FOI separate world from Advisory Committee proposals for creating more open government

The Advisory Committee report to the Prime Minister Ahead of the Game: Blueprint for Reform of Australian Government Administration released this week identifies four broad areas where Australian Public Service performance can be improved and nine interdependent reforms, supported by twenty-eight recommendations to deliver these outcomes.

One area for performance improvement is "forging a stronger relationship with citizens through better delivery of services and through greater involvement of citizens in their government." The discussion of relevant issues in Chapter 3 [17-19]  on how the APS is performing and how it can improve in this area is brief and narrow. 

Freedom of information doesn't rate  a mention at all. The only reference to culture is this quote

Media buffs and FOI reform advocates only

In Crikey today, Margaret Simons picks up on my recent post about Australia's Right to Know and, publicly at least, what seems a limp effort on reform of freedom of information laws, particularly in awareness raising and mobilising potential allies to the cause. This is a taste- but non-subscribers can get 21 days free. Simons has asked ARTK  what it is doing. We'll happily publish any reply.

Disclosure of former MPs names and expenses in the public interest.

In a case before Western Australian Information Commissioner Sven Bluemmel involving the Department of Premier and Cabinet, an unnamed former member of state parliament, V,  one of 33 who objected to the disclosure of their names (six didn't) in a document detailing the type and amount of expenses paid, has failed in a bid to argue that disclosure would not be in the public interest.

FOI reform record fails to score a mention in NSW leaders debate

The NSW leaders televised debate on Friday saw Premier Keneally proclaim her pride in leading the Labor government despite its current public standing and record, and Opposition leader O'Farrell  making much of his  five priorities  which include a number of commitments to make government more accountable, including an independent audit of the state's finances, and commitments on election financing and donations, lobbyist regulation, Freedom of Information and the ICAC.

On one of the rare occasions transparency came up directly O'Farrell for a moment tried to defend the indefensible-Opposition support for an offence provision where a newspaper or magazine publishes information that reformats and uses publicly available information on the My school website - before stating he was prepared to look at other responses. The Premier made short work on him on this one.

The Opposition's policy statement "Reform Freedom of Information laws and establish an Open Government Commissioner" released on Friday is reproduced below because some of you will want to avoid a hard to get rid of pop-up designed to get you to subscribe.

In promising overhaul of the FOI act and open government changes including an Open Government Commissioner in the Ombudsman's Office, no cost applications  and enforced publication of grants, you would be forgiven for thinking the Opposition missed last year's reform process and the passage through Parliament of the replacement for FOI, the Government Information (Public Access) Act (yet to commence), and the creation of the yet to be filled position of Information Commissioner. I'm sure they were there but not a mention. Then again the Premier didn't think her predecessor's initiative in pushing these changes through Parliament was worth bragging about during the debate either. 

The Opposition policy statement:

The community has the right to openness, accountability and transparency when it comes to government decision-making and information. Community scrutiny of government – including through increased access to government information – both protects the public interest and propels better public sector decision-making and performance. In government the NSW Liberals & Nationals will pursue a new era of open government.

 This will include reforming the Freedom of Information (FOI) process based on the following basic principles and initiatives:

• - pro-active disclosure of government information;
• - one-stop online shop for information from all government agencies;
• - enforced public disclosure of government contracts and grants; and
• - no cost for FOI applications and the establishment of mandatory deadlines.

We will also appoint a fully independent Open Government Commissioner within the Office of the NSW Ombudsman who will:

• - play an independent ‘watchdog’ role and drive the information-sharing performance of Government agencies toward the highest standards of openness, accountability and transparency;
• - provide citizens with advice and hear complaints on FOI and other government information matters; and
• - report annually on the government’s overall performance and on the comparative performance of government agencies, including total number of requests, number of requests complied with, turnaround times, number of complaints and number of complaints upheld or denied.

The people of NSW deserve open government.

 Amen to that.

Order of Australia Honours Secretariat subject to FOI Act

Senator Bob Brown in Estimates hearings in February raised an issue about the Order of Australia Council, noting it was not subject to the Freedom of Information Act. He and others concerned about transparency and accountability in this area will be interested to hear that documents held by Honours Secretariat staff of an administrative nature are in fact subject to the Act. Not for reasons I speculated about at the time in Orders of Australia beyond question? (although they might still hold) but because of a more straight forward reason. Honours secretariat staff are employed under the Governor General Act 1974. Section 6A(2)  of the FOI act reads:

For the purposes of this Act, a document in the possession of a person employed under section 13 of the Governor‑General Act 1974 that is in his or her possession by reason of his or her employment under that section shall be taken to be in the possession of the Official Secretary to the Governor‑General.

