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Monday, November 30, 2015

Government senators claim strong FOI record-don't mention the bill to abolish the Australian Information Commissioner

Debate in the Senate on Senator Ludwig's Private Member's Bill the Freedom of Information Amendment (Requests and Reasons) Bill 2015 resumed for an hour last Thursday and the bill is in the list again for 3 December. 

Speakers didn't add much to what was said in June, except that Senator Xenophon was the first cross bencher to speak in support. 

Government senators spoke in opposition to the bill so it won't get far in the House even if Labor, The Greens and six of eight cross benchers manage to get it through the Senate. 

Senator Seselja and Liberal and National Party speakers rolled out this sort of stuff before getting into the detail
I, along with the coalition government, support the Freedom of Information Act and support transparency in government. It is one of our country's greatest strengths that we ensure the decisions of government are put under scrutiny and, where possible, are out in the open. This government has a strong record over the last two years of making the small improvements to regulations and legislation necessary to make the operations of government simpler and more transparent
"Strong record", "small improvements", "regulations and legislation" ???? I'm struggling to remember chapter and verse.

None mentioned or sought to explain how the bill to abolish the Office of Australian Information Commissioner and the squeeze on funding while it sits (14 months and counting) in the Senate list squares with these fine sentiments.

Labor speakers and Senator Xenophon didn't miss the opportunity.

While government speakers could have used it to support their claim of serious intent regarding  transparency and accountability, word obviously hadn't reached them that the Department of Prime Minister and Cabinet had announced Australia had recommitted to the Open Government Partnership. 

Senator Xenophon was in the dark as well urging the government:
To be a truly consultative and open government, as the Prime Minister said—and I take him at his word about his desire to do so—embrace the OGP; embrace reform to the FOI laws, such as the bill that Senator Ludwig has put up, which I think will lead to greater transparency and greater efficiency in FOI; and ensure there is appropriate funding for the Office of the Australian Information Commissioner.

The bill would require government agencies and Ministers to publish online the exact wording of freedom of information requests and the statement of reasons for the decision to allow or refuse release, and require information in released documents to be available for downloading from the web, a tightening of the current situation.

Attorney General Brandis is yet to speak, but if he gets to his feet to argue against the bill this week before the Senate adjourns for the year, an announcement that the government will pull the plug on the Freedom of Information Amendment (New Arrangements) Bill would soften some of the criticism of that claimed strong FOI record.

Monday, November 23, 2015

PM Turnbull needs to talk up new commitment to transparency, open government and citizen engagement

When Prime Minister Turnbull catches breath after the current round of international travel, and following the announcement by his department in his absence that Australia recommits to the Open Government Partnership, let's hope for public remarks in tune with those of President Obama in answering a question (see below) at a town hall gathering of young people in Malaysia on Friday.

The PM needs to invest more than a moment to boost visibility of this decision and the related consultation on a national action plan announced last week. The announcement has received attention in social media, on some government websites and in Delimiter, Crikey, The Mandarin and Eureka Street but Fairfax, News and other mainstream media are yet to find a story in this.
The Department gave itself until 11 December to spread awareness during the first of four stages in the development of a national action plan. If that timetable sticks, there's a need to get a wriggle on and get the boss on the job as well.

President Obama
I do believe that there are basic values that we all share.  And one of those values is that countries work best when everybody has a voice that can be respected, and that the press is able to report on what is happening in current affairs, and people can organize politically peacefully to try to bring about change, and that there’s transparency and accountability.  And when you look at which countries have done best in terms of development, typically over time, those countries that have some accountability and some measure of personal freedom tend to do better.  And those countries that don’t, have more problems

So whenever I meet in international forums, like APEC or AEAN, or whenever I meet with individual leaders, I try to encourage them to move more in the direction of transparency, accountability, to empower people so that they can participate in civil life.  And I always want to be honest with people whenever I talk to folks, that that doesn’t mean that we don’t do business with countries sometimes just because we have shared security interests or economic interests.  I have to meet with President Xi of China, even though I may not agree with the approach of his government towards human rights, because China is such a big country — and on something like climate change, if we don’t cooperate, then we won’t solve the problem.

