NSW GIPA falling short, but no 'secret state'

In the 2014-15 Annual Report on the operation of the NSW Government Information (Public Access) Act tabled in Parliament last week, Information Commissioner Elizabeth Tydd commented that the strategic intent of the GIPA Act is "not being fully realised" because of shortcomings in the proactive release of information by government agencies, and in response to applications for information,that there had been an overall decline in information released. 

The Mandarin provides a good summary. 

Points of interest from my reading:

• compliance by agencies with mandatory proactive disclosure requirements is down from 80% in 2012/13 to 69% in 2014-15. (Comment: If agencies aren't fully complying with mandatory proactive disclosure requirements almost six years after the act came into force you have to wonder what difficulty they have in understanding the term 'mandatory.' The Commissioner doesn't name agencies - in the case of those at the lower end of the compliance scale at least, she should);  

• fewer agencies report they undertake the required annual review designed to increase proactive release programs, down from 85% in 2012/13 to now around 71%. (Ditto-names, particularly of those who fail on this and other legislative requirements.)

• the number of formal GIPA applications remained steady at 13,000. Over 78% (10,000) were from either a member of the public or their legal representative, 2000 from private business, 300 each from non-profits and media, and 150 from members of parliament.55% of decisions related to personal information applications.

• the overall release rate (full or part access) in response to applications was 69%, a decline from a high of 80% in 2012/13. (Comment: I'm not sure what that means for the question posed 'Did applicants get what they asked for?" Raw stats are one thing but as to whether the democratic purposes of right to know legislation are being achieved, who knows? I'm yet to hear of an agency asking applicants for feedback about their GIPA experience and I don't think the IPC has done any digging in this space. Frequent users such as journalists, lawyers, non profits and members of parliament would have something interesting to say if they were asked.)
• Legal professional privilege is high on the list of public interest considerations used to refuse access, particularly with local councils and universities. Ministers who received only 60 applications between them and in half, did not hold the information requested (presumably the relevant agency did), relied heavily in refusing access on the Cabinet public interest consideration, for which there is no public interest test.
  

• applications to the IPC for review of decisions rose from 156 in 2010/11 to 359.  (Comment: This tells us something important but what? Increased dissatisfaction with agency decisions? Frustration with agency internal review processes? Growing awareness of the IPC review option? Other? Any spike suggesting systemic problems in one or more agencies?

• in 2014/15 in around 50% of cases involving state government agencies and 60% in the case of local councils, the IPC recommended reconsideration of the decision. (That is the IPC thought the decision wasn't properly made or was on the wrong track and a new decision should be made reflecting its findings.)

• Around two thirds of cases where the IPC recommended the agency undertake a further review of the decision in question saw the agency vary the decision. (Comment: It's unclear in how many cases the agency did not act on the IPC recommendation. Any agency that has a pattern of not responding positively to the IPC recommendation should be named IMHO);

• there were 154 applications to the NSW Civil and Administrative Tribunal for review. In 61% of decided cases, NCAT upheld the agency decision. 

• "(U)nder the Public Interest Disclosures Act 1994 the Commissioner is an investigating authority where public officials make public interest disclosures to the Information Commissioner about government information contraventions in terms of section 12D of the PID Act. Public interest disclosures often involve allegations in relation to the five offences contained in the GIPA Act. For example destroying, concealing or altering records to prevent them from being released; knowingly making decisions that are contrary to the legislation; or directing another person to make a decision that is contrary to the legislation. In 2014/15, the Information Commissioner received two and closed five complaints involving public interest disclosures. With the benefit of this most recent experience, the IPC has commenced a process of refreshing procedures and developing internal and external guidance to provide greater transparency and assistance to IPC officers, parties to public interest disclosures, and the public more generally. In leading this work, the Information Commissioner will work closely with the NSW Ombudsman, State Records Authority and NCAT to ensure close and supportive alignment of jurisdiction." (Comment; Hmm, were the PIDs about the same agency, or different agencies, what was the nature of the disclosures, what followed and what were the findings, was improper or criminal conduct involved? Alas no details or broader observations.)

