New look federalism: National Federation Reform Council, National Cabinet.

From the Prime Minister's Statement yesterday

National Cabinet

National Cabinet has agreed to the formation of the National Federation Reform Council and the cessation of the COAG model.

National Cabinet has worked effectively to respond to COVID-19. The new National Federation Reform Council agreed to by Premiers, Chief Ministers and the Prime Minister, will change the way the Commonwealth and states and territories effectively and productively work together to address new areas of reform.

The National Cabinet will be driven by an initial single agenda - to create jobs. A job making agenda.
By any measure, National Cabinet has proven to be a much more effective body for taking decisions in the national interest than the COAG structure.

At the centre of the National Federation Reform Council will be National Cabinet.
National Cabinet will continue to meet regularly and will be briefed directly by experts such as the Australian Health Protection Principal Committee.

Initial reform areas will be agreed by National Cabinet.

During the COVID-19 period, National Cabinet will continue to meet every two weeks. In the future, these meetings will take place once a month.

The Council on Federal Financial Relations (CFFR), which is essentially a meeting of all Treasurers, will report to National Cabinet. CFFR will take responsibility for all funding agreements including National Partnership Agreements.

Important taskforces will continue in areas that are critical to our National Agenda. The taskforce on women’s safety and domestic violence will continue their critical work, as will the Indigenous affairs taskforce with a particular focus on Closing the Gap.

Once a year, National Cabinet, CFFR and the Australian Local Government Association will meet in person as the National Federation Reform Council with a focus on priority national federation issues such as Closing the Gap and Women’s Safety.

This new model will streamline processes and avoid endless meetings that do not result in action. This is a congestion busting process that will get things done with a single focus on creating jobs.
This is an exciting new agenda for our federation and is about rebuilding confidence to get Australians back into work.

Further details of the National Federation Reform Council and consolidation and reset of the Ministerial Forums and Ministerial Regulatory Councils will be reviewed by National Cabinet.

Stuart Morris QC coming to grips with NBN and FOI

On 16 April Attorney General Nicola Roxon announced that an "eminent person" would undertake a statutory review of the application of Freedom of Information to NBN Co, the company responsible for implementing the National Broadband Network. The review is to be completed by 30 June 2012, and the report tabled in Parliament. Terms of reference were published but user experience in dealing with NBN Co didn't get a look in.The  NBN Co website makes no mention of the review.

On 20 May, I emailed the Attorney General's office asking if an appointment had been made, if so , who, and if not when could this be expected? No reply but having asked again this week, the name, Stuart Morris QC, former justice of the Supreme Court of Victoria and President of the Victorian Civil and Administrative Tribunal, appeared yesterday on the Attorney General's Department website. 

His surprise early resignation as President of VCAT generated media interest in 2007, The Age describing him as "colourful and controversial." While his main game appears to be planning law, Mr Morris had his share of FOI cases in VCAT, and memorably, had his decision in the Osland case stand up to High Court scrutiny. 

Differences in FOI acts in protecting against harassment or intimidation

Privacy Commissioner Pilgrim in  'I' and Australian National University [2012] AICmr 12  (the first published review decision in which he rather than Professor McMillan or Dr Popple exercised powers under the Freedom of Information Act) set aside a decision to refuse access to emails sent to climate change scientists at the ANU that had been the basis of earlier media reports that death threats had been made against them. (Update: Christian Kerr in The Australian on 3 May provided a racier account, the ANU has since decided against appealing the decison, and Chris Merritt  found scope for some point scoring against Fairfax.)
 
Of interest is that the Commonwealth act contains no counterpart to provisions found in Queensland,Tasmanian and NSW acts that provide grounds for refusal where, with regard to matters of this kind, the likely effect of disclosure falls short of a reasonable expectation of harm to life and safety. Those state acts throw the risk or likelihood of harassment or intimidation into the harm mix.

