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Thursday, February 28, 2013

OAIC squeezed-make that throttled

Further to the recent reference here to the squeeze on Office of Australian Information Commissioner resources, there is an update in a supplementary OAIC submission to the Hawke review published yesterday. The issue sounds even more serious (emphasis added):
 In our submission, we gave information about the OAIC's staffing and funding levels since its establishment until December 2012.[15] The situation has changed further since then. We noted in our submission that the OAIC was structured around the former Office of the Privacy Commissioner (OPC). Initial planning anticipated that an average staffing level (ASL) of 68 OPC staff would be joined by an additional 32 staff for the FOI and information policy functions, for a combined ASL of 100. The OPC had an ASL of 60 at the end of 2009–10. By the end of 2010–11, the OAIC had an ASL of 75.26. This was projected to rise to 81 in the 2011–12 budget; the actual 2011–12 ASL was 79.87.
The 2012–13 portfolio budget statement forecast an ASL of 79. As at December 2012, the OAIC had 77.85 full-time equivalent staff;[16] as at February 2013, it has 63 (only three more than the OPC had when the OAIC commenced operation). This further reduction is the result of voluntary redundancies, and the non-extension of contracts, made necessary by the OAIC's limited budget.
On the same day the OAIC published three FOI review decisions: Besser 18 months after it was received, Fletcher after 17 months, and Davies  after 11 months. 

This is not the essential speedy access to independent external review of administrative decisions.

Wednesday, February 27, 2013

Same old, same old in South Australia

In preparation for an interview this morning with Radio Adelaide about the Hawke Freedom of Information review, and anticipating a couple of questions that didn't eventuate about South Australia, I had a quick look for an update on the local scene, and found-not much at all. 

SA stood to one side, along with the west, from the FOI reform movement of 2007-2010 that saw significant change at the national level and in Queensland, NSW and Tasmania. The SA FOI act of 1991 remains as it has always been since commencement 21 years ago and way short of a modern information access law that reflects 21st century expectations and norms.

In a recent reshuffle Premier Jay Weatherill assumed responsibility for the Public Sector and has announced political donation reform but is yet to mention transparency or open government as far as I can see. Tom Kenyon who had the job among others a year ago didn't seem well disposed to FOI but said something at the time about more pro-active publication. That may have been it.

The Ombudsman continues to haul some agencies back to toe the line when asked.

But it's the same old, same old in SA - an out of date law, limited publication requirements, the exclusions include parliament, no online publication of parliamentarians entitlements, no legislated requirement for publication of contracts (note in passing: no disclosure of payments to Lance Armstrong), no transparency regarding grants to industry, lobbying rules limited to registration for some but that's it, lack of leadership on openness and transparency, closed government culture, delay, high cost, limited resources, etc, etc. 

SA alone has an accredited FOI decision maker system, but I've not seen any evaluation of how that has worked.

With a year to go to the next state election, perhaps time for some pressure on the major parties to join The Greens Mark Parnell and Family First Robert Brokenshire in at least talking about transparency and open government?

If only Radio Adelaide had asked....

Tuesday, February 26, 2013

DFAT submission should catch Hawke eye

Stephanie Peatling's article in Fairfax Media yesterday Public servants baulk at FOI changes mentions several agency submissions to the Hawke Freedom of Information review including the submission from the Department of Foreign Affairs and Trade. Peatling notes DFAT "questions whether the government is getting ''value for money'' from the 2010 changes. While it had ''no concerns with the value-for-money proposition in relation to personal FOI requests by members of the general public'', ''questions of value'' could be raised about applications made by other applicants such as journalists, lawyers and not-for-profit organisations."

For an agency that plays a key role in the international consideration and propagation of human rights, DFAT's submission is all about trimming, limiting and reducing FOI rights here at home.

 I concede DFAT deals with information that is often sensitive - I worked there a long time ago. Information access on occasion obviously raises complex issues of balance. The department get more non-personal requests than they did previously. But hey, that's not inconsistent with what the government said it wanted to achieve in opening government to more scrutiny.

 What emerges from the submission to Dr Hawke is a DFAT cultural preference to be left alone to get on with the job without pesky busybodies sticking their nose in, and an abundance of caution and excessive secrecy. I think it's in a class of its own.
Department of Foreign Affairs and Trade [PDF 397KB] (pdf).