Karen Kline, referred to in that post as having raised the issue of the Order of Australia Council's FOI status in a submission to the Senate Committee examining the Reform Bill, resorted to FOI in January to seek the return of original documents lodged with a so far unsuccessful nomination, which you would have hoped wouldn't be necessary.  After no response she took the matter to the Administrative Appeals Tribunal. At a conference on the case in Brisbane on Friday  Deputy President Hack accepted an Australian Government Solicitor submission that there was a flaw, finding the FOI application was invalid because the fee had not been paid- despite the fact Ms Kline applied for remission of the fee in making the application, the Official Secretary had not asked for payment or otherwise assisted her to make a valid application, and a few days before the conference indicated a willingness to waive the fee. None of this was relevant to the problem that the $30 had not been paid at the time, as required by section 15.

However in the written submission lodged on behalf of Stephen Brady, the Official Secretary (left), Justin Hyland, Senior Executive Lawyer Australian Government Solicitor, after noting ".. it is not possible to request access to documents of the Secretary of the Order of Australia," indicated a change of thinking on the issue of the application of the Act to documents held by the Secretariat:

However in considering the matter further, we have noted that the documents in question are in fact in the physical possession of Honours secretariat staff,who are employed under s 13 of the Governor General Act 1974. It follows that under s 6A(2) of the FOI Act the documents are deemed to be in possession of the Official Secretary. Therefore, to the extent the documents to which access is sought relate to matters of an administrative nature, a request for access to those documents may be made.

This important principle having been accepted, another issue likely to arise in the event of further resort to use of the FOI act is the interpretation of  document relating to "matters of an administrative nature," the words used in Section 6A(1) to delimit the scope of the application of the act to documents held by the Official Secretary. This section has not been subject to judicial interpretation, although the same term is used in sections 5 and 6 regarding documents held by courts and tribunals and has been the subject of several decisions that focus on the meaning in the context of the independence of such bodies. What s 6A means is another matter, but similar issues may arise particularly regarding documents that relate to a particular nomination for an Order of Australia award.The Official Secretary of course also has available all the exemptions in the FOI act.

FOI reform voices: co-ordination and leadership missing in action

Richard Ackland in The right to know only what it wants in the Sydney Morning Herald takes The Australian to task over a suppression order sought to prevent publication of a report in which it features, because it contains ''matters critical of the conduct of the applicants that adversely affects the business and commercial reputation of the [publisher] and the personal and professional reputation of the [editor]''. In the lead in Ackland observes:

I wondered why Australia's Right to Know Campaign had gone a bit quiet. This is the outfit driven by the main newspaper groups (including Fairfax) and broadcasters to lobby for fewer legal impediments that get in the way of reporters' access to information. A quick check of the Right to Know's website shows the last big thing to happen was a big free speech jamboree in Sydney a year ago. There have been no papers, reports or analysis since 2008. Maybe it's because The Australian newspaper has decided to change sides and go into the suppression business.

By chance I had written this week to a prominent player in the ARTK group raising similar issues and lamenting the fact that they didn't play harder and more visibly on Freedom of Information reform on a national basis, going  way back to the election of the Rudd Government.

A vigorous campaign would have involved enlisting allies to the cause, seeking to better inform the public about the importance of this issue, and  mounting a collective professional effort to go for gold on the reform front. The few voices that spoke up were all over the place, leading the Senate Committee to observe recently that there were many suggestions for changes to the reform bills, but no agreement on what should be changed, therefore there was no point in or time to consider them seriously, including most of those put forward by ARTK.  And of course many didn't speak up at all. ARTK three years after it formed has no web presence, no publicly available collection of submissions, no scorecard of performance, no coalition partners. There has been no movement on reform in Victoria, SA or WA  and NSW has stalled since the departure of Premier Rees..

Ah what might have been. But there is plenty that could be done before the swords are sheathed to await the "comprehensive" review of the Commonwealth act set for two years after the current reforms before parliament commence.

For example, Louise Milligan of the Seven Network, in today's Australian comments in Victoria is too secretive for the public good on the state's place in the FOI/ openness pantheon-and it's way behind others in her experience

I have discovered that the Victorian government and its agencies are perhaps the slowest and most obstructionist of any in the nation...its politicians and bureaucrats are guilty of a control freakery that would have made Sir Joh blush. It's odd, too, given that the Bracks, now Brumby, government, came to power on a promise of renewed democracy after Jeff Kennett.

Victorians have always liked to think that their state lacked the corruption and cronyism seen in the past in Queensland, NSW and Western Australia. But with the shutters being constantly pulled over their eyes, how would they know? It's an insult to their collective intelligence that this continues.

A suitable next front for a reform campaign, with some grunt, public profile and a collection of shoulders to the wheel?

 

Integrity could benefit from twice promised ALRC review of private sector disclosures

Ross Gittins in Integrity flourishes in openness  in the Sydney Morning Herald found an eye-opener in a new book, The Economics of Integrity, by the New York journalist Anna Bernasek, published by HarperCollins: markets and everyday transactions are based on mutual trust and confidence. It's a point that's also true about dealings with government. And a reminder that kicking around somewhere within government are terms of reference, initially promised before the end of last year, for an Australian Law Reform Commission inquiry into private sector disclosures.

