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

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

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

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

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

Specific changes proposed include:

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

 The reasons for referral/principal issues for consideration by the committee are:

"Impact and benefits

Affect on OAIC resources/processes

Possible submissions or evidence from:

OAIC/Attorney/Law Council/Media Organisations

Accountability Roundtable."

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

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

Public service leader who labelled FOI 'very pernicious' plays a role in selecting new FOI watchdog

Australian Public Service Commissioner John Lloyd, who in 2015 labelled FOI 'very pernicious' and showed no appreciation of the role FOI plays in a democratic society, is on the selection advisory committee that will soon report to and recommend to the Attorney General a replacement Australian Information Commissioner.


Senate Estimates (pages 51-60) hearings last week on the Office of Australian Information Commissioner covered a lot of ground (more in another post) and revealed the process is in the final stages, interviews are complete and an announcement is expected before the end of the month. In addition to the commissioner, members of the committee are the Secretary of the Attorney General's Department (Chair), Secretary of the Department of Health, and the deputy CEO of the Digital Transformation Agency. 

The APSC guidelines are that the APS Commissioner or his representative must be included in a selection committee for recruitment or appointment to a Senior Executive Service position. Usually the commissioner himself is involved for a band 3 position such as this.

It seems bizarre that Mr Lloyd would put himself forward for a role on this occasion.

Categorising FOI as pernicious-"extremely harmful, damaging, detrimental, deleterious" was bad enough from a leader of the public service. 

A former attorney general said at the time Mr Lloyd "either has no understanding of the importance of FOI laws in a modern and transparent democracy or he is trying to undermine the legislation with his comments."

Mr Lloyd topped it off a few months later telling a Senate committee that FOI as originally conceived was intended ('particularly') to provide access to information about an individual's dealings with government, and that the law had expanded in the wrong direction since, completely missing the point that  the right to access government information enshrined in FOI law is about transparency and accountability and a cornerstone of democracy.

Mr Lloyd's views about the 'very pernicious' impact of FOI may have been reinforced in the last few weeks as he found himself in the hot seat in a seperate Senate estimates hearing arising from a decision by the Department of Prime Minister and Cabinet to refuse access to an FOI request arising from his correspondence with former colleagues at the Institute of Public Affairs. Mr Lloyd said he was not involved or consulted about the FOI. He confirmed after two days of questions in estimates that he is not under investigation, something alluded to in the PMC decision.

The OAIC and its important role in access to government information, privacy protection and information policy was under direct attack from 2014 to 2016 and has been underfunded since, operating with one commissioner instead of the three parliament legislated for. The government apparently has no intention of addressing that hole in the system-hardly in line with executive government responsibility to execute and maintain the laws of the Commonwealth.

Timothy Pigrim, now Angeline Falk and staff have soldiered on as OAIC responsibilities particularly in privacy protection have expanded, privacy issues have heated up and the office is to have a new role and some additional funding and resources for consumer data rights.

Information policy and FOI have been and remain the poor relations, the former disappearing in recent years and the latter marked for example by long delays in completing review applications, little public advocacy about the right to know, and two own motion investigations into what particular government agencies are up to in carrying out their FOI functions during the last six years or so, the most recent in 2014.

Living in hope, I'm sure others involved in the selection process particularly the Attorney General who has the last word, have a broad, deep understanding of the importance of FOI and the need for ongoing positive strong leadership in the long open government journey.

Canberra Times acknowledges John Mcmillan as distinguished lawyer of highest integrity

The heading on this December 2015 post reflected my views on a column by Jack Waterford in The Canberra Times FOI veteran lets fly with a few wild swings and low blows

in which he delivered an assessment of the contributions to open government by former Australian Information Commissioner Professor John McMillan. In my view both unfair and unjustified.

Professor Mcmillan subsequently took legal action against Fairfax Media, publishers of the CT.

The following statement was appended to the online version of the article and published in the 11 November edition:

Professor John McMillan

In legal proceedings brought over this article, Professor John McMillan alleged that it constituted an attack on his personal integrity, performance and competence in his roles as former Commonwealth Ombudsman and Australian Information Commissioner.
If any reader understood it that way, The Canberra Times unreservedly withdraws any such suggestion and sincerely apologises to Professor McMillan for any hurt or embarrassment caused by the article.

The Canberra Times acknowledges that Professor McMillan is a distinguished administrative lawyer of the highest integrity.

"Brandis diaries case shows how Freedom of Information has been deliberately neglected"

Rick Snell, University of Tasmania makes a welcome return to the commentariat 

"Federal Attorney-General George Brandis has lost a two-year bid to keep the summaries of meetings in his ministerial diary from being considered for release under the Commonwealth Freedom of Information Act.

A Federal Court judge in the Administrative Appeals Tribunal (AAT) and a full Federal Court bench decided the reasons advanced on Brandis’ behalf to not process a Freedom of Information (FOI) request were less than persuasive.

Shadow Attorney-General Mark Dreyfus, who originally filed the FOI request, called the decision “a victory for transparency and accountability” and has hailed the case as a landmark. Yet as a “landmark” decision, it speaks more forcefully to how both the Abbott and Turnbull governments have allowed the Commonwealth FOI Act to fall into a state of neglect.