Access in this case had been refused by the University on the basis of Section 37(1)(c) of the FOI act, that disclosure would, or could reasonably be expected to endanger the life or physical safety of any person, and Section 47F, the conditional exemption for personal information. The latter claim failed because the applicant was not seeking information that would reveal the identity of the individuals sending or receiving the emails in question.

Commissioner Pilgrim was satisfied that disclosure of the content of the documents could not be expected to endanger life or physical safety of any person. His decision was that edited copies (with information removed that would identify the individuals sending or receiving the emails) should be released to the applicant.

NBN Co FOI performance review won't examine broader exclusion issues

Attorney-General Nicola Roxon announced this week that what has ensued since June 2011 when NBN Co commenced operating under the Commonwealth Freedom of Information Act (albeit with coverage limited to documents that don't concern commercial activities) will be reviewed by a yet to be named eminent person. 

The review stems from an agreement between the government and The Greens reached at the time the amendment was passed to bring NBN Co under FOI law a year ago. The Greens were wary that the government formulation of the NBN Co exemption, along the lines of long standing exemptions enjoyed by other GBEs and similar bodies, left too much room for avoiding disclosure, hence the agreed review of performance in return for their votes. At the time Malcolm Turnbull of the Opposition was convinced The Greens had been conned, and that the legislated formula provided too much hiding room for NBN Co. We'll see what has happened when the review report is tabled in parliament in June. I'm assuming, knowing all along that the review was to happen, that NBN Co has been reasonably well behaved.

  

Broader issues

The review notwithstanding, the justification for special exemptions afforded to a range of organisations and the inelegant form of words used in s7 and schedule 2 to achieve this will remain matters for another day. Along with the justification for exclusion of an unknown number of government owned corporations similar to NBN Co in structure, such as the National Electronic Health Transition Authority, that carry out important public functions with large allocations of public money.

Similar issues, rarely explored in most instances, also exist at state level.(Tasmania may be an exception because of the broad definition of public authority in s 5.)

Queensland Attorney General showed interest in scope issues in opposition

In Queensland last year  the Supreme Court ruled Special Purpose Vehicles were not subject to the Right to information Act. Then Opposition Member for Kawana, Jarrod Bleijie introduced the Right to Information (Government-related Entities) Amendment Bill into Parliament in September, partly in response to the court decision. Mr Bleijie is now Attorney General, minister responsible for the RTI act.

His 2011 bill, which lapsed when parliament was dissolved prior to the election in March, would extend the RTI act to cover "any corporation supported directly or indirectly by government funds or other assistance, or over which the state, a minister or a department is in a position to exercise control."

The RTI act currently (s 16) provides for extension of the act by regulation to such entities, but Labor made no move in this direction. Mr Bleijie in opposition saw merit in legislating in a job lot for such bodies to be subject to the RTI act but it remains to be seen whether the view from behind a ministerial desk takes on a different hue-as so often is the case. 

FOI frustration for Schapelle Corby but not the death of democratic rights

I wasn't aware of the Expendable Project until alerted by a comment from Jan Wilson on the recent post about Schapelle Corby, and haven't immersed myself in its claims about government skulduggery. But I have read the FOI Abuse Report, one of many, about freedom of information applications made on her behalf to a number of agencies, and what transpired.

FOI always has the capacity to disappoint which it has done in this case. But I don't see anything persuasive to support the claim that 

"Schapelle Corby's democratic and legal rights, under freedom of information legislation in Australia, have been revoked."

Some comments.

Commonwealth FOI statistics reveal busy first year

The 2010-2011 Annual Report on agencies and the operation of the Commonwealth Freedom of Information released last Friday covers the four months leading up to the commencement of changes to the law in November and the period to 30 June.

The Australian Information Commissioner, Professor John McMillan and Freedom of Information Commissioner Dr James Popple report progress.

"(W)e have seen a marked shift in agencies’ attitudes towards releasing government information, under FOI and through proactive disclosure" Dr Popple said.