NSW leaders to go at it, hopefully with a nod to FOI reform

Tomorrow NSW Premier Keneally and Opposition leader O'Farrell are in debate (on Sky) one year out from the NSW election.  I'm hoping the stalled NSW Freedom of Information reforms get a mention. As noted in February the Premier has said nothing on the subject that I'm aware of since she came to office, thereby sending a different message about the pace and scope of anticipated change after predecessor Rees used a megaphone to foreshadow what was to be expected from the commencement of the GIPA act. Nothing along these lines from the minister responsible, the Attorney General either.

Today's Telegraph includes the following Q&A in advance with O'Farrell, but no similar question was put to the Premier.  And yes, we've heard plenty of this from opposition leaders over the years. The new yet to commence law passed by Parliament last June is reasonably good, and the yet to be appointed Information Commissioner that the Government has been searching for since last September hopefully will make some difference before next March:

(Q ) What will you do, immediately, if you are elected in March next year, to gain the trust and respect of the people of NSW?

( A ) I understand the community's loss of confidence in public sector decision making and, if entrusted with the position of premier, I am determined to head an ethical, honest, open and accountable government -- in which decisions are made on the basis of public interest every time. I will put the community first. I have announced a series of measures we will introduce to increase the accountability, honesty and integrity of government, including campaign finance reform, upgrading Freedom of Information and Whistleblower laws, strengthening the Independent Commission Against Corruption and the NSW Audit Office and examining the application to NSW of a recall election mechanism.

Government response to Senate Committee

The Government's response to the Senate committee report on the Freedom of Information reform bills has been released, with circulation of Supplementary Explanatory memoranda. With regard to the major issue of contention, as far as the Committee was concerned, the change of onus in the Tribunal to the party that seeks review, the Government proposes removal of the concept of onus altogether from both Information Commissioner and AAT review.  Minor issues are conceded such as the designation of  the Commissioner as Australian Information Commissioner and an appointment for the office holder to the Administrative Review Council. Two errors and oversights in the legislation are addressed.

Whether the onus issue proposal is enough to get this across the line in the Senate remains to be seen. The Committee wanted the status quo retained- with onus in the AAT on the agency or Minister.(Correction:I had a "moment" here-the Committee recommended removal of onus in the AAT. The Dissenting report dismissed the idea.) I'm struggling to see how removal of onus might work in practice in the interests of achieving the object of the Act-it seems entirely dependent on the Commissioner or the Tribunal holding the agency fully to what the law will state is an obligation to use best endeavours to assist in reaching the correct decision. Nothing has been said publicly about the other issue in the report suggesting another look at fees and charges, or concerns raised in the opposition Dissenting report or by The Greens Senator Ludlam.

On the main bone of contention the FOI bill the Supplementary Explanatory Memorandum states:

The amendments propose that the concept of onus be removed altogether from both an IC review and AAT review. The concept of onus was inserted into the original FOI Act because of a concern that the FOI applicant does not have access to documents claimed to be exempt. However, this justification does not recognise that the AAT has the power to make a new FOI decision and that the safeguard for an FOI applicant is that the AAT has the power to require production of exempt documents in order to make its decision on whether the document is an exempt document. A further reason to remove the concept of onus in FOI review proceedings is that it has an adversarial context which is more readily acquainted with civil litigation and criminal prosecutions which involve the exercise of judicial power than with merits review proceedings.

To complement the removal of onus in an IC review proceeding, amendment (4) requires an agency or Minister to use their best endeavours to assist the Information Commissioner to make his or her decision on the FOI review application. That measure is consistent with an existing obligation that applies in AAT review proceedings and reflects the principle that merits review is an exercise of administrative power and not judicial power.

The changes to the Information Commissioner Bill, as outlined in the Supplementary Explanatory Memorandum are also minor.

Parliament resumes in May.

Actions belie big promises of open and transparent government

In a weekend in which two incumbent state Labor governments suffered swings of 7 and 12 per cent, suggesting regardless of the result both are on the nose, and the SA government without waiting for the poll to be declared, is in the news today kicking off a Labor listens" campaign, commentary in the weekend papers about developments in other jurisdictions wasn't encouraging:

Paul Austin in The Age Door shuts on open policy

"Once the champion of democratic reform, Brumby's Labor is now a liability. The John Brumby democracy project is running out of puff. Once proud champions of democratic reform, the Premier and his party are now impediments to a better Victorian polity. Brumby and Victorian Labor have a distinguished record on improving the quality of our democracy and enhancing the openness and accountability of public office - which makes it all the sadder that recent events suggest this Premier and this government have little more to offer in this sphere."

