Former minister reflects on 'proud' Labor legacy on FOI

Proving the old axiom that Opposition is the preferred platform for politicians looking to say something about freedom of information, Senator Joe Ludwig former special minister of state in the first Rudd government offers some thoughts in The Guardian on Labor's record, and points to danger signs ahead.

One of my proudest enduring legacies from my time as a minister in the Labor government was bringing reform to Freedom of Information (FOI) law. My reforms made it easier for the public and the media to access the workings of government. 

It's true that Senator Ludwig was shadow attorney general before the 2007 election and Labor in Opposition did come up with a policy for FOI reform.

In government his predecessor as special minister of state Senator John Faulkner deserves the credit for breaking through on the necessity for some change, but doesn't rate a mention in this account. The 2010 FOI reforms that eventuated were good and welcome but a long way short of reasonable expectations ("minor improvements" according to Jack Waterford) and the law placed in the forties in world rankings.

 Ludwig's account ignores other parts of the Labor legacy on transparency and open government. 

For example quite apart from the patchy but improved record on actual disclosures under the act, the list includes barely visible drive from the top on Open Government, ministerial failure to advocate and lead on public service culture change, resource cut backs at the Office of Australian Information Commissioner resulting in a 12 month queue for external review, no action for years on whistleblower protection until the game was almost over, allowing the Law Reform Commission Report on Secrecy Laws and Open Government completed in December 2009 to disappear into a black hole at Attorney General's, and the same goes for the September 2011 invitation from Secretary of State Clinton to join the Open Government Partnership until it was acted on by Mark Dreyfus in May 2013, skewed terms of reference for the half-hearted review of the operation of the legislation by Allan Hawke in 2012-13. I could go on.. 

Of relevance to the current kerfuffle over entitlements, Senator Ludwig commissioned the Belcher review in September 2009, following critical findings by the Auditor General. The report was handed to him six months later. It had not been released publicly by the time Senator Ludwig moved to Agriculture after the August 2010 election. The report was tabled in Parliament in March 2011, close to a year after it was completed. Few of the recommendations were acted upon then and that remains the case today.

Senator Ludwig in appointing the Committee said:

"We are committed to reform, openness and transparency to ensure that we maintain the trust and confidence of the Australian people,”

Ah that trust thing - it's been running for quite a while. 

He could be right by the way about difficult days ahead on the transparency front.

Hawke FOI report hits first base

Not so perfect timing: the Attorney General has received the Hawke FOI report and will release it publicly after an opportunity to consider the issues it raises. Whew!

Hawke review almost slips under Estimates radar

Last week both Senator Faulkner and Senator Rhiannon during Senate Estimates for the Attorney General's Department signaled their intention to ask questions about the Hawke review of the Freedom of Information Act but ended up sticking with the Open Government Partnership for almost the entire alloted time. Senator Rhiannon managed just a couple of questions about the review's limited public visibility, received confirmation only one media release was issued and that the review was advertised on AG's website and, that more than 70 submissions had been received

Senator Rhiannon was right about the low visibility. 

And as there are only 60 published submissions, Dr Hawke must have more than 10 that were submitted on the basis of confidentiality. Interesting. Personal stories perhaps? Presumably no agency submissions in this category?

The Hansard extract follows

FOI -$41 million well spent?

Effectiveness - results, outcomes - features in the the Terms of Reference for the Hawke review of the Freedom of information Act and related acts.

Efficiency is not mentioned.

However Dr Hawke was directed to consider “the role of fees and charges’ and “the desirability of minimising the regulatory and administrative burden including costs, on government agencies.” The Attorney General managed to turn that into this in her Media Release: 

"$41 million of taxpayer money was spent across the Federal Government in 2011-12 processing FOI requests.The review will consider how the Government’s FOI costs could be reduced, including the Information Commissioner’s recent recommendations regarding the current charging regime."

In my submission (now published with a few other new ones) I argued that it is clearly desirable to minimise costs and the administrative burden through efficiencies while seeking to achieve desired outcomes and results. 

Efficiency requires an assessment of how well systems and resources are utilised and applied in the implementation of the laws. 