The Brandis decision laid bare the inadequate and flimsy nature of the exemption claims made by the Attorney-General’s Department. Ironically, in the first two decades of the Commonwealth FOI Act, the Attorney-General’s Department was regarded by many as its fiercest advocate and guardian. Under Brandis it has forsaken that worthy heritage.

The sad thing was that the information in question was so basic and simple. The weekly summary of a diary produced in Microsoft Outlook contained the barest fragments of information about Brandis’ meetings – date, time, duration, location, and purpose of meetings.

Detailed information and supporting documents related to the meetings were not requested. There were 1930 individual entries Brandis and his staff needed to consider for release.
In terms of FOI decision-making, the “diary case” is one of the easiest jobs any government department could be asked to undertake. The majority of entries would not trigger any exemption claims under the FOI Act. If exemptions were technically triggered they would end up being released in the public interest or fail to justify the claim for secrecy.

Yet Brandis was prepared to spend two years, the resources of the public, an estimated A$50,000 in taxpayer funds for lawyers and the time of four Federal Court judges in preventing their release.
The basic arguments were that the information was prima facie sensitive, would take too long to look at, and unreasonably divert the time and resources of the department. It was, and is, a task a first-year law student could do in a couple of hours.

The reasoning by Justice Jagot in the AAT and the full Federal Court was sound. Their interpretation of the FOI Act was crystal clear; no Commonwealth FOI officer could justify making these arguments in the same circumstances in the future.

But this was exactly where the law and good practice stood in June 2014 when this saga commenced.

In a report released in December 2015, the New Zealand Ombudsman criticised the game playing of some New Zealand government agencies. In Australia it seems the federal government is prepared to play the game simply to hide information for as long as possible.

Under the Abbott government, funding to the Australian Information Commissioner and FOI Commissioner was terminated at the end of 2014. No legislation abolishing the positions was ever passed but the funding was not restored. The FOI Commissioner left and the Information Commissioner worked for several months from his own home – a script worthy of Yes, Minister, or Utopia.

Eventually some funding was reallocated in 2015, but not enough to restore staffing to previous levels. Since the middle of 2015, the Privacy Commissioner has been continually appointed as acting Information Commissioner.

Last century Malcolm Turnbull earned his stripes as a public interest advocate in the Spycatcher case. Yet he now presides over a poorly funded and hamstrung Office of the Australian Information Commissioner. In addition, Turnbull has allowed Brandis to waste taxpayer dollars on arguments that failed to gain any traction. Australia’s information policy settings have corroded.

The best, benign neglect of FOI policy by the Abbott and Turnbull governments has undermined the institutional capacity to deliver effective, informed and high-quality advice.

If an attorney-general is prepared to stonewall, for two years, access to bland diary summaries, it is little wonder that the release of more vital information like the Nauru files only happen via leaking. Brandis’ actions undermine accountability and the ability of people to participate in democratic debate in an informed manner.

The latest decision on the Brandis diaries is important. At the very least, it acts as encouragement to those refused information under the FOI Act that there is a chance to play the information game under a fairer set of rules than those used by the Australian public service and government ministers."

Rick Snell, Associate Professor - Acting Dean of Law, University of Tasmania
This article was originally published on The Conversation. Read the original article and comments from readers.

Open season on information commissioners?

Victoria's plan to enhance FOI watchdog powers stands in sharp contrast to the Federal Government's tenacity in clinging to its plan to abolish the Office of Australian Information Commissioner one way or the other and in the meantime leaving the office with one acting commissioner instead of the three positions parliament established.

Freedom of Information Commissioner Lynne Bertolini issued this Media Statement on Friday that she will step down on 5 September citing the government's intention to  create a new position of Public Access Counsellor. 

Farrah Tomazin in The Age suggests other factors may have contributed, and reports Special Minister of State Gavin Jennings providing this general update on reforms:

Mr Jennings did not go into details of the review, other than to say the government had identified "significant opportunities to reform the FOI system", improve oversight and make it easier for Victorians to access information. He said the new Office of the Public Access Counsellor would have extra powers, including the ability to review decisions to withhold documents based on cabinet-in-confidence exemptions. Mr Jennings said the government changes would include requiring agencies to progress and respond to FOI requests more quickly. A bill to establish the new office will be introduced to Parliament in the first half of next year.

Victoria's Freedom of Information Act represents, well, the finest thinking of the nineteen eighties. 

Hopefully those outside government will be given an opportunity to point towards contemporary good practice before 'significant reforms' are locked in.

Ludwig bill set for further debate this week, but fate sealed as government senators oppose

The private member's Freedom of Information Amendment (Requests and Reasons) Bill 2015 introduced by Labor Senator Ludwig was debated last week in the Senate for the scheduled 140 minutes, and as time ran out, is now listed for further consideration on 25 June. 

But with the government apparently opposed, the bill won't get through the House even if Labor, and The Greens who plan to support it can do enough with the crossbenchers to get it through the Senate.