There are occasions everywhere in the world where I will meet, and the United States has a relationship and cooperates with a country, even though their human rights record may not be good.  But I want to assure you that in all of those meetings, we always raise these issues.  And part of what we’re trying to do also is to create international support for these issues.

So one of the things that I did at the U.N., for example, was something call the Open Government Partnership.  And the idea behind the Open Government Partnership is that every country each year makes a pledge for what they’re going to do to make themselves more accountable, more open, more transparent, to root out corruption.  And not everybody starts out at the same place. But just by encouraging people to put out plans, even if they don’t always meet the plans right away, it raises the standards and the sights of people, and encourages people to aspire to improvements.

It’s just like democracy.  When we were hearing about Myanmar, and they talked about Indonesia as an example — well, Indonesia, when I was living there as a child, was not a democracy.  It was basically you had President Suharto and you had the military, and there weren’t elections every few years.
And it didn’t happen right away; the transition took some time.  But as long as we keep on encouraging that kind of change, I think we really can make a difference.

Friday, November 20, 2015

Names, signatures and initials of public servants-what's the FOI story?

Names of public servants carrying out usual functions- in the usual case not exempt.

Signatures of public servants-in the usual case exempt: unreasonable disclosure of personal information and on balance contrary to the public interest.

Initials of public servants and police officers?

Although it wasn't a major issue in the matter Acting Australian Information Commissioner Timothy Pilgrim in ‘HJ’ and Australian Federal Police [2015] AICmr 71 (6 November 2015) rejected argument that disclosure of the initials of officers appearing in a document would be unreasonable. The AFP argued the potential for identity fraud or forgery, and the fact that the author of the initials did not expect the material to be released under the FOI Act.
  1. The question of whether signatures of public servants are exempt under s 47F is an increasingly common theme in IC reviews. The Guidelines note at [6.140]:

Where public servants’ personal information is included in a document because of their usual duties or responsibilities, it would not be unreasonable to disclose unless special circumstances existed. This is because the information would reveal only that the public servant was performing their public duties. Such information may often also be publicly available, such as on an agency website.

  1. The AFP submitted that the release of staff signatures would increase the risk of identity theft or the falsification of instruments, given the powers held by AFP officers. It was also submitted that the relevant document was for internal use and because it was a professional standards form, the person would not have an expectation that their initials could be publicly released.
  2. Accepting these general submissions as to possible fraudulent use of the information would equate to me being satisfied that special circumstances exist only because the author of the initials is or was a member of the AFP.
  3. I have found that virtually all of the content of the relevant document is exempt and find no reason that would support the disclosure of the initials as unreasonable. I am not persuaded of the potential for identity fraud or forgery from the release of the initials.
  4. In my view, to accept the submission that the author of the initials did not expect the material to be released under the FOI Act and therefore release of the personal information would be unreasonable would be contrary to the objects of the FOI Act.
  5. Consistent with the decision in Stephen Waller and Department of Environment [2014] AICmr 133, and absent evidence of any special circumstances, I find that it would not be unreasonable to disclose the initials and the material is not exempt under s 47F. 
(Update: a reader has reminded me of this widespread practice across the public service in acknowledging receipt of an FOI application:
"It is the usual practice of the Department to not release the names and contact details of junior officers of the Department and other government agencies, where that personal information is contained in documents within scope of a request.  The names and contact details of senior officers will generally be released.  We will take it that you agree to the removal of junior officers’ personal information unless you advise that you would like us to consider releasing that information as part of the documents you have requested."

While it is somewhat cute, in the usual case I doubt this is of concern to the applicant. 

But it is more than cute when the 'junior officer' is senior enough to have carriage of a particular matter. In an FOI application eons ago about the snail like progress on Australian membership of the Open Government Partnership the Attorney General's Department deleted the names of 12 of 15 officials attending an interdepartmental meeting on the subject.

As I said at the time if they are senior enough to represent the department some accountabilty goes with the territory. 

Previous posts on this issue are here and here 

Wednesday, November 18, 2015

Attempt to abolish Office of Australian Commissioner is lead in the saddlebag as government commits to Open Government Partnership.

You can't imagine that the Abbott government initiated attempt, still ongoing after 18 months, to close out the Office of Australian Commissioner can stand for long in the Turnbull government's name as it commits to the Open Government Partnership. 

