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Tuesday, May 27, 2014

Abolish OAIC, evidence or no.

The Government claims this decision to abolish the Office of Australian Information Commissioner will save $10 million over four years. Not mentioned is the cost to transparency, accountability and the open government cause certain to be of a high order  but impossible to quantify in dollar terms.

Attorney General Brandis announced the decision in the broader context of a move to simplify, streamline and improve efficiency and effectiveness in the conduct of merit reviews.

The claim is that these broader changes will deliver total savings of $20 million over four years.

Government goal
According to Senator Brandis:
The complex and multilevel merits review system for FOI matters has contributed to significant processing delays. Simplifying and streamlining FOI review processes by transferring these functions from the OAIC to the AAT will improve administrative efficiencies and reduce the burden on FOI applicants.
Dismantling the office goes far beyond what would be necessary to achieve this. What is proposed will not reduce the burden, financial or otherwise on FOI applicants.

Other options
The Government has overlooked other available options to improve the significant and unacceptable processing delays in merit review at the OAIC. The Office got nowhere over the last two years on the need for additional resources or at least to get the level of resources identified as necessary before it opened for business in 2010. Or any exemption in full or part from sharp cuts in the form of annual 'efficiency dividends.' Senator Brandis was very interested in exploring these issues two years ago in Senate Estimates. Not these days, apparently. 

The OAIC also put forward suggestions for changes to processes that would free up resources but required legislation to which the government, this one or its predecessor, never responded publicly. One was authority for the commissioners to delegate some functions.

Those of us on the outside also had ideas. Beefing up the OAIC, and limiting further review rights to a question of law, as is the case in WA and Queensland is just one of many that could streamline the multi-tiers. Another that might free up resources could be penalties of some kind or powers to be used that might dissuade agencies from resort to exemptions that have no merit and serve only to bide time and waste resources.

Leadership out the window
More broadly, dispensing with the independent statutory monitor and champion role for information access and open government takes us back to the 1995 Australian Law Reform Commission Open government report that identified the absence of such an office as an impediment to the administration of the FOI act. 

FOI was leaderless and rudderless then and for the next 15 years until this and more than 100 other recommendations were considered and acted upon in 2008- 2010.

So too synergies 
Much was made of the benefits also of combining information access and information privacy functions in the one office, and conferring  strategic information management functions on the Commissioner as well. As stated in the Second Reading Speech
The establishment of an Office of the Information Commissioner not only supports the important outcome of promoting a pro-disclosure culture and revitalising FOI, but also lays new, stronger foundations for privacy protection and improvement in the broader management of government information.
In unwinding the crucial underpinning of the 2010 reforms three and a half years on, none of this rates a mention.

Counter to trends
Abolishing the OAIC runs counter to international trends and to experience (to varying degrees of satisfaction) with information commissioner schemes in Queensland, NSW, NT, and WA and Victoria (FOI commissioners), and under the guise of an Ombudsman with special powers for this purpose in SA and Tasmania.

Not supported by evidence
I'm no fan of the Hawke review process but Attorney General Brandis has had the that report in his in-tray since taking office in September. There is nothing in it that justifies the abolition of the OAIC. Generally (page i)
the Review found the recent reforms to be working well and having had a favourable impact in accordance with their intent.  It (open government) has engaged more senior people in the process and triggered a cultural change across the Australian Public Service, although there is still some way to go on this aspect.  Further effort, driven from the top, will be required to embed a practice where compliance with the FOI Act is not simply perceived as a legal obligation, but becomes an essential part of open and transparent government.
More directly: (page 24):
The Review considers that the establishment of the OAIC has been a very valuable and positive development in oversight and promotion of the FOI Act.
And specifically on the review system cited by the Attorney General as the policy reason for the decision: (page 36)
The current system of multi-tiered review has been in operation for two and a half years.  At this stage there is insufficient evidence to make a decision on whether this is the most effective or efficient model for reviewing FOI decisions, particularly in relation to the two levels of external merits review.  The Review considers this issue warrants further examination and recommends that the two-tier external review model be re-examined as part of the comprehensive review recommended in Chapter 1.
The government chose to reach for the knife rather than look for evidence.

Costs to individual
A direct hit  to the hip pocket is coming for anyone unhappy enough with an FOI decision to want to box on with an external review application. There is no charge for review by the OAIC. But come 1 January complaining types who don't accept often questionable wisdom explained in convoluted and obscure language in an FOI knockback will be up for $816 for starters at the AAT. Demand for OAIC review (pdf) of agency decisions, running at around 500 a year in the OAIC, indicates a high level of ongoing dissatisfaction with agency decisions. Eight hundred and sixteen dollars can be expected to work wonders on the numbers. 

Unacknowledged cost to agencies
If as might be expected one of the changes arising from going back to the pre reform era will involve reinstating mandatory agency internal review before a matter can be taken to the AAT, there will be additional costs to agencies, already subject to resource limitations.

I'm looking forward to the Government's elaboration if the OAIC decision crops up in Estimates this week or when the significant changes to legislation to give effect to the proposal make their way into Parliament. And what Labor, The Greens and the cross benchers make of it all.

If you are concerned drop your local member a line. Mine, Malcolm Turnbull, will be hearing from me.

Relevant media and other comments, for convenience:
Commissioners' statement, listing some of the achievements, and resource limitations.
  ITNews-"Commissioner disappointed"
  The Guardian: Ludwig-splitting watchdogs 'would shut the door on open government'

Nine News: "FOI change will favour spin doctors."
  The Guardian: "Freedom of Information framework faces radical surgery."

Michael McKinnon FOI Editor at the ABC and the only voice I've heard who thinks the change is a good idea and I feature in this ABC Radio PM broadcast.

The Canberra Times. 

 Dr Johan Lidberg of Monash University on The Conversation.

Toby McIntosh at in Washington picked up on local commentary. 

A lot of scratching of heads around the traps overseas where the decision is seen in the context of Australia fence sitting on the Open Government Partnership,


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