Applications overall were up 9.3%- personal information requests by 3.6% and "other" requests by 48.4%. Off a very low base as noted by Dr Popple:

“The numbers of requests in the last two years have been the lowest in more than 20 years, largely due to proactive steps that some agencies have taken to release information outside of the FOI regime.”

Hopefully that's the reason as increased participation in government is one of the objects of the act.

Other details from the report include:

Acknowledgement of FOI improvement brings out nutjobs

There is nothing necessarily sinister or untoward in the Delimiter story reported by Renai LeMay under the headline (Commonwealth) "Govt delays multiple tech FOI  requests", although LeMay is sceptical about the need for consultation before disclosure, concluding:

The Freedom of Information reforms enacted by the Gillard Government have unlocked the public sector’s war chest of secrets a little further. But the Federal Government still has a long, long way to go before it could, in any sense, be described as transparent. I’d like to see a bigger effort made here. The Government should not withhold information from the public just because it’s potentially embarassing. If the information concerned was so commercially sensitive, it would probably not have been disclosed to the Government in the first place.Conroy’s department and his office have generally been reasonably transparent over the time that I have dealt with them as a journalist. However, over the past half-decade, I have found it increasingly difficult to obtain information directly from the AFP or the Attorney-General’s Department about sensitive matters. I would not go so far as to say there is a culture of secrecy at these organisations; there are many reasons for them to be wary when dealing with the press. But at the moment, they definitely need to open the kimono a little further on matters of public interest, in my opinion.

WikiMedia Commons Alethe

Prompting the following comment from "Dessy" also claiming to speak from experience. I'm sure some FOI applicants test more than just the patience of those on the other side, but this supports LeMay's suggestion that the culture change program still needs a kick along:

FOI is a big hassle/ administrative cost for the Govt. Sure, the occasional request uncovers something semi-interesting, but from my experience, FOI is an area dominated by nutjob conspiracy theorists asking stupid time consuming questions that actually end up costing the taxpayer a huge amount of wasted money for all the resources that are spent in administering the FOI Act. Also by journos wanting stuff yesterday, so they can twist information into commercial property. All that said, Australia has one of the most open Governments in the westernised world.

Serco contract disclosure illustrates some FOI progress

And some way to go as well.

New Matilda has published details from the 2009 Department of Immigration and Citizenship (DIAC) contract with British multinational Serco, obtained through an FOI request by London based freelance journalist and blogger Paul Farrell. Parts of the contract as executed have been withheld including some parts that the decision maker apparently considers should be released, but can't be released at this stage as Serco objects and has rights of review. (The decision notice is unclear about what is in this category.)

Courtesy of New Matilda 
View the FOI officer’s decision and a list of the folios withheld.

New Matilda separately has published what it says is a leaked version of the contract, providing an opportunity for some interesting analysis of the FOI decision by those with the time and interest. However that copy is marked throughout as "Public Release Version" so it may be incomplete in some respects.

Again courtesy of New Matilda see the leaked version of the contract here.

The pages of the executed contract released under FOI are all marked "Commercial in Confidence."

While acknowledging the Freedom of Information request raised some complex issues, the application was dated 14 December 2010, the response 2 September 2011. Some aspects are still to be determined. Presumably the absence of any reference to charges was because the request was not dealt with within time, or additional time granted by the Australian Information Commissioner. And some of the following claims are at least open to question.
 
The DIAC decision maker claimed exemption for information:

Australian Information Commissioner first year report

The 2010-2011 Annual Report of the Office of Australian Information Commissioner, covering activities since the office was established on 1 November 2010, naturally enough is about the office-a separate report on the operation of the Freedom of Information Act with agency statistics for 2010-2011 is yet to be tabled in Parliament and released publicly. The report contains plenty of detail about this busy first eight months regarding organisation issues, FOI, privacy, and the work in progress, development of government wide information policy. Some points of interest:

