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Thursday, October 20, 2016

Senate Estimates: Brandis changes his mind on the OAIC, Pilgrim soldiering on

From Senate Estimates (pdf) questioning of Attorney General Senator Brandis and Australian Information Commissioner Timothy Pilgrim (pp 63-67) on Tuesday:

Cease fire at last:
Attorney General Brandis no longer thinks, as he did until May this year at least, that abolishing the OAIC would be a "good economy measure." In response to questions about the change of mind he said "I am not going to comment on decisions in previous financial years that have been reversed. I do not think that is germane.... A policy was made in a previous financial year, essentially for reasons of economy. That decision was revisited more recently and reversed, and I am glad that it was, and I am really delighted that Mr Pilgrim's position has been regularised."

(Comment: Welcome news. But no questions or statements about the damage inflicted by two years of siege that followed the announcement of May 2014 that the government intended to abolish the office.)

No intention of appointing a Freedom of information Commissioner: 
Attorney General Brandis said the government intends to leave the position vacant:
"The reason is that there is already, in the absence of a freedom of information commissioner, a comprehensive architecture for freedom of information applications and review of such freedom of information decision-making." "The consolidation into one person, or one officer, of the statutory offices of Australian  Information Commissioner and Privacy Commissioner has occurred after discussion with Mr Pilgrim and with his concurrence. The functions that the Freedom of Information Commissioner could have performed may be carried out by Mr Pilgrim as well, in his capacity as Australian Information Commissioner.
There was something of a logjam of positions in relation to, essentially, the same policy space, and we are finding, and I think this is evident from Mr Pilgrim's statement, that now that his position has been regularised—I am very happy about that and I want to congratulate him on his reappointment—that the whole issue of government information and privacy can be disposed of at less expense and much more efficiently."
Commissioner Pilgrim backed this up:
"I have had discussions, primarily with the Attorney-General's Department, about the current structure and I am of the view that both the functions under the FOI Act and the function of Privacy Commissioner can be undertaken by the one position. This is not an uncommon model in other jurisdictions around the world. If I could turn to that momentarily I would say that in the United Kingdom the information commissioner's office is headed up by the information commissioner—one statutory officeholder—and supported by two deputy commissioner positions. I have undertaken to do something similar in our office. I have recently  appointed a deputy commissioner position, and Ms Falk has recently been appointed to that position. I also have an assistant commissioner to support me."
(Comment: Parliament decided in 2010 that the Office should have three commissioners with defined functions, not two. That legislation remains in force. The decision that two will suffice apparently based on discussions between the commissioner and the Attorney General's department hardly seems in line with executive government responsibility to execute and maintain the laws of the Commonwealth. Whether the decision is based on the rich body of experience in Australia and overseas about models for "an information champion, with a comprehensive range of powers and functions to promote open government, protect information rights and advance information policy" and whether effectiveness as well as efficiency was a consideration is unknown. In this submission to the Hawke review in 2012 then former Australian Information Commissioner Professor McMillan and then FOI commissioner Popple suggested legislative and other changes that would improve efficiencies and operations. None have been acted upon.)

Coping despite it all: Australian Information Commissioner Pilgrim provided detail of the FOI and privacy work undertaken in 2015-16, said the office is carrying out all FOI functions, that it is "working to ensure that it is managing its role in the most effective and efficient way" and is confident "that the office as we are currently undertaking our functions under both privacy and FOI are delivering some efficiency, certainly, in the area of our regulatory responsibilities."
(Comment: there was no mention of any squeeze on funding which for FOI functions is well below what was considered necessary when the office was established, or of how the two year campaign of attrition has left the office; no mention either of the apparently unfunded information policy functions that have all but disappeared from sight; only a passing reference to 'own motion' FOI investigations of which there have been two in the last six years; nothing about public awareness, leadership and advocacy functions that may be outside the scope of 'regulatory functions' that the commissioner assured are being performed; and as for performance, the KPI of dealing with most matters within 12 months has always struck me as not quite the measure for 'speedy' resolution of review and complaint functions. 
While it has had virtually no publicity and wasn't mentioned during the hearing interesting that the Australian National Audit Office has a performance audit underway examining the efficiency and effectiveness of the OAIC. It is due to report in June next year.)

Relevant extracts from the Estimates transcript follow.
Attorney General Brandis: 'changed our minds' on OAIC
Attorney-General, in May this year at the Senate estimates you said that the 2014 decision to abolish the OAIC was 'a good economy measure—and we have not changed our minds'. In what way, and to what extent, was it a good economy measure?
Senator Brandis:
Well, we have changed our minds since, and I am pleased we have.
Sorry, could you repeat that.
Senator Brandis:
We have changed our minds since. I am pleased we have. It is no longer the policy of the government to do so..... I am not going to comment on decisions in previous financial years that have been reversed. I do not think that is germane.... A policy was made in a previous financial year, essentially for reasons of economy. That decision was revisited more recently and reversed, and I am glad that it was, and I am really delighted that Mr Pilgrim's position has been regularised.