 A contrast to the Department of Defence, an agency that also deals with complex stuff. The Defence submission makes some suggestions for change but has none of the "stop this train, I want to get off" character that permeates DFAT's submission.
Department of Defence [PDF 195KB]

Peatling highlighted one DFAT gem in a submission full of them.

I wonder whether Dr Hawke will provide a forum for discussion of these propositions and others that fall well short of this standard, but are equally enticing?

Hawke submissions and who knows what they are talking about?

Attitudes and culture within government agencies regarding openness and transparency as reflected in submissions to the Hawke Freedom of information review was an issue also picked up in Stephanie Peatling's article in Fairfax Media yesterday: Public servants baulk at FOI changes. 

"The public service is revolting against reforms" are the reporter's words not mine but I admit to the following contributions to Peatling's report, along the lines of my brief summary in a recent post.
 'The first word that comes to mind is blowback,'' lawyer and FOI expert Peter Timmins said. ''The general thrust of most of them is to bring into question the reforms of 2010.''.... Mr Timmins said many members of the public service still tried to keep information from being released for fear of the political fallout.
 ''There are still decisions that err on the side of excessive secrecy,'' Mr Timmins said. ''There's a perspective that all this [the reforms] has gone too far.''
The article attracted comments on-line including this from Eudaimonia of Kingston who really knows how to hurt a guy:
 I doubt if Mr Timmins and his ilk really know much about the FOI Act. I was involved with FOI as a practitioner for 19 years from its inception in Dec '82. For some strange reason, some applicants delude themselves that they will get more mileage out of their request by making it through a lawyer. It couldn't be farther from the truth. Primarily, lawyers, due to the sterile nature of their training. invariably have no concept of ''the spirit of the Act'', which is enshrined in s3 (I think). It was unique to FOI in 1982. Essentially, it says that if there's no good reason for refusing access, then the document should be released. Moreover, the average lawyer may have spent a few lectures and tutorials on FOI in the entire course of his/her training. Upon being hired by the applicant, they pull out their copy of the Act and have a read of it, probably for the first time in some cases. Often their copy of the Act is out-of-date. I once was contacted by a QC on behalf of his client. He was still using a superceded version in which ''personal information about'' had not been substituted for ''information relating to the personal affairs of'' (s41) - very different concepts in law. God only knows what his client was paying for a Silk's advice.

Monday, February 25, 2013

Open government in transition: keep watch, still to come

 The report "Open Public sector information: from principles to practice" released on Friday by Australian Information Commissioner Professor John McMillan contains the results of a survey conducted in April and May 2012 of information management practices in Australian Government agencies, in particular how the Open Public Sector Information Principles were being implemented.

Professor McMillan's key take away is "that Australian Government agencies are actively embracing an open access and proactive disclosure culture" although there are "many policy challenges and practical obstacles that must be tackled. It is more a time of transition than fulfilment."

I haven't been through the report in detail but what stands out on the openness front are problems of awareness, attitude, leadership, resources and the limited powers in legislation or with the OAIC to require agencies to publish information that should be in the public domain.

The report includes a section on the advantages of keeping abreast of international developments for example through the Open Government Partnership, and after extolling the importance of top level leadership here at home, a polite public service plea for more help:
"..there has not since been the same explicit promotion of open government reform and cultural change by Government as occurred in 2009–10. We believe that explicit support would be valuable and timely in continuing the watershed reforms."
The PM's "let the sunshine in" moment of September 2010 could do with a rerun. Often.

The Sydney Morning Herald sub -editor, with some justification, saw the absence of political leadership as the story: "Openness policy stymied from the top"

Tribunal rules against council’s bid to keep the lid on manager’s performance.

(Sorry about the formatting-something went haywire here.)

In a decision that is sure to attract attention in the local government sector and perhaps beyond, NSW Administrative Decisions Tribunal Deputy President Higgins in Clarke v Blacktown City Council [2013] NSWADT 36 found there was no overriding public interest that prevented disclosure of most of a council report on the performance assessment of the council's general manager. 