The Canberra Times Chipping away at the walls of secrecy (no link available) in welcoming the Government's plans for whistleblower protection reform, commented:

"Legislation intended to open up government in Australia to greater public scrutiny, while laudable, will not make headway unless ministers, heads of departments and senior public service managers lead by example. On most of the evidence, this is not happening. Indeed, Prime Minister Kevin Rudd last week cited cabinet privilege for his refusal to disclose letters from Environment Minister Peter Garrett regarding compliance issues with the failed home insulation program, and all governments before this one have successfully quarantined documents from disclosure under freedom of information laws, often for no other reason than a desire not to be embarrassed. Likewise, a culture of secrecy (and hostility to whistleblowers) within the senior levels of the public service is well entrenched. The whistleblower legislation will succeed in removing a chip or two from the Chinese walls erected by government and bureaucracy, but only concerted action from the top will bring them down."

 Max Suich in The Weekend Australian Spymaster stirs spectre of cover foreign activities about "the continuing and absurd shroud of secrecy that surrounds ASIS, with agents overseas, and its history" about events going on 40 years  ago, and excessive secrecy in the release of archived documents:

"In the US, it is now accepted that much of the dirty work that the CIA carried out was authorised and often ordered by the White House, from president Dwight Eisenhower onwards. We have never had any clear understanding here of what ministers have sought from the secret services and what have been independent enterprises. Nor do we have a clear account of how Australian and foreign intelligence agencies affected the political and diplomatic relations of Australia with key nations such as the US, Indonesia, China and Japan."

The Sydney Morning Herald in an editorial The case for coalmining is not entirely open cut  concluding a series on coal mining in NSW that revealed, among other things, a deeply flawed approval system that lacks transparency, and has no central body responsible for managing the process.

"..what is needed is a new spirit of openness and transparency in the mining approvals process. The government is merely the custodian of natural resources, which it only owns on behalf of us all. Community consultation should be a key component of government decision-making right from the start, before a licence is granted. For too long the balance of power has been stacked in favour of mining companies and against local communities. A website giving transparent, up-to-date information about all upcoming licence tenders and mine proposals should be established as a first step."

You would think this would be a walk up, even before the start of the new promised era of proactive disclosure under new laws, sadly yet to take effect.

NSW laws not to commence "soon"

NSW Attorney General John Hatzistergos had more to say when asked a Dorothy Dixer about Freedom of Information reform in Parliament yesterday  (Hansard 12). Without actually mentioning a date its clear from his remarks that the Government Information (Public Access) Act can't start anytime soon, with the words used to date, "in the near future" and "early 2010," now  replaced with "later this year."

The reasons given were matters raised in two NSW Law Reform Commission reports also tabled on which the Attorney said it was important to "consult widely and publicly on the issues raised." One of these reports was completed in December, the other in February, so urgency isn't apparent.

From a quick read of the reports there are a couple of issues that need to be addressed before commencement ( the structure of the Information Commissioner Office with integration of privacy through a Privacy Division headed by a Privacy Commissioner with statutory functions, not exactly a new idea and the model floated by the Commonwealth in its reform package in March 2009; and the inclusion in privacy law of two different processes for dealing with amendment of records, obviously an error), but much of  the rest as the Commission indicates, could wait until the statutory review of the GIPA Act required by the law itself down the track. As to identified problems in NSW privacy laws, those the Commission notes and many it doesn't have been apparent for the last 10 years. Here is what the Attorney said: 

Report 125, entitled "Offices of the Information and Privacy Commissioners", makes 18 recommendations dealing with the institutional structure of the Privacy Commission and the Information Commission. Significantly, the report recommends that there be one commission headed by the Information Commissioner that contains a privacy division headed by the Commissioner for Privacy, who would also be a deputy information commissioner. Report 126, entitled "Access to Personal Information", makes 17 recommendations dealing with access to personal information under the Privacy and Personal Information Protection Act 1998 and the new legislation. Significantly, it recommends that various regimes dealing with access and amendments to personal information should be consolidated so that there is one clear avenue for people to gain access to and to amend their personal information. I am tabling the reports in advance of a detailed Government response to each recommendation because it is important that we consult widely and publicly on the issues raised.

One important issue that the Law Reform Commission considered was models for integrating the Privacy Commission's and the Information Commission's offices and functions. The Law Reform Commission looked at models in other jurisdictions and put forward a recommended model. It is proper that I make the report public and consult with the incoming Information Commissioner on the model prior to committing to one option or another. It is intended that legislation be introduced later this year dealing with some key recommendations and more will probably be introduced in the following months.

NSW Greens Lee Rhiannon MP Lee Rhiannon criticised the delay in commencing laws passed by Parliament in June 2009, in appointing a permanent Information Commissioner and in educating the public about the new scheme.