There are no bragging rights in that context for shutting down the independent advocate and watchdog for open government. Particularly when listing establishment of the office as a positive, a point picked up in today:

Australia commits to open government, sort of. More than two years after the former Labor government said it was going to join the Open Government Partnership, the Turnbull government has begun the process of finalising our membership. The OGP is a group of, so far, 69 countries that all agree to be more open, accountable and responsive to their citizens. To be a member you have to go through a two-year action plan. Australia’s plan will be drafted, with public consultation, over the next few months, ahead of a launch in July 2016. A website set up to detail Australia’s work to date curiously mentions the establishment of the Office of the Australian Information Commissioner -- which the government is trying to close -- in 2010 as one of its achievements.

Given that the only thing keeping the OAIC open right now is the fact the current government doesn’t have the numbers in the Senate to pass legislation abolishing it, and there has been no change in policy after Malcolm Turnbull became prime minister, it is confusing as to why this was included. Perhaps there is change afoot?
That change can't come soon enough and should see withdrawal of the bill and steps to put the OAIC back on stable footing. 

Without rushing ahead on content of the national action plan, a review of information access law, policy and procedures in light of experience to date and 21st century expectations and technological capabilities should be a candidate for inclusion. The advocacy, oversight and review role of the OAIC should be part of the equation.

Australia, Open Government Partnership and Declaration of Open Government

To join the OGP, countries must commit to uphold the principles of open and transparent government by endorsing the Open Government Declaration (below).  Through endorsing this Declaration, countries commit to “foster a global culture of open government that empowers and delivers for citizens, and advances the ideals of open and participatory 21st century government.”

Australia is required to send a letter endorsing the Declaration with the final approved national action plan.

September 2011
As members of the Open Government Partnership, committed to the principles enshrined in the Universal Declaration of Human Rights, the UN Convention against Corruption, and other applicable international instruments related to human rights and good governance:

We acknowledge that people all around the world are demanding more openness in government. They are calling for greater civic participation in public affairs, and seeking ways to make their governments more transparent, responsive, accountable, and effective.

We recognize that countries are at different stages in their efforts to promote openness in government, and that each of us pursues an approach consistent with our national priorities and circumstances and the aspirations of our citizens.

We accept responsibility for seizing this moment to strengthen our commitments to promote transparency, fight corruption, empower citizens, and harness the power of new technologies to make government more effective and accountable.

We uphold the value of openness in our engagement with citizens to improve services, manage public resources, promote innovation, and create safer communities. We embrace principles of transparency and open government with a view toward achieving greater prosperity, well-being, and human dignity in our own countries and in an increasingly interconnected world.

Together, we declare our commitment to:

Increase the availability of information about governmental activities.
Governments collect and hold information on behalf of people, and citizens have a right to seek information about governmental activities. We commit to promoting increased access to information and disclosure about governmental activities at every level of government. We commit to increasing our efforts to systematically collect and publish data on government spending and performance for essential public services and activities. We commit to pro-actively provide high-value information, including raw data, in a timely manner, in formats that the public can easily locate, understand and use, and in formats that facilitate reuse. We commit to providing access to effective remedies when information or the corresponding records are improperly withheld, including through effective oversight of the recourse process. We recognize the importance of open standards to promote civil society access to public data, as well as to facilitate the interoperability of government information systems. We commit to seeking feedback from the public to identify the information of greatest value to them, and pledge to take such feedback into account to the maximum extent possible.

Support civic participation.
We value public participation of all people, equally and without discrimination, in decision making and policy formulation. Public engagement, including the full participation of women, increases the effectiveness of governments, which benefit from people’s knowledge, ideas and ability to provide oversight. We commit to making policy formulation and decision making more transparent, creating and using channels to solicit public feedback, and deepening public participation in developing, monitoring and evaluating government activities. We commit to protecting the ability of not-for-profit and civil society organizations to operate in ways consistent with our commitment to freedom of expression, association, and opinion. We commit to creating mechanisms to enable greater collaboration between governments and civil society organizations and businesses.