Four government senators (no front benchers participated) spoke against the bill. 

Senator Ian McDonald made the only concession from that side of the chamber observing the bill "has good intentions" before citing its defects. Liberal Party Senator Linda Reynolds opined the bill "is yet another example of poorly thought-through policy by those opposite." 

National Party Senator Barry O'Sullivan didn't hold back: Senator Ludwig should know

 "that the government would not support this because it does not need to support it. Why would you go to the trouble of drafting a bill, why would you go to the trouble of taking up the very, very valuable time of this chamber to debate the bill when you know, full well, there is no need for the bill, and it is very unlikely that the government will respond positively to the bill? ....It is a political stunt. It is one that this government will not be trapped with. It is one that this government will not be supporting." 

National Party Senator McGrath demonstrated he had read the bill at least.

All four managed to speak without a mention of the government's stalled bill to abolish the Office of Australian Information Commissioner but there was plenty of the this "government is committed to being a transparent, accountable and open government" variety. 

Senator O'Sullivan took the prize however and showed he moves in different circles to most of us:

the freedom of information systems that we have around this country are working, and they are working very efficiently..... This has been one of the most open and transparent governments that I have witnessed over my time of political interest of 30-plus year, and I know I participate in the government.

Labor senators Bullock, Alex Gallagher, Brown, O'Neil and Moore painted a different picture.

Senator Bullock said "the attack on the Information Commissioner stands out as an alarming development and one that deserves greater attention."

The Greens Senator Rhiannon likewise, but the senator then went on to describe the bill as "a missed opportunity .. that a Labor senator who has in fact worked in this area has brought forward such a minimal bill," listing 'big picture' issues that require the attention of parliament:

• changes in the law and regulations to actively promote cultural change within government agencies including further enhancements to Information Publishing Schemes such as mandatory publication of information about agency priorities and finances; lists including agency contracts, grants and appointments; and links to datasets, submissions to other bodies and policies;

• the need for all agencies to be covered by FOI as a matter of principle including the parliamentary departments and the intelligence agencies;

• comprehensive accessible searchable information about MPs' entitlements along the lines adopted by the Scottish Parliament.

On this last point the Auditor General pointed out recently in Administration of Travel Entitlements Provided to Parliamentarians:

...independent recommendations for substantive legislative and administrative reform developed to simplify current arrangements and safeguard the interests of the Commonwealth and Parliamentarians, or alternative measures to address recognised fundamental issues with the framework, have not been actioned. As a result, the framework under which Parliamentarians’ non-remuneration entitlements are provided has continued to be complex and opaque...

Victorian FOI Commissioner 'under investigation'

 This report in The Mandarin is all I know:

Secretary of the Department of Premier and Cabinet Chris Eccles  told the the Public Accounts and Estimates Committee:

“There were certain matters that were brought to my attention — and it’s not appropriate to disclose the detail — which I consider to be sufficiently serious to call upon the Public Service Commission to initiate an inquiry. “That inquiry is on foot, and the matter is before government.” A government spokesperson told The Mandarin: “The Secretary of the Department of Premier and Cabinet commissioned a review of the Office of the FOI Commissioner by the Victorian Public Sector Commission, after receiving certain allegations. The review was led by the former Public Sector Standards Commissioner, Mr Peter Allen. The review’s findings are currently under consideration by the Government.”

Victorian FOI should take the leap into 21st Century

Victorian Special Minister of State Gavin Jennings tells The Age that FOI initiatives in the government's plans are:

• The FOI commissioner will be converted into a new Office of the Public Access counsellor, which will have the authority to review decisions made by ministers and departments and deemed cabinet-in-confidence.
• The time limit for departments to respond to FOI requests will reduce from 45 to 30 days, and the time limit (for the FOI commissioner) to consider review decisions will be reduced from 60 to 15 days.

No detail that I've seen yet about the full scope of the Office of the Public Access counsellor.

Presumably the office will be adequately resourced to meet that ambitious review deadline.
 
Minister Jennings should also get out the 'best practice' book with the intention of a thorough review to modernise and bring the FOI act into line with contemporary Australian and international thinking. 

In the broad, apart from the FOI commish role and wherever that might be heading in the next iteration, Victorian FOI law represents the best thinking....of 1983.

(Memo Federal Attorney General Brandis-plenty of ideas worth discussing about FOI/ information commissioners, their role and functions, and how to make the FOI system more effective. Abolishing the office isn't among them elsewhere.)

Human Services not alone in darting and weaving when it comes to FOI

The report by Australian Information Commissioner Professor McMillan of an investigation into the freedom of information processing practices at the Department of Human Services received a good going over in Fairfax Media ( Markus Mannheim), The Canberra Times (Noel Towell) and The Mandarin (David Donaldson). Understandably the focus is on shortcomings in how they do things there.

However the report is of wider significance. Professor McMillan said the

"findings should be heeded by all agencies. The FOI processing environment analysed in this report is not dissimilar to that in many agencies.

In October when the own motion investigation got underway, it must have looked like a last gasp for the commissioner given it coincided with the introduction of legislation to abolish his office. Contrary to these expectations it's still in existence if not in great shape.

