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Tuesday, October 23, 2012

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.


1 comment:

  1. It is not necessary to have lawyers as decision makers although lawyers could be appropriate decision makers in some complex or sensitive cases. Best Lawyers