FOI for Boffins

I mentioned recently that a journalist had asked me where to find FOI for Dummies but if such a publication exists it won't be much help in coming to grips with the fine print of the Government's proposed reforms contained in the Exposure Draft Freedom of Information Amendment (Reform) Bill 2009.The published Companion Guide helps on some of the main points but you wouldn't want to rely on that for the complete picture.

The Draft Bill runs to 130 pages- and that's just the proposed changes. These proposals are in addition to the changes in the Bill currently before the Parliament to abolish conclusive certificates and a few other things beside. To make sense of it all you need to refer back to the current version of the Act to get the gist of seemingly innocuous provisions such as "Repeal the section" or at the end of the paragraph add "and." By way of contrast the Queensland draft Right to Information Bill put on the table in December was 178 pages, but was a complete rewrite, so a lot easier to manage.

What I said at the time was the good news about the Queensland Bill also goes for the Commonwealth's draft:

"Heartening in particular that the drafting style is straightforward, relatively plain english; in the emphasis on proactive disclosure and agency publishing schemes; to find a great preamble that captures the democratic principles that underpin the legislation; the clear statement of objects to provide a right of access to information unless disclosure on balance is contrary to the public interest; and at least a slimmed down list of exemptions."

Except the last point- basically all the previous exemptions remain in one form or another.

By the way, the nature of the proposals have a lot more in common than this with David Solomon's Queensland recommendations, and in some areas-eg real embrace of access to government information in the digital age- fall short of what he put forward.

However what is on offer here is good, positive change- with some quibbles of varying significance- and when passed will make a big difference. Just one illlustration. The Shadow Attorney General Senator George Brandis said on Tuesday at the Free Speech Conference that the Minister's claims about the significance of changes to spell out relevant and irrelevant public interest considerations regarding disclosure and nondisclosure didn't amount to a row of beans. Now the Senator, like the rest of the panelists only had an hour to absorb the fruit of 16 months work by untold public servants, ministerial advisers and ministers, so could be forgiven for omissions, but he missed a major feature of the proposals.

Up to now the courts have been prepared to interpret the Act as not requiring a pro-disclosure bias because the objects in Section 3 include a reference to a right of access subject to the exemption provisions. Thus "no leaning" in favour of disclosure. However in the new objects there is no mention of exemptions, simply this:

"(2) The Parliament intends, by these objects, to promote Australia’s representative democracy by contributing towards the following:(a) increasing public participation in Government processes, with a view to promoting better-informed decision-making;
(b) increasing scrutiny, discussion, comment and review of the Government’s activities.
(3) The Parliament also intends, by these objects, to increase recognition that information held by the Government is to be managed for public purposes, and is a national resource.
(4) The Parliament also intends that functions and powers given by this Act are to be performed and exercised, as far as possible, to facilitate and promote public access to information, promptly and at the lowest reasonable cost.

The reference to Parliament's intention in last sub-clause is not new but the rest is. Read in conjunction with the legislative demise of most of those silly "Howard" factors that favoured non disclosure since 1985, the duty to take into account the following when weighing the public interest (quibble- only relevant to some not all exemptions) will move things strongly in the direction we were trying to go in way back in 1982:

"(3) Factors favouring access to the document in the public interest include whether giving access to the document would do any of the following: (a) promote the objects of this Act (including all the matters set out in sections 3 and 3A); (b) inform debate on a matter of public importance; (c) promote effective oversight of public expenditure;"

More-including some quibbles later.

FOI for Boffins (Mark 2)-warning:not for the faint-hearted

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You could write a book on the subject- a few will- but given the complexity involved in working through the Exposure Draft of the Federal Government's Freedom of Information Amendment (Reform) Bill, for my own purposes and perhaps of assistance to you, the following is a summary of some of the more significant aspects of what would change and stay the same.I won't repeat previous comments about the overall package, the pro-active disclosure provisions or the public interest provisions.

I presume Minister Faulkner's department would have had to put something like this together to brief him and the cabinet on the proposals, particularly the exemptions, in addition to the Companion Guide which doesn't quite do it. I may have missed something in the fine print or got it wrong-in that case let me know. I've stopped short of comment (in most cases) at this stage.