"Secret State' 

NSW Opposition frontbencher Jodi McKay, Shadow Minister for Justice and Police gave the Sun Herald the first part of the headline for its piece on the report  Baird government labelled 'secret state' as information increasingly blocked 
 
There are plenty of flaws and McKay was on the right track last week in Parliament in criticising the government over the scandalous exclusion of the multi-billion dollar Westconnex project from access to information law. 

However she overreached or has a shortish memory with the barb "Mike Baird is Premier of the secret state."

Premiers before Nick Greiner in 1988 deserved that label.

The late Peter Wilenski in Unfinished Agenda in 1982, a report for then Labor Premier Neville Wran knew a secret state when he saw one and told the Premier so. 

Wilenski recommended among other things a freedom of information act but his report  was slipped into the bottom drawer at the premier's department and stayed there, ignored for years.

We've come a long way since then, first courtesy of the Greiner/ Fahey governments in the late 80s, the latter dragged further along in the early 90s by independents with the balance of power such as John Hatton, Clover Moore and Tony Windsor, and then after years of neglect under the Carr and Iemma governments, shunted further in the right direction by Premier Rees in 2009.

Still a long way short, with Westconnex exclusion from the act a barbeque stopper but not the only evidence. 

However 'secret state' only if you don't have a sense of history.

Attorney General Brandis unhappy with the Tribunal over his diary and still intent on wiping out the Office of Information Commissioner

The Attorney General is to appeal the Tribunal decision against his office handed down by Justice Jagot in December and the subject of three posts here earlier in the week. 

No surprise, the appeal to the Federal Court is "in the public interest" according to a spokeswoman for Senator Brandis, quoted in Fairfax:

"the tribunal's findings had "wide-ranging implications for the FOI system. Accordingly, it is in the public interest that there be judicial clarification of how the FOI system operates," she said. Senator Brandis' lawyers will argue that Justice Jagot "erred" by not deciding that FOI decision makers needed to consult all third parties named in diary entries, where "there was some prospect that such an entry might be exempt [from disclosure]," court documents say.

Not sure how the appeal advances the Attorney General's concern expressed before Christmas that "as a general rule minister's diaries ought not to be the subject of FOI Legislation."
 
Fairfax Media also reports that former Australian Information Commissioner Professor John McMillan said the almost two-year battle between the Coalition and Labor over the diaries could have been avoided with better disclosure rules.

"There is something to be gained by having more predictable standard practises about disclosure rather than tying up enormous resources in disputes of this kind," he said. (McMillan) is renewing calls for Federal Cabinet ministers to regularly publish their diaries on the internet, after they have been edited to remove sensitive information such as private phone numbers.Doing so, he said, would remove the need to ask for diaries under FOI laws and put the information into the public space without a political battle.

Meanwhile the Attorney General apparently was happy to leave it to the Office of Australian Information Commissioner, picked up by ItNews and others that Acting Commissioner Timothy Pilgrim had his term extended for three months until April 2016, the third short term extension since Professor McMillan left.

It's 20 months since the AG announced the intention to ask parliament to abolish the Office which the numbers in the Senate are against with good reason. In the meantime the government has used control over funding to limit OAIC funds for FOI- not a bean for such things as own motion investigations for example- and provide none for information policy functions.

 The top level Organisation Chart from the OAIC website sadly summarises

The contrast between then Senator Brandis in Opposition and as the minister responsible in 2016 couldn't be more stark:
Senate Hansard13 August 2009

Senator Brandis.....The coalition’s commitment to open, responsible government is well known. It was the Liberal Party which pioneered freedom of information legislation in Australia. The Freedom of Information Act.. is the act of a Liberal government—the Fraser government. It is a vital measure to ensure that government remains open, responsible and accountable for its decisions.....The true measure of the openness and transparency of a government is found in its attitudes and actions when it comes to freedom of information. Legislative amendments, when there is need for them, are fine, but governments with their control over the information in their possession can always find ways to work the legislation to slow or control disclosure. That is the practice we are seeing now under the Rudd government, whose heroic proclamations of commitment to freedom of information are falsified by the objective evidence of their practice.

