

OAIC

in his comments about the OAIC which has endured the axe hanging in the air for 19 months since the government announced the intention to abolish the office, Waterford does not mention issues that cumulatively hampered performance: limited powers and no sticks (eg review decisions not binding; no penalties), no political appetite for reforms and modifications to the scheme suggested by McMillan and others, fewer resources than anticipated and expected, and importantly a failure of leadership at the ministerial level that left McMillan to fly the flag for culture change while faced with senior public servants 'going red' at the mere mention of FOI and open government. 

Contrary to Waterford's comment that he can't think of one OAIC decision that has amounted to much, an SBS report this week suggests quite a bit of commendable OAIC disagreement with agency decisions: of the 352 IC decisions examined 

"141 (40 per cent) were to 'set aside' and change FOI decision outcomes completely..A further 38 (11 per cent) review decisions were to 'vary', where the OAIC mostly agreed with the FOI decisions made by government agencies, but disagreed with the reasoning."

That strike rate doesn't include mediated results that aren't formal IC decisions. Results aren't published. I expect many involved the agency giving ground. .

I've been critical generally and sometimes from personal experience of some IC decisions and of unacceptable delays, and concerned that few own motion investigations or compliance reviews have been undertaken. Much of the fault lies at the highest levels of government, where Attorney General Brandis is apparently still keen to bring the whole show down.

However the wild swings and low blows in the Waterford commentary aren't justified.

The stats tell the story - the OAIC annual report

The Office of Australian Information Commissioner Annual Report 2011-2012 covers the first full year of operation of the office and incorporates this year information collected from ministers and agencies concerning management of the freedom of information function. In previous years the latter was the subject of a separate dedicated report. It is not as detailed in this new arrangement, but still enough for most of us I expect. (Update: the detailed statistics are published online.)

In addition to the facts and figures, the report shows the commissioner's reasonably upbeat as you might expect.  Australian Information Commissioner Professor McMillan notes access to information issues now have greater prominence in government:

There is a marked increase in FOI requests for policy-related material, an upswing in applicants challenging access refusals through the OAIC’s independent complaint and review processes, and more media reporting based on documents obtained by FOI requests.

Freedom of Information Commissioner Dr Popple believes that the reforms have been successful, mostly:

Most agencies and ministers have demonstrated an understanding of their obligations under the Act to facilitate and promote public access to information, promptly and at the lowest reasonable cost. Many parts of government have embraced the Act’s objective: promoting Australia’s representative democracy by increasing public participation in government processes and increasing scrutiny, discussion, comment and review of government actions. However, some agencies have made decisions, or dealt with FOI applicants, in ways that
are at odds with the pro-disclosure culture that the FOI Act promotes and requires...Agencies do not always take reasonable steps to assist applicants to make their FOI requests, as agencies are required by the Act to do.

Dr Popple identifies a number of technical deficiencies in the FOI Act, in provisions dealing with (for example) charges, third party consultation, extensions of time and IC review of practical refusal decisions that will be raised for consideration in the statutory review of the act to be conducted in 2012–13.

Privacy Commissioner Pilgrim admits to being faced with a challenge:

Privacy issues featured prominently in public debate during the year just passed. Unfortunately, much of this resulted from incidents in which peoples’ personal information was compromised, often on a large scale.

The following items of interest (well, you know what I mean, for those really into this) are drawn from the report, together with my comment here and there. (Sean Parnell's shorter summary here.)

A 21st century government needs to move on from one stuck in the 19th when it comes to openness and transparency

At the swearing in of the Turnbull Ministry yesterday the Prime Minister told the Governor General

Your Excellency, today we are ... forming a government for the 21st century. A ministry whose composition and focus reflects our determination, to ensure that Australia seizes the opportunities of this, the most exciting times in human history. 

The Prime Minister repeated these descriptors a number of times over the last few days. He has also talked about his "wonderful new Cabinet, with brilliant younger people."