The commissioner's findings of wide import include

• in DHS and probably elsewhere there is resistance to and ignorance of the objective of the act to ‘facilitate and promote public access to information, promptly and at the lowest reasonable cost’ (s 3(4)). The Procedures Manual for use by staff in DHS does not refer to the objects, and FOI training materials detail the procedural and exemption provisions. Only the most recent training program dated August 2014 explicitly refers to the broader role of FOI and the objects thus "providing necessary context for the procedural and exemptions provisions."  The commissioner recommends a message from senior management to this effect. Presumably it hasn't occurred to anyone to convey the importance of FOI along these lines for yonks if at all.

• the preoccupation with technical legal formality in interpreting and processing FOI requests. DHS has lawyers heaviliy involved in the process.

"A central purpose of FOI legislation is to facilitate prompt and inexpensive public access to government held information. The Commissioner is concerned that a legal and technical approach to FOI can be counterproductive by inhibiting the release of non-sensitive information, creating or extending disputes with clients, and increasing the cost of FOI administration. The department's focus on technical and legal compliance appears to be a significant cause of the rising review rate the department has experienced over the last three years. While a compliance focus may make decisions more defensible on review, combining it with an outcome-based focus is likely to reduce review rates." 

In responding to the department's view that FOI decision making is "a legal process" the Commissioner said

"FOI decision-making, like many functions of government, operates under statute. And the FOI Act confers important information access rights on members of the community that are legally enforceable. But that is not the whole picture. The FOI Act operates within and complements a broader service culture within government. Providing information upon request to members of the public must be informed by principles of legality, but it must also be guided by customer-service principles and the objects of the FOI Act that encourage public participation, scrutiny, discussion, comment and review of government activity. In a high volume decision-making environment where senior officers cannot review each action of every staff member, the principles expressed in policies, procedures and training will have an important and guiding influence. The Commissioner’s impression formed in this investigation is that the department’s approach has moved from a predominately pro-disclosure and outcome-based focus, towards an emphasis on technical and legal compliance."

(This post two years ago on why FOI shouldn't reside in the legal area followed disclosure of how Immigration processed FOI applications also with heavy reliance on lawyers. I've expressed the view previously that the information management environment (not that of spin or the law) where a public management/service to the public ethos prevails might be a better place to locate FOI than the legal area, the practice in many Federal and state government agencies.) 

• small practical steps can make an important difference. The recommendations in this report contain many specific suggestions on how the department (and potentially other agencies) could improve FOI Act processing. They're mostly about adopting the revolutionary idea that a response to a request for information is a customer service issue.
  

• performance measures are essential for gauging whether the reasonable expectations of FOI applicants are being met. In  DHS where the reported statistics turned out to be wrong there is a lot of sheltering behind the number of requests answered within the statutory time period. Period!

Victoria's new government committed to change on transparency front

With a new government in Victoria as a result of Saturday's election the collection of policies and commitments of the major parties gathered by Accountability Roundtable reveals Labor intends to overhaul freedom of information in particular

• convert the role of the FOI Commissioner into the Office of the Public Access Counsellor (OPAC). The new, independent Office will maintain all existing powers of the FOI Commissioner, and will gain the authority to review those FOI decisions made by Departments and Ministers and made on the grounds of Cabinet-in-Confidence. 

• OPAC will also gain the power to set standards for Departmental officers (which are currently set by the Attorney General) and reduce the time limit for responding to FOI requests from 45 days to 30 days. The time limit for an agency to consider the OPAC’s decision will also be reduced, from 60 to 14 days.” 

Outgoing Attorney General Clarke in the last days of the Napthine government issued these standards, but as far as I can see not the accompanying regulation needed to activate them, so let's see where the issue of standards goes from here.

More broadly of course FOI in Victoria, largely unreformed or updated since the 1980s, other than creation of the commissioner's position, needs much more than this. Let's hope the Andrews government casts around for input.

Accountability Roundtable also refers to a Media Release by Labor on 15 October 2014, “Napthine blocks move to release performance data” noting; 

“Today, Victorian Labor attempted to introduce the Transparency in Government Bill 2014 which would have enforced the quarterly release of hospital performance data and ambulance and fire services response times. The Napthine Government used its numbers on the floor of Parliament to prevent the Bill from even being debated, let alone passed. An Andrews Labor Government will reintroduce the Bill.” 

And this release on 16 October 2014, “Labor to clean up Parliament with ‘honesty reforms’ ”

Update: This certainly makes a change: Labor to release cabinet in confidence documents on East West Link

Former Victorian FOI decision maker denies being as denying as commissioner said

Of all the possibilities that annual reports on the operation of freedom of information legislation contain misleading information (such as 'everything is going along wonderfully well') I never expected a claim of the sort made by Don Coulson former senior adviser to the premier and reported in The Australian today would make news.