Crikey today has later grand rhetoric:

Labor makes a 10 minute hit on culture of secrecy, government speakers stay mum

In the House of Representatives yesterday Alannah Mactiernan (Perth, ALP) moved:

That this House:
(1) expresses concern at the culture of secrecy prevalent in the Government and the serious undermining of the core principles enshrined in the freedom of information legislation;
(2) notes the Government has:
(a) defunded the Office of the Australian Information Commissioner (OAIC) despite failing to pass its legislation to abolish the office; and
(b) failed to advance Australia's application for the Open Government Partnership (OGP); and
(3) calls on the Government to abandon its attack on the OAIC and provide it with proper funding, and recommit to joining the OGP.

The motion didn't get far in the 10 minutes allocated before debate was adjourned with Mactiernan and Labor Party colleague Graham Perrett the only speakers.

Could the lack of interest or appetite on government benches to contest the argument suggest a decision not to waste time defending the indefensible while rethinking is underway or completed on both the OAIC and the OGP fronts? Ah, we live in hope.

Mactiernan recounted to the House an FOI experience unlikely to stand the pub test: 
an application to a minister (in this case an assistant minister) that was not processed before the reshuffle, for documents concerning a decision to support a $1.7 billion project in WA couldn't be processed afterwards

"since the portfolio of the assistant minister no longer exists and.. the documents have not been transferred to the new minister.... 'These documents are specific to the minister and to the staff.'

Iran 1970: Public Domain via Wikimedia Commons

Crikey's Josh Taylor ran into the same problem with FOI requests to the office of Prime Minister Tony Abbott that had gone unanswered for seven months before Malcolm Turnbull’s arrival in the office. They couldn't be processed thereafter because the documents weren't held by the office of the current PM. Taylor speculates "the FOI request was lost in one of the dozens of bags of shredded documents seen leaving the prime minister’s office the morning after the leadership change."

The rules about retention, transfer or disposal of documents when the minister leaves or transfers office are hard to find. In theory at least documents held by a minister's office concerning the discharge of functions as a minister are records for the purposes of the Archives Act. 

 Archives Australia provides guidance on what happens to records held by an agency when administrative changes occur, but nothing that I can see when ministers leave the chair.

The FOI situation is that a minister's office is a separate entity from the department for which the minister is responsible. Documents subject to FOI in the hands of the incumbent at any time are those documents "held by the minister" that relate to the affairs of an agency or department. 

If the documents went out the door or found their own way to the shredder as the previous minister and staff headed out, the documents won't be held by the newcomer, end of section.

Open, transparent government: Australia struggling to join the dots

The Australian government seems to have kept its distance from the Open Government Partnership Global Summit in Mexico City last week while close to 3000 by some calculations gathered there to discuss, explore, share and learn about enhancing open, transparent government and citizen participation.

In a week when Environment Minister Greg Hunt was speaking in Beijing "attempting to re-assert the nation's eco-credentials on the world stage after the removal of Tony Abbott as prime minister" the government did little to assure domestic and international audiences that the Abbott era 'war on transparency' was a thing of the past.

There was no response, publicly at least, to a request four months ago that the government clarify its intentions regarding OGP membership before the summit. And there was no Australian government representation there as far as I can ascertain although who knows, someone in the embassy may have had nothing more pressing to do. (Addendum: I hear the Ambassador was down to attend something during the three days.)

In Mexico City, heads of state and government, ministers, senior officials, parliamentarians, local governments, international organisations, the private sector and civil society representatives gathered to examine among other topics how the OGP and the principles that underpin the initiative could be applied to advance the Sustainable Development Goals, contribute to anti-corruption plans, harness new technologies to make government more open, effective and accountable, increase transparency in a wide range of areas from health to forestry and other extractive industries, encourage and protect civil society engagement, and expand learning and experience from the partnership to sub-national levels of government.

 Mexican President President Enrique Pena Nieto opened the conference. 