"Since Nathan Rees' departure as Premier there has been not a word from Kristina Keneally on this important area of government accountability, with the public left to use the shoddy old laws. "This legislation is too important to sit idle. It was to be the sign of the NSW government entering a new era of openness, but change has stalled. "The new FOI laws require the proactive publications by government agencies of information on the web. "Without these new laws the lights will be continue to be kept dimmed on the operation of government," Ms Rhiannon said.

Whistleblower scheme details include a few qualifications on Dreyfus.

On the Government response to the Dreyfus Report on whistleblower protection, I'm happy to go with experts like Dr AJ Brown of Griffith University and others quoted in today's Australian saying the scheme as outlined is close to world best practice. Some points from my reading suggest the devil as usual is in the detail and some responses won't please everyone. There are qualifications on protected disclosures to the media that don't seem to have been mentioned in the first wave of media euphoria at the result. Unions, and I expect some members won't be happy at the response to Recommendation 25. The Minister says we can expect a bill to be on  the already crammed legislative agenda this year.

FOI reform in NSW..ditto

Then there's NSW where the process of finding an Information Commissioner commenced in September last year, with still no announcement of an appointment, and a new act passed the Parliament in June last year but is yet to commence. This Q&A in Parliament on Tuesday were the first words, few as they are, from the Attorney General on the subject:

 FREEDOM OF INFORMATION

Ms LEE RHIANNON: I direct my question without notice to the Attorney General. When will the Government's new freedom of information legislation, the Government Information (Public Access) Act 2009, commence? When will a permanent Information Commissioner be appointed?

The Hon. JOHN HATZISTERGOS: I anticipate an announcement in relation to that matter will be forthcoming soon.

FOI reform...still coming

With Federal Parliament about to take a seven week break, the fine print of Minister Ludwig's comment on the Senate Committee report this week on Freedom of Information reform legislation that "the Government hopes to have the Bills before the Senate next sitting" is another reminder of the slow tortuous process associated with what the Government called in its first year in office a "high priority reform." It looks like it will get across the wire in year three, hopefully, if the shoals of a Senate in which it doesn't have the numbers are negotiated. That situation was a reality from day one. A better job in getting cracking on this earlier than the 16 months before there was a public peep, and in the process of consulting, responding to suggestions and facilitating public debate might have paved the way for a smoother run at this last hurdle. Passage of the bills after changes to attract the necessary votes from the other side of the chamber, will also depend on these reforms getting a slot in a very crowded Budget pre-election agenda. All in all not a great process.

Praise for whistleblower protection proposals that deliver Dreyfus +

The Commonwealth Government in responding to the Dreyfus report on whistleblower protection has accepted 22 of the 26 recommendations (detail on this not yet available) and, as reported in The Australian, won praise  from whistleblowers and legal academics for delivering a scheme that goes beyond the more limited schemes in force in the states, and addresses what was seen as a flaw in the report, extremely tightly drawn circumstances that would justify a public or media disclosure of wrong-doing.

"It is close to world's best practice," said legal academic A.J. Brown. "It will change the culture of government," said Peter Bennett, president of Whistleblowers Australia..... The government plans to introduce an internal system for handling public interest complaints within the bureaucracy that will involve every agency in the federal public service. If that system fails to address concerns about serious matters in a "reasonable" time, public servants will be given legal protection if they tell the media or anyone else. The scheme would also protect .. a smaller category of public servants who bypass the internal system and go directly to the media with public interest disclosures ..whenever exceptional circumstances exist, in cases where a public servant believes on reasonable grounds that there is a substantial and imminent threat to people's lives, health or safety."

The proposal appears to meet the Australian Law Reform Commission call  in a report released last week for a "robust" protection scheme.

Chris Merritt says the proposal passes the "Kessing test" and identifies only two gaps in the armoury: silence to date on compensation payable to those public servants who are victimised for using this new law to reveal maladministration, and the unfulfilled promise of the government on a related matter,  shield laws for journalists' confidential sources, where a bill which some argue doesn't go far enough is still stuck in parliament. Merritt reports calls for the states to lift their game in the light of this Commonwealth lead, but makes no mention that although it has many problems particularly in implementation, the NSW Protected Disclosures Act protects media disclosures in certain circumstances similar to what is proposed, and has done so for the last 15 years. The act provides that, in order to be eligible for protection, public officials making disclosures to members of Parliament or journalists must have already made substantially the same disclosure to an investigating authority or public authority, and the authority to whom the disclosure was made must have: decided not to investigate; or not completed the investigation within six months of the original disclosure being made; or investigated the matter but not recommended any action to be taken in respect of the matter; or failed to notify the person making the disclosure whether the disclosure would be investigated within six months of the disclosure being made.


When Hansard becomes available later in the day what Dreyfus recommendations, other than the public disclosure, weren't accepted will be clearer.