The claims relate to the 2012-13 annual report of the FOI Commissioner, and the publication of a list of decision makers with a mini scorecard on their decisions:

(Mr Coulson) said the commissioner’s ­report identified him as a decision- maker and attributed to him the making of five decisions to deny access in full, one decision of partial release of information and no decisions allowing access in full. However, Mr Coulson said this was incorrect and that he had made one decision to release ­documents in full, one in part and only two were denied in full.
“While these decisions may not seem to be significant, the ­incorrect figures tabled by the commissioner resulted in adverse comment about me in newspaper reports, which were repeated in other websites across Australia,’’ he wrote.“As well as the incorrect date about my decisions, I am also aware of at least one decision made by Tony Nutt as the chief of staff ...“While Mr Nutt as a decision­-maker was not reported in the commissioner’s tabled report, I believe (he) ought to have been.’’Mr Coulson wrote to FOI commissioner Lynne Bertolini about the alleged errors, but they have not been corrected."

It clearly matters to Mr Coulson who is pursuing a wrongful dismissal claim, and information provided to the parliament should be correct, but....

Maybe we will see a really exhaustive examination of FOI in Victoria in The Australian sometime soon?

Bill to disband information commission in House today.

The Freedom of Information Amendment (New Arrangements) Bill 2014 is to be introduced into the House of Representatives this morning. The disbanding of the office of the information commissioner may be a world first, so the explanation of how this and other proposed changes will "reduce the burden on applicants" as the Attorney General claimed on budget night should be interesting.

Ironies abound: the legislation comes a week after an apparent 'no show' by the government at the Open Government Partnership High Level Meeting in New York last week; it's Right to Know Week ( in NSW at least); and according to the daily program the bill is to be introduced by Minister for Immigration and Border Protection Scott Morrison, minister for tone at the top on transparency for the Abbott government.

Victoria proposes to improve FOI commissioner model not abolish it

Following a mention here a few weeks ago of the Victorian government's plans, the Freedom of Information and Victorian Inspectorate Acts Amendment Bill 2014 was introduced into Parliament last week. 

The main FOI purpose as outlined in the Explanatory Memorandum is to allow for the appointment of Assistant Freedom of Information Commissioners; to provide greater guidance in relation to time limits and notification requirements by, and to, the Freedom of Information Commissioner; facilitate the effective and informal resolution of reviews and complaints; and ensure that many of the functions of the Freedom of Information Commissioner may be undertaken by, or delegated to, members of staff.

The Attorney General said two assistant commissioners would be appointed with an additional allocation of funds for this purpose.

(The Office of Australian Information Commissioner didn't get anywhere with requests for additional funding to cope with similar high demand for FOI review work. Last year the Office raised with the Hawke Review as efficiency measures some of the matters addressed in the Victorian legislation including allowing for delegation of review and complaint handling functions and powers to remit a matter to an agency or minister for reconsideration. Dr Hawke made some recommendations along these lines. The government however said not a word in response before announcing plans to abolish the OAIC in the name of 'efficiency.' Other options to make the commissioner model work more efficiently and effectively don't appear to have received any consideration.)

This analysis of the provisions by Bruce Arnold captures the essence of the proposed changes. 

That the Commissioner is limited to recommendatory rather than determinative powers in concluding review of an agency decision, to my mind, continues to be a weakness in the scheme. 

Victoria continues to sidestep comprehensive FOI reform.

As Professor Johan Lidberg of Monash University said

“Victorian Freedom of Information is one of the poorest functioning access to information laws in the country,” Mr Lidberg said. “It’s slow, cumbersome and expensive to use.”

You can add very dated to that.The 1983 act shows the finest thinking of the nineteen seventies and eighties.

One of these days.... 

        

OAIC to be scrapped, Victorian scheme to be bolstered

Go figure.

The Federal Government plans to scrap the whole idea of non-litigious merits review after a three year experiment with an underfunded scheme and in the absence of a comprehensive review.

Fairfax reports Victoria is to provide additional staff for FOI Commissioner assigning two assistant commissioners to help. "Several staff will also be seconded from the Justice Department to create an education program for the public sector, which collectively receives more than 33,000 FOI requests a year. Attorney-General Robert Clark said the changes would strengthen the role of the FOI commissioner, a reform he said ''Labor refused to do in their entire 11 years in office.'' 

No mention there of the inefficiencies from a multi- tier review process that Attorney General Brandis cites as justifying the decision to abolish the OAIC. 

The Victorian scheme does have its shortcomings and this latest announcement won't address them all but it's not for the scrap heap Canberra plans to establish.

How goes Victoria's FOI review experiment

Victoria charted new Freedom of Information territory in 2012 when it abolished the internal agency review option, allocating the review function for most purposes to the Freedom of Information Commissioner. 

The Rattenbury bill proposes something similar for the ACT.

The 30 day time frame for review decisions by the commissioner's office was commendable but always going to be ambitious unless accompanied by speedy, streamlined access to agency documents the subject of review, and plenty of skilled resources to do the job.

A failure to make a decision within time or agreed extended time (the act provides for extra time with the consent of the applicant) is deemed confirmation of the agency decision (s 49J) and grounds for a review application to the Victorian Civil and Administrative Tribunal (s 53).