Information Commissioner at the Estimates table

Australian Information Commissioner Professor John McMillan also appeared before a Senate Estimates committee this week. In answer to questions from Senator Rhiannon he was positive about the first 12 months of the reformed scheme, with the news that applications for policy related type material are up 48.6 per cent-as noted recently there were only 2730 requests other than personal information requests in 2009-2010. (Not that everyone is happy about an upsurge in engagement)

Professor McMillan repeated his reservations about the recent 39 of 89 ranking for the Commonwealth FOI act in an international survey :

As to the design of the law, there are aspects of it in which Australia scored very low which I would not have thought were weaknesses in our law, for example, the fact that the FOI Act does not apply to the parliament or the judiciary. We have a clear, constitutional separation of functions in Australia which I think makes this inappropriate. Some other nations do not have that clear separation and so they do go down that path. We have a stable, constitutional democracy in which we can essentially rely on the public service to uphold the law, so we do not have penalties in our FOI Act. Some other countries, against a backdrop of corruption and maladministration, do have penalties in the FOI Act, and they have scored higher on this analysis. My comment, and I have commented at international fora, is that I think these analyses are valuable and useful—we get some advantage from them—but there is some bias by reason of the fact that it is essentially designed by civil society organisations working primarily with developing countries in designing a new integrity framework. I do not think Australia's ranking really reflects where we are—

Probably so. But the FOI act does apply to the courts in respect of administrative matters, a fact not acknowleged in the survey, so any constitutional problem has been avoided. The ALRC in 1995 thought that extending the act to the parliamentary departments was possible and recommended so:

there is no justification for the parliamentary departments to be excluded from the Act.. being subject to the Act will not cause any greater inconvenience for them than is caused to other agencies subject to the Act.

No one in authority has ventured there since. Tasmania has done it. If there is a constitutional problem, parliament could act to bind its departments to comply and give the Information Commissioner appropriate powers. Explaining away the lack of penalties in the act because "we have stable, constitutional democracy in which we can essentially rely on the public service to uphold the law" begs the question why we bother with penalties for public servants for all sorts of other things including disclosure of information without authorisation. And why the Commonwealth chose not to follow the lead of Queensland, NSW and Tasmania where offence provisions for improper conduct by officials were included in reform legislation.

Questioned about exclusions from the act, Professor McMillan referred to the comprehensive review of the FOI Act to commence by this time next year:

It is certain that one of the issues in that review will be whether the act should apply to security intelligence agencies. It does, for example, in the United States with the CIA and in the United Kingdom with MI5, but it does not apply in Australia. Clearly it is an important policy issue. I expect it will be one of the issues that we will examine and on which we will get many submissions, and I have an open mind. 

In answer to a question about Australia's non-participation to date in the Open Government Partnership, Professor McMillan who attended an initial meeting in Washington in July prior to the launch in September, said it was a matter for government decision and suggested timing was the problem, although he came back in July with "a lot of questions in my mind about the way the partnership would be conducted."

Back to the future: FOI back in lawyers' box

In answer to questions at Senate Estimates this week, Renee Leon, Deputy Secretary (Governance) Department of Prime Minister and Cabinet confirmed that the Privacy and Freedom of Information Branch is being moved back to the Attorney-General's Department from whence it came following election of the Rudd government in 2007. Then it had 10 staff. As it goes back it has seven.

Bureaucratic chess, you might say. But it's a disappointing reversal of the belated recognition then that FOI was more than an administrative law matter. The transfer of the function to the Prime Minister's portfolio and to PM&C (and the assignment of responsibility for a bundle of integrity issues to a senior minister with stature and clout in John Faulkner) put FOI centre-stage in the accountability, good government and democratic practices frameworks. It loosened, in theory at least, the lawyers hold, suggesting a public management prism at the center of government provided the best perspective for consideration of policy and ongoing responsibility for laws concerning information flows between government and the citizenry. Just the sort of thing to fit neatly into the responsibilities of someone with the title Deputy Secretary (Governance) in fact.