The Act as it stands is here. The documents released for consultation are here.
The Exposure Draft Bill here - PDF 543KB. Hope this doesn't stretch the relationship too far.Good luck

Scope of the Act
No change except for extension of the Act to documents held by a contracted service provider or subcontractor providing services to an agency and the agency would hold the document if it performed the service in its own right. An agency must take contractual measures to ensure it receives a document of this kind.(Schedule 6 in the Draft)

Charges
Application fees abolished and free processing time of one hour for all and five hours for journalists (bloggers?) and non-profits. Nothing in the Exposure Draft. A Draft regulation to be released shortly.

Applicants
New powers for the declaration by the Information Commissioner of a person to be a vexatious applicant. Requires a finding of "abuse of process"(as defined) or a "manifestly unreasonable" request or application.(89K-89N in the Draft)

Exemptions with no public interest test
National security, defence, international relations
Section 33. No change. A new subsection in Section 4(11 in the Draft) of the Act states to"avoid doubt" Section 33 covers information communicated pursuant to any treaty or formal instrument on the reciprocal protection of classified information with a foreign government or international organisation.

Cabinet documents.
New section 34. Main changes are that a document prepared for submission to cabinet (exempt at present) will only be exempt where it has been or is proposed to be submitted and was brought into existence for the dominant purpose of submission for consideration by the cabinet; new subsection exempts a document brought into existence for the dominant purpose of briefing a Minister on such a document. Other current provisions in the exemption remain.

Executive Council
Section 35. Repealed.

Law enforcement
Section 37. No change.
.
Secrecy provisions in other acts
Section 38. No change to the exemption or to Schedule 3 that lists secrecy provisions in other acts prohibit disclosure.

Legal professional privilege.
Section 42. No change.

Material obtained in confidence.
Section 45. No change other than consequential amendments to 45(2).

Contempt of Parliament/contempt of court.
Section 46. No change
.
Companies and securities legislation.
Section 47. Repealed
.
Electoral rolls
Section 47A. No change.

Public interest conditional exemptions
The wording of each current exemption that includes a public interest provision is to be amended, to link back to the standard "must disclose unless at the time disclosure would on balance be contrary to the public interest" test in new Section 11A. Other than this:
Commonwealth-State relations
Old Section 33A repealed and replaced (47B in the draft). No substantive change.

Deliberative process.
This heading replaces "internal working documents". Old Section 36 replaced (47C). No substantive change.

Financial or property interests of the Commonwealth
Old Section 39 repealed and replaced (47D). No substantive change.

Certain operations of agencies
Old Section 40 repealed and replaced (47E). Only change is removal of subsection(e)- disclosure could be expected to have a substantial adverse effect on the conduct by or on behalf of the Commonwealth or an agency of industrial relations.

Personal privacy.
Old Section 41 repealed and replaced (47F).The exemption itself is unchanged:a document is is conditionally exempt if its disclosure under this Act would involve the unreasonable disclosure of personal information about any person (including a deceased person).
However a new subsection lists matters that a decision-maker must take into account including whether the information is well known or available from publicly accessible sources, and "any other matters" considered relevant.Perhaps this is meant to allow a step back from "disclosure to the world" in appropriate cases (as per the Marke decision in Victoria) although Section 11(2) remains: the right of access under the Act is not affected by any reasons the person gives for seeking access or the decision maker's belief as to what are his or her reasons for seeking access.
The other new twist is that in addition to the requirement to consider unreasonability (which has always required consideration of the public interest) the exemption provision now requires disclosure unless on balance contrary to the public interest.

Business documents
Old Section 43 repealed and replaced (47G). No substantive change in the exemption. However all three separate parts of the exemption will also now require consideration of whether disclosure is on balance contrary to the public interest. There is currently no additional test like this for a trade secret, or information that has a commercial value that would be destroyed or diminished by disclosure. The broader exemption for information concerning business,professional commercial or financial affairs continues to require a finding that disclosure would have an unreasonable affect or prejudice the future supply of that sort of information, plus new consideration of whether disclosure on balance would be contrary to the public interest.

Research
Old Section 43A repealed and replaced (47J). No substantive change.

The economy
Old Section 44 repealed .Current 1(a) not replaced: exempt where disclosure would, or could reasonably be expected to, have a substantial adverse effect on the ability of the Government of the Commonwealth to manage the economy of Australia.
The new section largely replicates the current 44(2) with the addition of an exemption where disclosure would have an unreasonable adverse effect on Australia's economy by "influencing a decision of a person or entity".