 The council tried at every step for over two years to withhold what it argued was sensitive information in the report submitted to the full council in September 2010.

 I represented Mr Clarke in the later stages of the ADT review including with written submissions and appeared for him in the hearing before Deputy President Higgins. With his permission this commentary draws more broadly on the applicant's experience than is the case with usual observations about court, tribunal and commissioner decisions.

Deputy President Higgins ordered disclosure of withheld information consisting of 
  • two paragraphs in the report containing the assessment and overall rating of the general manager's performance by the review panel;
  •  the strategic objectives against which the general manager was assessed; 
  •  and the general manager's self assessment of performance against each of these previously confidential objectives.

The council has 28 days to appeal the decision and has not yet released the documents.

It remains to be seen what if anything was worth the effort and expense.

The Tribunal decided in favour of the council on only one category of information in dispute:  the review panel's assessment of the general manager's performance against each of the objectives. Deputy President Higgins said there was a strong public interest in disclosure of this information [80] but decided disclosure on balance was contrary to the public interest on personal information and "provided in confidence" grounds.

The decision is not a precedent that marks the end of confidentiality as a necessary element in the performance review process, or for the disclosure of information of a highly personal nature about a public servant.  

Deputy President Higgins and along the way, the Office of Information Commissioner NSW, decided the public interest required disclosure of information about the performance of the general manager in carrying out the public duties set out in the Local Government Act and in acting to deliver on the council's priorities, goals and plans that should also be disclosed. Despite council claims that withheld information was all personal information, and other harms to the public interest would result from disclosure including at one stage
a risk to someone of harm or serious harassment or intimidation

The applicant, Mr Clarke is a former councillor, and an activist, advocate and self-described altruist in his endeavours for greater accountability and transparency in the local area. He is 85 years of age.

Mr Clarke's application under the NSW GIPA act in November 2010 sought access to the report submitted to the council by the councillors that had conducted the review, and for documents concerning the way the review had been conducted. His interest was sparked when two months before the required review of performance took place, the council renewed the general manager's contract for five years. The report had been submitted to a closed session of the council. Little detail was reported publicly. 

Apart from obfuscation, Mr Clarke endured delay at every step of the way.
It took eight months for the Office of Information Commissioner NSW to issue a ruling in his favour after he took the matter there in January 2011. The council then made a new decision basically maintaining its previous position. When Mr Clarke took that decision to the ADT, another eight months passed before a hearing, with council dragging things out whenever the chance arose.  After the matter was heard in July 2012, the decision was reserved for seven months. 

This is not the promised and necessary speedy access to independent review. 
The time line illustrates the persistence needed when an applicant is faced with agency resistance to disclosure, particularly when the information in question is information the boss doesn't want disclosed, and where it has available funds to employ lawyers who can argue the toss about GIPA in this case, Sparke Helmore.

The council stared down the Office of Information Commissioner

Inconsequential parts of the report and attachments were released at various points.

Eighteen months in, on the morning of the first day of the ADT hearing, 11 pages of information from the report were put on the table. The information was similar to information contained in the council's 2009 and 2010 annual reports. 

Deputy President Higgins' decision two years and three months since it all began now requires more.

According to Mr Clarke, Blacktown City Council has spent something of the order of $40,000 on this so far and hundreds of hours of staff time seeking to protect information about the performance review from disclosure. The Local Government and Shires Associations also sprung into action to assist, inviting other NSW councils to contribute to the cost of defending Blacktown's decision in the Tribunal. One example from Leichhardt Municipal Council (pdf) although the $162 on the line there wouldn't help defray costs much at all. Ratepayers in Blacktown and elsewhere should be asking questions.

In addition, NSW taxpayers have also footed a sizeable but unquantified bill for the hours, days, weeks and months spent on the case by the Office of Information Commissioner and the ADT. As for Mr Clarke's time, he's an altruist.

Broader concerns 
Mr Clarke's doubts about the thoroughness of the review process were confirmed when council was unable to locate any relevant documents that guided the councillors involved in undertaking the review other than the pro-forma, a questionnaire provided by a consultant engaged to assist and Mr Moore's self assessment. The Division of Local Government recommends training for this task, and along with the ICAC publishes guidance regarding managing performance and corruption and other risks. The council apparently provided none of this to the councillors involved.