You can see these views are widely shared: with FOI at the Commonwealth level back in AGD, it's a full hand for attorney generals/justice departments across the country who now manage the function in all jurisdictions. The Commonwealth brief flirtation with something different followed 20 years of NSW experience where from 1988 FOI was a Premier's Department responsibility. That too changed after the passage of reform laws in 2009. 

(Another thought: the same emphasis on the law rather than public management and access to information as a service is reflected in the many agencies at Federal and state level where the FOI function is located in the legal branch. Lawyers should play a role in FOI in the same way they do on a myriad of other issues-when required. Public servants without law degrees give effect to the law all day every day in all sorts of areas without a lawyer at their shoulder. FOI, in most places now with a pro-disclosure element, would be better placed in governance or linked to public affairs.)

This was the Deputy Secretary's explanation for the decision to move the branch to AGD:

"They came to the Department of the Prime Minister and Cabinet principally because the government had made a commitment to do broad reform to freedom of information laws. In the context of that being a significant whole-of-government activity that affects every portfolio, it was thought appropriate that that should be moved to the Department of the Prime Minister and Cabinet while those reforms were undertaken. The reforms to freedom of information have now been completed and are embedded in the implementation stages, and now it is an appropriate time for the implementation function to go back to the Attorney-General's Department."

 Ms Leon responded to Senator Rhiannon's questions regarding reduced staff:

"The reforms to FOI.. have been completed now, and that was a significant body of work that that branch was doing... It has not been a cut so much as over time priorities shift and staff are either moved around or not replaced as positions fall vacant. So over a period of four years a reduction of two or three people is not unusual in an area with changing priorities.
Senator Rhiannon: But, considering commitments such as the consultation on a private right of action, shouldn't the government be at least retaining the staffing levels or even supplementing the resources of the branch rather than this cutback? There has been a reduction, whatever the reason.
Ms Leon : Within those existing resources of the branch, the branch has successfully produced a comprehensive discussion paper on the statutory course of action. So the numbers in the branch are adequate to enable them to perform their duties."

To an outsider the slim staff resources might partly explain the painfully slow action on privacy reform. 

TGA "partial release" destined for the classic file

The Therapeutic Goods Administration has something of a reputation for lack of transparency, and was the subject of a review into practices by former ombudsman Professor Dennis Pearce. The Government is yet to respond to the report's recommendations. Two Freedom of Information disclosures by the TGA appear on the Disclosure Log of its parent department Health and Ageing, which otherwise seems to include some interesting material. The TGA documents concern an application for approval in 1966 (254-1011) and another document (261- 1011) released in response to a request for "Sponsors on the ARTG and the number of Infringement Notices and Enforceable Undertakings issued by the TGA." Take a look.

FOI 261-1011 document 1 (PDF 29 KB). 

This passed muster as a "partial release."  Thanks to a reader for the tip.

Apparently a further review  is underway at the TGA into packaging and labelling disclosures.

Review of Commonwealth FOI fees and charges

WikiMedia Commons Dodo

Minister for Privacy and Freedom of Information Brendan O’Connor's Media Release announcing the promised review of Freedom of Information fees and charges by Australian Information Commissioner Professor John McMillan was going along nicely until this paragraph:

“In light of the current number of large, complex and resource-intensive FOI   requests being processed by the Government, it is appropriate for Professor McMillan’s review to consider the financial costs to the taxpayer of processing these requests.” 

There followed the reminder that in 2009-2010 there were "more than 21,000 FOI requests to the federal government, costing more than $27 million to process."

Some-not me of course-might see these references to cost as presage to discussion of  more cost recovery.

Australia's FOI act 39th best in world ranking

Wikimedia Commons-Ssolberj

In an international survey based on 61 credible indicators, the Commonwealth Freedom of Information Act, as amended through the 2009/2010 reform process, scored 86 out of a possible 150 and has been ranked 39 in a comparative table of the laws of 89 countries.