Exemption of certain persons and bodies
Section 7A(2)-intelligence agencies- repealed and replaced (20). No substantive change except to exempt a summary of or an extract from an intelligence agency document. No change to agencies listed in Schedule 3 that are exempt in respect of all or some functions except the addition of Department of Defence in relation to documents in respect of operational intelligence, and "special access programs under which a foreign government provides restricted access to technologies." And removal of Federal Airports Corporation.

Consultation Requirements
Sections 26A, 27, 27A repealed and replaced (18). No substantive change.

Review Processes and other bits and pieces
Another day.....If you got this far you know we both need a break.

Some analysis of the FOI reform package.

Minister Faulkner's Freedom of Information reform package is draft legislation to give effect to Labor's election commitments. ( Memory jogger- pre-election policy.pdf ).The commitment apart from words about the end of excessive secrecy, change in culture across government, and promotion of greater opennness and transparency, was to implement "key findings" of the Australian Law Reform Commission 1995 Open Government Report to revise (in largely unspecified ways) the Freedom of Information Act, to rationalise exemption provisions, abolish conclusive certificates, review charges and establish an information commissioner. The Minister clearly sees the draft legislation as something to wave in front of the public service as evidence that the government is serious about culture change.He said last week he had a memo to public service leaders sitting on his desk to this effect, hopefully sent by now.

The proposals deliver mostly on a legislative scheme to deliver on the commitments. Selectively mind you when it comes to the 106 Recommendations of the ALRC-see below. Here and there, for example in abolishing application fees entirely, the draft goes beyond what was proposed by the Commission.The Government's separate move to abolish all conclusive certificates also goes further than the Commission recommendations.

But "rationalise exemption provisions" has produced a bit of a damp squid with the abolition of two rarely used exemptions (Executive Council documents and documents prepared in accordance with companies and securities legislation) and a sub-section relating to documents concerning the conduct of industrial relations, all as recommended by the ALRC. All other 16 exemptions (including many internal combinations and permutations) remain, with a couple of welcome changes but some ALRC recommendations not acted upon. Exemptions will now be arranged in two neat boxes - absolute exemptions, and conditional exempt documents where a public interest test applies. (More about these in another post shortly.)

Some media reports suggest confusion that the Minister's statement about a single public interest test means there will be one exemption. That's what Queensland is proposing. Federally it means only that the current situation of several different formulations of a public interest test in the Act will be replaced by one test- whether disclosure is contrary to the public interest, relevant only to specified exemptions but not others.

Many of the ALRC's 106 recommendations related to non-legislative measures but quite a few statutory changes on issues other than exemptions have been rejected without explanation. As already pointed out, its a big x for the recommendation that the parliamentary departments which spend and pay money on and to our parliamentarians be brought within the scope of the Act; ditto for a recommendation now 13 years old to reduce the time limit for dealing with an application in three years from 30 days to 14 days; ditto that charges should only be imposed in respect of documents released; and ditto for other proposals of varying significance such as that chief executives of government agencies should have a duty under records legislation to create "such records as are necessary to document adequately government functions, policies, decisions, procedures and transactions." You might be surprised they don't have such a duty already, only an obligation to safeguard records once created.

Overall there are important positive changes- notably the proactive publication requirement- even if it falls way short at this stage on detail as mentioned here last week- and the pro-disclosure bias achieved through a clear statement of the objects of the act and a more forceful expression of relevant and irrelevant public interest factors.

But what we will end up with is hardly an access to government information act tailored to community needs and expectations and reflecting 21st century realities. It's still essentially the 1982 Act- in fact drafted in the 70s- with a lot of legalisms and horse and buggy features of the original, amended to reflect some aspects of the internet, to give effect to election commitments, and informed by many but by no means all of the changes recommended by the Australian Law Reform Commission all those years ago.

The reforms therefore represent significant incremental change but limited rethinking of basic concepts. In the dry and dusty 130 pages of proposed changes to the legislation there is no hint of bigger, broader consideration of access to government information in the Google Age. It wasn't much of an issue way back in 1995 when the internet and the information age had just dawned. But the debate (as picked up to some degree in the Queensland Solomon Report Chapter 3) these days has in some respects moved on from a good law that fairly balances the right to know and the imperatives of good government. The discussion is about government wide information access policies; the linking of public access considerations to an approach to information and communications technology management that is geared to reflect the changing sensitivity of information over time; access to search tools that would enable the citizen to search for government-held information of interest; improved access to digital information including government databases that might promote investigative reporting and further action by those outside government to achieve government policy objectives. And agency score-cards, performance agreements with chief executives, and penalties for obstruction.

