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Monday, May 23, 2016

Public service leaders maintain the FOI rage setting 'tone at the top"

Thirty three years ago, four years after government began considering FOI and five years before legislation passed, in notes to Prime Minister Fraser, then Secretary Department of Prime Minister and Cabinet, Sir Geoffrey Yeend in May 1977 wrote:
"Freedom of Information legislation would result in administrative chaos.. departments keeping dual filing cabinets...It is a can of worms, political commitments notwithstanding. The heads of Defence and Treasury are opposed to the legislation. Broader and in some cases blanket exemptions are necessary.
It has been a consistent theme pursued by the leadership of the public service since, with few public expressions of the contrary view.
The most recent public comments came in April from current Secretary of the Department of Prime Minister and Cabinet Dr Martin Parkinson and head of the Public Service Commission John Lloyd as reported in The Canberra Times

Both spoke at a forum, picking up on the report by another of Parkinson's predecessors Dr Peter Shergold (Learning from Failure) in which Shergold recommended changes to the FOI act to better protect 'frank and fearless advice.'
"The FOI act does not afford sufficient protection to public servants," Dr Parkinson said. "As leaders we need to use exemptions appropriately, but I would support going further and advocating for changes to FOI laws to protect the deliberative process." "[This is] not to reduce our accountability, nor to protect us from stuff ups we may have made, but to enhance the capacity to give truly frank and fearless advice that good policy design needs."
His comments 
"were supported by Public Service Commissioner John Lloyd, who said the bureaucracy was subject to sufficient scrutiny and accountability beyond FOI laws. "We have a high level of accountability in the public service with at least three senate hearings a year, an auditor general, ombudsman, privacy commissioner, information commissioner, and a public service commission just to name some," he said. He continued to say he was "dismayed" by how many times he had heard public servants say "don't put it in writing" to deliberately avoid any chance of a mention in FOI documents."
(More on the Shergold report and 'frank and candid' in a post to follow.)

The Australian Public Service Commission acting on behalf of the Commissioner in response an FOI application has just confirmed the views expressed by Lloyd "are his own."

(The Department of Prime Minister and Cabinet is yet to respond to a similar request.asking about the status of Dr Parkinson's public comments. Update: PM&C "Dr Parkinson was asked to provide some closing remarks and commentary on the implications of the Shergold report for the Australian Public Service going forward. He did this in his role as Secretary of the Department of the Prime Minister and Cabinet.")

The Commission's APS Values and Code of Conduct exhorts public servants in senior ranks (Section 6) to "consider the impact of public comments they might make particularly carefully" and in exercising the right to speak personally, to be mindful of the potential conflict between those views "and the ability to fulfil current and potential duties in an apolitical, impartial and professional manner."
(Section 4 contains plenty of guidance also on records and the importance of maintaining "in an accessible form decisions by Ministers, and the basis for them, including advice on options and risks; program decisions, including decisions affecting individuals or individual businesses that may be subject to administrative review, together with the basis for the decisions and the authority for making the decision; and significant events, including meetings and discussions with Ministers or stakeholders or members of the public which may be significant in terms of policy or program decision-making.)

As perceptions are everything we can only guess what the public might think of the impartiality Lloyd, Parkinson and Treasury Secretary Fraser (also on the record that important things don't get written down these days because of FOI) bring to information access issues.

However the message from leaders to the public servants they lead is clear, to paraphrase:
"FOI is an unfair challenge to public service professionalism. We've been trying to talk sense to government about this for years. So we understand if you can't do your job properly, particularly when it comes to writing down the sort of frank, honest and timely advice you might offer orally. Wink, wink, nod, nod."
Lloyd in April returned to a topic first explored last year when he said "FOI is very pernicious."
He subsequently explained at a Senate Estimates hearing that his remark was prompted by the fact FOI had departed from the original purpose of providing individuals with access to personal information held by government, and seemed unaware FOI was a foundation stone from the time it was laid in 1982 to underpin government transparency, accountability and the public right to know.

As to why he spoke:
"I think that, as Public Service Commissioner, I have a responsibility to at times comment on matters which go to the administration and management of the Public Service."
Lloyd told the committee he hadn't raised the issue with the minister for public service because responsibility rested with the Attorney General, and hadn't raised it there either - "They would have been aware of my comment. I did not see the need to actually take it further." Except of course to give it another run in April 2016 as a personal view.

Tone at the top
While public service leaders speak on FOI on some occasions because they see this as a responsibility, on others expressing a personal view, I can't recall a single positive statement from the Attorney General or other minister reinforcing the importance of FOI and why the law of the land should be implemented fully and fairly in accordance with the spirit and intent of the Parliament.

Saturday, May 07, 2016

Abbott and Turnbull governments: same same or different on transparency, open gov?