Implement the highest standards of professional integrity throughout our administrations.
Accountable government requires high ethical standards and codes of conduct for public officials. We commit to having robust anti-corruption policies, mechanisms and practices, ensuring transparency in the management of public finances and government purchasing, and strengthening the rule of law. We commit to maintaining or establishing a legal framework to make public information on the income and assets of national, high ranking public officials. We commit to enacting and implementing rules that protect whistleblowers. We commit to making information regarding the activities and effectiveness of our anticorruption prevention and enforcement bodies, as well as the procedures for recourse to such bodies, available to the public, respecting the confidentiality of specific law enforcement information. We commit to increasing deterrents against bribery and other forms of corruption in the public and private sectors, as well as to sharing information and expertise.

Increase access to new technologies for openness and accountability.
New technologies offer opportunities for information sharing, public participation, and collaboration. We intend to harness these technologies to make more information public in ways that enable people to both understand what their governments do and to influence decisions. We commit to developing accessible and secure online spaces as platforms for delivering services, engaging the public, and sharing information and ideas. We recognize that equitable and affordable access to technology is a challenge, and commit to seeking increased online and mobile connectivity, while also identifying and promoting the use of alternative mechanisms for civic engagement. We commit to engaging civil society and the business community to identify effective practices and innovative approaches for leveraging new technologies to empower people and promote transparency in government. We also recognize that increasing access to technology entails supporting the ability of governments and citizens to use it. We commit to supporting and developing the use of technological innovations by government employees and citizens alike. We also understand that technology is a complement, not a substitute, for clear, useable, and useful information.

We acknowledge that open government is a process that requires ongoing and sustained commitment. We commit to reporting publicly on actions undertaken to realize these principles, to consulting with the public on their implementation, and to updating our commitments in light of new challenges and opportunities.

We pledge to lead by example and contribute to advancing open government in other countries by sharing best practices and expertise and by undertaking the commitments expressed in this declaration on a non-binding, voluntary basis. Our goal is to foster innovation and spur progress, and not to define standards to be used as a precondition for cooperation or assistance or to rank countries. We stress the importance to the promotion of openness of a comprehensive approach and the availability of technical assistance to support capacity- and institution-building.

We commit to espouse these principles in our international engagement, and work to foster a global culture of open government that empowers and delivers for citizens, and advances the ideals of open and participatory 21st century government.

- See more at:

Tuesday, November 17, 2015

Australia comes out of the dark to join the Open Government Partnership

Drum roll please:

 Open Government Partnership: Public consultation for the Australian Government’s National Action Plan now open

Department of the Prime Minister and Cabinet

Release date:

17th November 2015

The Australian Government has committed to joining the Open Government Partnership (OGP), a voluntary, global initiative that promotes transparency, empowers citizens, fights corruption, and harnesses new technologies to strengthen governance.

In line with this commitment a public consultation process commenced on 17 November 2015 to inform the drafting of the Australian Government’s National Action Plan as part of joining the OGP.

Members of the public are invited to contribute ideas and provide feedback on the framework for the Action Plan. The Action Plan is due to be submitted to the OGP Steering Committee by July 2016.

More information about the consultation phase and how to contribute can be found by visiting Open Government Partnership – Australia.

The OGP was founded by the governments of Brazil, Indonesia, Mexico, Norway, the Philippines, South Africa, the United Kingdom, and the United States in 2011. There are now 69 OGP member countries. The partnership is overseen by a Steering Committee that includes representatives from governments and civil society in member countries.
The Government is committed to openness as a basic principle of modern government and looks forward to your contributions to the Australian OGP National Action Plan.



G20 Anti-Corruption statement includes open data and public contracting principles

 From the G20 Leaders Communique, Turkey 15-16 November:
16.In support of our growth and resilience agenda, we remain committed to building a global culture of intolerance towards corruption through effectively implementing the 2015-2016 G20 Anti-Corruption Action Plan. We endorse the G20 High-Level Principles on Integrity and Transparency in the Private Sector which will help our companies comply with global standards on ethics and anti-corruption. Ensuring the integrity and transparency of our public sectors is essential. In this regard, we endorse the G20 Anti-Corruption Open Data Principles and the G20 Principles for Promoting Integrity in Public Procurement, and we welcome the ongoing work on asset disclosure frameworks. We will further work to strengthen international cooperation, including where appropriate and consistent with domestic legal systems, on civil and administrative procedures, as an important tool to effectively combat bribery and to support asset recovery and the denial of safe haven to corrupt officials and those who corrupt them. We welcome the publication of our Implementation Plans on beneficial ownership transparency and will continue our efforts in this regard.
The Agreed Documents that accompany the Communique include

Wednesday, November 11, 2015

PM Turnbull on the road-an opportunity to stand with the Open Government Partnership

Three weeks of international visits and meetings between 12 November and 1 December will see Prime Minister Turnbull engage with many leaders who attach importance to improving democratic practices, and who back this up with a commitment to the Open Government Partnership. 