Australian law was assessed as just a little better than Canada with 85 points, but behind the USA 89, New Zealand 93, UK 95, Indonesia 102 and a long way behind the leaders Serbia 135, and India and Slovenia 130.

The focus of the survey was the adequacy of the law-not on how it works in practice. As the report notes, "countries with relatively weak laws may nonetheless be very open, due to positive implementation efforts, while even relatively strong laws cannot ensure openness if they are not implemented properly."

While there is room for a quibble here and there about the marks assigned, it's a reasonable general assessment of the act, placing Australia in the fair to middling group and not near the lead in world pecking order. The reforms of last year improved the law but didn't emerge from a comprehensive review, or adopt emerging Australian best practice in a number of areas. My guess is the state FOI laws where new replaced old, outside the scope of this survey, would rate a little better.

The study was conducted by Access Info Europe (Spain) and the Centre for Law and Democracy (Canada). Dr Johan Lidberg Senior Lecturer in Journalism at Monash University, and well known for his comparative FOI work was a member of the International Advisory Council and the local expert who assisted with assessment. In correspondence with Open and Shut Dr Lidberg made the point that the index is incomplete without an 'access in practice' component, noting Sweden, Norway and Iceland, all with strong track records in practical access to information, score in the bottom third.


There is no universal accepted international standard regarding adequacy or excellence when it comes to access to information law. The indicators used in this survey however address the relevant issues and provide a good framework for assessment purposes. They  were drawn from a wide range of published thinking on the subject (ARTICLE 19 (pdf) and the Carter Foundation for example), input from the advisory council and comparative study of numerous right to information and related laws from around the world.

The 61 Indicators( more informatione here) are grouped into seven categories. Australian scores against the maximum were:

Section	Max Points
1. Right of Access	Australia 2/6
2. Scope	10/30
3. Requesting Procedures	21/30
4. Exceptions and Refusals	15/30
5. Appeals	24/30
6. Sanctions and Protections	4/8
7. Promotional Measures	10/16
Total score	86/150

FOI search processes short of exemplary

The Department of Immigration and Citizenship is always under FOI pressure, with a continuing large stream of applications, so the department may take some momentary comfort from this Administrative Appeals Tribunal ruling that all reasonable steps had been taken to identify relevant documents in a Freedom of Information case. Until it gets to the last paragraph of the decision where Member Webb comments about the processes that led to discovery of additional documents well after the initial search of the four relevant (of 138!) departmental systems:

34. Before concluding it remains to observe that the manner of the Department’s response to Mr Zhang’s request, and the thoroughness of the initial searches that were conducted, is less than exemplary. One can understand Mr Zhang’s frustration at the initial results he obtained from the Department. No good reason has been advanced why only one file was identified in the initial searches that were conducted. Similarly, no reasonable explanation has been provided why the subsequent searches conducted by Ms Selvadoss and others in the Freedom of Information Access Team failed to identify documents that were within the Department’s ExecCorro system. These are matters of concern for the Department to consider in relation to the management of its obligations and responsibilities under the Act. It should not be necessary for a dispute under the Act to come before the Tribunal before adequate searches are conducted.

Three years ago, then Ombudsman Professor McMillan made some observations about systemic problems in FOI processing in the department.

For the record, NBN Co not completely excluded from FoI

Lisa Martin in the Sydney Morning Herald

Liberal senator Ian Macdonald said NBN Co....had escaped scrutiny following "extraordinary exemptions from parliamentary regulatory oversight". He said the government had exempted NBN Co from scrutiny from the public works committee, limited the Australian Competition and Consumer Commission's (ACCC) oversight and excluded it from freedom of information laws.

Without going into the broader accountability and transparency issues, the FOI reference is clearly off the mark. Senator Macdonald/Lisa Martin forgot/ missed this footnote to the mention in the opposition's dissenting report (Report p 60):

"An amendment passed by the Greens ensured the NBN is subject to the FOI Act with a targeted exemption to protect the confidentiality of its commercial activities. See revised Explanatory Memorandum, National Broadband Network Companies Bill 2010 and Telecommunications Legislation Amendment (National Broadband Network Measures—Access Arrangements) Bill 2010, p. 15. House of Representatives Hansard, 1 March 2011, pp1915-1917."