Public interest 
Two relevant extracts from the decisions concerning the public interest in disclosure are worthy of wide dissemination: 
54.....Mr Moore is engaged in the exercise of public functions and is a representative of the agency. He has been reappointed to the position of General Manager for a further five-year term, which strengthens the public interest in favour of the release of information that accounts for that decision and demonstrates that he is performing at the required standard.
55. While there are considerations against disclosure that apply to the information requested by the applicant, the Information Commissioner is not satisfied that they are strong enough to outweigh the presumption and further considerations in favour of disclosure. The Information Commissioner recommends that there is no overriding public interest against disclosure of this information and that the information should be disclosed to the applicant.
Deputy President Higgins [71] 12 February 2013:
“In my view, there is a ..public interest in having sufficient information to scrutinise the statutory functions being performed by a general manager of a local government, as that position is one of considerable power and influence in the manner in which a local government operates and exercises its functions (for example, its service, regulatory, administrative and revenue functions). That is, information about the statutory functions being performed by the general manager and what methods and processes are used by the elected Council Members to monitor and assess those functions will enhance local government accountability.”
In passing, Blacktown City Council engaged in another expensive but largely unsuccessful effort leading to this Tribunal decision in 2011 to prevent disclosure of a lengthy confidential report into irregularities involving an employee and a contractor. Michael McKinnon of the Seven Network pursued that one.

Aspects of the decision in his case rankle with Mr Clarke particularly the Tribunal's interpretation of his application and the reasonableness finding regarding the council's search for relevant information. Not surprisingly, he is moving on with another cause.

Blacktown needs more like him.


Thursday, February 21, 2013

Australia nowhere in IBP budget survey, NZ No 1

Australia satisfies the criteria for membership of the Open Government Partnership with a score of 12 out of the 12 points that are relevant in our case. Sixteen is the maximum score. 

It may come as a surprise that Australia is not rated on the one remaining criteria worth four points, Fiscal Transparency, because the OGP assessment relies on the ratings published in the International Budget Partnership Open Budget Index. 

Australia is not among the 100 countries rated by the IBP. Full Report 2012 - English.

This puzzled me two years ago and still does. Particularly, without being too parochial, as New Zealand is rated No 1 with 93/100 IBP points. Seriously, good on you Kiwis!

The International Budget Partnership says it is "the only independent, comparative, and regular measure of budget transparency and accountability around the world." This the fourth survey, finds widespread failure of governments to provide sufficient opportunities for citizens and civil society to engage in budget processes: "the state of budget transparency around the world is dismal: only a minority of governments publishes significant budget information."

Most countries in the Asian region are included but not Japan(?). The only Pacific island nations surveyed are Papua New Guinea (56/100 points), a big improver, and Fiji (6/100). Many of our major aid recipients are way down the scale.

Some weeks ago when the 2012 Survey appeared I contacted IBP wondering whether the explanation was they just haven't been able to find a local partner. In NZ it is the NZ chapter of Transparency International.

But no, despite our G 20 membership and the chairmanship coming our way next year, our seat on the Security Council and whatever other world standing credentials we roll out, the explanation is simply, we just don't cut much ice - the IBP doesn't operate here, they're stretched for resources etc. Japan and Canada are the only other G20 members in the same boat with us.

Of interest, if/as we move into the OGP world, Warren Krafchik of the IBP is a member of the OGP Steering Committee. Scope for someone to have a quiet chat over coffee sometime about why we should be somewhere near the world 100 mark? 

I would think Australia would rate well in the survey if we were assessed, despite the fact that little has been heard of Operation Sunlight since Andrew Murray and Lindsay Tanner departed the national scene.

Elena Mondo Supervisor, Open Budget Initiative replied to my email, explaining the situation as follows:

Wednesday, February 20, 2013

Foreign Minister supports OGP membership, process to get a move on

Foreign Minister Senator Carr in principle supports Australia joining the Open Government Partnership. Contrary to what the Attorney General's Department said a few days previously there is an interdepartmental committee of officials working on this with, ahem, AG's in the chair. And Department of Foreign Affairs and Trade Secretary Peter Varghese says DFAT will be taking to the committee's next meeting a view that the process be concluded as soon as possible because "we should have an open and fast government initiative and not just an open government initiative."