The OGP links close to 70 countries in "a multi- stakeholder initiative focused on improving government transparency, accountability and responsiveness to citizens. OGP brings together government and civil society champions of reform who recognize that governments are much more likely to be effective and credible if they open their doors to public input and oversight."

Sounds right up the Turnbull government alley given the Prime Minister's commitment to open consultative government and his ambition that Australia "should aim to become the world's leading digital economy."

The PM may not need much help in translating these enthusiasms into something to say or ascribe to on the international stage. 

But as a prompt, public servants and advisers in Canberra hopefully have ensured the briefing book includes something more positive and meaningful than the Abbott government line maintained for two years, that membership of the OGP is 'under consideration.' 

'Considering' has gone on for four years in total since the invitation to join as a founding member in September 2011. It has been marked by a notice of intention to join in May 2013, but no movement since. 

An announcement of Australia's re-commitment at any number of stops along the PM's way would be timely and welcome at home and abroad.

The PM will visit Indonesia,Turkey (G20), Germany, the Philippines (APEC), Malaysia (East Asia Summit), Malta (CHOGM) and France (UNFCCC COP21)

OGP connections

Implementation of the Sustainable Development Goals will be a topic at most of these meetings and in bilateral discussions.

Around 30 countries so far have signed a joint declaration committing to use the OGP to help carry out the goals through national action plans. Goal 16 calls for building “effective, accountable, and inclusive institutions at all levels.” As Helen Clark of the UNDP said in Mexico City recently: 
Agreement on Goal 16 by world leaders resonates with the call by millions of citizens around the world who, when they were asked what they wanted included in the new goals, answered “honest and responsive government”. Goal 16 is also a natural fit with the objectives of the OGP. Its targets include:
promoting the rule of law at the national and international levels, and ensuring equal access to justice,
. substantially reducing corruption and bribery in all their forms,
• developing effective, accountable, and transparent institutions,
• ensuring responsive, inclusive, participatory, and representative decision making, and
• ensuring public access to information and the protection of fundamental freedoms.
Transparency and integrity will crop up as issues in a variety of circumstances. 
 Last year at the G20 in Brisbane for example the 2015-16 G20 Anti Corruption Plan (pdf), an "agreed document" that supported the Communique issued at conclusion of the Leaders' Summit included a section 'Public sector transparency and integrity.'

"G20 countries commit to leading by example in ensuring our government agencies, policies, and officials implement international best practices for public sector transparency and integrity.  The (Anti Corruption Working Group) has identified public procurement, open data, whistleblower protections, immunities for public officials, fiscal and budget transparency, and standards for public officials as issues which merit particular attention."
OGP national action plans are a means of advancing this agenda. 

Anti -corruption will be an associated discussion point as well. Transparency International "aspires to work globally, regionally and nationally to help the OGP achieve its mission." TI recently urged Australia to join.

The PM will bend a few ears during his travels about his government initiatives in embracing open data and the digital economy.The movers and shakers in this field- all nine countries ranked above Australia (10th) in the World Wide Web Foundation Open Government Index 2015-UK, US, Sweden, France, New Zealand, Netherlands, Canada, Norway and Denmark- are OGP members as are other digital 'go aheads' Estonia and Israel. Australia by joining the OGP stands to learn and contribute.

The OGP matters for other reasons. Australian membership was included in former DFAT Secretary Dick Woolcott's list of ideas for fine tuning Australian foreign policy.

Indonesia the PM's first port of call is a two term former co-chair of the OGP and with the Asian Development Bank and other donors has played an important regional role in encouraging government and civil society in countries such as Cambodia, Malaysia and Myanmar to take steps in the right direction.The Asia Pacific region is under represented in the OGP despite good recent news from Papua New Guinea and Sri Lanka. Australia should stand in the region with these newcomers and Indonesia, the Philippines, Korea and Azerbaijan in promoting open transparent and accountable government and citizen participation in government affairs.