We don't know much about this.

Dr Hawke should do some digging for information that would throw light on what resources are allocated to the information access function, whether agencies fully utilise available technology, what constitutes good practice and whether agencies apply such methods and practices.

The $41 million cost estimate for the FOI function in 2011-2012 included staff costs of $33.8 million, and $6.5 million in legal advice and litigation costs.

The averaged agency cost per request was $1876, up from $1799 the previous year and double the cost in 2007-2008.

It is unclear what gave rise to the increase. Or what agencies are doing to reduce costs.

Responding to requests for information is a cost of doing government business in a democratic society. The public has rights and cost should not be a significant barrier that stands in the way of exercise of those rights. 

The public also has a right to enjoy lowish costs as one of the dividends flowing from the hundreds of millions spent on improved information management systems within government over the years. In fact there should be another dividend- access to tools that assist in knowing more about what information government holds, to better inform requests from outside the loop.

The available evidence suggests some agencies are not operating optimally. 

The Auditor General for example has drawn attention to record management shortcomings over the years, shortcomings that must significantly impact on FOI administration.

The Cornall report on DIAC refers to aspects of poor process, leading to long delays and presumably high cost to the agency.

At the National Information Law Conference in Canberra in November the officer in charge of FOI at Foreign Affairs and Trade described the FOI unit as resembling a craft shop when he assumed responsibility, with officers utilising tape and pen to redact information by hand from documents prior to release. Software for this purpose had been utilised subsequently. How widespread “craft shop” practices are in FOI administration across government is unknown.

The degree to which ministers and public servants purposefully game the system, and the resulting effect and cost is also unknown.  And we don't know to what extent an abundance of caution in interpreting the law, delay in responding to requests, inadequate searches for relevant information and poor decisions based on the premise that the applicant is unlikely to challenge add to cost.

What this FOI matter cost the Department of Industry, Innovation, Science, Research and Tertiary Education is unclear but it is certain to be in next year’s cost statistics. It wasn’t brought on by the applicant’s behaviour.

A major efficiency issue is whether the right decision is made on an application the first time. Information about the extent to which original decisions are consistent with the law is limited and only comes to light in the event the matter receives later visibility through the review process.Most matters are settled before final decision-we don't know how many poor decisions show up. And many applicants may simply live with the results of a poor decision and walk away at that stage.

So in my submission, Dr Hawke should look into all this while considering “the role of fees and charges’ and “the desirability of minimising the regulatory and administrative burden including costs, on government agencies.” The Attorney General could of course have given him terms of reference that put efficiency much more clearly in the frame.

As to the future regarding charges Professor McMillan’s report is a good start to discussion.

However the proposed flat 40 hour cut off, without more, needs rethinking. The proposal is an attempt to put more certainty around the substantial and unreasonable diversion of resources provision that has been in the FOI act since it commenced. It's origin is a NSW ADT decision years ago that interpreted similar words in the NSW act to mean that anything that involved 40 hours processing time was getting into substantial diversion of resources territory. However it was not a strict rule and other factors, including the nature of the information sought needed to be considered.

Hawke review submissions

Finally sent my submission off to the Hawke FOI review on Monday morning.  

AG's have picked this time to revamp their website so previous links to the review don't work, producing a 404 Not Found. 

The relevant page and the handful of submissions published so far is here. (A search for Dr Allan Hawke  and FOI Review takes you nowhere at present.) 

Of interest in newer submissions- Jeremy Tager recounts resistance to use of the act for public purposes in an attempt to access environmental information; the three parliamentary departments call for urgent clarification by the Parliament itself of the application of the FOI act to information held by them, and for the scope to be limited to documents of an administrative nature; the Inspector General Intelligence and Security wants changes to a requirement for that office to provide evidence regarding national security related matters to the OAIC and the AAT in order to limit waste of her time; and the Australian Meteorological and Oceanographic Society wants scientists and their work protected from fishing expeditions and from those prying into the peer review process.

