Political influence in FOI decision making

Kelvin Bissett in the Daily Telegraph 5 December - Pollies get say in FOI scrutiny - picked up a couple of points from my review of the NSW FOI Procedures Manual posted here a few weeks ago.

My review in full is here.

Bissett made quite a point about the manual's comment that ministers may need to be consulted prior to the making of a Freedom of Information determination in some instances.

Bissett said: "The policy will surprise many applicants who believe their FOI requests will be dealt with at arms length of the political process"

I'm afraid FOI applicants who have been labouring under this apprehension haven't picked up on some of the clues that suggest some responses to FOI applications have a significant input from ministers and ministers staff. And it's not just an issue in NSW.

The report on the Independent Audit into the State of Free Speech in Australia included a section in the Freedom of Information chapter about political influence on decision making. It said that while there was nothing untoward in ministers being made aware of FOI applications being processed, the practice of informing them prior to the making of a decision raised the potential for political influence in a direct or indirect way. The Commonwealth Ombudsman in 2005-06 reported that "Complaints to his office concerning applications for access to non-personal documents typically raised concern about the involvement of ministers and their staff in dealing with a particular application". Regular reports on FOI applications are submitted by some agencies to ministers - the Audit had evidence of this happening in Treasury and Defence.

Guidelines on processing applications for Victorian Government agencies issued by the Department of Justice suggest that a brief on any FOI application should be provided to the minister's office 5 days before finalisation.

Quirks in the Federal and Victorian FOI Acts give the minister discretion to decide any FOI application received by a government department. While there is no evidence that this authority is exercised often, if at all, it may provide the justification for bringing FOI matters to the attention of the minister.

In NSW, where the Act gives authority for public servants to decide on access to agency documents, ministers' offices are kept regularly informed about FOI applications on hand and the Premier's Department requires a fortnightly report on FOI work in progress. A NSW Auditor General's Performance Audit report in 2003 expressed concern about possible perceptions of interference in decision making, citing examples in the Ministry of Transport where the then CEO sought to influence determinations, and in the Department of Education and Training where a draft determination was altered following comments from staff of the then minister. These are probably tips of icebergs.

A more significant problem everywhere is that in some agencies public service responsiveness to the government of the day results in a tendency to act in the government's interests by refusing access to potentially controversial or embarrassing documents.

We are still a long way from routine disclosure of information sought by applicants under freedom of information laws.

WA Information Commissioner frowns on 'heads up' for ministers in advance of FOI decisions

Maybe there are many instances of agencies around the country that as a matter of routine report to their minister about freedom of information applications received and on hand, and give the minister's office a 'heads up' or more, an opportunity to 'comment', on decisions regarding access to particular documents.

On the last mentioned the Western Australian Information Commissioner in his 2013-2014 annual report said the law is pretty clear there: decisions on access to agency documents are for the agency, the agency alone and not the minister.  

While ministerial responsibility under the Westminster system means it is understandable that an agency would want to ensure that its minister is informed on agency operations, the implications of the legislated FOI differentiation between an agency and the minister are also clear:

"To avoid perceptions of inappropriate influence, it may be prudent not to brief a Minister on any individual matters until the agency has made a decision on access. Where the applicant is an individual, respect for that individual’s privacy would best be served by briefing the Minister in a way which does not disclose the identity of the access applicant. In any event, knowing the identity of the access applicant in a particular mattter is unlikely to assist the Minister discharge his or her executive responsibilities." (Full text below.)

This is along the lines of, but goes further than a protocol issued last year by the Queensland Information Commissioner. The protocol accepts that a reporting system may be established but the circumstances where briefing is required should be limited to where "this is relevant to the minister's responsibilities," and generally, where the giving of access to information requested" will require the minister or Department to prepare for public debate." According to the protocol, systems for reporting to the minister and the director general, where they exist, should be documented in a written policy, the policy must be made available for inspection under s 20 of the RTI act, and in the interests of transparency should be published on the Department’s website. (Anyone up north checked that out?)

The Queensland (and NSW) right to information legislation includes offence provisions for improper interference in decision making by any person. That might serve to limit the persuasiveness of any offered suggestions from on high and keep agency decisions at least in the general direction of the right track.