This report today in Herald Sun online about Leader Newspapers’ experience in asking for review of a decision by Ambulance Victoria was prompted by the commissioner seeking two time extensions. The Leader found plenty of support for the proposition that delay is 'completely unacceptable.' Professor Johan Lidberg of Monash University said “The whole point of the commissioner is to speed up the process but that is not working at all.”

The only published information about how it is working out is the Commissioner's Annual Report 2012-13 covering the first seven months of the scheme. The statistics are now eight months old. Things may have got better or worse.

Meeting that 30 day deadline is proving a struggle. Of the 92 review decisions made by the commissioner's office during the period, one third were within the statutory 30 days. 
Applicants agreed to extension of time in 94 reviews and to 121 extensions in total. 

There are no published decisions on the website. Some reviews are no doubt complex and speedy access to the documents in dispute is likely to be an issue in some cases.

The commissioner received 258 review applications in total; 51 were not accepted for one reason or another; 47 were dismissed, 20 after informal resolution and with the consent of the applicant. 

One hundred and ninety review applications were completed. Fifty one decisions (68%) were the same as agency decision, 33 differed in full or in part.

Two agencies feature prominently amid the numbers. Victoria Police, subject to 35 review applications had 20 decisions affirmed, a different decision in 8 cases while 7 applications were dismissed. Worksafe Victoria was the subject of 16 review applications: 8 affirmed, 5 differed and 3 dismissed. 

As to efficiency and effectiveness, the report is not enlightening. Performance measures for the FOI Commissioner's for what they are worth appear only in the Department of Justice Annual Report. The only indicator in the report apart from process numbers is "High" for "Satisfaction with services performed." But nothing about how this was obtained.

There is still plenty of FOI business for VCAT:166 FOI appeals were lodged with VCAT during the period.

The report also contains stats regarding agency experience in dealing with FOI applications including something I haven't seen elsewhere- Appendix E (pdf) lists the names of agency decision makers and a mini scorecard for each of the number of FOI decisions made,  access granted in full or part, and access refused.

On the really big Victorian picture, back to Professor Lidberg:

“Victorian Freedom of Information is one of the poorest functioning access to information laws in the country,” Mr Lidberg said. “It’s slow, cumbersome and expensive to use.”

You can add very dated to that.The 1983 act shows the finest thinking of the nineteen seventies and eighties. Other than a new review system on which the jury is still out, it shows none of the more expansive thinking of more recent times about transparency and open government.

How goes Victorian FOI Commissioner ?

Hard to know almost six months after the Freedom of Information Commissioner opened for business on 1 December.

There is nothing on the website about what has happened since in terms of reviews and complaints received and their resolution. The Commissioner has 30 days to conduct a review (super quick by any standard) unless the applicant agrees to an extended period.

Budget documents published in early May help a little.

Budget Paper 3 includes the Departmental performance statement for the Department of Justice (pdf) (page 199) with $3.5 million allocated for the Freedom of Information Commissioner in 2013-14, and these (surprising) output measures:   
                                   2012-13 Expected Outcome          2013-14

Reviews completed                 155                                       400
Complaints completed             150                                         96            
Timelines met                          85%                                     100%

But how it's all working out in practice for agencies and applicants is unknown at this distance at least. Comments informed by experience most welcome.

An unusual feature of the Victorian system (Part 1B) is that the Minister (Attorney General) may develop professional standards for the conduct of agencies in performing functions and the administration and operation of the FOI act. Where issued, an agency must comply. All quiet on that potential new front as well.
(This was my take in December 2011 on the legislation establishing the commissioner's  office.)

The portfolio statement (page 189) lists outputs for the separate Office of the Victorian Privacy Commissioner, allocated $2.3 million in 2013-14 compared to an expected current year final spend of $2.5 million.

December start date looming but no sign of Victorian FOI commissioner.

With less than two months until the default commencement date for the Victorian Freedom of Information Amendment (Freedom of Information Commissioner) Act No 6 2012, you might be wondering what's the story? Me too, as there has hardly been a word on the public record since the legislation received assent on 6 March. 

Publicly at least, nothing has happened. No ministerial media releases, no questions in Parliament since this in August received a straight bat response,( Addendum) and these few references in the Budget papers in June.

It's of course not great legislation with significant shortcomings and areas where the bill could have been improved. The Baillieu government wasn't interested in that or the sort of comprehensive changes to the 1983 Victorian Freedom of information Act necessary to bring the law in line with 2012 standards of government accountability and transparency. I rather like my February description: a bandaid for a slerotic artery

However Section 2 (2) of the amendment act states if "a provision of this Act does not come into operation before 1 December 2012, it comes into operation on that day." The answer to the question in Parliament was that it "will be operational once the act is proclaimed' but that seems incorrect.

The amending legislation will from 1 December among other things, establish a new office ready and open for business, set a 30 day turnaround for review by the commissioner of some agency FOI decisions, abolish an FOI applicant's right to internal agency review, establish a complaints system as distinct from the review function, authorise the responsible minister to issue guidelines for FOI processing and (subject to parliament acting) establish a new parliamentary Accountability and Oversight Committee.

