Major parties respond with faint praise but nothing else to Senator Patrick's FOI reform bill

 In 2018 Senator Rex Patrick sponsored the introduction of the Freedom of Information Legislation Amendment (Improving Access and Transparency) Bill and made the second reading speech, the bill was referred to the Legal and Constitutional Affairs Legislation Committee, the Committee report recommended the Senate not pass the bill (Senator Patrick and Greens senators dissenting)......

And there the bill sat until last week when it came on for Senate debate for 70 minutes before time expired.

The major parties did not support the bill in 2018 and reaffirmed that in 2020, so its fate is clear. 

Senator Patrick managed to get an acknowledgement that the government respects the intent to 'make government more transparent and more accountable, to assist citizens and the media to access information under the law and to improve the effectiveness of Australia's freedom-of-information laws' and from Labor that the bill was "well intentioned, and many of the proposals it puts forward warrant close examination' , but that was as far as they went.

Among the remarks worth highlighting:

Senator Amanda Stoker (Queensland, Liberal Party)

The government remains steadfast in its support for transparency, for the value of the freedom-of-information arrangements and for providing substantial funding to the Office of the Australian Information Commissioner so that it can do its job of making sure Australians can access important information from governments.... the objectives of transparency, accountability and freedom of information are objectives that are highly valued and shared by this government.

(Spoken apparently with a straight face)

Senator Murray Watt (Queensland ALP)

This government hates scrutiny. This government has contempt for basic notions of accountability. This is a government that prefers to operate in the shadows. It is not difficult to see why, because, every time sunlight does find a way in, Australians do not like what they see. Whether it's sports rorts, Angus Taylor's latest outrage, the awarding of contracts worth hundreds of millions of dollars to companies headquartered in beach shacks or the government's shocking and scandalous record on aged care, the Morrison government does not want Australians to know what it is up to. Make no mistake: that is why the government hates our FOI laws and treats those laws with such contempt. That is also why the government continues to starve the Information Commissioner of resources—so that it takes the commissioner so long to review a rejected freedom-of-information request that the applicant just gives up.

....since this Liberal government took power in 2013, they have been at war with freedom of information, at war with transparency, at war with accountability to the Australian people, who elected them, so Senator Patrick is to be congratulated for bringing forward this bill, which demonstrates his belief that FOI laws need to be strengthened and in the need to undo some of the harm that the Morrison government has done to our democracy in its trashing of FOI and its obsession with secrecy and cover-up.

(Spoken without reference to the fact Labor has not put forward comprehensive, concrete reforms proposals during seven years in opposition.) 

Senator Larrisa Waters (Queensland Australian Greens)

...this is the least transparent government in history.

(Spoken ignoring the fact any government before 1982 when FOI was introduced would beat all since for the least transparent trophy.)

Senator Paul Scarr (Queensland Liberal Party)

...about resourcing. I think it's a key point, to be frank. It's absolutely a key point. If we are going to have an FOI Act regime, there needs to be appropriate resourcing provided for it. It doesn't matter who's in government; there needs to be that appropriate resourcing. When I read the report of the Legal and Constitutional Affairs Committee, page 9, paragraph 2.9 says: 

When asked whether there needed to be more resources at both the early resolution stage, as well as at a later stage, to enable more Information Commissioner reviews to be finalised earlier, Ms Falk stated:

'At this point in time, that's not what I'm seeing. I'm seeing that where I need to focus is on working with government to increase the offices resources to increase the capacity at the case-officer level and potentially, the executive level. If that were to be increased and then have a flow-on effect to more Information Commissioner reviews being required of the commissioner and that being something that's not manageable within other functions then that would be something that I would bring to the attention of government.'

Those are the actual words from the Information Commissioner in the report. In my respectful view, they do not support the characterisation of this matter by Senator Watt,

(Spoken in apparent ignorance of the fact that while the Information Commissioner did say this in 2018, she said something different in Senate Estimates in October 2019:

Senator KIM CARR: Did I hear you correctly in your opening statement? Did you actually say that you're under-funded?  

