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Friday, August 24, 2018

Amid the hubbub, an FOI reform bill introduced from the crossbench goes to committee

Its been quite a week so you're excused if you missed the introduction into the Senate of the Freedom of Information Legislation (Improving Access and Transparency) Bill 2018 by Senator Rex Patrick  (Centre Alliance).

The senator is among the few who take a serious interest in transparency and accountability, evident in his time as a staffer to former senator Nick Xenophon, and in his own stead since he replaced Xenophon in November last year.

Introduction of the bill took one minute of the senate's time but it won't automatically sink without trace. It has been referred to the Legal and Constitutional Affairs Legislation Committee for inquiry and report by 30 November 2018. Thus the opportunity to draw attention and advocate for action from those in government who since the election in 2013 have settled for words if pressed on the subject.

While well short of the changes that would be expected if Australia embarked on developing information access laws fit for the 21st century, an OGP commitment on which the government has remained silent about what is under consideration since August 2017, Senator Patrick's bill is a welcome attempt to identify high order priorities for improvement.

Specific changes proposed include:
  • Requiring the government to fill all three offices of the Australian Information Commissioner, the Privacy Commissioner and the Freedom of Information Commissione
  • Allowing FOI review applicants to elect to have their matter bypass the Information Commissioner, who can take more than a year to make a decision on controversial issues, to the Administrative Appeals Tribunal.
  • Granting an FOI applicant the right to switch a review into the AAT, without charge, in the event that the Information Commissioner takes, or indicates he or she will take, more than 120 days to make a decision.
  • Preventing agencies from making submissions to FOI decision reviews that have not been advanced by the agency in its internal decision making, so that they can't switch exemptions half way through a review as often happens now. This would prevent a current practice that, in effect, this allows an agency to remake decision half way through a review, something not normally permitted in merits reviews being run in superior jurisdictions.  
  • Preventing the Information Commissioner from making FOI decisions if he or she does not hold the legal qualifications required of the FOI Commissioner (as happens now). 
  • Preventing agencies from publishing information released under FOI until at least 10 days after the applicant has received his or her copy of the information. 
  • Promoting the use of freedom of information requests by Senators and Members of the House of Representatives by entitling them to access to documents without charge unless the work generated by an access application involves charges totalling more than $1000
  • Requiring an agency to publish its external legal expenses for each Information Commission or AAT FOI matter that has concluded. This would apply in relation to agency FOI legal expenses and to expenses incurred by the National Archives in respect of applications made for access to information under the Archives Act 1983.
 The reasons for referral/principal issues for consideration by the committee are:
"Impact and benefits
Affect on OAIC resources/processes
Possible submissions or evidence from:
OAIC/Attorney/Law Council/Media Organisations
Accountability Roundtable."

Specific mention of The Accountability Roundtable is an acknowledgement of the tireless work of the former Chair Tim Smith QC in drawing attention to the Abbott and Turnbull governments' move away from the legislated model of three commissioners to exercise the functions of the OAIC and to downscale resources available for FOI and information policy.

Senator Patrick's second reading speech (incorporated in Hansard but not read):

Monday, August 20, 2018

Australian Information Commissioner appointed

After acting in the positions since March, Angelene (apology for earlier typo) Falk was appointed Australian Information Commissioner and Privacy Commissioner from 16 August for a three year term.

 Congratulations and best wishes.

The appointment sees the government continue to hold fast to the decision that one commissioner not three as legislated is sufficient to manage the privacy, freedom of information and government information functions of the OAIC.

This despite the rise and rise of privacy issues and concerns, the new regulatory framework under development for data management, the ongoing freedom of information battleground and road blocks, and the disappearance from public view at least of the OAIC contribution to information policy-the most recent publication on the website is four years old and the rest much older.

Government also maintains silence- now for 12 months- on a commitment to ensure information access laws and practices are fit for the 21st century.

In an in-tray (more probably in an archive box) somewhere in Canberra are a pile of recommendations put forward over the years by the OAIC and others on how to improve and enhance public access to information as well as the functions of the office.

In the Media release announcing Ms Falk's appointment Attorney General Porter said

Saturday, August 04, 2018

Plan to appoint Information Commissioner by end of June comes unstuck.

On 24 May, Secretary of the Attorney General's Department Chris Moraitis told Senate Estimates  (Page 51) the appointment of a replacement Australian Information Commissioner was in the process of being finalised:
"We are literally checking referees. I'll probably complete that tomorrow....
Once we've finalised the report in the next week or two, we will put a report to the Attorney again....and then government considers that.
I think the appointment is an acting arrangement for three months, so we have until around the last week of June to ideally have a new Office of the Australian Information Commissioner, Privacy Commissioner and FOI Commissioner. I think there's an option of renewing (the acting appointment) if that's not the case, but that's our timeline. We're working to that, if I may say so, as diligently as we can."
Still no news on this in the first week of August.

The OAIC has been underfunded since 2014 and will continue to be undermanned, even when a commissioner is appointed to carry out functions parliament decided warranted three commissioners.

In case the government hasn't noticed:
  • privacy concerns have gone through the roof- My Health Record is just the latest;
  • notifiable data breaches is a relatively new measure;
  • new data commissioner arrangements are in the process of being worked out, 
  • information policy is under all sorts of pressure, and
  • Freedom of Information is the usual battleground.