Habib broke the camel's back-no kidding!

This may have surfaced previously-I hadn't noticed-but in the Cornall report on DIAC Freedom of Information processing, in a discussion about good practice at Defence, Cornall was told "the Habib FOI request broke the camel’s back in Defence’s legal area and led to a reorganisation of the way in which Defence managed FOI, and the establishment of the Freedom of Information and Information Management Branch." 

Not sure if this was the Habib FOI request in question, but in 2008 Mamdouh Habib, FOI and Defence were in the news: The Australian reported on an application for all documents held by the Department of Defence about him and his rendition from the time he was arrested in Pakistan in 2001:

"The Defence Department came back with a preliminary assessment of $107,145.55 that includes 1038 hours and 15 minutes to identify the documents and decision-making time examining 85,418 pages of documents that "fall within the terms of the request". It also estimated it would cost $85,603.80 to examine 82,838 pages of documents generally relating to the US rendition program."

And then the fishy bit:

"The revelation about the amount of information Defence has appears to be at odds with evidence given to the Senate estimates committee earlier this year when officials said: "Defence has no record of involvement through meetings or through the provision of advice in the matter of the rendition of Mr Mamdouh Habib." The disclosure has prompted calls from NSW Labor backbencher Daryl Melham for the federal Government to reveal what it knows about the rendition. "There is a public interest matter in this ... This should not have to be like extracting teeth." Greens senator Scott Ludlam has put questions on notice, asking Defence Minister Joel Fitzgibbon to explain to parliament. "There appears to be a roomful of documents about a subject which they told parliament they know nothing about ... Something is a bit fishy here."

I don't know what documents eventually emerged, but it likely was the catalyst for major, positive FOI changes at Defence.

More on Habib and what he endured here 

The details of PIAC's six year FOI battle with Defence

The revelations about Australian knowledge of, and involvement in detention practices in Iraq and Afghanistan by the Public Interest Advocacy Centre, based on documents obtained after a six year Freedom of Information battle, raise many questions about policy, accountability and transparency going back to 2003. Congratulations to those at PIAC who stuck on with this proving the importance of FOI law, ongoing close examination of its adequacy, and the way it is being implented.

On the substantive issues, PIAC concludes there was a deliberate attempt to avoid obligations under international law through a legal fiction that those captured by Australian forces were not Australia's responsibility; that Australia had prior knowledge of illegal detention practices in Iraq including at Abu Ghraib; and that the Government misled Parliament and deliberately withheld information from the public relating to detainee mistreatment in Afghanistan and Iraq. PIAC, with support so far only from The Greens, calls for an independent inquiry to answer the range of questions that arise. The Sydney Morning Herald provides this summary and opinion-I'm sure plenty more yet to come.

As to the FOI battle Dominic O'Grady of PIAC provided Open and Shut with the summary below. Clearly complex issues arose for Defence in dealing with requests of this nature. However delays that mean some of this comes to light six years on is unacceptable. Important parts of the record have still not been released. Defence acknowledged it got it wrong on Abu Ghraib in 2004 even as it was publicly defending its actions. The contrast is marked with the US where 100,000 documents about these matters has been released publicly, and the UK where the All Party Parliamentary Group on Extraordinary Rendition (APPGER) has been looking at these issues since 2005, and has published information obtained under FOI about the UK’s involvement in extraordinary rendition. O'Grady's summary reads: 

The initial FOI request was lodged with the Department of Defence in June 2005. PIAC sought access to documents relating to Australian Defence Force operations outside Australia since 11 September 2001, involving the apprehension, detention or transfer to other military or civil authorities of individuals suspected of being terrorists. PIAC sought documents relating to detainees who were under the supervision of ADF personnel. PIAC also sought documents relating to the treatment of detainees under the control of the United States.

(Comment: broadly framed applications like this might be expected to raise the issue of substantial diversion of resources, but Defence would have to demonstrate unreasonabilty as well. Or if not diversion of resources, at least involve significant cost to the applicant, although waiver or public interest rebate may have been argued. PIAC didn't mention that either issue arose.)

The Department of Defence took more than three years to reach a decision in response to PIAC’s request. In August 2008, the Department of Defence identified 222 documents that were deemed relevant to the FOI request, from 3000 that had been reviewed. However, PIAC was given access to just 21 (one released in full, 20 with redactions) of the 222 documents. The Department of Defence claimed that 199 of the documents were fully exempt from disclosure because they affected  national security, defence or international relations.

(Comment: "affected" isn't sufficient for such an exemption claim. "Cause damage" are the words used in the act and presumably addressed in the decision. These grounds for exemption are absolute and do not involve any public interest test. We should have a think about that.)