This post from April has more about the FOI exemption, for 12 months at least, for NBN Co "in relation to documents in respect of its commercial activities."

Bad week for big tobacco's quest for legal advice

Coincidentally the Federal Court of Australia this week handed down its decision on British Tobacco's appeal against an AAT decision in April this year, upholding the finding that legal advice received on plain packaging in 1995 was exempt under the Freedom of information Act, and that privilege had not been waived. The published decision in British American Tobacco Australia Limited v Secretary,Department of Health and Ageing [2011] FCAFC 107 includes a summary of the main points in issue and the result. The key findings were confirmation that the tabling of the Government Response to a committee report in the Senate that referred to the advice was protected by parliamentary privilege under s 16(3) of the Parliamentary Privileges Act and could not be relied upon as evidence that went to the question of waiver [48-49]; and while this did not extend to the publication of the Government response on a departmental website, such publication did not constitute waiver because it was not inconsistent with maintaining confidentiality in the advice itself as the  government was not "seeking to deploy a partial disclosure of the AGD legal advice for forensic or any other advantage"[50-58].

In what might best be interpreted as a judicial frown, the Court made these observations about the lengthy decision of Deputy President Forgie in the Tribunal [31]:

Forgie DP essayed the authorities on the legal issues before the Tribunal at considerable length. The resolution of the issues that fall for determination in this Court does not depend on close attention to nuances in the reasoning of the many cases referred to by the Tribunal: on the question of waiver, the principles have been authoritatively stated in recent decisions of the High Court. This case is not at the margin of the operation of the principles laid down by the High Court. The history of the development of those principles, while no doubt a matter of interest, is not necessary to an understanding of the statements by the High Court. And as this case demonstrates, an undue focus upon the historical development of legal principles can be a distraction from the issues which are tendered by the parties for determination by the Tribunal.

My observation at the time was

In her decision Deputy President Forgie as usual leaves no word or phrase in the law or any relevant precedent unexamined. This decision includes a summary of steps since 1994 to examine the policy option of generic packaging [22-39], the law on legal privilege [40-68] and issues arising from the Parliamentary Privileges Act [79-178], matters to be resolved in deciding whether privilege has been waived [179-193] and the limitations on the relevance of material in the Government Response [194-196], before her conclusion that privilege had not been waived through circulation of summaries of the advice in other contexts [197-202]. Senior Member O'Loughlin was the model of brevity in agreeing to all that and giving his own reasons in a sparse 16 paragraphs [204-220.]

If this week's Tribunal decision goes to the court on appeal, judges will have another weighty DP Forgie tome to consider.

PM&C publishes red flag compendium

The Department of Prime Minister and Cabinet has published a Guidance Note "intended to assist agencies when considering the application of the Cabinet and deliberative documents exemptions under the Freedom of Information Act 1982 .."

Wikimedia Commons-Share Alike

 The note says all the right things about the need to read it in conjunction with the Australian Information Commissioner’s Guidelines "to which regard must be had for the purposes of performing a function, or exercising a power, under the FOI Act" and that it was developed in conjunction with the commissioner and the Freedom of Information Commissioner (and the Australian Government Solicitor). But it strikes me as a red flag compendium, full of cautionary messages about considerations that could justify non-disclosure, and little else. In the case of the deliberative documents exemption there are plenty of straws to alert a decision maker to the full range of possibilities when dealing with what insiders could regard as potentially sensitive information. I'm unaware of the precise timing but its appearance in July coincided roughly with the AAT decision in McKinnon and Department of Finance and Deregulation, a pre FOI reform case, where arguments for both these exemptions failed. Some of the "tips" in the Guidance Note are likely to be handy for those keen to head off similar challenges to decisions to refuse access to such documents in future, although others may need a little adjustment in the light of that decision.