OAIC without a Freedom of Information Commissioner 'more efficient'
Thank you. This might be a question for the Attorney-General or maybe for you, Mr Pilgrim, because it is about your actual appointment. But I noted that in the information—it is in section 14 of the act—about the FOI Commissioner it says:
A person may only be appointed as the Freedom of Information Commissioner if he or she has obtained a degree from a university, or an educational qualification of a similar standing, after studies in the field of law.Do you qualify in that way? 

Mr Pilgrim:
No, I do not qualify in that way, but I am not being appointed as the Freedom of Information Commissioner; I have been appointed as the Australian Information Commissioner and also the Australian Privacy Commissioner, and those requirements are not part of the statute for those positions.
I am well aware of that. I was just trying to understand. Attorney-General, has this had something to do with why we now no longer have an FOI Commissioner?
Senator Brandis:
No—if I am understanding your question correctly. It was merely a matter of trying to regularise and make more efficient the process.
So it was about making the process more efficient?
Senator Brandis:
Yes, I think so. Mr Pilgrim, who does this every day, would be in a better position than I to describe the functionalities here, but there did appear to be a very significant degree of overlap and duplication in the way in which three different offices were created to do essentially different aspects of what, if it is not the same job, deals with issues arising in the same area of policy.
What I am trying to understand is this. Mr Pilgrim, you were appointed as Acting FOI Commissioner five times. I think that is accurate.
Mr Pilgrim:
No, that is not correct. I was appointed as the Acting Australian Information Commissioner prior to my permanent appointment recently—not to the FOI Commissioner position.
You were never the Acting FOI Commissioner?
Mr Pilgrim:
No, and I should clarify and add to an earlier answer to a question I made. All the powers of the FOI Act are actually invested in the Australian Information Commissioner, and as Australian Information Commissioner I am able to exercise all the functions of that act.
In your present position?
Mr Pilgrim:
In my present position, yes.
Busy year
Mr Pilgrim:
Some statistics from the 2015-16 financial year highlight the community's engagement with our office and also some of the ongoing improvements and performance that we have achieved in both FOI and privacy. In 2015-16 we handled some1,092 privacy inquiries, which is an 18 per cent increase from the previous year, and we received 2,128 privacy complaints. In that context, through a combination of improved triaging, conciliation and investigation processes, this has resulted in the OAIC solving 97 per cent of privacy complaints within 12 months of receipt. Additionally, the OAIC has conducted 21 privacy assessments or audits of regulated entities, received and processed 107 voluntary and 16 mandatory data breach notifications, provided over 230 substantial privacy advises to regulated entities, developed and published 25 new privacy guidance resources and provided 27 privacy submissions on government legislation and policy.
Turning now to our FOI responsibilities, the OAIC has continued to implement efficiencies in our administration of FOI, particularly in the area of Information Commissioner or IC reviews of government agency decisions. In the financial year just concluded, the OAIC received 510 applications for an IC review, which is up 36 per cent from the previous year. In that same period, we finalised 454 IC reviews, with 87 per cent finalised within 12 months of receipt. This continues to exceed our 80 per cent benchmark. Indeed, 84 per cent, or 212, were finalised within six months. However, in saying that I do note, of course, that there are some complex matters that have taken significantly longer to resolve.
Importantly, of the 454 IC review matters finalised, only 18 per cent required a formal decision to be made by me as commissioner. This reflects our approach to work with government agencies, to build the knowledge and approaches required to resolve FOI requests efficiently and, where a dispute arises, to attempt to reach a mutually satisfactory agreement without the need for a formal decision. To further assist in this area our office is currently working to update the FOI guidelines to assist agencies and individuals alike. Providing clear plain English advice as to the scopes and limits of the FOI rights, as well as clear guidance to agencies as to how to best manage those
rights in the first instance, is the priority. This focus on guidance, education and public information is important because, while privacy and FOI formal decisions are occasionally more complex or precedent setting, the vast majority of inquiries to our office revolve around individuals seeking to have rights upheld in circumstances in which the law is clear and well established. What is important in that context then is that there is clear and accessible advice as to what individuals' privacy and FOI rights are and quick and effective mechanisms to uphold those rights. I am confident that the focus that the OAIC is placing on advice, education and conciliation, as well as our achievements in improving the access and efficiency of privacy and FOI systems, will continue to provide effective delivery of our responsibilities to uphold both the FOI and the Privacy Act.
  OAIC carrying out 'all FOI functions'
Thank you. Is the role of the OAIC on freedom of information matters now effectively confined to its review of refusals of requests for access to information?
Mr Pilgrim:
No. That is certainly one of the functions. Under the Freedom of Information Act, I am able to undertake complaints about the administration of FOI matters. Someone could bring in an issue, for example, about the timeliness or otherwise of an agency's handling, and that could be handled under the complaints procedures. As you point out, there is the ability for someone to seek review of an access decision or refusal of access decision under the Information Commissioner review provisions, and that still exists. I have the ability to undertake an own-motion investigation if I believe I need to look at the activities of an agency as well. So those functions are still being undertaken. The whole of the functions under the FOI Act that sit with the Information commissioner are being undertaken.

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