The article below appears in "Criminalising The Truth Suppressing the Right to Know: The Report into the State of Press Freedom in Australia in 2016" (pdf p39) published on Friday by the Media Entertainment and Arts Alliance. An update of course is the government's decision announced in the Budget this week that it will not proceed with legislation to abolish the Office of Australian Information Commissioner.

There is plenty more of interest in the report-commend it to you!!

Little Intent behind the Promise

On the transparent, open and accountable government, front, it’s that familiar story six months into the Turnbull era. Hope and disappointment. 

On his first day in office hopes were raised when Prime Minister Turnbull said  we " need an open government, an open government that recognises that there is an enormous sum of wisdom both within our colleagues in this building and, of course, further afield. The statement reminded of the Liberal Party promise before the 2013 election to "restore accountability and improve transparency measures to be more accountable to you.” 

At the time of writing just ahead of the budget and the commencement of the real election campaign, there are still few markers of serious intent that the Federal government intends to put the dark Abbott days behind.

Tuesday, May 03, 2016

Hallelujah: wisdom in the interests of open transparent government prevails

From the Attorney General tonight:

Office of the Australian Information Commissioner

The Government has decided not to proceed with the new arrangements for privacy and Freedom of Information (FOI) regulation, including the proposed changes to the Office of the Australian Information Commissioner (OAIC).
Accordingly, the OAIC will receive ongoing funding of $37 million over four years to continue its privacy and FOI functions. FOI funding is provided on the basis of the streamlined approach to FOI reviews adopted by the OAIC since the 2014–15 Budget.
Details regarding the allocation to the Office are at  Page 261 of the Attorney General's Department Portfolio Budget Statement

As summarised by IT News
The funding includes $8.1 million in new funding, and $6.7 million per year for the next four years out of the budget of the Australian Human Rights Commission, which was set to house the Privacy Commissioner under the new arrangements. Another $600,000 per year will be allocated back to the OAIC from the Attorney-General's Department, which was set to recieve the FOI functions.The OAIC's full operating budget for 2016-17 is set to reach $14.4 million, which budget papers indicate is around $2 million more than it received in 2015-16.
In 2015-16 the agency employed an average of 72 full time equivalent staff.
Josh Taylor writing in Crikey:
After two years in limbo, the Office of the Australian Information Commissioner can breathe a sigh of relief, with the Turnbull government abandoning Abbott government plans to shut it down.In the 2014 horror budget, the Abbott government announced plans to shut down the office responsible for privacy investigations and reviewing freedom of information requests and move its functions to the Administrative Appeals Tribunal and the Human Rights Commission from January 1, 2015.

The plans stalled in the Senate, with Labor, the Greens and the crossbench refusing to pass legislation to shut down the office.

This forced Attorney-General George Brandis to provide funding to the OAIC to keep the lights on and keep the office functioning until legislation passed to shut it permanently.

When Turnbull rolled Tony Abbott, he promised a more open and transparent government, and late last year he committed Australia to joining the Open Government Partnership global group, focused on transparency in government.

Transparency advocates pointed out that this position might be inconsistent with shutting down the OAIC, but the Attorney-General’s Department insisted that closing the OAIC remained government policy.

But that has all changed. In the 2016-17 budget, the Turnbull government quietly announced it would abandon the plans to shut down the office.

It didn’t make the front page of the press release (after all, this is a “jobs and growth” budget, not a “transparency and open democracy” budget), and it was buried in the portfolio statement for the Attorney-General’s Department:

“The government has decided not to proceed with these proposed changes and the OAIC will have ongoing responsibility for privacy and FOI regulation.”

The government will spend $34 million to keep the office open over the next four years, including $8.1 million in direct funding over the four years, $6.7 million per year from the Human Rights Commission for privacy functions, and $0.6 million per year from the Attorney-General’s Department for FOI functions.

But before the OAIC pops the champagne, the government says it can’t go about giving out information willy nilly; it expects the office to operate in the same way it did while it was under threat of being shut down.

“FOI funding is provided on the basis of the streamlined approach to FOI reviews adopted by the OAIC since the 2014-2015 budget.”

This means that where FoI reviews are deemed too complex for the OAIC to deal with, it is to refer the matter to the Administrative Appeals Tribunal, with an associated $800 application fee for people wishing to challenge the outcome of an FOI request.

The other factor to consider is that the office has operating on the smell of an oily rag. Many staff have left the organisation, and many of those remaining work on a part-time basis. To save money during the attempted shut down, one commissioner, John McMillan, was working from home.

Crikey understands that the Canberra office will not be reopened, with the OAIC working out of Sydney. The budget estimates that staffing levels in the OAIC will rise from 72 this financial year to 75 in the next financial year, but the office’s overall budget is lower than before the 2014 budget.