A government wishing to be seen in these terms will want to ditch the 'at war with transparency' tag that the Abbott government seemed to wear with pride. (Update: some movement underway)


The PM has said we need a new type of leadership and a government that is open and engaged.

I don't expect this means a burst of transparency regarding 'on water' activities, but an early move on two related fronts would evidence the good intent.

The Abbott government attempt to legislate to abolish the Office of Australian Information Commissioner and in the meantime defunding its FOI and information policy functions, and the non decision after two years about joining the Open Government Partnership represent 19th not 21st century thinking.

Withdrawal of the bill and announcement of a decision to join the OGP would pave the way for development of a national action plan through consultation with civil society as required by OGP rules. The plan would list concrete steps to improve transparency, open government and public participation- objectives the Turnbull government wishes to achieve.

Once the bill to  abolish the OAIC is laid to rest some thought can be given to evidence and changing times. The plan might identify the need for a comprehensive review of information access issues including scope to move Freedom of Information law into the digital open data era and improve efficiency and effectiveness within agencies and at the OAIC if the evidence suggests. 

In a conversation in July Mr Turnbull showed interest in such a review (see below).

The Prime Minister is clearly up also for changing direction when its the wrong way to go, telling ABC radio

When governments change policies, it's often seen as a back flip, or a back-track, or an admission of error. That is rubbish. We've got to be agile all the time. if you can't get something through the Senate, it is, I would say it's highly possible that you could change it to something that will get through the Senate. This is what John Howard calls the iron laws of arithmetic.

I had an opportunity to discuss FOI and the OGP with Mr Turnbull, my local member of paliament in July. These are emails exchanged at the time.

"Brandis diaries case shows how Freedom of Information has been deliberately neglected"

Rick Snell, University of Tasmania makes a welcome return to the commentariat 

"Federal Attorney-General George Brandis has lost a two-year bid to keep the summaries of meetings in his ministerial diary from being considered for release under the Commonwealth Freedom of Information Act.

A Federal Court judge in the Administrative Appeals Tribunal (AAT) and a full Federal Court bench decided the reasons advanced on Brandis’ behalf to not process a Freedom of Information (FOI) request were less than persuasive.

Shadow Attorney-General Mark Dreyfus, who originally filed the FOI request, called the decision “a victory for transparency and accountability” and has hailed the case as a landmark. Yet as a “landmark” decision, it speaks more forcefully to how both the Abbott and Turnbull governments have allowed the Commonwealth FOI Act to fall into a state of neglect.

The Brandis decision laid bare the inadequate and flimsy nature of the exemption claims made by the Attorney-General’s Department. Ironically, in the first two decades of the Commonwealth FOI Act, the Attorney-General’s Department was regarded by many as its fiercest advocate and guardian. Under Brandis it has forsaken that worthy heritage.

The sad thing was that the information in question was so basic and simple. The weekly summary of a diary produced in Microsoft Outlook contained the barest fragments of information about Brandis’ meetings – date, time, duration, location, and purpose of meetings.

Detailed information and supporting documents related to the meetings were not requested. There were 1930 individual entries Brandis and his staff needed to consider for release.
In terms of FOI decision-making, the “diary case” is one of the easiest jobs any government department could be asked to undertake. The majority of entries would not trigger any exemption claims under the FOI Act. If exemptions were technically triggered they would end up being released in the public interest or fail to justify the claim for secrecy.

Yet Brandis was prepared to spend two years, the resources of the public, an estimated A$50,000 in taxpayer funds for lawyers and the time of four Federal Court judges in preventing their release.
The basic arguments were that the information was prima facie sensitive, would take too long to look at, and unreasonably divert the time and resources of the department. It was, and is, a task a first-year law student could do in a couple of hours.

The reasoning by Justice Jagot in the AAT and the full Federal Court was sound. Their interpretation of the FOI Act was crystal clear; no Commonwealth FOI officer could justify making these arguments in the same circumstances in the future.

But this was exactly where the law and good practice stood in June 2014 when this saga commenced.