Who will do all this, how they will go about it, where they will be located remain mysteries. Preparation? Kapoosh. That answer to a question in August included comment that "recruitment and allocation of staff in the freedom of information (FOI) commissioner's office will, ultimately, be a matter for the FOI commissioner" so once that position is filled it might be rather lonely in the new digs.

In light of the date, last week I sent emails to the responsible minister Attorney-General Robert Clark, and Minister for Corrections and Crime Prevention and Minister responsible for the establishment of an anti-corruption commission Andrew McIntosh who seemed at various times to have some responsibility, asking for information about the FOI commissioner selection process, any appointment, and about office operations from 1 December.

Not a peep-the same response I had to questions in June to the president of the upper house Bruce Atkinson and the speaker of the house Ken Smith about access to information about payments to Victorian parliamentarians. As to that black hole, your guess is as good as mine.

Good luck to Victorians keen to see improvements.

Victorian FOI commissioner will be busy in 2012-13

The Victorian Parliament passed legislation to establish the office in February. No appointment has been announced and there is nothing I can find in the public domain about where things stand. Except the start date for the legislation is no later than 1 December 2012.

There is a scrap or two in the  Budget papers. Nothing like last year when the plan received headline status with an announcement of $7.9 million to establish the office, although the fine print (Budget Paper 3 (Chapter 1 Election Commitments p 54) revealed this was spread over four years with $1million allocated in the first year, $2.3 million in 2012-2013, and $2.2 million in each of the next two years.

This year the only mention is at pages 179 and 181 of Budget Paper no 3, where "enhancing government transparency through the establishment on an independent Freedom of Information (FOI) Commissioner" is bundled together in two sets of disparate outputs of the Department of Justice. It's unclear what the money situation is as there is nothing specific about past or future expenditure on the office. The combined allocations come with a note: the "2012-13 Target has been reduced due to efficiencies reflecting government savings." 

But somewhere, someone must be gearing up to deliver.

At page 182, performance measures for the office are mixed in with those for others but in 2012-13 the office of the commissioner is to complete 100 complaints, undertake 20 training and education activities, achieve 100% compliance with statutory and other agreed time limits, and rate "high" on applicant satisfaction with review and complaint processes. What this note means for commencement of the scheme is unclear: "The 2012-13 Target takes into account the legislation’s default commencement date of 1 December 2012."

The Office of the Victorian Privacy Commissioner (page 183) was allocated $2.4 million ("reduced due to efficiencies reflecting government savings"), $2.6 million, $2.6 million and $2.5 million in each of the next four years. In 2012-13, performance targets for that office are 700 "compliance activities", 195 "Privacy Awareness activities", high rating in client feedback of satisfaction with complaint handling and training services provided, and 90% statutory or agreed timelines met-perhaps reflecting (in contrast to the FOI commissioner's 100% target) some realism that comes from a presence at the table when these things are settled.

Official: Victorian FOI fails to deliver

The report by the Victorian Auditor General on the extent to which the 11 Victorian public sector (VPS) departments and Victoria Police meet the requirements of the Freedom of Information Act 1982 won't surprise those who work in or have experience in dealing with the system.

 Media reports today grab on to "scathing" and "damning" to describe the report's findings but the report best speaks for itself:

Since FOI legislation was introduced 30 years ago, Victoria has gone from being at the forefront of FOI law and administration to one of the least progressive jurisdictions in Australia. Over time, apathy and resistance to scrutiny have adversely affected the operation of the Act, restricting the amount of information being released. As a result, agencies are not meeting the object of the Act, which is ‘to extend as far as possible the right of the community to access information’. The public’s right to timely, comprehensive and accurate information is consequently being frustrated. The VPS’s systemic failure to support this right is a failure to deliver Parliament’s intent. The prevailing culture and lack of transparent processes allow principal officer —secretaries and chief executive officers of agencies—to avoid fulfilling their responsibilities. Principal officers are not being held to account for their agency’s underperformance and non-compliance. Agencies are routinely disregarding the 45- day statutory time limit for processing requests and the five-day ministerial noting period, and there are serious flaws in record keeping practices and FOI searches in the Department of Human Services and Victoria Police. The Department of Justice has not satisfactorily fulfilled its role as lead agency for FOI. More effective leadership is required to promote an appropriate culture, improve transparency of government information and adequately inform Parliament and the community about FOI.

The Ombudsman has reached similar conclusions in various reports over the years to no avail, as the Auditor General notes citing this example:

None of the 12 audited agencies implemented all of the recommendations made by the Victorian Ombudsman in 2006. This is indicative of a poor, resistant culture and low level of priority placed on FOI, which DOJ has not managed to address effectively.

The report does not reflect on the role ministers have played in all this- ministerial conduct being  beyond the auditor's reach-but ministers in governments of both persuasions set tone at the top and went along happily with nary a word of concern about a system now described as apathetic and resistant to scrutiny.

Premier Baillieu gilds the lily in claiming (as reported in The Age) that government legislation to establish a freedom of information commissioner is the answer to the problem. That act doesn't encompass the more fundamental reform needed to mandate pro-active disclosure or changes to exemption provisions that would bring Victorian law closer to contemporary standards that properly balance confidentiality in the interests of good government and public rights to gain access to government information.