The Department of Defence did not provide PIAC with copies of the 21 documents until February 2009. In April 2009, PIAC sought internal review of the Department of Defence decision not to release all the documents. As the Department of Defence did not respond, PIAC asked the Administrative Appeals Tribunal (AAT) to review the decision in June 2009. In July 2009, the Department of Defence acknowledged that it had “inadvertently overlooked” a number of documents when the original decision was made. The Department also acknowledged that its August 2008 decision did not provide sufficient detail to allow PIAC to understand the decision. Throughout 2009 and 2010, through conciliation processes, PIAC succeeded in gaining access to a significant number of documents (approximately 160), which had previously been withheld by the Department of Defence. Many of the documents, which the Department of Defence originally claimed as being exempt from release, were subsequently released to PIAC. Some parts of the documents were released to PIAC with extensive redactions. That is, the Department of Defence blacked out those parts of the documents that it believed were exempt from disclosure. These documents were subsequently re-released with the previously redacted sections revealed.The matter did not proceed to a decision by the AAT.

(Comment: Senator John Faulkner as Minister for Defence was talking up the improvements in managing FOI in the department in August 2009, around the time things were taking a turn for the better for PIAC)

 

Defence publishes Red book: No 3

Defence, having released the document to two Freedom of Information applicants, has published its incoming government brief. The document, not surprisingly is more heavily redacted than the previously released Treasury and Finance briefs. The Department's Media Release states "Much of this information has previously been made public, including through Senate Estimates, and in preparatory material released for the Afghanistan debate in Parliament." Sean Parnell of The Australian was one of the applicants and has this piece in the paper today, with signs already the brief is contributing to public debate.

"National security" shroud part of the problem at Defence

The outstanding series of articles on Defence spending in the Sydney Morning Herald by Linton Besser and colleagues includes more details of extravagance today, with Minister Faulkner asking questions including if senior management knows what is going on:

'There are issues about the culture in the organisation. Obviously those sort of things are not to be sneezed at.''Senator Faulkner told Parliament yesterday he had asked the Secretary of the Defence Department, Ian Watt, to review the contracts published by the Herald to make sure they fell inside the reform program and ''to ensure Defence has adequate reporting procedures to give senior management the information and the opportunity to intervene''.''Financial control is critical. All of these issues, if not dealt with already, should be and will be examined,'' he said.

 Dr Mark Thomson an expert on Defence expenditure has some suggestions on what can and should be done including:

Finally, if the government really wants efficiency, it should open Defence's performance to external scrutiny. The new minister, John Faulkner, has made encouraging moves, but much remains shrouded behind implausible claims of national security. If Defence's problems only emerge through the media, it will continue to devote more attention to hiding poor performance than making improvements.

Paydirt for digging deep on published contract information

Linton Besser's articles in today's Sydney Morning Herald  about Defence contracts result from a three month investigation, and show  plenty of questionable and sometimes worse examples of profligate spending by the Department.

The articles themselves give the lie to the old line that if it's public there's no story. With more information than ever before available on-line, in this case some contract disclosures, those with the time, energy and resources to dig deep, spot the story, build the picture, follow up on the bits that seem odd or out of the ordinary, and put it all together play an important role in telling us "news." However while Besser has mined the published information extensively, the requirement to publish Commonwealth Government contracts should be on firmer footing, in legislation - it isn't  at present - and the searchability of government websites needs plenty of improvement. We are still going to need a Besser to do the digging and to bring to attention such things as Defence spending $30,000 on items simply described as "stuff", revealed in a contract note no-one else noticed that has has been up on the web since September last year, and some apparent phantom contracts-or simple stuff -ups - as well.

All this from Defence- whose up for a similar exercise across all agencies?

FOI: Cat on ladder with a key

It will take a long time for the Opposition to live down its record on the transparency front while in government, but it doesn't mean criticisms aren't worth noting. And some metaphors aren't bad either. Here's the Liberal Member for Paterson, and Shadow Minister for Defence Science and Personnel Bob Baldwin in the House yesterday during debate on Appropriations Bills:

"It is now beyond any doubt that this Labor government has no ability to deliver on any of its intentions, promises or policies. For example, the intent of Operation Sunlight was to increase transparency of budgetary estimates and improve the readability of budget papers, yet this latest appropriation bill still smacks of Labor’s light touch in regard to transparency. An increase in transparency could be described in layman’s terms as being like installing a large glass window in a brick wall, thereby allowing the outside world to peer through and see what is on the other side. However, transparency according to the gospel of Prime Minister Rudd and his Labor disciples would be more akin to installing a small cat flap in the highest corner of the wall which can only be as accessed with a ladder and opened with a key. Now, the only key that regularly opens this cat flap is wielded by the freedom of information laws, and even then the Rudd Labor government does its level best to hinder those attempting to gain access to what should be classified as public information. That is hardly what I would describe as transparency in government."

The contentious issue is how big that glass window really needs to be. Baldwin went on to point out that the Bill included an additional $690 million worth of extra funding for the Department of Defence but no actual breakdown.

"In fact, this bill states that there is $528 million earmarked for ‘the protection and advancement of Australia’s national interests through the provision of military capability and the promotion of security and stability’. A further $108 million is to be used for ‘the advancement of Australia’s strategic interests through the conduct of military operations and other tasks directed by government’. It is plain to see that the level and amount of information substantiating the appropriation of over half a billion dollars of taxpayers’ money is, I am afraid to say, more than just a little light-on; it is downright shameful and a deliberate act of obfuscation."