Amen to that.

These snippets drawn from answers to questions when Senator Faulkner raised the matter with the Minister for Foreign Affairs Senator Carr and departmental officials during DFAT estimates hearings last week, the senator having shone some light on the process earlier in sessions with AG's and PM&C.

It also emerged that not only does the government have an unanswered August 2011 letter from Hillary Clinton inviting us to join, but another dated 16 January 2013 from the United Kingdom's Minister for the Cabinet Office. And the communique issued after the recent Australia-UK Ministerial Meeting in Perth on 18 January includes this reference: 'Australia values the leadership shown by the United Kingdom and others in the establishment of the Open Government Partnership, which Australia is currently considering joining'. (I missed that one.)

The Interdepartmental Committee met most recently in January.

Richard Rowe, First Assistant Secretary, International Organisations and Legal Division, and Senior Legal Adviser tried bravely to explain the process was taking time "because this is a relatively new initiative." More likely it slipped between stools for ages, then minister Brendan O'Connor killed it for some unknown reason prior to President Obama's visit in November 2011, and the OGP cause lacked a forceful champion to keep things going when the Attorney General twigged in May last year, nine months after the matter was officially raised with us by the US Government. 

As to why DFAT recently couldn't find anything relevant to consideration of the arguments for and against Australia joining, in response to my FOI application, just another mystery of (FOI) life, I suppose.

I'm looking forward to an OGP announcement soon-and some big thinking about how the government might proceed in partnership with civil society and what a national action plan might encompass.

Hansard extracts below for those interested in the detail.

Tuesday, February 19, 2013

Senate Estimates miss OAIC resource squeeze

The interest in the Open Government Partnership in Senate Estimates last week also meant there was no time for questioning about how the Office of Australian Information Commissioner is traveling. Of course operation of the office is an aspect of Dr Hawke's FOI review. 

Resource constraints at the OAIC have been an issue since commencement of the scheme and the squeeze continues. Professor McMillan's January letter to AG's outlining a way forward on the OGP mentions seven redundancies, six other staff to go, and some projects postponed, and all the while a growing workload. The absence of adequate resources for the leadership, review and complaints FOI functions makes assertions about the importance of accountability and transparency sound hollow, not to mention the impact on privacy  work.
The OAIC has signalled its willingness to be a lead Australian agency, but it is
currently beyond our capacity to undertake the substantial work that would be required to develop a country action plan, including consultation within Australia and with other OGP members. You will be aware from other meetings, of the concern that I have expressed about the adequacy of the OAlC's budget to support our statutory functions. The OAIC Executive has recently undertaken a thorough budgetary, staffing and workload analysis. The upshot is that we have offered voluntary redundancy to seven staff; we have decided not to renew the contracts of six other staff whom we might otherwise have engaged; we expect that staffing levels for this financial year will be reduced to between 70 - 75, including some positions that are funded under MOU arrangements with other agencies; and the staff reduction is disproportionately high at the EL level. We have also implemented workload reduction measures. There will be fewer meetings this year of the Information Advisory Committee, Privacy Advisory Committee and Information Contact Officers Network. Some projects will be postponed, such as the desktop review of agency compliance with Information Publication Scheme requirements. We also face a growing workload in handling FOI and Privacy complaints, Information Commissioner reviews, and implementing Privacy Act reforms. In the Annexureto this letter I estimate that if the OAIC was designated as a lead agency for OGP membership we would require an additional two staff, at ELI and APS6 level..
Letter from the Information Commissioner to the AGD providing advice on how Australia could join the OGP, what resources the OAIC could make available, and what further resources the OAIC would require (dated 10 January 2013) pdf

Monday, February 18, 2013

NSW never fails to shock or disappoint

Those of us in NSW are bearing but not grinning at revelations before the Independent Commission Against Corruption of get rich schemes involving former ministers. My one sentence about matters not mentioned to date made the Letters in the Sydney Morning Herald on Saturday:
"I guess anything that happened while Eddie Obeid himself was making decisions as minister for fisheries and minister for mineral resources from 1999 to 2003 is just ancient history, and we best move on?"
State Political Editor Sean Nicholls highlighted shortcomings and calls for change from Labor (new to such things) and The Greens about the pecuniary interest register and lobbying disclosures. The Premier is waiting for the ICAC report he says. Both issues have been the subject of recommendations going back years that weren't acted upon.