In a report released in December 2015, the New Zealand Ombudsman criticised the game playing of some New Zealand government agencies. In Australia it seems the federal government is prepared to play the game simply to hide information for as long as possible.

Under the Abbott government, funding to the Australian Information Commissioner and FOI Commissioner was terminated at the end of 2014. No legislation abolishing the positions was ever passed but the funding was not restored. The FOI Commissioner left and the Information Commissioner worked for several months from his own home – a script worthy of Yes, Minister, or Utopia.

Eventually some funding was reallocated in 2015, but not enough to restore staffing to previous levels. Since the middle of 2015, the Privacy Commissioner has been continually appointed as acting Information Commissioner.

Last century Malcolm Turnbull earned his stripes as a public interest advocate in the Spycatcher case. Yet he now presides over a poorly funded and hamstrung Office of the Australian Information Commissioner. In addition, Turnbull has allowed Brandis to waste taxpayer dollars on arguments that failed to gain any traction. Australia’s information policy settings have corroded.

The best, benign neglect of FOI policy by the Abbott and Turnbull governments has undermined the institutional capacity to deliver effective, informed and high-quality advice.

If an attorney-general is prepared to stonewall, for two years, access to bland diary summaries, it is little wonder that the release of more vital information like the Nauru files only happen via leaking. Brandis’ actions undermine accountability and the ability of people to participate in democratic debate in an informed manner.

The latest decision on the Brandis diaries is important. At the very least, it acts as encouragement to those refused information under the FOI Act that there is a chance to play the information game under a fairer set of rules than those used by the Australian public service and government ministers."

Rick Snell, Associate Professor - Acting Dean of Law, University of Tasmania
This article was originally published on The Conversation. Read the original article and comments from readers.

Ombudsman urges FOI action not just at Immigration

The Commonwealth Ombudsman's report on delay by the Department of Immigration and Citizenship (DIAC) in dealing with requests under the Freedom of Information Act draws attention to the fact that prompt access by an individual to personal information held by a government agency is critical for many applicants affected by government decisions, and that DIAC, faced continually with a large number of applications(last year almost 15000), failed at senior management level to recognise and act on systemic problems in the way it made information available generally, and in processing applications. A major problem highlighted by the investigation was that requests for information which could be dealt with aside from the FOI Act were being dealt with as FOI requests.

These type of problems are not unique to DIAC and Professor McMillan concluded with these obsevations to the broader public sector audience:

"4.4 Two messages lie behind (DIAC's) problems and (the proposed) reforms. The first is that FOI can impose complex demands upon an agency and require a concerted and high level response from the agency. Shortly stated, FOI is a core business activity of government agencies that will only be undertaken adequately if appropriate managerial attention and resourcing is directed to the task.
4.5 The second message is that this commitment to high quality FOI administration requires cultural as well as managerial devotion. Access to government information is both a statutory right and an essential requirement for administrative transparency and open government. As examples given in this report illustrate, members of the public often need timely information in order to enjoy other rights or make other claims against government."

And seven months after the election of a government with a specific commitment to create a new position to provide leadership and guidance on FOI, the Ombudsman also felt it necessary remind the Government of his oft repeated view that this is part of the answer to the problem that FOI has not lived up to its promise.

"4.6 The issues raised in this report tie into a broader debate now occurring in and outside government about the reform of FOI laws and processes in Australia. A prominent issue in that debate is the proposal to create an FOI or Information Commissioner to oversight FOI administration across government and to focus attention on the whole-of-government responsibility to comply with minimum legislated standards for openness. The findings of this investigation lend support to that proposal, whether the oversight function is created as a separate office or a designated function of the Ombudsman. Briefly stated, the Freedom of Information Act is a special law that can present difficult challenges for government. There is a need for a better understanding across government of the commitment and steps that can be taken to ensure that timely access to government information becomes a respected right and not a hollow ideal."

This sounds like a polite message to Special Minister of State Faulkner to get on with it.Sean Parnell in The Australian quoted the Minister describing the DIAC delays as "a serious matter that the Government will bear in mind as it moves forward with its FOI reforms. The Government is progressing FOI reforms and stands by its commitment to fix the system"

Lawyers and information access-can the twain meet?