Not published by AG's yet, but you can down load a copy of my 20 page submission from The Box. A ramble on impediments in the law and in implementation and a whole lot of question marks about culture, outcomes and results, efficiencies or the opposite, that those of us on the outside don't/can't know about, but Dr Hawke should look into. Talk about bonus christmas reading! 

The submission from the Office of Australian Information Commissioner runs to 91 pages and 30 recommendations. Others out there on the web include a submission from The Greens Senator Rhiannon. And Rick Snell was busy-three submissions here.

There are plenty of weighty issues in these and likely, in other submissions yet to be sighted, that would benefit from more than a one on one chat with Dr Hawke - which seems to be the consultation modus operandi planned for the new year.

Six months-now four-for all this is likely to mean many important issues and good ideas will struggle for attention, or enhancement.

Hawke review submissions

I've pleaded and been given an extension of time but the first four submissions published are all excellent first shots, each raising important issues. Hat tip to Craig Thomler, Rick Snell, Evelyn Doyle and John Wood for being diligent and putting sensible and authoritative observations about the state of foi land and how things could be improved.
 

Dear Dr Hawke (3)

Just one submission in the in-tray with two days to go until the 7 December deadline. (Make that four as at midday on the 6th)

Disappointing so far, but I know there will be more-Rick Snell copied me into his, and that's sure to be up in lights soon. You won't be too tough regarding late entries I hope.

Australian Information Commissioner McMillan provided food for thought in his address last week to the corporate lawyers - Thirty years of the FOI Act- Service, Overhaul or Refit.

I'm for new chasis and engine although some existing parts could work. That would involve a lot of territory in the next few months-more like a job for the ALRC, but they're skinny on resources these days. And of course all that work that went into advising the government in Secrecy laws and open government has been lying around somewhere in Canberra gathering dust for the last three years, along with quite a few recommendations that go back to their 1995 Open Government report that have rarely been mentioned since and were ignored in 2010.

They are a small resilient crowd at the ALRC but even their spirits may have flagged.

So overhaul might be all you can manage in the time but that was part of the problem last time in 2009-2010- new bits on old bones that are weary and showing their age.

Anyway, a submission on such broad ranging topics as the operation of the Freedom of information Act and the OAIC takes a bit of doing. Particularly in the absence of guidance in the form of an issues paper or statement from you on what might be useful. I'm working on it-with distractions like this....

And of course apart from those in government agencies, only rusted on aficionados out here know about the review. There were a couple of brief references in the media, but otherwise only those that stumble across the reference on the Attorney General's Department website (fourth item in the fourth box on the right) or notice it listed as a "Hot Topic" on the OAIC website will know you are on the job and interested in their thinking.

No other government agencies-the ones that deal with those 25000 requests a year-appear to have brought your review to the attention of those that visit their websites. Wonder if they're mentioning it to FOI applicants or with an eye to being helpful to you on the effectiveness front, undertaking a survey or inviting comment from users on the FOI experience? If so, that might be a 30 year first.

In case you're looking to fill in before that in-tray fills, hopefully to overflowing, some useful reading from recent papers includes:
  
Measuring Openness by Sheila S Coronel.
Comments on that paper by Helen Darbishire and Toby Mendel and Coronel's response
Transparency in Troubled Times by Alasdair Roberts
The UK Government response to the Constitutional Affairs Select Committee (pdf) review of the FOI act.

Enough-back to work on the submission.

Cheers.

Open Australia acts to fill the gap

Henare Deegan one of the forces behind the Open Australia Foundation has created a scraper for submissions to the Hawke FOI review (one submission, 13 days to go) and an RSS feed for those interested in keeping up with what others are saying-one of those 13 unanswered questions Rick Snell raised a week ago with the powers that be.

Dear Dr Hawke (2)

Rick Snell posed the questions below to Dr Hawke and AGD Assistant Secretary Richard Glenn in an email to the FOI review over the weekend, prodding about visibility and public engagement in the review process. Reprinted with Rick's permission. No reply as yet and I know the feeling!-see 13 in the list.

The "no news" I'm hearing out of Canberra confirms two poor process aspects-no issues paper will be forthcoming and Dr Hawke is planning to meet some interested parties and is or about to make appointments - suggesting the old "one by one" process that is hardly conducive to creative thinking, if that's part of the challenge here.