Those present included Sierra Leone President Ernest Bai Koroma, Costa Rican President Luis Guillermo Solis Rivera, South African Deputy President Ramaphosa, Romanian Prime Minister Victor Ponta, Guyana Prime Minister Moses Nagamootoo, Sri Lankan Deputy Minister of Foreign Affairs Dr. Harsha De Silva, UK Minister of State for Trade and Investment, previously Minister for the Cabinet Office Lord Francis Maude, and Latvian Foreign Ministry’s Parliamentary State Secretary for EU Affairs Zanda Kalnina-Lukasevica.  

US Assistant Secretary of State Tom Malinowski was there in a delegation led by U.S. Ambassador to the United Nations Ambassador Samantha Power. As were government representatives from Canada and New Zealand as well as former NZ prime minister, now head of the UNDP Helen Clark. 

Georgia won the OGP Government Champions Award.

Sri Lanka, Papua New Guinea and Cote D'Ivoire announced their intention to join.

The Australian government? 

Nowhere to be seen, Silvana Fumega the only participant from this neck of the woods that I'm aware of. (Addendum: anybody see the Australian Ambassador?)
 
Close to 70 countries have joined or announced an intention to do so. Foundation members such as the US are now at the stage of a Third National Action Plan. The Liberal/ National government has been considering and reconsidering for over two years the May 2013 notice of Australia's intention to join. There is nothing in the public domain to show for this.
 
The partnership is not without its challenges and problems. 

But as Simon Burall director of public participation think tank and charity Involve and a member of the UK Open Government Network’s steering group observes, the OGP

is like no other international process I’ve been involved in – and I’ve been involved in more than my fair share.There are precious few international or national organisations that place government and civil society firmly on a level, with equal power. There are even fewer where governments make joint commitments with civil society to push themselves to be more open, more participative and more accountable. To top it all, these commitments are independently reviewed rather than peer reviewed in the style of mutual back-slapping. But what really draws me to the OGP is that it focuses on creating a space where reformers inside government and civil society can work together, learn from each other, push and inspire each other, and make deeper, more challenging reforms.

Meanwhile on the home front 

• the Public Data Branch in the Department of Prime Minister and Cabinet announced its arrival on the scene, promising "to prioritise better sharing and publishing of government data by putting data policy at the very heart of the public sector." 

• Stephen Bartos in the Canberra Times listed reasons why Australia lags in the international open data stakes including the strong attachment to the notion that government "owns" its data and controls access to it, and cultural barriers in the middle ranks where data is held close and openness feared.

• The silos stand. PM&C is encouraging release of government data with decisions left to the discretion of the agencies that hold the data; the Freedom of Information Act that includes a limited mandatory pro-active disclosure requirement is unloved by those in important senior roles in government as Professor Richard Mulgan points out also in the Canberra Times, and in need of  review and modernisation in any event; and the Attorney General remains committed to abolishing the Office of Australian Information Commissioner that would among other adverse effects remove the independent advocate and watchdog for open, transparent and accountable government, having already defunded the office's government wide information policy function.

The Prime Minister is on the record as saying he wants to see more open, consultative government and stated an intention to reach out to the international community in this space. I think he meant it. Can someone help him join the dots?

Turnbull government stands its ground, apart from international open government community

Disappointing that the Turnbull Government chose to keep the head down rather than step up publicly with a positive response to the request three months ago from the Open Government Partnership Steering Committee to recommit by the time of the OGP Global Summit in Mexico this week. 

Spirits here rose sharply yesterday morning when my email inbox lit up:

Re: Commitment to open government -  Whitney Brennan Office of The Hon. Malcolm Turnbull MP

Only to drop like a stone when it turned out to be pretty much the standard boiler plate, pass the parcel reply to an email sent to the PM a week ago about the OGP and the related issue, the continuing saga of the Attorney General's attempt to scuttle the Office of Australian Information Commissioner. 

Toby McIntosh reports over one thousand delegates from 94 countries attended the
Civil Society Day in Mexico City yesterday prior to the official two-day OGP meeting.