A 45 day response time for requests which, according to the Auditor General, is routinely disregarded in any event, is a bad joke in this day and age. As is the formal practice of "ministerial noting" before an agency decision is notified to the applicant- a practice open to abuse and the cause of long delays in some cases documented in the report.

The FOI commissioner model adopted in Victoria but yet to commence has significant weaknesses apparent well before it takes effect but which were simply shrugged off by the government during parliamentary debate.

While these holes in the bucket remain as they are, as well as serious systemic flaws in record management practices identified by the Auditor General (documented in detail in this 2008 report  and raised also in this recent Ombudsman report Own motion investigation into the management and storage of ward records by the Department of Human Services (256KB) FOI  in Victoria will continue to fail to deliver fully on its promise

Victorian Freedom of Information Commissioner on the statute book

The Victorian Legislative Council after five hours of debate concluding at 1am this morning passed the Freedom of Information Amendment (Freedom of Information Commissioner) Bill 2011 without amendment (See LC Hansard 28 February commencing at page 42-it's a long read!)

 It was a clear case of the numbers rather than rationality in some cases prevailing as the governing parties had enough votes to see off even those amendments supported both by the Opposition and The Greens.

So an FOI Commissioner will be a reality in Victoria when the act receives assent and the government finds someone for the job. Prospective candidates will no doubt find the Council Hansard (and the Assembly debate) illuminating-the Council debate was miles ahead in substantive terms.

Opposition speakers and The Greens Mr Barber (clearly the best informed participant in the debate) made plenty of legitimate points about aspects of the bill that are either unsatisfactory or could be significantly improved, although an amendment to require a decision on review by the commissioner within 14 days rather than 30 was unrealistic and naieve. (See my take on the bill in December.)

Mr Barber also got nowhere with amendments that would have been a start on the broader reforms necessary to bring Victorian law closer to standards adopted in other jurisdictions that have undertaken reform in recent years, for example prescribed pro-active publication.  Here and there he had a shot at a step beyond that standard- for example proposing an amendment that would abolish the internal working document exemption completely.

There was plenty of chapter and verse provided on what is wrong with the Victorian FOI act and the way it is implemented, particularly delay way beyond the already far too generous 45 days for an agency decision-some examples involved 260 days. Centralisation of  FOI authority within the premier's office also received plenty of attention.

As did ministerial interference in decision making arising from the long established and unique Victorian procedure that contentious decisions are submitted to the minister's office five days before they go out. Just "for noting" you'll understand. 

Mr Barber shared this result of an FOI request about how an earlier application had been handled (pages 51-52):

I have some examples of how ministerial staff of the Minister for Public Transport, Mr Mulder, are successfully directing FOI officers as to what to exclude and by doing so not only compromising the process in substance but also adding further delays. A number of these applications were well overdue — this one in particular was. It related to the network development partnership — that is, the monthly meeting between the Department of Transport and Metro Trains Melbourne. There are many commuters who would like to be a fly on the wall at such meetings. What we see is memos going back and forth between the FOI officer and the minister, the FOI officer and the spin unit, and the spin unit and the minister’s office. I have one document here from 13 September 2011. It is a file note about the FOI officer’s discussion with Mr Mulder’s office. The names of the ministerial advisers have been blanked out so I do not get to find out who they were.
Mr Leane — Faceless men.
Mr BARBER — The file note says:
 … called to advise that the minister was noting this FOI request. He asked if I would redact a further excerpt from page 4 of the January minutes which stated that … We do not know what it stated because it has been blanked out. … advised that this was not correct and to release it would be misleading. I agreed to redact the statement … also asked if we would be able to correct typos within documents, and I explained that we were unable to do so. 
The FOI officer had to explain to the minister’s office that when someone makes an FOI request for documents, we have to give them the documents — we do not get to clean up the typos and then send the documents over. The other point is even if the information in the documents is wrong, that does not mean we get to fix it. We have to send the documents. Get it? This is the FOI officer explaining it to the minister’s office. The file note continues: 
… advised that he would send a confirmation email shortly when the minister had noted the FOI brief. 
Then we get the following email, which says:
 Hi Sam — this is from the aforementioned ‘faceless man’ — or woman, who knows — Subject to the application of section 30 redactions we discussed, this office has no issues with your decision to release the NDP minutes to Mr Barber. 
There are a few more like that. This is just one example I pulled out of my little treasure trove. By way of a denouement, I appealed the removal of the faceless man’s name and on internal review I was successful. It turns out his name is Ashley, so at least that state secret is going to be out in the open. It was Ashley in Mr Mulder’s office who sought to direct — successfully in that case and unsuccessfully in other cases — an FOI officer in their administration of the act. This is exactly what the Ombudsman condemned in 2006 and exactly what the author of this bill and Mr Dalla-Riva, who will be sitting at the table in a minute, ranted and raved about when they were in opposition. It happens to this day.

The FOI commissioner has a big job ahead-and the legislation provides that the minister responsible for the act not the commissioner may (not shall) set standards for processing FOI applications!

Good luck to all concerned.