 Section 23 of the Federal FOI act which at least theoretically means the minister has the option to process any application received by the agency may change things a bit at the national level. (I can't recall it ever being publicly cited. Victoria has a similarly anachronistic provision.) 

But the Department of Prime Minister and Cabinet FOI Processing Milestones (pdf) (as they existed in 2013) leave you wondering why the PMO needs to be informed at every step of the way. My summary of the internal communication instructions:

1.  Every FOI request received is to be notified by email to: the Secretary of the Department; The Prime Minister's Office (Adviser on FOI); the First Assistant Secretary (relevant line area); the identified decision maker; and relevant contacts as identified by A&AR (eg FAS, Cabinet Division.) The email notification provides, among other things "an opportunity for the Secretary and PMO to indicate their interest in being engaged in consultations."
 2. As the process rolls on, "all internal parties (the Secretary, PM&C line areas, PMO, other ministerial offices in the portfolio) are consulted as appropriate.The Deputy Secretary and FAS of the line area should be kept consistently informed of all sensitivities."
3. As documents are gathered for decision "the decision maker must consider whether a brief on documents being considered for potential release should be provided to the Secretary to allow him an opportunity to provide comments or insights, prior to a decision being finalised." 
4. As the decision maker forms a clear view on information to be released, a number of further consultation steps are required including with the Secretary "if appropriate," and with the PMO which "should be given three days to provide final comment." 
5. "Three days before release, the decision maker should send a copy of the decision letter and documents for release to the Secretary with a noting brief advising of consultations and any sensitivities and email copies to the relevant Deputy Secretary, First Assistant secretary and PMO contact/s. If the Secretary hasn't been consulted previously and needs more time to review the documents it may be necessary to negotiate a brief extension of time with the applicant."

Some of those 'comments' if they are recorded might make interesting reading.

Then there is what we know about Immigration. The Cornall Report on FOI processing revealed that similar to the situation in Victoria, five days notice of decisions on access to non-personal documents is given to the minister's office. The Australian Information Commissioner noted in his report of an own motion investigation that the department advised that the process is so  the Minister's office "can understand the nature of the documents intended to be released and comment can be given" (emphasis added.)

As to other agencies,who knows?

In WA in any event agencies can see the Information Commissioner frowns on this.

The text of the WA annual report item follows

Yes Minister: political interference in Freedom of Information decisions

From The Canadian Press:

"Last summer, Sebastien Togneri (a top political aide to the Minister) issued a terse email to officials in the Public Works Department telling them to "unrelease" a report on the government's real-estate portfolio when he learned it was being sent uncensored to The Canadian Press. The news agency had asked for the 137-page document under the Access to Information Act, and had paid all photocopy fees. Togneri insisted that only 30 pages be released. The file contained sensitive information about the performance of the government's real estate portfolio, such as missed targets and high maintenance costs. A bureaucrat had to dash down to the Public Works mailroom to retrieve the sealed package. And for the next three months, public servants, Justice Department lawyers and consultants all agreed there was no legal basis to withhold any of the document. Despite that consensus, Togneri's view prevailed and the heavily pruned report was sent to The Canadian Press 82 days later than required by the law."

When this was revealed, according to The Canadian Press, the Minister didn't even thrash Togneri with a feather, commending him as "an employee who has exceptional parliamentary skills." Then, I expect to Togneri's delight, announcing "he won't be in charge of access-to-information files anymore." There has been plenty more in the news in Canada about this since, with claims it was an isolated incident and the Prime Minister's Office restating ministers staff should not interfere in such things.

The point in drawing attention to this Canadian story is that in three Australian state jurisdictions this sort of conduct could see the Tognieris of this world in serious hot water. New FOI laws in  Queensland (commenced)  NSW and Tasmania (yet to commence) include offence provisions for the first time. They're laws you hope never need to be used but their presence on the statute book would have to have a salutary effect. Togneris in Canberra however needn't be alarmed-there is nothing of this sort in the Commonwealth Freedom of Information Act,  and no glimmer of interest in going down this path, as evidenced by the Government's FOI Reform Bill, now before Parliament.The states' move is an example of an emerging Australian standard ignored by the Commonwealth Government in its reforms.