Meanwhile back in Canberra.......
 
Emails to and from the PM's office and an earlier exchange with Mr Turnbull in July follow.

AG Brandis not for turning on bid to abolish Office of Australian Information Commissioner

Senator Brandis at Senate Estimates late on Tuesday said he's still aiming to get rid of the independent statutory officer responsible for championing transparent government, an officer who undertakes other important functions including non litigious free review of agency decisions under the FOI act.

This despite the fact that votes from Labor, The Greens and the crossbenches to support the move weren't there last December and its difficult to discern any change in sentiment since. 

Just about everyone outside government who looks into the proposal thinks it's a bad move unsupported by evidence and out of step with trends in good practice thinking about open transparent government in Australia and internationally.

Monday and Tuesday were long days as the Senate Estimates hearing for the Attorney General's portfolio proceeded. 

The Australian Human Rights Commission with the president in the line of fire, proposed national security legislation and a myriad other issues were traversed in the course of many hours of Q and occasional A.

But at 9.48 pm on Tuesday the Office of Australian Information Commissioner finally got the call.

Interest in proceedings had diminished  by this time with Chair Senator McDonald, ALP Senator  Collins and Liberal Democrat Senator Leonhjelm the only committee members left standing. Well sitting to be more precise.

You can read the 24 minute hearing here.

Attorney General Brandis and Matt Minogue of the AGD made it clear that the the bill to abolish the Office of Australian Information Commissioner still before the Senate continues to reflect the government's position; that the office, funded in the 2014-15 budget until 31 December and now with whatever funds were left for general functions from that date and for privacy functions until 30 June must continue to do what it can to carry out its statutory FOI, privacy and digital information policy functions without supplementary funding; and things will stay that way until the bill comes on for consideration and its fate determined. 

When that might be Attorney General Brandis has no idea. It's "a matter for the Manager of Government Business."

The OAIC has closed the Canberra office, the Information Commissioner works from home and the office has seven staff working on FOI matters. A year ago it had 20.

"The office continues to receive inquiries, complaints and IC review applications under the FOI Act, and these are dealt with under arrangements that we have published on our website. FOI matters are currently being handled by a small team in the Sydney office under the supervision of the assistant commissioner for dispute resolution and the Information Commissioner. In summary, FOI complaints are being transferred to the Ombudsman's office; Information Commissioner reviews are being triaged by our office so that where we can expedite a matter we do so; and, for the more complex or voluminous ones, we work with the applicants for these to be referred to the AAT."

With the sword of Damocles hanging over the OAIC since the unexpected announcement in May 2014 of intention to close the office Acting Information Commissioner Pilgrim (the only member of the top echelon not working from home) saluted the staff that have battled on regardless:

in respect of all of our functions, I would personally like to take this opportunity to acknowledge the ongoing commitment and professionalism of the staff in our office, who have continued to work tirelessly during very uncertain times. And I will add that in my 31 years in the Public Service I have not seen a better demonstration of and upholding of the Public Service values.

As for the Attorney General it's nothing to do with him. It's all Labor's fault

if these are perceived to be problems, then these perceived problems would all disappear if the opposition would support the bill so it could be passed...
As I was saying, if the government had an indication from the opposition of what its position was, and if the opposition, which has had plenty of time to consider this, indicated its support for the bill, then the bill could be progressed through the Senate very soon.

Senator JACINTA COLLINS: I do not think there has been any uncertainty about the opposition's position here. I think the issue is—well, I will ask: is it true that the government has offered crossbenchers a comprehensive review of the FOI system if they support the bill? And why instead will you not conduct that review before you abolish the Information Commissioner?

Senator Brandis: Surely you would not expect me to reveal private conversations that the government might have had with individual Senators. Surely you would not expect that.

Senator JACINTA COLLINS: I would not be surprised by anything that you might do after today, Senator Brandis. I would not be surprised by anything.

If the government isn't prepared to bring the bill on for debate, maybe Labor, The Greens and the crossbenches should. 