Back in May last year I wondered if anyone with the skills and experience in such things had done an assessment of the Government's delivery of the promise of Operation Sunlight. Didn't see or hear a word, so still wondering?

Thanks to Open Australia for the Hansard link

Faulkner on transparency improvements at Defence

He's on the case: some extracts from a speech, Governance and Defence, Some Early Impressions, by Minister for Defence Senator Faulkner yesterday that will do something to reassure those critical of the department over excessive secrecy:

"I have always held the view that transparency is crucial to good governance. Transparency is essential to accountability. When I came into this portfolio I was aware that Defence had been criticised in the past for failing to provide enough openness and transparency. I have found a great willingness across the Department, to embrace the Government’s reform agenda, and to look for areas in which transparency can be enhanced. At the departmental level, three key reforms, improving transparency both internally and externally, have been put in place.First, a new position of Chief Audit Executive has been created to upgrade Defence’s internal audit function...Secondly, an ongoing budget remediation process is underway, planned for completion in the 2009-10 Additional Estimates...Thirdly, the approval process for major projects has been reformed following the recommendations of the Mortimer review to better align acquisitions with strategic priorities

Another example comes from a very different area. At the operational level, CDF, Angus Houston, held a media roundtable with a number of journalists on 21 July this year, to discuss the steps the ADF is taking to avoid civilian casualties, and provide more information to the public.

On 1 July, I released the Public Defence Capability Plan 2009, which included more detailed information about particular proposals than past DCPs and, given its more realistic time frame, should provide a more reliable and more certain base for planning. This year’s Public DCP contains information on 110 projects or phases of projects, $60 billion worth.I also announced a project to re-examine the way we provide defence planning information to industry and the public, including the value, the nature and the content of the Public DCP, with a view to providing not only more, but more useful, information. Thirdly, for the first time the Government released the Priority Industry Capabilities. These were previously unpublished– but now we have shared them with industry and the public.

While these are all important steps, transparency and accountability are also questions of Departmental process and culture. And we are moving to address these as well."

Specifically on Freedom of Information, the Minister said:

" .. you might know I have a particular interest in FOI. Defence has been criticised for not meeting Freedom of Information (FOI) deadlines. In 2007-08, 67 % of federal government FOI responses were completed within the 30-day statutory deadline. Defence only met the deadline in 38 % of their responses for that financial year. That figure fell to 15 % in 2008-09. I accept that FOI will not always be an easy area for Defence to manage. Some issues are inherent in the complexity of the requests received. Some are associated with the sensitivity or classification of information. But Defence itself has identified its FOI performance as an issue and has taken structural steps to address it. On 9 June 2009, the Secretary and the CDF created a new branch to coordinate FOI matters, as well as records management and archives administration. Change in this area is also cultural. Key steps undertaken by this new branch include improved communication, visibility and accountability for FOI requests within the senior levels of the Department, FOI training for decision makers and the development of a dedicated FOI database to monitor the progress of requests. Staff from this branch will also work through the FOI process with action areas to ensure that requests are processed as soon and as efficiently as possible.

I believe that with these reforms Defence will be in a good position to deliver on FOI and transparency reforms, within the requirements of national security."

The Minister went on to discuss in detail, in the interests of transparency, some of the challenges facing him and the department on specific big ticket items.

Defence shelters detail

The resignation of Defence Minister Joel Fitzgibbon for failure to fully adhere to the Ministerial Code of Conduct serves to highlight the importance of those interminable Estimates hearings. As The Age points out the end came-following months of scrutiny and adjustments to his declaration of interests- because of inaccuracies revealed in questioning Defence officials yesterday about "undertakings that the minister made publicly in March about his role in the lobbying activities of his brother. Mark Fitzgibbon is the managing director of NIB Health Fund who, in partnership with US company Humana, last year sought to do business with the Defence Force." The episode should prompt some questioning as well about the adequacy of the lobbyist registration scheme.

Fitzgibbons' involvement in matters of business interest to his brother aren't the only details hard to get out of the Defence system, despite all the talk about transparency, and other initiatives such as Operation Sunlight and its promise of meaningful budget papers.

Mark Thompson of the Australian Strategic Policy Institute is recognised as one of the few who know what's really happening with defence spending, running at $72,990,375.34 per day. In his latest commentary, "The Cost of Defence" Thompson laments that "the most comprehensive White Paper of the modern era’ has been followed by the least comprehensive Defence budget papers of the past decade."His conclusion about transparency and accountability:

"As the first budget after a new Defence White Paper, there is a glaring absence of substantive information on funding, investment and reform. The best that can be said is that the budget is consistent with a White Paper that’s silent on when anything will occur or what things will cost. All we are offered is a vision of what the defence force will look like in 2030. We don’t know when new capability will arrive. We don’t know when old capability will be fixed. We have minimal information on how $20 billion of savings will be accomplished, and not much more on how the money will be spent. We don’t know how much capital investment has been delayed, or when it has been delayed to. And from a funding model extending twenty-one years into the future, we are only given a glimpse of the next four years. But relax; we are going to have twelve submarines sometime after 2030.

Update: This 30 page report released on Wednesday by Defence Secretary Warner adds to the picture. I'll be interested in Thompson's analysis.