PM's office draws a legal shade on sunshine

Ceridwen [CC-BY-SA-2.0] Wikimedia Commons

FOI Editor at The Australian, Sean Parnell wrote over the break about the two decisions handed down (in Christmas week) by Australian Information Commissioner Professor John McMillan, upholding decisions on behalf of the Prime Minister to refuse access to documents because they were outside the scope of the Freedom of Information Act.

The issue in both cases was whether documents requested by Parnell were "official documents of a Minister."( Freedom of Information Act (s 4). The commissioner found that a letter sent in September 2010 by Emily's List, a Labor Party advocacy group which counts the Prime Minister as a member, congratulating her on her election victory, and separately, a list of the meetings and conference commitments of the Prime Minister at an ALP national conference, did not relate to the affairs of a government agency, an essential component of the definition, and therefore were not subject to the FOI act.

Parnell argued in both cases that the documents involved contact with people seeking to influence government decision making that should, in the interests of transparency, be disclosed. But as the commissioner observed

Whether there is a public interest in greater transparency surrounding contact between elected political leaders and business or community representatives is not the issue to be resolved in this IC review. That is a debate for another forum.

Hopefully an issue for the review of the Commonwealth act towards the end of the year, and for anytime anyone shows an interest in our weak lobbying laws that should require some disclosures about lobbying activity.

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.

FOI reforms the real thing, even to Michael McKinnon

After two days at different conferences in Canberra where Freedom of Information was a lively topic, a few reflections.

David Solomon and Michael McKinnon in addressing the National Administrative Law Forum on the topic "FOI reform or political window dressing?" both agreed its serious and far beyond window dressing thus far in all the jurisdictions that are on the move. Premier Bligh received special acknowledgement from both for the priority she gave to change from day one in office, her willingness to go with root and branch reform and the skin she has put on the line to make this work in Queensland.

Solomon said the common element everywhere was that new political leadership had seen more open government as a virtue, with FOI part of a bigger reform picture to improve integrity, accountability and public trust and confidence in government. McKinnon not surprisingly thought that the media had played a key role in getting the issue on the agenda through highlighting how FOI was not working, gave some telling examples of the high cost of government secrecy in terms of impact on citizens, and suggested the need for constant vigilance by the media and others to hold onto the gains, given what he sees as the underlying resistance by ministers and public servants to openness.

Cabinet Secretary and Special Minister of State Senator Joe Ludwig gave an outline of the new scheme in the Federal Exposure Draft released by his predecessor in March, but no advance on that, although in this first speech on the topic since his appointment, he put on the record his strong commitment to the change proposals. The Minister gave no indication of what influence on thinking the 46 submissions in response to the Draft bills have had, and left straight after, without taking questions, on the note that having considered them, the bills will now be introduced into Parliament.

One welcome comment by the Minister was on frank and fearless advice- those who still mumble (you know some of the names) that the potential for advice to be open to later scrutiny will mean it is not written down should note:

"I know that some in the Australian Public Service feel that FOI reforms may inhibit their ability to provide frank and fearless advice. But I believe that the tradition of frank and fearless advice is more robust than that. I believe that our public servants will work professionally within the new FOI framework as they do within other accountability mechanisms. It is beyond dispute that it is in the public interest for ministers to receive written advice on matters relating to their administrative and policy responsibilities. In any given case, whether or not the exemption may be sustained will depend on the subject matter of the document and the circumstances around the Government’s consideration of the document, including whether a Government position has been announced. Political sensitivity will not be an argument against disclosure."

Professor Bill Lane and Eleanor Dickens of Clayton Utz Brisbane ran a concurrent session at the Forum providing a detailed run-through of Queensland's Right to Information Act. It provided a sharp contrast for me between the fundamental shift in Queensland (and NSW) reflected in completely new legislation and the Federal proposals which graft onto the existing 27 year old act some extensive changes that deliver on the Government's pre-election commitments. While 21 months on, now is long past the time to get on with it, the opportunity has been missed this time round for a bigger step by Canberra in the best practice direction.