If its voted down the government might finally be shamed into adequately funding our champion of open transparent government despite its distaste for such ideas.

In an answer tabled in response to Question 204 from Senator Collins taken on notice in December about funding for the OAIC beyond December, that didn't get a mention during the hearing, the Department  stated

"The cost implications from the continued operation of the Office of the Australian Information Commissioner beyond 1 January 2015 will be determined as part of the Government’s Budget processes."

In light of yesterday's testimony they can't mean 2014-15 budget processes.

AGD appears to be struggling with an answer to another Senator Collins question from last December - the other countries that have an independent FOI commissioner. Q57 remains one of few unanswered two months later. 

Last time I did some digging it was around the 40 mark, although with 100 countries now having an FOI act it might be much higher. 

Oh and they don't have to look far for local adherents to the idea: Queensland, NSW, Victoria, Western Australia, Northern Territory and the ACT have information or FOI/RTI commissioners. In Tasmania the Ombudsman carries the can while in South Australia the Ombudsman has the review function and the former ombudsman there now Queensland Integrity Commissioner recommended adoption of the FOI commissioner model.

It's clear who is out of step here.

Abolish information commissioner bill may be in trouble in the Senate.

Michael McKinnon FOI Editor ABC reports that the Freedom of Information Amendment (New Arrangements) Bill could be blocked in the Senate, raising the question what will happen with reviews if the OAIC continues but the money runs out by the end of the year.

Government fails to make the case for abolishing information commissioner

In introducing the Freedom of Information Amendment (New Arrangements) Bill 2014 in the House yesterday the government argued that the Office of Australian Information Commissioner should be abolished primarily because of complexity in the system of external merits review for FOI matters. 

If complexity was the issue it had a number of options to improve on the model adopted in 2010, short of junking the whole thing, should it have taken the trouble to look, think and discuss beyond the confines of the Attorney General's Department. 

After all, the limited review of the FOI act in 2012-13 by Dr Hawke (still without a response 18 months later) concluded that the establishment of the OAIC "has been a very valuable and positive development in oversight and promotion of the FOI Act." (page 24). 

And specifically on the complex review system cited by the government as the major policy reason for the decision: 

"The current system of multi-tiered review has been in operation for two and a half years.  At this stage there is insufficient evidence to make a decision on whether this is the most effective or efficient model for reviewing FOI decisions, particularly in relation to the two levels of external merits review.  The Review considers this issue warrants further examination and recommends that the two-tier external review model be re-examined as part of the comprehensive review recommended in Chapter 1." (Page 36)

Apart from 'removing complexity' the government claims measures in the bill will save $10.2 million over four years, "part of the government's continuing commitment to repair the budget" and the Explanatory Memorandum adds that it "furthers the government's commitment to smaller government."

There is no mention in the Second Reading speech that abolition of the office will remove the independent statutory monitor of compliance with the FOI scheme, the leader responsible for promoting a pro-disclosure culture in government and awareness of the right to access government information more broadly. Resource limitations and other factors may have limited the office capacity to get far in all this, but abolishing it certainly won't advance us on this never ending journey.

The absence of such an office was identified as an impediment to effective administration of the FOI Act as long ago as the joint 1995 Australian Law Reform Commission and Administrative Review Council Open Government report and later by the Commonwealth Ombudsman. It took 15 years for government to act on this. The Abbott government is taking us back to the dark days where FOI has 'orphan' status within 12 months of taking office.

No mention also of the cost to agencies of the reintroduction of mandatory internal review before an application for full independent merits review to the AAT, or the cost to applicants if they seek to take matters further with an AAT application fee in most instances of $861. 

No mention also of the abolition of the commisioner's function to provide strategic advice to Government on broader information management policy and practice, or abolition of the Information Advisory Committee.

Whereas up to now an agency has been required to have regard to guidelines issued by the independent commissioner in administration of the FOI act, in future those guidelines are to be issued by the Attorney General.

Debate was adjourned after the minister's second reading, but there is no doubt it will sail through the House. Let's hope there is some real scrutiny in the senate of what is a retrograde step for transparency and accountability.