Rick's questions:

1. What is the level of support and resources being given to the Review?

2. I assume that this is being provided by Mr Glenn's branch but that is unclear?

3. Is this in addition to the Branch's normal budget allocation or has extra resources been made available?

4. Why was the 7th of December chosen for the close of submissions?

5. Could the details of the review and the closing date be placed in a more prominent position?

6. Could other agencies be asked to bring the Review and the closing date for submissions to the notice of their staff, stakeholders and other people interested in that particular portfolio?

7. Will Dr Hawke be giving any media interviews to promote the review and to solicit submissions?

8. Will a facility be added that will alert interested parties (such as an RSS feed) when new submissions have been posted?

9. Will agencies be encouraged to make submissions well before the deadline so that other submitters have a time to consider key points made by the agencies?

10. Have you considered using a blog or other method to encourage people to float ideas/suggestions and for other people to indicate their support (or modifications to the idea/suggestion)? For instance at the National Information Law Conference held in Canberra last week a number of people who had not responded to the AIOC's discussion paper on the timing of release of requested information on government web sites nevertheless reacted positively to the suggestions of others once aware of them

11. When will the consultation with stakeholders and other interested parties begin and what form will it take?

12. Will Dr Hawke even at this late stage in the lead up to the deadline for submissions be issuing any idea/issues generators for submitters to consider or respond to?

13. Peter Timmins recently on his blog Open and Shut asked of Dr Hawke "The announced "tell us what you think and we'll go away and write whatever we think appropriate" approach may be the way they do things in AGs. But something more is generally expected in good practice consultative processes these days. Particularly in this case given the review is about the operation of legislation that has as an object the promotion of Australia's representative democracy by increasing public participation in Government processes."  Will Dr Hawke be adjusting his approach to the review of FOI to better facilitate a more effective  dialogue on FOI?

Hawke review not limited to 2010 reforms

In discussion with some taking an interest in the Hawke FOI review, the point keeps coming up that the review is about the reforms of 2010-and that it is too early. On that score there is something in it-two years after commencement there is virtually no case law, some Information Commissioner decisions, two annual reports by the OAIC, plenty of moans and groans from agencies, some indications that things are better if patchy and far from perfect, and a mixed bag of anecdotes, but that's it.

 As to timing, the review had to commence within two years of November 2010, to be completed within six months as required by law- both the FOI act (s 93B) and the Australian Information Commissioner Act (s 33) include the same provision. No ifs and buts.

The scope in both cases is "a review of the operation of this Act."  None there either.

The review of the OAIC act will obviously look at how those reforms-the office, its role, its operations, its effectiveness etc- are going, after two years. 

With regard to the FOI act however the intention in 2010 was that the review should be a comprehensive review of the operation of the act, as s 93B indicates, not simply a review of the changes made in 2009-2010. 

You mightn't pick this up from the Terms of Reference [PDF 290KB]. Although the introductory paragraph states it is a review of the operation of the acts and "the extent to which those Acts and related laws continue to provide an effective framework for access to government information", the matters listed in the TOR that the review should consider all appear to be related to the reforms. And there is no "any other matter that the review considers relevant" provision.

Despite this, I'm sure Dr Hawke realises s 93B requires the broadest possible examination of the operation of the act. Submitters should as well. 

This is important because there was much that was not looked at in 2009-2010. To recap: the government came to office in 2007 with an FOI reform agenda, proceeded to spend 18 months or so talking to itself about what it would do, with a single round of one on one short, general discussions with a few interested parties (moi included); released draft amending legislation in March 2009 (over 130 pages from memory) without any apparent prior contact with outsiders about what was in it; and throughout the following "consultation" process, largely stuck to the line that anything that went beyond what it had put on the table was not on the table. 

Submissions that raised other issues attracted little or no interest. When the same issues were raised with a Senate committee after the bills were introduced, the committee threw up its hands saying submissions raised a lot of issues, views varied, it didn't have the resources to look into it all, and the government bills were essentially OK.