At the Walkley Foundation Public Affairs in the Nation's Capital Conference on Wednesday one issue I spoke about was the looming management challenge posed by the new forms of access to information legislation, with the emphasis on publication and pro-active disclosure. Public affairs functions within government agencies will need to be directly involved, as will IT, the web people and records management. Existing models where in some agencies FOI has primarily been law influenced work often in a legal branch won't fit the new world. Neither will the current attachment in ministers' offices, including that of the Prime Minister, to attempt to micromanage and control information flows to the outside world -something will have to give.

Nicholas Gruen of the Federal Government 2.0 Task Force sparked a lot of interest in outlining the Task Force agenda, and says so far - early days - he, with Minister Tanner ( and Ludwig) behind him, is encountering enthusiasm from those in government who hear about the open government possibilities. Public affairs staff at the conference were also positive but indicated Gruen needs to get to senior management who they told him are risk-averse when it comes to getting information out there.

I understand the issue of how best to organise and manage the new era is already exercising minds in Queensland government agencies, with deputy heads designated Right to Information champions and responsible for making this new idea, something close to the Premier's heart and political fortunes to some extent, work in practice. The issue doesn't seem to have hit the intray in Canberra or Sydney as yet.In NSW existing structures where FOI responsibilities in some agencies are in a ministerial liason unit will also not sit comfortably with the Government Information (Public Access) Act which provides that an agency is not subject to the direction or control of any minister in dealing with applications for agency information, and separately contains four offence provisions including one concerning improperly influencing a decision.

Australian Greens say the right thing on open transparent government

Election Initiatives
Digital Rights Commissioner- "an independent Human Rights Commissioner for digital rights, to advocate for the online safety, accessibility, privacy and security of all Australians."

Digital Democracy
Trial a variety of digital platforms to increase participation in democratic processes.

Democratic processes and institutions urgently need rejuvenation. Technology has made it easy for ideas to be widely circulated and debated, and for support and interest to be easily gauged. The ability to directly influence legislation and debate will strengthen participation in the political process and increase the legitimacy of the parliament.

Use interactive technology to facilitate public participation in annual government budget-setting to determine priorities for new infrastructure and services as well as revenue raising measures.

Strengthen links between the community and the parliament. Ideas can be raised on an online platform, and if enough support is gathered, the idea must be debated in the parliament.

Encourage participation in treaty-making and decisions about going to war. These policies affect the whole country for generations and the community deserves a say. Technology has made it possible for people to have informed opinions about these complex matters, and to have their opinions heard.

Move legislation that will require all government departments to proactively release information including their budgets and contracts, publishing the information in an easily searchable format.

Everyone should be able to have a say on the contents of a human rights bill. Technology can facilitate crowd-sourcing ideas and debate. Using a platform like those found in The GovLab would give all Australians ownership over the process to draft a human rights bill. This will help to increase the legitimacy of the final bill in the eyes of the community.

Statements in lead up to election
Political donation reform package 
Push for national integrity commission 
Extension of whistleblower protection
 
Responses to questions Electronic Frontiers Australia

Open Government Partnership
Do you support Australia’s involvement in the Open Government Partnership, which Prime Minister Turnbull recommitted Australia to in November 2015?
Yes, though it is the Greens view that the government can and should do much more to make Australia a leader in the area of open government.

Office of the Australian Information Commission
Do you support sufficient and long term resourcing for the functions of the Office of the Australian Information Commissioner, including the appointment of the three statutory Commissioners (Information, Privacy and Freedom of Information –at present these roles are held by one person)?
Yes, the Greens advocated for the OAIC to be exempt from cuts, and for the return to proper funding arrangements.

Addendum: Responses to questions infoaus.net

Privacy: 94/100 in Australian Privacy Foundation rating. See Response.