FOI Reform Bill to face opposition in the Senate

The Senate Finance and Public Administration Report on the Freedom of Information Reform (Amendment) Bill and the Information Commissioner Bill tabled in the Senate today suggests the Government has some negotiating ahead to get the legislation passed. Given the current political climate, it's no surprise that while the  report recommends passage of the bills subject to some changes, and Greens Senator Ludlam is generally supportive but raises some other issues, the Coalition Senators' Dissenting Report ( Senators Ryan and Brandis) opposes the FOI bill in its current form. The Government's response is awaited.(Update: AAP reports Minister Ludwig said Labor would now examine the best ways to implement the report's recommendations.)

The six recommendations (see below) in the report pick up on a mix of important  and not so important issues.  A whole raft of other matters of significance have gone through to the keeper. The Committee notes [Chapter 3] the many different issues raised in submissions and evidence, and that there was little consensus on what should be amended. True, but as pointed out here previously most of those interested ran arguments for changes that had been submitted to the Government a year ago and had never received the benefit of discussion, comment or explanation on why if acted upon they wouldn't improve the legislation. So they ran them again, unfortunately with the same result.

At the end of the day, as the Committee notes, those who took an interest think the bills are good and welcome and want the legislation passed in this parliamentary sitting. Many of those ideas that came from outside the inner circle that has largely shaped the reform effort will have to wait for another day.

The discussion [3.22-3.48] of whether the bills "contain measures effective to ensure that the right of access to documents is as comprehensive as it can be" notes some of the weaknesses and gaps raised and enhancements proposed in submissions and evidence, but without much reasoning, concludes everything is basically OK, and recommends the Information Commissioner have a look in due course at whether exclusions of agencies from the scope of the act (such as the parliamentary departments and intelligence agencies) is necessary and appropriate.

The suggestion that retention of application fees and abolition of charges [3.50] would be a better answer to the cost barrier to use of the act than what the Government proposes, gets some support in all three reports. Senator Ludlam says he wants a response on this (mainly relevant to a regulation not yet promulgated) before a vote on the bill.

The onus of proof issue in the AAT gets close attention [3.64] and I think Senators Ryan and Brandis have a point that the Committee's recommendation that onus be removed from the act doesn't seem to solve the problem, seems inappropriate in the FOI context, and begs the question what procedure would be followed. They oppose Recommendation 4. The  report [3.80-3.82] says my concern that an agency right to a second merits review by the AAT could lead to delay tactics, should be assuaged by the requirement for an agency to comply with model litigant provisions (hmm), although the Coalition senators see something to this.

The report [3.90-3.102] gives the proposed Information Commissioner model a tick, but expresses concern [3.104-3.108] about adequate resourcing. 

The recommendations are:

ALRC on secrecy No 3:assorted other issues

Other bits and pieces from the Australian Law Reform Commission Report Secrecy Laws and Open Government in Australia (posts 1 and 2 if you missed them). The  unspecified contribution to the culture of secrecy of the practice of requiring of an officer an oath that goes beyond the strict letter of the law is of particular interest. That's on top of 500 odd secrecy provisions to start with.

Senior management should be held to account
 15.13 The ALRC continues to see the benefits of including in the performance agreements of senior officers in Australian Government agencies a responsibility to ensure efficient and effective information-handling practices. As noted in ALRC 77, giving tangible incentives to staff to pay greater attention to, and to improve, an agency’s information-handling practices will increase the likelihood of cultural change.

Staff need more guidance on information handling

Recommendation 15–1 Australian Government agencies should develop and administer training and development programs for their employees, on induction and at regular intervals thereafter, about the information-handling obligations relevant to their position, including the need to share information in certain situations. Programs should also provide information about how employees can raise concerns and make public interest disclosures.

Oaths of secrecy should be limited to obligations at law

15.28 Approximately 8% of the secrecy provisions identified by the ALRC— predominantly in laws governing taxation and revenue-protection information— empower a specified person, or persons, to require officers to take an oath or make an affirmation of secrecy. Secrecy obligations may also be included in the oaths of office required for assuming certain public positions, such as the oath taken by Executive Councillors. In addition to conduct covered by these legislative provisions, some agencies have taken administrative action to require officers to sign an acknowledgement of their secrecy obligations.

15.30 The ALRC has heard anecdotally, however, that some Commonwealth employees have been asked to sign oaths that set out substantially more stringent secrecy requirements than those that apply under relevant Commonwealth laws.

15.35 In DP 74, the ALRC expressed the view that the relevant Australian Government agency should retain the discretion to administer an oath or affirmation of secrecy, in accordance with any legislative provision. However, the ALRC proposed that where an agency decides to administer such an oath, it should ensure that it is an accurate reflection of the requirements under relevant Commonwealth secrecy laws. In particular, the ALRC was concerned about the potential for oaths and affirmations to set out broader or more onerous obligations than the secrecy laws on which they are based.

Recommendation 15–2 Any Australian Government agency that administers oaths, affirmations or declarations of secrecy should ensure that these properly reflect what is required under relevant Commonwealth secrecy laws.