Maybe the Government recognises this and expects the detail to flow forth when we have an information commissioner, or when we have a further review of the Act two years after the new legislation takes effect. In the meantime once the legislation passes Parliament later in the year, you will in 2010 be able to lodge an FOI application by email!!

If you are interested in ideas about FOI 2.0 this presentation by Rick Snell last year outlines what openness and accountability could mean in our times. (Pdf)

One reason we won't be spending much time tossing around these ideas is that the Government has done a neat job of "framing" the problem and the answer by putting on the table the proposed amendments to the Act in a way that will certainly limit public input to the proposals put forward, not broader concepts. In addition the technical language of the bill will limit participation in the discussion to the boffins and usual suspects. Few others will get through the draft and the links back to the Act, ALP policy and the ALRC Open Government Report to try to work out what was promised and recommended, and the merits of what is now proposed.

To the outsider, the bulk of available time to date on FOI reform appears to have been spent by Minister Faulkner, his office and the public service engaging in a 16 month, largely private internal seminar on drafting legislation to enable the Government to tick the box on another election commitment. It could have been different if there had been a serious attempt to reach out to engage the community on the subject of government transparency and accountability, not now after 16 months, but way back when minds first turned to the subject.That didn't occur. Overall, however its way better than what was on offer-nothing- from the last lot.

The rest of us have about six weeks now to offer a comment.

Memo Senate: Aussies back from beach soon

www.neatorama.com

"Reform Now" commented on a recent post about the few submissions posted so far on the Senate Finance and Public Administration website in connection with its examination of the Federal Government's Freedom of Information Reform (Amendment) Bill - five to date. Submissions close on 28 January, and I'm working on a submission to that deadline.

The reasons for a handful of submissions so far are obvious- the debate during the earlier Government consultation phase, and now, has been framed in a way that it has all been about words in an act, something that effectively sidelines most john and mary citizen types (but two out of five already in are from citizens on a mission), meaning its largely in the hands of boffins. And December/January isn't a great time of year for even boffins to drag out the computer and get to work on dissecting a few hundred pages of legislation (or the associated Exposure Draft on Fees and Charges, on which submissions closed two weeks ago.)

But fascinating to see Queensland Information Commissioner Julia Kinross in there already (PDF 259KB) arguing strongly a single issue- that Federal parliamentary departments should be covered by the FOI Act. She presents a good set of arguments for something I've been running with for years, so far to no avail.

However, ahem, the Information Commissioner didn't mention Queensland hadn't taken this step in its 2009 reforms. Parliament there remains outside the Right to Information Act 2009. Tasmania, by my analysis of their Right to Information Act, to commence in July 2010, did take this step. I've yet to hear anyone from the Tasmanian Government,  the media, other commentators or even the Queensland Information Commissioner, mention this important Australian precedent.

FOI Reform speeches

The Second Reading speeches by the Parliamentary Secretary to the Prime Minister in the House of Representatives yesterday ( links here) on the Freedom of Information Amendment (Reform) Bill 2009 and the Information Commissioner Bill 2009 are, understandably, universally positive about the proposals. There is a bit of a myth emerging about the consultation process including the comment yesterday that the Bills "are the product of a participatory process." Yes but just for the record, and without labouring the point, the consultation process was, well, ordinary- a selected brief chat with a few people before the release 16 months after the election of an Exposure Draft of amendments, a pretty forbidding document for anyone but boffins, but which had the effect of "framing" the problem and providing its own answers; followed by a largely one-way submission process, and a round-table in Canberra where officials outnumbered other participants and they all fitted comfortably into a pretty small room; and virtual silence since, with the final product containing a few points raised in submissions.The explanation of course is that the Government had no higher ambition than to implement its pre-election commitment.

On the substance of what was said yesterday, one matter worth noting, although the Government appears not to be making much of it- the FOI Charges Regulation yet to be released will provide that if there is a failure to comply with a statutory time period, any charges will be waived. NSW has included a similar provision in the GIPA Act. This will have some impact on agencies frequently late in determining applications. Unless I missed it I don't think waiver of charges for being late has been mentioned before.