The Cornall report was hard to find when I wrote this post about the OAIC own motion investigation into aspects of Freedom of Information processing of "complex, high-profile and sensitive FOI cases" at the Department of Immigration and Citizenship, but it has since been posted on the DIAC website. 

Cornall observes that at a time when a pro-disclosure approach is required "the Department presently appears to have more of an attitude of resistance to disclosure." He sees the answer in acceptance of FOI compliance as a whole-of-organisation responsibility, and outlines steps to that end. Despite concluding that Defence has a lot to offer in the area of process improvement, Cornall does not recommend DIAC follow the Defence lead to take lawyers substantially out of the game, a factor it cites as a major contributor to its improved FOI performance. 

So the DIAC Freedom of Information and Privacy Policy Section that processes non-personal requests, to be co-located with a new legal unit, will remain responsible to DIAC's Chief Lawyer in the Governance and Legal Division (although it sits in the Governance Branch rather than the Legal Branch). Cornall raises as an option "to place FOI more squarely within the DIAC legal stream which Ernst & Young suggested could increase the effective engagement with their legal staff (which) is critical to success." "However, my view is that the placement of the Freedom of Information and Privacy Policy Section within the Governance and Legal Division is not a key issue as long as the FOI and legal areas work closely together." 

Cornall concludes "It is not necessary to have lawyers as decision makers although lawyers could be appropriate decision makers in some complex or sensitive cases."

Yes, but is "legal" the best perspective for access to information issues and decisions?

I've expressed the view that the information management environment (not that of spin or the law) where a public management/service to the public ethos prevails might be better.

FOI continues to be located in the legal area in many agencies at Federal and state level, perhaps a result of FOI's administrative law heritage. Not just in DIAC but as Cornall discovered in Veterans Affairs, the Australian Taxation Office and Human Services, the three largest Federal agencies in FOI terms.

According to the report, the majority of FOI decision makers in the ATO are lawyers. In DHS the Ombudsman, Privacy and FOI Branch is part of the Legal Services Division and an "FOI legal team has recently been established in the Department’s Legal Services Division for complex matters." Cornall reports the Chief Counsel there "regards the freedom of information area as a high risk area for the department and compliance with the department’s FOI obligations commands a lot of her attention.."

 (Just one of many others, taken from a recent job advertisement:"The CSIRO Legal Team, including the CSIRO FOI/Privacy Officer, is responsible for processing, managing and responding to all Freedom of Information (FOI) requests and privacy enquiries from the public and from within CSIRO")
 

You know that old one, "when you hold a hammer everything looks like a nail"? 

Meanwhile over at Defence, Tony Corcoran in the Freedom of Information and Information Management Branch in the the Ministerial and Executive Communication and Coordination Division, soldiers on (sorry) with a sensible combined responsibility for freedom of information, records management and associated issues.

In my humble, lawyers should play a role in FOI  administration in the same way they do on a myriad of other issues-when required. Public servants without law degrees give effect to the law all day every day in all sorts of areas without a lawyer at their shoulder.

I know the answer, but "what's so special about information access?"

Roll on cultural change. As Cornall emphasises, tone and leadership from the top is crucial.

Two other issues from the report regarding FOI management, not questioned by Cornall but of potential concern and that warrant a closer look across the system:

What goes in "special handling" for requests variously described in one or more of these agencies from the media, Members of Parliament, a political party, advocacy groups, requests seeking policy documents and requests in high profile cases that have attracted or may potentially attract media attention?

And exactly what's involved in the practice of briefing the Minister’s Office about upcoming FOI decisions, in some cases allowing five days for comment, and how any of this impacts on decisions.

 

Government fails to make the case for abolishing information commissioner

In introducing the Freedom of Information Amendment (New Arrangements) Bill 2014 in the House yesterday the government argued that the Office of Australian Information Commissioner should be abolished primarily because of complexity in the system of external merits review for FOI matters. 