The review requirement came out of concerns during this process in 2010 by The Greens, particularly Senator Scott Ludlam that other issues notably the blanket exclusion of intelligence agencies from the act had not been considered during the 2009-2010 reform process. The government agreed to legislate for a general review after Senator Ludlam's amendments concerning intelligence agencies including an amendment that would have made it mandatory to spell out this issue in the review terms of reference were voted down.

This post in 2010 recounted some of the story-How the reform bills became non-controversial. 

Back to those submissions!

Dear Dr Hawke...

Congratulations on your appointment to review the operation of the Commonwealth freedom of information and information commissioner acts. The Attorney General obviously has confidence in you, as do others in government who have appointed you to undertake various inquiries in the past, drawing on your long and successful career and many years in the top echelon of the public service.

However those of us on the outside know that FOI, despite being a backdrop to public administration for 30 years, and a basic element in the accountability system, hasn't been uniformly or enthusiastically embraced by the mandarin class. 

We have no idea what you bring in the way of baggage, scars, or on the other hand, positive experience in enhancing our wonderful democracy through information access.

Of course you were a middle ranking manager, later an agency head in the dark FOI days of the 80s through to the noughties, and must have some interesting first hand experience. Hopefully not along the lines of that referred to by your former colleague Andrew Podger who on leaving the service said "some senior public servants are too concerned to please and serve partisan government interests by failing to keep proper notes, destroying diaries and ratcheting up security classification of documents." Podger's comments about public servants and confidentiality are worth reading as well.

I know you were in Wellington as High Commissioner in 2004, the year, according to Podger's reflections (the Role Of Departmental Secretaries) when a meeting of heads of departments talked through how best to thwart FOI requests while staying just within the law. Some of this might be borderline by my reckoning. Hopefully you weren't involved in these sort of high jinks. Another former agency head colleague of both you and Podger, Rob Cornall then of AGs, now retired and providing advice to Immigration about FOI processing was present, according to Podger's account. 

But to the job at hand.

It would be great to hear what you think are the key issues and your approach to the review.

Of course the terms of reference scope your task. They have a real 'insiders" ring to them by my reading. No "how to make these laws work better for the public", or how to steer towards world's best, rhetoric of a kind that rolls out easily for Special Minister of State Gary Gray when speaking of the APS and integrity generally. And the Attorney General made sure in her media release that you got the message about reducing cost. Not much there that opens up the issue of the adequacy of resources generally, something the Australian Information Commissioner and some agencies have raised.

I have no idea if you or anyone outside the Attorney General's office or department were consulted in the course of drafting the terms. I'm sure The Greens Senator Scott Ludlam who forced  s93B on a reluctant government in 2010 would have something to contribute.

Framing the review into the operation of the legislation around the extent to which "the Acts and related laws continue to provide an effective framework for access to government information" is hardly a clear and direct invitation to look at the big information picture, re-examine the objects of the act, ascertain why use of the act is low, and look for the best contemporary FOI ideas and practices.  Hopefully you'll be able to find a way to look at information access in the digital age- just one of many pressures on a 1982 act based on access to "documents."

It would be of great interest to hear what research you have commissioned or intend to commission.

That reference to "related laws" in the terms might form the basis for at least asking what ever happened to the ALRC 2009 report Secrecy and Open Government that identified 506 secrecy provisions in 176 pieces of legislation, including 358 distinct criminal offences, one of which is the draconian s 70 of the Crimes Act. The "chilling" effect and all that.

Whistleblower protection might be a bit of a squeeze though. The government has all but guaranteed the talk since 2007 will come to an end when it gets around to legislating that one next year. That's a relief.

As to approach to the job, you have plenty of experience in running these things. But the announcement that the review will be serviced by the Business and Information Law Branch of the Attorney General's Department, inviting submissions by 7 December, suggests, well a dry as dust old-style consultation. We know from this that your report deadline is 30 April 2013 and that it will be tabled in Parliament. Full stop.

No issues paper or thought-starters apparently, no blog to toss ideas into the ether to see what others can do to comment and build upon them, etc, etc.