Among the "transparency" news in Fairfax Media today is this NSW Government Information (Public Access) Act gem:
The Greens MLC John Kaye asked about casual staff at Coffs Harbour Base Hospital and how many had been employed for longer than 12 weeks. The right to information manager at the Mid North Coast Local Health District, Chris Chick, replied it would cost $13,262 to retrieve the information. That included an estimated 51.5 hours at $36 an hour to check the database.

Hawke review almost slips under Estimates radar

Last week both Senator Faulkner and Senator Rhiannon during Senate Estimates for the Attorney General's Department signaled their intention to ask questions about the Hawke review of the Freedom of Information Act but ended up sticking with the Open Government Partnership for almost the entire alloted time. Senator Rhiannon managed just a couple of questions about the review's limited public visibility, received confirmation only one media release was issued and that the review was advertised on AG's website and, that more than 70 submissions had been received

Senator Rhiannon was right about the low visibility

And as there are only 60 published submissions, Dr Hawke must have more than 10 that were submitted on the basis of confidentiality. Interesting. Personal stories perhaps? Presumably no agency submissions in this category?

The Hansard extract follows

Australian OGP decision getting closer as senators probe delay

Responses to questions in Senate Estimates hearings in Canberra last week confirm what emerged from documents released by the Office of Australian Information Commissioner on 9 February, that officials see the way forward to a decision for Australia to apply to join the Open Government Partnership prior to the OGP Steering Committee meeting in April. 

Development of a draft national action plan would follow through April-September, for consideration by the OGP steering committee, then formal signing of the Declaration of Open Government prior to the October annual ministerial meeting in London.

All good news, although there is scope for bigger thinking than we have seen so far about what we could do with the OGP once we make the decision to join, and for going beyond routine consultation to explore real partnership on this with an enlivened civil society.

Labor Senator John Faulkner and The Greens Senator Lee Rhiannon, through questions of Attorney General's, the Office of Australian Information Commissioner and Prime Minister and Cabinet (extracts below) retrieved the issue from the public service "to do" box and put it squarely on the ministerial decision making table. I understand questions were also asked of DFAT officials but the transcript of that hearing is yet to appear.

Both senators probed the shilly-shallying that has gone on within the bureaucracy on this over the last 18 months, somewhat incredulous that a decision is yet to be taken.
In answer to questions about who had responsibility for the OGP issue, the Attorney General's Department said new Attorney General Dreyfus, only days in the job, had yet to be briefed on the OGP and they were unsure of his views. Senator Faulkner took a well informed guess:
 "I know the current Attorney-General's very strong commitment to the sorts of issues that the OGP embraces. I would be very surprised if he did not share the previous Attorney-General's commitment in this area. In fact I would be very, very confident he would." 
The senator criticised the hold-ups, querying why Australia has not got on board, said "time is overdue for us to do something about this", asked that it be brought to the Attorney General's attention and, in a comment sure to register with those involved, that he intends to stay firmly on the case.

Senator Ludwig, the minister present at the hearing, was in no doubt what this meant. He would seek a response from the current Attorney-General "as to what impediments he may see, and see if we can get an answer to you tonight before you go to the foreign affairs committee." Nothing has made it onto the public record so far. That was last Tuesday 12 February.
Apart from "let's do it", there is a need for some quick sorting out of who within government is responsible, what resources are needed and where they are to come from.