Paul Farrell has written this in The Guardian today.

In short: 
The Office of the Australian Information Commissioner (OAIC) will be abolished. 
The Australian Privacy Commissioner will continue to be responsible for functions under the Privacy Act 1988 as an independent statutory office holder within the Australian Human Rights Commission.

The Administrative Appeals Tribunal will have sole responsibility for external merits review of FOI decisions.
Those waiting in the OAIC queue for review will be transferred to the AAT-no application fee for them.

Mandatory internal review of FOI decisions required before a matter can proceed to the Administrative Appeals Tribunal. The tribunal will receive a funding boost to assist with processing FOI reviews.
(Oh almost forgot: Continuation of the situation that there is no right to internal review of a decision made by a minister or the principal officer of an agency.
The only extension of time for dealing with an application to an agency or minister is where this is agreed with the applicant. The only 'incentive' for an agency or minister to make a decision in time is that no charges can be imposed for dealing with the application, but that hasn't produced uniform on time decisions so far.
And a deemed refusal - when a decision is not made within the statutory time-frame - is taken to have been made by the minister or principal officer.
In all these cases the only recourse for an aggrieved applicant (or aggrieved third party with an established interest in the matter) apart from a complaint to the Ombudsman in the case of an agency is to seek merits review from the AAT,)

The  Ombudsman will be responsible for investigating complaints about actions taken by an agency under the FOI act-but apparently isn't to receive additional resources for this purpose.

The Attorney-General will be responsible for FOI guidelines and collection of statistics on agency and ministerial FOI activity.

The time and cost equation for AAT review of FOI matters

Jonathon Holmes in The Age yesterday bought the line that merits review by the AAT will help journalists obtain FOI access, in the words of ABC FOI Editor Michael McKinnon, more quickly, and more fairly. 

"We’re journalists, not historians. We need to know now” said McKinnon in drawing attention to the long and unacceptable delay in FOI review matters at the OAIC.

The Administrative Appeals Tribunal timeline may prove better than some achieved by the underfunded OAIC. After all $1.8m over four years, the sort of money the OAIC never saw, will be transferred to the Tribunal to assist with the processing of FOI reviews.

Will the "need to know now" cause get a boost in the coming new/old era with agencies reaching the correct decision more often and with fulsome embrace of spirit and intent of the legislation? You're more of an optimist than me if you think so given the absence of an FOI champion to maintain the effort to move culture change in the right direction, something that disappears with the abolition of the OAIC from 1 January 2015, and with AGD providing 'guidance' on the interpretation of the act.

 With a long or short queue, AAT processes aren't likely to be speedy in any event.

According to the AAT's 2012-13 Annual Report (a period when it had a limited FOI role) the tribunal's overall caseload performance target was 85% of matters to have their first conference within 13 weeks, and 60% of matters to progress to hearing within 40 weeks. (Table 3.8) 

The performance measures in the 2014--15 Portfolio Budget Statement are 75% of applications finalised by the AAT within 12 months of lodgement, 80% of matters finalised without a hearing.

Then there's the cost. According to the AAT in 2012-13 the cost (to the taxpayer) per matter that went all the way to an AAT decision was $16, 641.

The costs incurred in an AAT FOI review by the applicant who will be up for $816 (and due to rise by CPI on 1 July) for starters from 1 January, and the government agency involved in a matter is unknown.

 But some information about AAT costs generally is contained in the Draft Productivity Commission Report on Access to Justice. The mean cost to a party that brought proceedings regarding workplace compensation was just under $20,000 (median around $15 000). On the other side according to Comcare its average costs per case were $15,500 when matters were withdrawn, $23 000 when matters were resolved by consent, and $48,000 in matters that went to hearing.

Halve, quarter it for FOI if you like.

But  in time and cost the new FOI 'efficiencies' much loved by Attorney General Brandis are going to take a while for those who 'need to know now' or give or take in six months or so, and to cost the taxpayer and the citizen a pretty penny as well.