Ms Falk: I did raise the issue of resourcing in terms of FOI. It's a matter that's been discussed before this committee on a number of occasions, where I've indicated that really where the stresses in the system lie, from the OIC's perspective, are with the need for more staffing. I've set out the fact that we've had an 80 per cent increase in Information Commissioner reviews and I have worked very purposefully since being in the role on looking at how we can increase our efficiency. Over that same period of time—the four-year period—we have increased our efficiency by 45 per cent. But I've formed the view, having conducted a number of reviews of the way in which we're carrying out our work, that the only way in which the gap is to be bridged is for additional staffing resources to be provided

... 

Senator KIM CARR: I see. That's where the confusion lies. So, since August last year, you've been seeking additional support?  

Ms Falk: Sometime after that date, Senator. 

 Senator KIM CARR: And what was the government's response? Ms Falk: The government has acknowledged my request and is working through it in terms of normal budget processes.  

..

Senator KIM CARR: So how much did you ask for?  

Ms Falk: Senator, you appreciate that the information I've provided to government is through budget processes. I can give you an indication that, at present, my funding envelope allows for around 19 case officers to work on FOI reviews—there are additional staff who work on the FOI function more broadly—but just looking at FOI reviews, there'd need to be at least a half increase in the number of those staff.

 Senator KIM CARR: What you mean by 'a half? 

 Ms Falk: A half again. Senator KIM CARR: So—Ms Falk: Another nine staff. 

...

Senator KIM CARR: What will that cost in terms of your normal profile?

.. 

Senator KIM CARR: Can you take that on notice, please?  

The OAIC subsequently provided this response to the question: 

"The Office of the Australian Information Commissioner has estimated that the annual cost to fund nine (9) additional staff to undertake FOI regulatory work, including processing IC review applications, would be approximately A$1.65 million with an additional capital amount of approximately A$0.3 million for accommodation in the first year." 

.....

We live in hope....

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

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.

Budget 2017: No boost in funding for Australian Information Commissioner.

The appropriation for the Office of Australian Information Commissioner in the 2017-18 Budget is $10.368 million, down from $10.618 million. (An 'efficiency dividend' counts for a reduction of $160,000.) Total funds available in 2017-18 (counting funding available from previous years and other revenue): $19.345 million compared to $19.045 million in 2016-17. 

The average staffing level, 75 is unchanged.

In the three 'out years' appropriations drop to $10.265 million, $8.999 million and $9.042 million.

For outcomes measurement purposes the office functions are lumped together in  a single outcome in the Portfolio Budget Statement with budgeted expenses at $14.4 million ($14.988 million in the current year) for

"Provision of public access to Commonwealth Government information, protection of individuals’ personal information, and performance of information commissioner, freedom of information and privacy functions."

The office has extra responsibilities coming in February 2018 when mandatory data breach notification requirements will extend to all entities covered by the Privacy Act. Currently notifications are voluntary other than where My Health Records and eHealth are concerned.

As in previous years you have to wonder about performance measures (pp 251-252) that set 12 months as the target for dealing with some matters. For example

Handling privacy complaints

80% of privacy complaints are finalised within 12 months (on track to meet target).

 
 

Provide a timely and effective Information Commissioner review function	80% of Information Commissioner reviews are completed within 12 months (on track to meet target).
Handling FOI complaints Providing an Information Commissioner review function Handling FOI complaints	80% of FOI complaints are finalised within 12 months (on track to meet target).   80% of Information Commissioner reviews are completed within 12 months. 80% of FOI complaints are finalised within 12 months.

Who measures what here?

Promoting awareness and understanding of .. information access rights in the community

FOI education and information products meet stakeholder needs (on track to meet target).

Some targets may not be met:

Handling voluntary and mandatory data breach notifications (DBNs)

80% of DBNs are handled or escalated to CII within 60 days (on track to meet target). 80% of eHealth DBNs are handled or escalated to CII within 60 days (not on track to meet target)

 

Conducting assessments

The median time for the completion of assessments is six months (not on track to meet target).

 

Providing a public information service

100% of enquiries are finalised within 10 days (not on track to meet target).

 
Own motion FOI investigations get a mention in the performance measures table which may mean something is in the works:

Conducting FOI Commissioner-initiated investigations

80% of FOI CIIs are finalised within eight months.

 
Two investigation reports have been published since the office was established in 2010, one in 2012, the most recent in 2014.

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.