From Policy Platform 2015 

Constitutional Reform and Democracy 

1. A strong Senate that can always act as a house of review.
2. That each state and territory to have at least one proportionately-elected parliamentary chamber.
3. Increased independence of the Speaker of the House of Representatives and the President of the Senate.
4. Electoral reforms that would enable:
   1. all Australian citizens over the age of 16, including those who are incarcerated, to be eligible to vote;
   2. proportional representation in the House of Representatives and local government;
   3. fixed terms of Parliament;
   4. amendment of section 44 of the Constitution to allow any public servant, and Australian citizens with dual nationality, to stand for election to Federal Parliament;
   5. electoral funding reform that provides for:
   1. public funding of political parties and candidates for election campaigns and for the administration of political parties, to be set at a level that ensures proper democratic participation by voters and reduces corporate influence on political decisions;
   2. bans on political donations from for-profit corporations;
   3. caps on individual political donations (excluding bequests) and donations from not-for-profit organisations;
   4. caps on electoral expenditure by parties and candidates and strict limits on third party expenditure; and
   5. continuous, comprehensive public disclosure of political donations and funding on a public website.
   6. optional preferential voting in the Senate, and opposes the reintroduction of group voting tickets;
   7. the removal of any requirement for voters to produce proof of identity when voting;
   8. strong uniform national political donations laws; and
   9. the simplification of electoral enrolment, including the use of online and automatic means, and same-day enrolment at a polling place.
5. For a period of at least two years following their term, Ministers and their senior staff not to be engaged in a private enterprise which raises a conflict or particular benefit from their role and connections developed as a Minister or senior member of staff.
6. A reduction in the deposit required to stand for election to Parliament to remove financial barriers to democratic participation.
7. Australia to be declared a republic with an Australian citizen as head of state.
8. Australia, and state and territories, to have flags that reflect an independent Australia.
8. Increased independence of the Speaker of the House of Representatives and the President of the Senate.
9. Electoral reforms that would enable:
   1. all Australian citizens over the age of 16, including those who are incarcerated, to be eligible to vote;
   2. proportional representation in the House of Representatives and local government;
   3. fixed terms of Parliament;
   4. amendment of section 44 of the Constitution to allow any public servant, and Australian citizens with dual nationality, to stand for election to Federal Parliament;
   5. electoral funding reform that provides for:
   1. public funding of political parties and candidates for election campaigns and for the administration of political parties, to be set at a level that ensures proper democratic participation by voters and reduces corporate influence on political decisions;
   2. bans on political donations from for-profit corporations;
   3. caps on individual political donations (excluding bequests) and donations from not-for-profit organisations;
   4. caps on electoral expenditure by parties and candidates and strict limits on third party expenditure; and
   5. continuous, comprehensive public disclosure of political donations and funding on a public website.
   6. optional preferential voting in the Senate, and opposes the reintroduction of group voting tickets;
   7. the removal of any requirement for voters to produce proof of identity when voting;
   8. strong uniform national political donations laws; and
   9. the simplification of electoral enrolment, including the use of online and automatic means, and same-day enrolment at a polling place.
10. For a period of at least two years following their term, Ministers and their senior staff not to be engaged in a private enterprise which raises a conflict or particular benefit from their role and connections developed as a Minister or senior member of staff.
11. A reduction in the deposit required to stand for election to Parliament to remove financial barriers to democratic participation.
12. Australia to be declared a republic with an Australian citizen as head of state.
13. Australia, and state and territories, to have flags that reflect an independent Australia.

Community Participation Policy 


The Australian Greens want:

1. Community organisations to be able to participate in public debate without fear of adverse consequences.

2. Marginalised groups to be provided with support and resources enabling them to participate in consultation and deliberation processes.

3. To enable comprehensive participation by community groups in consultation and deliberative processes. Government should provide such groups adequate time and financial assistance where required.

4. Consultation and deliberation processes to be open to independent review to evaluate their effectiveness and recommend improvement to such processes.

5. Governments to provide free and timely information to citizens.

6. Strong Freedom of Information (FOI) laws that exempt community groups and individuals from fees for material gained under FOI.

7. A well-resourced, independent statutory agency to oversee freedom of information requests and appeals.

8. Strong whistle-blower protection legislation.

9. Stronger parliamentary and public scrutiny of government funded programs to enhance transparency and accountability

10. Support for participatory deliberative methods or processes, where appropriate, that increase levels of interaction between decision makers and the public.