Question and answer exchanges in the Estimates hearings established the following:
  • the US government apparently has not received a reply to the invitation in August 2011 to join from Hillary Clinton to Foreign Minister Rudd. In the murky waters of uncertainty in Canberra over responsibility for the OGP, AG's officials who conceded when pushed that they have carriage of the matter until someone decides otherwise, admitted they have never asked Foreign Affairs and don't know to this day if a reply was sent.  
  • the then Attorney General wrote to ministers in June 2012 proposing we join but no decision has been taken. Ms Roxon's letter to the PM may never have made it into her in-tray - the Parliamentary Secretary to the Prime Minister replied in September   indicating "that further work needs to be done including involving a number of other ministers in that further consideration." Senator Faulkner asked for a copy. Presumably the Australian Information Commissioner's thoughts in January are part of this.
  • because of a number of competing priorities, the OAIC took five months to respond (in January 2013) to the letter from AG's regarding steps that need to be taken and how the OAIC might manage this. Professor McMillan said he had been uncertain about the benefits of joining the OGP early on but is now enthusiastic, "strongly impressed, particularly by the commitment that Canada, the United Kingdom and the United States have made and how they have used their membership of the OGP as a lever for developing particularly open data policies in their countries."
  •  no attempt has been made to bring together agencies with an interest in matters relating to the OGP in an interdepartmental committee or other internal government mechanism to do the necessary work. 
A composite of comments by Senator Faulkner during the session with AG's and OAIC reads like this:
"..what I would like to see us do is join up...58 countries like-minded countries have joined. The US Secretary of State asked us to do this in August 2011. What I am trying to understand is what is the hold up. We cannot now join, as I understand the OGP's internal arrangements...until later in this calendar year....It seems to me that given, the commitment the Attorney-General had to this, I do not really understand why Australia cannot get on board. I do not know if you can help me, Minister, with this. I really do not understand what the hold-up is, and why Australia cannot get on board, given its strong commitment in so many of these areas that are embraced by the open government partnership...It is not a very active consultation process, is it? In fact it is a hopeless consultation process....I hope, Minister, within the Attorney-General's Department—not just the department but the OAIC, and if there is any other portfolio body interested in being involved as well—if we ever get to the point of establishing an IDC, or steering committee or the like, if there is a need to do so, that we just get on with it. I do hope the Office of the Australian Information Commissioner would be involved. I respectfully make that suggestion to the new Attorney-General, Minister; and flag that I really think time is overdue for us to do something about this. I also flag my intention to maintain an interest in it at the estimates of this department and the OAIC. Thanks."
(Dreamer's wishlist: give John Faulkner some sort of appropriate title, authority and resources that would enable him to crack the whip on the home front, and the tag 'Special Envoy for the Open Government Partnership' for use in the international arena. Put together some top-line talent to support him. Despite tough times get the show on the road with some new money to augment contributions from agencies that have relevant interests that would be advanced through OGP membership - PM&C, OAIC, AG's, DFAT, Digital Economy, AUSAID, RET, just off the top of my head. I know, I know, just dreaming.)

At least officials in the AG's/OAIC hearing knew something about the OGP when questions were asked. 

When Senator Faulkner raised the OGP during a separate hearing with Department of Prime Minister and Cabinet, it wasn't quite a "WTF?" moment that followed but it was a near thing. I know there is a lot on and keeping track of it all is a challenge for senior officials and the rest of us, but the exchanges suggest  awareness levels at the highest echelons of "President Obama’s signature governance initiative" isn't what it should be : 
( Ms Renee Leon, Deputy Secretary, Governance, and Dr Margot McCarthy, National Security Adviser.)
Senator FAULKNER: I was going to follow up on the letter that the Attorney-General wrote to the Prime Minister, I believe in June of last year, in relation to the proposal that Australia join the Open Government Partnership. 
Dr McCarthy : Is that a UK initiative? I have heard of that in the UK context. Is that perhaps why you thought— 
Senator FAULKNER: An international initiative is how I would describe it. I do not think it could be described as a UK initiative in that sense, although I believe there was a 2013 meeting of the OGP steering committee in London. 
Dr McCarthy : That is perhaps the context in which I am aware of it, but I do not have any more detail. I could take your question on notice.
Ms Leon : Senator, we will do some interrogation of our systems to see if we can ascertain which part of the department may have more information to assist you. If we can get back to you while the committee is still sitting then we will certainly endeavour to do so. If not, do you have some specific questions that you want us to take on notice?
He did and Ms Leon came back later in the session with answers including the fact that the Senator McLucas the Parliamentary Secretary to the Prime Minister had responded to the Attorney General's "let's join" letter of June 2012, with a "needs more work" message. While some of that has been done since it seems doubtful that "other ministers" have been brought into the loop in the eight months since. 