And no outline of any other planned process beyond inviting a submission from anyone so moved to write one after they find the invitation. It's not going to encourage much sharing of experience, and how things might be improved. I'm sure nevertheless that you have innovative ideas on how to get dialogue going- like maybe sitting around with a few people with relevant experience, and not just the usual suspects?

Agencies of course won't need much encouragement to bring certain matters to your attention. 

The announced "tell us what you think and we'll go away and write whatever we think appropriate" approach may be the way they do things in AGs. But something more is generally expected in good practice consultative processes these days. Particularly in this case given the review is about the operation of legislation that has as an object the promotion of Australia's representative democracy by increasing public participation in Government processes

I'll be throwing some thoughts into the ring. Some ideas floated way back in 2009 can be put on the table again, augmented by thoughts and observations since. Others who take this issue seriously are sure to do the same. Last time we had no response to our efforts. The government wasn't interested in a wholesale review of the law, just the things it had decided upon in advance before going through a consultative process. When we all ran the same submissions up to a parliamentary committee, the committee said there were so many different issues and ideas put forward it didn't have the resources to look more closely and waved the government bill through. Back to the grindstone!

Last thing-while there is room for argument about the detail, and about the ranking (48 in a field of 93-how could they do such a thing?) and all the while acknowledging that proof of the pudding is in performance and results, the Commonwealth FOI act is in the fair average quality range at best, by international comparison.

Sorry to have been so windy, but good luck-hopes are riding on you for a comprehensive report a la David Solomon, Queensland, 2008.

If you are dropping into the Information Law Conference in Canberra later this week, may see you there.

Cheers.
 
Peter Timmins. 

Freedom of Information review announced

Dr Allan Hawke has had a distinguished career and long experience in and around government. He has been a go to man for all sorts of government commissioned inquiries since finishing up as High Commissioner to New Zealand in 2005. That followed stints as head of Defence, before that Transport and Regional Services and as chief of staff to Prime Minister Keating.

Attorney General Roxon appointed him yesterday "to review and report on the operation of the Freedom of Information Act 1982 (FOI Act) and the Australian Information Commissioner Act 2010 and the extent to which those Acts and related laws continue to provide an effective framework for access to government information." 

A review within two years was an agreed element of the reforms of 2009-2010. Those reforms did not evolve from a comprehensive review of the act. As Mark Robinson SC, for the Law Council of Australia said at the time a complete rewrite was required. His metaphor then was the government had kept the whole body and grafted half a transplant. Whether it is to be a different outcome this time around remains to be seen. As does what Dr Hawke brings with him on FOI from working in the government system since 1974.
 
The terms of reference require the review to include consultation with relevant stakeholders so it's time to dust off the FOI best/good practice in the information age file.  Even though those words don't rate a mention in the terms.

The Attorney-General in her statement did get in a reference to the fact that "$41 million of taxpayer money was spent across the Federal Government in 2011-12 processing FOI requests.The review will consider how the Government’s FOI costs could be reduced, including the Information Commissioner’s recent recommendations regarding the current charging regime."  Reduction of costs to government is not specifically mentioned in the terms of reference but I'm sure Dr Hawke gets the story.

(Update: We'll have a fair bit of by-play like this today on News.com about costs and what's behind the increased cost of administration over time. As I've commented previously the $41 million is based on agency estimates of time spent. Efficiency issues including records management systems, the investment in and use of appropriate technology, best practice processing, and the cost arising from excessive caution and a preoccupation with overly cautious legal approaches to decision making cry out for some scrutiny. Over to you Dr Hawke! As to the comparative combined government spend on public affairs and media management, I'd like to see that.)

Also interesting that of all the things you could suggest the review consider regarding the operation of the act that didn't rate a specific mention, this did:

the reformulation of the exemptions in the FOI Act including the application of the new public interest test taking into account:

1. the requirement to ensure the legitimate protection of sensitive government documents including Cabinet documents; and
2. the necessity for the government to continue to obtain frank and fearless advice from agencies and from third parties who deal with government;

The review is to report by 30 April 2013.