Changes to Archives Act

The taxation specific secrecy provision in the act [Recommendation 16–5 ], Section 33(3) should be repealed.

And current uncertainty about the relationship between the Archives Act and secrecy provisions in other acts should be removed:

Recommendation 16–6 The Archives Act 1983 (Cth) should be amended to provide that the public access provisions of the Act override any secrecy provisions that would otherwise apply.

ALRC on secrecy No 2: FOI issues

Freedom of Information related issues feature prominently in the Australian Law Reform Commission Report Secrecy Laws and Open Government in Australia released last week (see earlier post). Chapter 2 discusses secrecy in the context of open government; Chapter 14 provides a framework for effective information handling; Chapter 15 addresses the associated culture change issues; and Chapter 16 examines the inter-action of secrecy provisions with the FOI, Archives and Privacy acts, and with claims of parliamentary privilege.

Section 38 to stay

Of particular interest is the change of heart by the Commission on the preliminary view expressed in its Discussion Paper, Review of Secrecy Laws (DP 74), that section 38 of the FOI act which currently provides exemption for information of the kind referred to in specified secrecy provisions in other acts, should be repealed. The Report notes:

 16.82 Two competing views were evident in submissions. On the one hand, there was support for the proposal to repeal the secrecy exemption on the basis that this would promote open government, and that other exemptions in the FOI Act provided sufficient protection. On the other hand, a number of agencies were concerned that the repeal of the secrecy exemption would leave insufficient protection for their information holdings. Particular concerns were raised by regulatory agencies that handle large amounts of personal and commercial information.

Agencies won out. The Commission [Recommendations 16-1 to 16-4] says Section 38 should be retained:

16.83 The ALRC has considered the secrecy provisions that currently invoke the exemption, and is persuaded that the exemption has an ongoing role to play. Particularly compelling in this regard are secrecy provisions which apply to a confined class of highly sensitive Commonwealth information—such as those included in the Civil Aviation Act 1988 (Cth) and Telecommunications (Interception and Access) Act 1979 (Cth). As set out in the Queensland Government’s response to the Solomon Committee report, these matters ‘require an absolute guarantee of confidentiality to ensure upfront public confidence and participation in certain processes of government’

There is a question whether some of the 65 provisions of other acts that currently are linked to the s 38 exemption meet this "highly sensitive" standard. In the FOI reform bill currently before the parliament no relevant amendments have been proposed, so re-examination of schedule 3 is another issue to be pencilled in for phase three of the reform process two years down the track.

Some fine print that hopefully won't be missed includes:

16.84 The recommendation that the exemption should be retained also recognises the fact that numerous other recommendations in this Report seek to narrow the scope of secrecy provisions, including, in most circumstances, linking them to an express harm requirement. Implementation of these recommendations will help to minimise the potential incursion of the secrecy provision exemption on the principle of open government. However, the ALRC considers that additional reforms are needed to ensure that the exemption does not operate to reinforce a ‘culture of secrecy’.
16.85 First, the secrecy exemption should be amended to include a definitive list of secrecy provisions that operate to conclusively override the FOI Act. This ensures that the minister responsible for administering the FOI Act is involved in the decision to include any secrecy provisions on the list.
16.86 Further, ministers who wish to add a secrecy provision to the list of exemptions should be required to assess, and put on the public record, the potential impact of the proposed amendment on the scrutiny of government action. Such an assessment could be included in the explanatory memorandum to ensure parliamentary scrutiny and debate. Among other considerations, relevant factors would include the breadth of the class of information to which the secrecy provision applies, and the likely relevance of the information for public scrutiny of government action.

Turning the schedule attached to s 38 into the "definitive list" would  mean the end of the practice of putting other provisions in separate legislation that give effect to the section and override the FOI act. The ALRC discovered [16.24] four such provisions: National Health Security Act 2007 (Cth) s 90; Australian Prudential Regulation Authority Act 1998 (Cth) s 56; Superannuation Industry (Supervision) Act 1993 (Cth) s 252C; Reserve Bank Act 1959 (Cth) s 79A.

The Commission declined to follow the NSW and Queensland precedents that give weight  to the existence of a secrecy provision in another act not specified in the FOI act as a  consideration, to be weighed along with other relevant factors, where a public interest test applies. The report recommends an amendment to the FOI act to provide that the act overrides obligations of non-disclosure in other legislation. Other exemptions apart from s 38 of course, depending on the content of a document, might still apply.

As long as there is some serious sorting out of the current schedule, and a vigilant guard is forever on duty to stop further creep through observance of the process recommended for any attempt to add to it, this isn't a bad compromise.

Two other issues of direct FOI relevance:
The discussion of the role of oversight bodies [15.57] including the Information Commissioner and this recommendation:

Recommendation 15–4 The Information Commissioner should review and report to the Minister on the information-handling policies developed by Australian Government agencies in accordance with Recommendation 14–1 and any relevant employee directions.

