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Thursday, February 27, 2014

In a busy Estimates week Information Commissioner fails to draw a crowd

It's been a big week for the estimates committees operating simultaneously in Canberra with hard decisions for senators about where to spend time asking what. 

But for all the (legitimate) concern about transparency and accountability, The Greens Senator Lee Rhiannon was the only senator in addition to the chair to make it for the 15 minutes in total spent quizzing the Office of Australian Information Commissioner in Attorney General's Estimates on Monday.

About half the time was spent revealing little (revealing in itself) about Australian membership of the Open Government Partnership with an associated exchange of barbs between Senator Rhiannon and Attorney General Brandis - over who is closer to Russia.

No questions at all to Information Commissioner Timothy Pilgrim despite the big changes to privacy legislation to commence on 12 March, which might have prompted interest in preparedness and adequacy of resources for the exercise of enhanced powers that include pursuit of civil penalties of up to $1.7 million for serious or repeated privacy breaches. 

And a myriad of other privacy issues relevant to the operation of the OAIC passed without question. Including what one of the biggest known privacy breaches, details of thousands of asylum seekers in Australia inadvertently made accessible online at Immigration,tells us about compliance, and the need for mandatory data breach disclosure legislation which failed to make it through parliament last year. (Presumably the bill is battling for oxygen amid behind the scenes discussion about reducing rather adding to the regulatory burden on government and business.)

Australian Information Commissioner Professor McMillan put the best light on published statistics about the delays experienced by review applicants and complainants:
"....the office battles gamely to deal with a growing workload and, as far as possible, to meet the stated objectives of the FOI Act, which..emphasises a prompt dispatch of FOI matters." 
The resource situation at the OAIC and the generally dark cloud hanging over information access went unexplored.

When questioned about the extent agencies game the system Professor McMillan said his public comments on this were aimed at  discouraging behaviour of that kind, that naming names would require a lot more digging beforehand, and in any event 80% of cases are resolved and documents released without the need for a published OAIC decision. However it is a concern if perceptions of gaming are out there and third parties seeking review of an agency decision to disclose may also be part of any problem.
(Comment: those perceptions are out there, based on experience. It might help the cause if, with or without names. agency decisions based on a wing and a prayer that are in effect reversed when challenged but before a formal OAIC decision are highlighted publicly. And in future reforms, provision is made for some sort of disincentive or discouragement such as payment of OAIC/applicant costs by the agency concerned where a decision with little or no merit or less than adequate understanding of the law, its spirit and intent is uncovered.)

Professor McMillan remains positive overall:
 "Our experience is that, for the large part, agencies and ministerial offices do strive to meet the objectives of the FOI Act. As I have also said on a number of occasions, my view is that the changes over the last three years have caused quite a significant cultural change in government. It is apparent that considerably more is released not just in terms of volume but also in terms of the range of documents. A quick glance at FOI disclosure logs on agency websites indicates that."
(Comment: ah yes, but......)

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