OGP member countries participating in multilateral events on the PM's calendar are

The OGP at G20 
Turkey the host, and Argentina, Brazil, Canada, France (Co-Chair)  Indonesia, Italy,  Republic of Korea, Mexico, South Africa (Co-Chair), United Kingdom and United States.

The Philippines the host, and Canada, Chile, Indonesia, Republic of Korea, Mexico, New Zealand, Peru and United States. Papua New Guinea has just announced its intention to join.

The OGP at East Asia Summit

Indonesia, New Zealand, the Philippines, Republic of Korea and United States. (Non members are Brunei, Cambodia, China, India, Japan, Laos, Myanmar, Malaysia, Russia, Singapore,Thailand and Vietnam-hence the need for some regional encouragement.)

Malta the host, and Canada, Ghana, Kenya, Malawi, New Zealand, South Africa, Tanzania, Trinidad and Tobago, and United Kingdom. Papua New Guinea and Sri Lanka have announced their intention to join. 

France the host (OGP Co-Chair), plus all those listed here-Australia sitting on the fence.

Travel well PM, talk up the importance of improving democratic practices. 

And put Australia to the test.

AzerbaijaThe OGP at the G20Turkey, the host, and Argentina, Canada, Italy, Indonesia, France (OGP Co-Chair) Mexico, South Africa (OGP Co-Chair), United States, Brazil, Republic of Korea and United Kingdom.

Tuesday, November 10, 2015

Labor makes a 10 minute hit on culture of secrecy, government speakers stay mum

In the House of Representatives yesterday Alannah Mactiernan (Perth, ALP) moved:
That this House:
(1) expresses concern at the culture of secrecy prevalent in the Government and the serious undermining of the core principles enshrined in the freedom of information legislation;
(2) notes the Government has:
(a) defunded the Office of the Australian Information Commissioner (OAIC) despite failing to pass its legislation to abolish the office; and
(b) failed to advance Australia's application for the Open Government Partnership (OGP); and
(3) calls on the Government to abandon its attack on the OAIC and provide it with proper funding, and recommit to joining the OGP.
The motion didn't get far in the 10 minutes allocated before debate was adjourned with Mactiernan and Labor Party colleague Graham Perrett the only speakers.

Could the lack of interest or appetite on government benches to contest the argument suggest a decision not to waste time defending the indefensible while rethinking is underway or completed on both the OAIC and the OGP fronts? Ah, we live in hope.

Mactiernan recounted to the House an FOI experience unlikely to stand the pub test: 
an application to a minister (in this case an assistant minister) that was not processed before the reshuffle, for documents concerning a decision to support a $1.7 billion project in WA couldn't be processed afterwards
"since the portfolio of the assistant minister no longer exists and.. the documents have not been transferred to the new minister.... 'These documents are specific to the minister and to the staff.'
Iran 1970: Public Domain via Wikimedia Commons
Crikey's Josh Taylor ran into the same problem with FOI requests to the office of Prime Minister Tony Abbott that had gone unanswered for seven months before Malcolm Turnbull’s arrival in the office. They couldn't be processed thereafter because the documents weren't held by the office of the current PM. Taylor speculates "the FOI request was lost in one of the dozens of bags of shredded documents seen leaving the prime minister’s office the morning after the leadership change."

The rules about retention, transfer or disposal of documents when the minister leaves or transfers office are hard to find. In theory at least documents held by a minister's office concerning the discharge of functions as a minister are records for the purposes of the Archives Act. 

 Archives Australia provides guidance on what happens to records held by an agency when administrative changes occur, but nothing that I can see when ministers leave the chair.

The FOI situation is that a minister's office is a separate entity from the department for which the minister is responsible. Documents subject to FOI in the hands of the incumbent at any time are those documents "held by the minister" that relate to the affairs of an agency or department. 

If the documents went out the door or found their own way to the shredder as the previous minister and staff headed out, the documents won't be held by the newcomer, end of section.

ACT FOI bill best of breed by far but will it fly?