And discussion of protections for disclosure [16.93] including the following recommendation, which I think reflects what is proposed in the FOI reform bill:

Recommendation 16–3 Sections 91 and 92 of the Freedom of Information Act 1982 (Cth) (FOI Act) should be amended to extend the indemnities from civil and criminal actions to authorised FOI officers who:
 (a) disclose an exempt document under the FOI Act pursuant to a bona fide exercise of discretion not to claim the exemption; or

(b) disclose a document other than under the FOI Act provided that:
(i) the document would not have been exempt had it been requested under the FOI Act; or

(ii) the disclosure would have been a bona fide exercise of discretion not to claim an exemption had it been requested under the FOI Act.

Sunshine Week and the never-ending story

It's Sunshine Week in the US, again leaving those here who would like to see media organisations really step up to the plate on the public's right to know and why it's important, green with envy at the resources, professionalism and wide scope of and support for the initiative. The unfortunate news is the poll published there today that shows the public thinks government secrecy is as strong as ever.

The National Security Archive  has also published the result of an audit of agency compliance with President Obama's directive on openness.

The Obama administration "has clearly stated a new policy direction for open government but has not conquered the challenge of communicating and enforcing that message throughout the executive branch," the report concluded.

Those here faced with the same challenge should note what appears to have happened when the writtten directives were issued last year by the President and Attorney General to agencies to do things differently:

Some agencies (13 out of 90) implemented concrete changes in practice as a result of the memos; some (14 out of 90) have made changes in staff training; and still others (11 out of 90)  have merely circulated and discussed the memos. The remaining agencies (52) either told the Archive that they have no records that demonstrate how they implemented the Obama and Holder Memos or did not respond at all to the FOIA request.

Update:The White House commented in this New York Times report on the audit:

"The White House, however, took issue with the group’s methodology and said that the administration had made clear progress in turning around an executive branch that is often averse to public disclosures. “What we have done this year is to build the infrastructure to build a lasting change,” Norm Eisen, the special counsel to the president for ethics and government reform, said Sunday.

“It’s not enough for us to make initial, strong pronouncements. How do you really turn the battleship to achieve a lasting impact?” he asked. He said that throughout the executive branch, public information officers “are really trying to turn that battleship, and the initial returns are positive,” with more documents being released in the last year under Freedom of Information Act, or F.O.I.A., requests. But “there’s much more to do” and it will probably take another year before the changes are fully seen, he added. Even so, he said that the White House’s early data suggested more reason for optimism than the National Security Archive report in tracking progress under the Freedom of Information Act.".. The administration planned to release a broader report on government openness next month.."

Tony Fitzgerald speaks in the search for a Button and a Missen

There aren't too many respected voices on the issue of integrity up there with former anti-corruption Royal Commissioner and judge Tony Fitzgerald QC, so these comments  about the state of the game in a speech reported by ABC News  deserve attention:

"Decisions favouring special interests are common. Secrecy and misinformation, euphemistically called 'spin' are routinely employed," he said."Media management as it's called, insults and confuses the electorate, which is denied the comprehensive accurate information which is essential to the proper functioning of democracy. "Most, if not all conventions concerning standards of political conduct, which the Westminster system once incorporated, such as ministerial responsibility are obsolescent.".. "The prevailing political culture is increasingly amoral with each party lowering its standards, exploiting gaps in the law and disregarding ethical standards in order to compete."... "I suppose my concerns are really more with Commonwealth and State governments than with local authorities, although obviously the integrity of local authorities is of paramount concern to local residents."

Fitzgerald was launching an initiative of the Accountability Round Table, designed to reward Federal politicians for honour and integrity, with nominations closing 11 April. Criteria for a Button, for ministers and frontbenchers, named for the late John Button (left) or a Missen (the late Liberal member from Victoria Allan Missen, a powerful  and persistent voice for FOI in the 70s-80s, amongst other causes) for backbenchers are below. Laurie Oakes scratched his head to come up with only two potential nominees, Defence Minister Faulkner for his reform initiatives as Special Minister of State, and Liberal backbencher Petro Georgio. Olga Galacho in the Herald Sun wonders if anyone can meet the standards, and definitely rules out Science Minister Kim Carr.  Readers' comments (within the bounds of the law, please) and suggestions welcome.

The award winner will, in the relevant period, have demonstrated an outstanding commitment to the public interest in the performance of his or her role with Honesty, Civility, Independence and/or Political Courage, in one or more of the following areas
•    Supporting the principles and practice of transparent and accountable government
•    Contributing effectively and constructively to parliamentary debate, committee deliberations and/or policy development in a way that promotes and/or supports good parliamentary practice and the institution of parliament.
•    Pursuing a change in government policy or practice whether generally or in response to a constituency issue or injustice.
•    Protecting peoples’ political and civil rights