Things seem to be moving now. 

(Update: Foreign Minister supports.)

Extracts from the Hansards follow - definitely afficionado stuff - the AG's/OAIC session (40 minutes) first, followed by PM&C.

Wednesday, February 13, 2013

We're Seven!

Seniors moment- missed Open and Shut's seventh anniversary last week.

2700 posts since February 2006.

'Such is life' or should that be 'get a life' ?

Parliamentary departments argue for FOI windback

Following on from the NZ government decision to reject a recommendation that the offices of the parliament should be subject to the Official Information Act regarding administrative matters, defined with a bit more detail than that, the parliamentary departments in Canberra in a joint submission to the Hawke review argue they should only be subject to the FOI act, if at all, in relation to documents containing matter of an administrative nature. 

They raise issues about the impact of FOI coverage and the institution and status of the parliament (decisions subject to review by the OAIC, tribunal and courts), privilege, and confidentiality. The Joint Committee on the Parliamentary Library and the Parliamentary Librarian have also raised concern in additional and separate submissions about coverage of the library, and the need for confidentiality when a member or senator seeks research assistance.

I don't know if the privilege and confidentiality arguments carry much weight-there are existing exemptions that would be relevant in any event. But if they do and given the narrow interpretation of "in relation to matters of an administrative nature" in the courts, a preferable approach would be to spell out in detail what is and isn't covered by the act as it applies to them. All the time making sure all payments to, for and on behalf of parliamentarians are  not just within scope but a publication requirement.

The issue was raised in Senate Estimates hearings this week. Extracts follow, for diehards.

As an aside to the main discussion about FOI coverage, Senator Faulkner in commenting about a Senate Committee report, said the Department of Parliamentary Services had been
"the worst administered department I had seen in all my time in parliament, and I have had plenty of experience on both sides of the table and dealt with plenty of what I think might be inadequate administrative practices. Nothing comes close to what we were facing in the Department of Parliamentary Services Yes, it has improved, and I think everyone on this side of the table is grateful for that, but there is still a very critical issue here about oversight and how we got to the situation that we did." 
All this predated last year's surprise development that the departments other than the Parliamentary Budget Office had been subject to the FOI act for years. Senator Faulkner is mainly talking about the apparent failure of the presiding officers and other accountabilty mechanisms. But it sounds like another strong argument for increased transparency and accountability, including via FOI on Capital Hill.

Immigration: "one hell of a job trying to manage this"

And that's just responding to questions. During a marathon Senate Estimates hearing Immigration and Citizenship Secretary on the Department's difficulties:
Mr Bowles : I accept that we need to improve our performance in this area. I just want to give some context, though, about what we are dealing with. We have actually seen a 500 per cent increase in questions on notice in the last couple of years. 
Senator Cash: Perhaps that reflects the percentage increase in the number of boats arriving.
Mr Bowles : I am not quite sure there is a correlation there, Senator, so I will keep moving. We received 647 questions on notice in the October supplementary budget estimates; 133 of them were taken on notice at the hearing and a further 500-odd were put just on the record for us to answer. That is obviously a significant issue for us. Basically, what I end up having to do is divert resources to try and answer all these questions. If you look at the calendar year for 2012, we answered 1,676 questions, and that is about 25 per cent more than any other department in the Commonwealth. We have also had to deal with 22 parliamentary inquiries and FOIs and all sorts of activities. I know it is no excuse, particularly, but it is one hell of a job trying to manage this. I accept and I acknowledge that there is a growing interest in our business, and all I can try to commit is that we will try and improve on this; but we do have to make sure that we get the right answer. We deal with 34 million border crossings and 4.5 million visa issues and all sorts of different things, and some of these questions go to quite specific issues. 

Later, a compliment-well, sort of:
Senator Abetz: Can I turn to the FOI documents that I received under cover of a letter of 8 February 2013. I commend the department for putting in grey those areas that were blocked out or redacted, because some departments are very kindly providing the redactions to us in white, so you do not know if a whole page or only half a page has been redacted. This methodology is very helpful to let us know exactly what has been redacted.