Markus Mannheim in The Canberra Times recently drew attention to the Freedom of Information bill drafted by Shane Rattenbury, the sole Greens MLA in the ACT Labor-led government. 

Mannheim was right to suggest passage of the bill would make the territory the most transparent jurisdiction in Australia. The bill in its current form is not available and is still subject to negotiation with the Labor Party, but Mr Rattenbury tweeted that it is the draft tabled for consultation over 18 months ago with a few changes.

See my comments in February 2014 with a link to the bill as it stood at that time.

Now years in the making, can the bill get across the line?

 @smbounds @MarkusMannheim Exposure draft on ACT Leg Reg at Few changes since but basically same.

Friday, November 06, 2015

Too much work involved in deciding whether you should see AG's appoinments diary and you can't see any of it, so there!

The Sydney Morning Herald and other media are enjoying the Freedom of Information battle in the Administrative Appeals Tribunal between the former Attorney General Mark Dreyfus and his successor Senator George Brandis over access to the current attorney's appointments diary for an eight month period in 2013-14.  

Me too when I sat through the three hour hearing in Sydney this morning.

But none of us enjoyed it more than Dreyfus.

Dreyfus QC who represented himself and giving the lie to that old maxim, a lawyer who does so has a fool for a client, had an enjoyable morning drawing on years of knowledge of  FOI law gained at the bar in his pre-parliament years and experience since in ministerial positions. Dreyfus was masterly in making submissions and putting Brandis Chief of Staff Paul O'Sullivan through the hoops. 

O'Sullivan by the way didn't seem to enjoy it at all. 

Paul Farrell in The Guardian provides a detailed report of proceedings.

The Tribunal is required to make the correct and preferable decision in light of O'Sullivan's determination to refuse to deal with the application because doing so would "substantially and unreasonably interfere with the performance of the Minister's functions."

Dreyfus argued that the Attorney General (well O'Sullivan in his name) had misconceived
what was required, exaggerating the time and resources involved by citing exemption considerations that were ill informed, and consultation requirements that went beyond what was required in order to justify a claim that hundreds of hours would be involved in dealing with the request in accordance with provisions of the FOI act. 

Dreyfus argued the approach was wrong and the estimated time involved way beyond what was realistic.

On a point that could if successful give new prominence to the importance of the objects of the act Dreyfus submitted that contrary to the approach taken by O'Sullivan in identifying every conceivable problem that stood in the way of granting access, the objects in Section 3 set out rights of access and agency obligations that overall dictated a different approach:
  • the act conferred a right to access documents,
  • Parliament's stated intention "was to promote Australia's representative democracy by contributing towards increasing scrutiny, discussion, comment and review of the Government's activities", and 
  • of particular relevance in this case, Parliament "also intends that functions and powers given by this Act are to be performed and exercised, as far as possible, to facilitate and promote public access to information, promptly and at the lowest reasonable cost."
Another issue of interest in the case is the contention on behalf of the Attorney General that each of the almost two thousand entries in the diary are separate document Dreyfus argues on the basis of authority particularly a Victorian Court of Appeal decision that they consist of one document. 

Both parties acknowledge some entries in the diary are outside the scope of the FOI act because they do not relate to the affairs of an agency and are thus not 'Minister's documents' for the purpose of the FOI act.

In a telling admission of the 'horse and buggy' approach to dealing with FOI matters in the office of the minister responsible for the FOI act, O' Sullivan said redacting information from a requested document was complex and time consuming for the one officer trained in the task using the one computer that had the necessary software. Each redaction involved about 13 keyboard commands and took 5-10 minutes.That's after the very time consuming process O'Sullivan recounted in deciding if a name of someone in the appointments diary could reasonably be expected to give rise to a consultation or exemption requirement.

Software suppliers who have ready made answers should be knocking on O'Sullivan's door as we speak.

Justice Jago who reserved her decision expressed a degree of scepticism about whether the mere mention of the name of a person scheduled to meet the Attorney General touched off either consideration.

The bills before the Parliament to abolish the Office of Australian Information Commissioner and make other changes to FOI arrangements would see the Attorney General and his department responsible for government wide guidance on the interpretation of the FOI act and presumably for good practice standards in the stead of an independent statutory officer.

Surely the PM sees folly in this.