If complexity was the issue it had a number of options to improve on the model adopted in 2010, short of junking the whole thing, should it have taken the trouble to look, think and discuss beyond the confines of the Attorney General's Department. 

After all, the limited review of the FOI act in 2012-13 by Dr Hawke (still without a response 18 months later) concluded that the establishment of the OAIC "has been a very valuable and positive development in oversight and promotion of the FOI Act." (page 24). 

And specifically on the complex review system cited by the government as the major policy reason for the decision: 

"The current system of multi-tiered review has been in operation for two and a half years.  At this stage there is insufficient evidence to make a decision on whether this is the most effective or efficient model for reviewing FOI decisions, particularly in relation to the two levels of external merits review.  The Review considers this issue warrants further examination and recommends that the two-tier external review model be re-examined as part of the comprehensive review recommended in Chapter 1." (Page 36)

Apart from 'removing complexity' the government claims measures in the bill will save $10.2 million over four years, "part of the government's continuing commitment to repair the budget" and the Explanatory Memorandum adds that it "furthers the government's commitment to smaller government."

There is no mention in the Second Reading speech that abolition of the office will remove the independent statutory monitor of compliance with the FOI scheme, the leader responsible for promoting a pro-disclosure culture in government and awareness of the right to access government information more broadly. Resource limitations and other factors may have limited the office capacity to get far in all this, but abolishing it certainly won't advance us on this never ending journey.

The absence of such an office was identified as an impediment to effective administration of the FOI Act as long ago as the joint 1995 Australian Law Reform Commission and Administrative Review Council Open Government report and later by the Commonwealth Ombudsman. It took 15 years for government to act on this. The Abbott government is taking us back to the dark days where FOI has 'orphan' status within 12 months of taking office.

No mention also of the cost to agencies of the reintroduction of mandatory internal review before an application for full independent merits review to the AAT, or the cost to applicants if they seek to take matters further with an AAT application fee in most instances of $861. 

No mention also of the abolition of the commisioner's function to provide strategic advice to Government on broader information management policy and practice, or abolition of the Information Advisory Committee.

Whereas up to now an agency has been required to have regard to guidelines issued by the independent commissioner in administration of the FOI act, in future those guidelines are to be issued by the Attorney General.

Debate was adjourned after the minister's second reading, but there is no doubt it will sail through the House. Let's hope there is some real scrutiny in the senate of what is a retrograde step for transparency and accountability.

Paul Farrell has written this in The Guardian today.

In short: 
The Office of the Australian Information Commissioner (OAIC) will be abolished. 
The Australian Privacy Commissioner will continue to be responsible for functions under the Privacy Act 1988 as an independent statutory office holder within the Australian Human Rights Commission.

The Administrative Appeals Tribunal will have sole responsibility for external merits review of FOI decisions.
Those waiting in the OAIC queue for review will be transferred to the AAT-no application fee for them.

Mandatory internal review of FOI decisions required before a matter can proceed to the Administrative Appeals Tribunal. The tribunal will receive a funding boost to assist with processing FOI reviews.
(Oh almost forgot: Continuation of the situation that there is no right to internal review of a decision made by a minister or the principal officer of an agency.
The only extension of time for dealing with an application to an agency or minister is where this is agreed with the applicant. The only 'incentive' for an agency or minister to make a decision in time is that no charges can be imposed for dealing with the application, but that hasn't produced uniform on time decisions so far.
And a deemed refusal - when a decision is not made within the statutory time-frame - is taken to have been made by the minister or principal officer.
In all these cases the only recourse for an aggrieved applicant (or aggrieved third party with an established interest in the matter) apart from a complaint to the Ombudsman in the case of an agency is to seek merits review from the AAT,)

The  Ombudsman will be responsible for investigating complaints about actions taken by an agency under the FOI act-but apparently isn't to receive additional resources for this purpose.

The Attorney-General will be responsible for FOI guidelines and collection of statistics on agency and ministerial FOI activity.