The cabinet document exemption is absolute and not subject to a public interest test. But the deliberative document exemption only applies where disclosure of advice, opinion etc, on balance, would be contrary to the public interest. Of course agency decision makers who read and absorb the AIC guidelines will be exposed to the full picture including that the objects of the act, not spelled out in the PM&C note, require weight to be given to the public interest in disclosure "to promote Australia’s representative democracy by increasing public participation in government processes, with a view to promoting better-informed decision making, and..  by increasing scrutiny, discussion, comment and review of government activities" etc. But they won't from reading only what the lead government agency has to say on the subject.

After the barest of introductions, paragraph 3 quotes then minister Senator Faulkner in 2009 that "..there will always be some documents, the disclosure of which is not in the public interest, and which should properly be exempt under the FOI Act," continuing:

"It is essential that agencies consider carefully the application of exemptions to ensure the legitimate protection of government documents consistent with the application of the FOI Act."

This sombre message- in effect "don't let anything slip through"- sets the tone for what follows. As for the Declaration of Open Government, and similar commitments to a new era of openness and transparency, nary a mention.

FOI commissioner distinguishes personal and work information concerning public servants

The decision by Freedom of Information Commissioner Popple in Carver and Fair Work Ombudsman [2011] AICmr 5 concerning information about the handling of a complaint against two inspectors involved three conditional exemption sections of the Commonwealth Freedom of Information Act, as amended from 1 November 2010-all subject to a public interest test: deliberative process (s 47C), certain operations of an agency, where disclosure would (c) have a substantial adverse effect on the management or assessment of personnel by the Commonwealth, by Norfolk Island or by an agency(47E), and personal information (47F). The decision varied the agency determination, rejecting aspects of the claimed exemptions concerning information about the inspectors. The commissioner's analysis of issues provides an insight into interpretation and application of the amended act, particularly the distinction between personal information and work related information concerning public servants [31-37], the public interest test [39-44] and why different considerations may be involved in granting access to some information about a public servant to an applicant and publishing the same material in a disclosure log [47-49].

FOI requests an unfortunate distraction says FIRB chairman

An upsurge in Freedom of Information requests might suggest a heightened level of interest in agency operations, raise questions about current approaches to transparency, and prompt some thinking about opportunities for more pro-active disclosure to reduce the FOI burden. But that's not how the Chairman of the Foreign Investment Review Board, John Phillips sees it, according to this report by Glenda Korporaal in The Australian:

Mr Phillips, a former deputy governor of the Reserve Bank, also rejected suggestions that the FIRB needed to be more transparent in its handling of foreign investment applications. "It is not possible for the board to go publicising applications that come before it," he said. "Those applications are commercial-in-confidence." Mr Phillips said the FIRB was currently subject to many Freedom of Information requests which were taking up the time of its staff. "We are getting so many requests from (journalists) and others under the FOI Act which is unfortunate in a way because it is taking up the time of people who ought to be dealing with applications," he said. Mr Phillips said he was "not sure how much more transparency there can be". "I have always been a fan of transparency up to a point -- the point where you start to trample on commercial-in-confidence material from the applications, or you run the risk of distorting the market by giving out information which would not otherwise be available to the market," he said.

According to the FIRB website "the Treasury manages FOI requests on behalf of the Foreign Investment Review Board" but I'm sure they take up time, another cost of business for government agencies charged with responsibility under the FOI act "to promote Australia's representative democracy by contributing towards increasing public participation in Government processes, with a view to promoting better-informed decision-making (and) increasing scrutiny, discussion, comment and review of the Government's activities"(FOI act objects s 3).

Mr Phillips views about the FIRB operating at the limit on transparency contrast with others, for example Bernard Keane in Crikey in April, writing after the Treasurer announced the decision to "block" the Singapore Stock Exchange bid for the ASX: