The stats tell the story - the OAIC annual report

The Office of Australian Information Commissioner Annual Report 2011-2012 covers the first full year of operation of the office and incorporates this year information collected from ministers and agencies concerning management of the freedom of information function. In previous years the latter was the subject of a separate dedicated report. It is not as detailed in this new arrangement, but still enough for most of us I expect. (Update: the detailed statistics are published online.)

In addition to the facts and figures, the report shows the commissioner's reasonably upbeat as you might expect.  Australian Information Commissioner Professor McMillan notes access to information issues now have greater prominence in government:

There is a marked increase in FOI requests for policy-related material, an upswing in applicants challenging access refusals through the OAIC’s independent complaint and review processes, and more media reporting based on documents obtained by FOI requests.

Freedom of Information Commissioner Dr Popple believes that the reforms have been successful, mostly:

Most agencies and ministers have demonstrated an understanding of their obligations under the Act to facilitate and promote public access to information, promptly and at the lowest reasonable cost. Many parts of government have embraced the Act’s objective: promoting Australia’s representative democracy by increasing public participation in government processes and increasing scrutiny, discussion, comment and review of government actions. However, some agencies have made decisions, or dealt with FOI applicants, in ways that
are at odds with the pro-disclosure culture that the FOI Act promotes and requires...Agencies do not always take reasonable steps to assist applicants to make their FOI requests, as agencies are required by the Act to do.

Dr Popple identifies a number of technical deficiencies in the FOI Act, in provisions dealing with (for example) charges, third party consultation, extensions of time and IC review of practical refusal decisions that will be raised for consideration in the statutory review of the act to be conducted in 2012–13.

Privacy Commissioner Pilgrim admits to being faced with a challenge:

Privacy issues featured prominently in public debate during the year just passed. Unfortunately, much of this resulted from incidents in which peoples’ personal information was compromised, often on a large scale.

The following items of interest (well, you know what I mean, for those really into this) are drawn from the report, together with my comment here and there. (Sean Parnell's shorter summary here.)

Queensland, bring on the information revolution, hold the rhetoric

Queensland is the latest to hop on the open data bus with Premier Campbell Newman announcing the appointment of a new Assistant Minister to the Premier on e-government, to drive the government's  ‘open data revolution’, "all part of meeting the LNP’s commitment to restoring accountability in Government.” In addition to the appointment of Mr Stevens as Assistant Minister, an Open Data Reform Group will be formed that will include the Director-Generals of all Queensland Government Departments to lead the culture change across government".

In this appearance before the Parliamentary Estimates Committee the same day transcript - FAC Proof the Premier upped the revolution to rhetoric (emphasis added):

"What we propose to do is really throw out everything that the government has onto a new website to ensure that Queenslanders can scrutinise this government, can look into every nook and cranny of what is going on, to ensure that they are totally informed. We are modelling this on some of the groundbreaking things that are going on overseas. I particularly draw the committee’s attention to the New York City open government initiative, where there is a wealth of information that has now been made available to the citizens of that city.
Why are we doing this? I have talked about the fact that we need to be open with Queenslanders, but there is a whole range of benefits that we believe will apply. Once upon a time—over 100 years ago—governments often granted land as a way of stimulating the economic development of this state. Today in the information age by releasing information we believe that will actually stimulate the economy and stimulate improvements in productivity.
So what is this all about, to get into the nitty-gritty? Well, imagine in a few months time when this has really started to get a head of steam. We propose that you will be able to find out where the speed cameras are located. You will be able to find out the hospital emergency statistics and general statistics on the performance of our hospitals. You will know the electricity consumption of the various state schools and government departments. You will have access to the traffic counts done by the Department of Transport and Main Roads. There will be a wealth of information out there.
How does that help the community? If you are a transport logistics company, having the traffic counts and the most recent information available free of charge on the government website will mean that you will be able to re-plan the way your business operates ensuring that your trucks avoid roads during congested periods and the like. This is going to be a very exciting thing.
Perhaps before I close I can talk about what has happened overseas. We are seeing very significant savings in the United States. For example, in Texas they reported $8.7 million in savings directly attributable to their transparency website in just the first year of operation. I quote from the Sydney Morning Herald and this is what we will be doing with financial information—
Opening the government books to an army of online citizen investigators has uncovered waste and duplication and made junkets or pork-barrelling spending near impossible. Corruption and rorting cannot occur when the records are freely available. Sunlight truly is the best disinfectant.
I am really delighted that Ray Stevens has taken up this challenge, and I know that this is going to be a quiet revolution in the state of Queensland. "

Clayton Utz suggests a few things that need to be sorted before this becomes reality.

No mention in the Premier's remarks of the Information Commissioner's role in any of this.The position previously filled by the highly regarded Julie Kinross who had plenty of experience plugging away at the culture change, is apparently still vacant.

I'm sure the Premier isn't into fads or as some are suggesting the "faux transparency" of open data, and can connect the dots between initiatives to ensure "Queenslanders can scrutinise this government, can look into every nook and cranny of what is going on, to ensure that they are totally informed" and the Right to Information Act. As Kinross noted in her annual report this year just before finishing up, when it comes to implementation:

The culture of the public sector remains a key challenge. A compliance approach where open government performance measures are included in chief executive officer and senior executive staff contracts is necessary if the culture is to be changed over time.

The RTI act itself includes some provisions that unduly constrain Queenslanders looking into every nook and cranny to ensure that they are totally informed- absolute exemptions for incoming government briefs, and for information concerning incentives granted to business for investment in the state (for seven years thereafter), and exclusion from the RTI act entirely for the parliamentary departments which pay entitlements to parliamentarians, to mention just three.

In opposition at least Mr Newman's Attorney General was hot to trot to ensure other nooks and crannies were open to scrutiny, introducing legislation that went nowhere at that time:

The Right to information (Government-Related Entities) Amendment Bill 2011 will restore transparency and accountability by extending the meaning of a public authority to include any corporation supported directly or indirectly by government funds or other assistance or over which the state, a minister or a department is in a position to exercise control.

As Brisbane lord mayor Mr Newman also had some form on open government. In that role in 2010 he was successful in persuading the Government to legislate to give Brisbane City Council's Establishment and Coordination Committee the same status for RTI purposes as the state cabinet. The legislation also gave all local government authorities in Queensland an exemption from the RTI act for "information brought into existence in the course of a local government’s budgetary processes" for 10 years, a wonderfully wide and generous provision.
 

Up the revolution!

Parliamentary Budget Office FOI gap

As previously noted the Parliamentary Budget Office was from establishment made exempt from the Freedom of Information Act but eagle eyes have spotted a gap- the act does not  provide a specific exemption for documents relating to requests from the office that may be held by departments and other agencies, and presumably it may be a struggle to apply other available exemptions. 

Attorney General Roxon yesterday in moving the Freedom of Information Amendment (Parliamentary Budget Office) Bill 2012 said:

As a result, requests for information made to agencies by the Parliamentary Budget Office, and information provided to the Parliamentary Budget Office by agencies, may not be as fully protected from release under the Freedom of Information Act as they ought to be to give effect to the Parliamentary Budget Office's special position. In addition, freedom of information requests may be made to agencies for the sole purpose of finding out whether or not the Parliamentary Budget Office has received a confidential request in relation to a particular matter. A response from an agency that documents could not be released because a relevant exemption applied would in effect confirm the existence of the documents and the fact that a confidential request had been made to the Parliamentary Budget Office.

The bill provides an exemption for information held by departments and agencies that relates to a confidential request to the Parliamentary Budget Office. Presumably the Opposition, yet to speak will be all in favour even though they are yet to commit to submitting policies for costing in the run up to an election.

This might have been a convenient opportunity for the Attorney General to also seek to redress the anomaly (her spokesperson's word) that first emerged in June that the three other parliamentary departments are subject to the act, by moving an amendment. Perhaps the failure to do so signals that wise heads on reflection recognise these agencies should be no different to executive government agencies when it comes to accountability and transparency.

Thanks to Open Australia for the Hansard link

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.

Cosy opaque deals with business don't fit 21st century standards

Penny Mayes

The dust up over the mistaken release of some documents concerning car industry subsidies to the Australian Financial Review is still before the Supreme Court. The court is unlikely to examine the decision under the Freedom of Information Act to refuse access to certain documents that the AFR reports were claimed exempt on grounds that disclosure would damage international relations or involve release of  information obtained in confidence from the car manufacturers.

It isn't clear what the agency released, withheld and then in error gave the AFR. Regardless of whether the decision was in accordance with the exemption provisions of the act, a broader issue about transparency regarding the use of public money warrants discussion and debate. Put simply, those who receive large slabs of public money should be required to agree as a condition that the amount, the reasons for the payment and the anticipated returns will be made public.

The issue is getting a run in the business pages of Fairfax papers but deserves wider consideration. It probably won't get it at the top end of town where for years business lobbies have sat out discussion of accountable and transparent government only to chime in occassionally to argue the importance of protecting from disclosure the very sort of information Holden, Ford, and Toyota are keen to protect in this case.

 Bill Scales a former chairman of the Industry Commission and one time chairman of the Automotive Industry Authority wrote in the AFR last week that the case raises issues about the way that we want to be governed into the 21st century.

It’s about the right of Australian citizens to know, and the responsibility of governments to disclose, the actual level of specific industry assistance provided to these three companies. And importantly, what Australia can expect to receive in return from devoting a very large amount of scarce taxpayer funds to these three companies, rather than to some other national priority...
One element of our rapidly changing world is the desire for greater transparency in public discourse. We are living at the beginning of an open access world where the availability of reliable information is seen as an important characteristic of good government, governance and public policy. And yet in relation to company-specific industry handouts, Australia is operating in a schizophrenic political and policy environment.
Australian public policy should be changed so that firms receiving company-specific subsidies should agree that all information about the amount of any subsidy, the rationale for the subsidy and the likely economy wide benefits from the provision of the subsidy will be made public....
The importance of this dispute between the Financial Review and the federal government about the control of information goes beyond debates about freedom of information and industry policy. It goes to the very heart of how we want to be governed, now and in the future. Australia in the 21st century should have a strong bias towards, and a culture of, disclosure and transparency in all of our public discourse. We are part of the way there with our approach to some elements of public policy, such as education and health, but light years away from this ideal when it comes to company-specific handouts. Having a culture and practice of transparency and public disclosure when it comes to all assistance to industry is not only an investment in good government, but also our greatest protector against the insidious corruption of our important public institutions.

Michael West  in the Sydney Morning Herald contends the Department of Industry, Innovation, Science, Research and Tertiary Education is paranoid about protecting business interests and that the car makers' accounts and public relations and ''communications'' thickets are hard to penetrate. However:

The fact is, the government should not be hiding this stuff, nor chewing through taxpayer dollars trying to suppress information in the courts, information which should be public. It's in the public interest for people to know what deals are being struck with their tax dollars, especially if they are propping up purportedly unprofitable businesses....
Greater transparency is clearly warranted in the light of the findings of this Business Day investigation of the Holden, Ford and Toyota accounts. Once again, in a pattern replicated year in, year out, as much profit as appears possible has been sent offshore. The car industry, it seems, has been taking the taxpayer for a ride, an epic ride....
Above all, there is undeniable public interest in having this all out in the plain light of day. No suppression of information, and far greater transparency on the part of government and the manufacturers has to be a good thing.

At the state level there is also a tendency to treat payments to industry as sacrosanct- payments by the government to the organisers of the Grand Prix in Melbourne just one of many examples. But no-one has taken it as far as Queensland where the Bligh Government legislated an absolute exemption for seven years for information about incentive payments to an organisation for investing or spending money in the state that is intended to create job opportunities or to continue existing jobs. Holden, Ford and Toyota and lots of others would just love this, particularly if other jurisdictions would come on board.

Schedule 3 Clause 11 of the Queensland Right to Infornation Act provides that access to a document may be refused to the extent the document comprises exempt information, the definition of which includes: 11 Investment incentive scheme information 

Public interest in disclosure of source of patently false allegations

In situations where access is sought under FOI type laws to the name of a complainant and some assurance of confidentiality has been given to the confider, relevant exemptions or considerations against disclosure of identity based on protection of the source usually prevail. However in a recent GIPA act case, NSW Administrative Decisions Tribunal Judicial Member Isenberg (Fahey v NSW Office of Liquor, Gaming and Racing [2012] NSWADT 181)) decided the allegations of the complainant "which were very serious and alleged gross impropriety" by the applicant in running two local charities, were, on the whole, patently false [31], found in addition to other public interests in favour of disclosure that there is a general public interest in disclosing the identity of a complainant who makes false complaints [32], and decided that disclosure of the name in this case on balance was not contrary to the public interest [82]. The Office of Information Commissioner in an earlier review considered that releasing identifying information would reveal personal information and that, in the circumstances, this public interest consideration against overrode the public interest considerations in favour of disclosure. Judicial Member Isenberg [30] made a distinction between allegations which, while based on genuinely-held beliefs are found to be erroneous, and allegations which are malicious or which are made with disregard to basic facts.

Right to Know in pictures

 

Commiserations to those who didn't win but congratulations to those that entered and especially to the winners of the FOIANET "I have a right to know!" photo competition, in particular Ranaivosoa TOLOJANAHARY from ANTANANARIVO, Madagascar for "The other access":

"The Jury chose this picture because it illustrated the challenges faced by and the determination of those seeking information, showing a person trying to retrieve data from basic information posted on a billboard –even when the institution has closed its doors."

Privacy summit in Sydney

You may have missed the Early Bird but not too late to sign up for the iappANZ 2012 Privacy Summit on Friday 23 November, with a line up of top Australasian speakers. 

Australia slips in world FOI law rankings

 Just put it down to a bad week?

Zazzle

The Right To Information Index compiled by Access Info Europe and the Centre for Law and Democracy was updated on 1 October with Australia's Freedom of Information Act dropping two points from 86 to 84 since last year, and slipping in the rankings (now extended from 89 to 93 national laws) from 39th to 48th place. (Another doff of the hat to the Kiwis- the NZ Official Information Act scored 93 points and stands at 32 in the rankings.)

Movement in our placing may have been largely the result of improvements elsewhere but hard to find an explanation for the loss of two points - in the Sanctions and Protections category - as nothing has changed in the meantime. That category (2/8) and Scope (10/30) were our poorest but there are some tough calls in the latter. For example the assessment continues to mark us down for the exclusion from coverage of the Legislature but the parliamentary departments - for the moment at least - have been confirmed as within scope of the act since the last assessment. That should have been worth a point or two. There is other questionable scoring in this category, for example on the basis that the Governor General is entirely outside scope. While close, depending on the interpretation of "matter of an administrative nature", it's not quite right either.
(Update: the Centre for Law and Democracy tells me the points were deducted following my comment last time that the assessment had mistaken a state level whistleblower protection law for a national level one. The absence of the latter-still the situation- is the cause of the mark down. I wasn't aware they had noted my comment and accepted it a year ago.)

No names no pack drill regarding the assessor- not me. Nor Dr Johan Lidberg of Murdoch University who has been involved previously but not this time, he tells me. (Update: a desk level assessment in Canada.)

What happens in practice of course is the important test- but it's not exactly been a great week on that front here either. 

As the publishers put it:

In some cases, countries with relatively weak laws may nonetheless be very open, due to positive implementation efforts, while even relatively strong laws cannot ensure openness if they are not implemented properly. Regardless of these outlying cases, over time a strong access to information law can contribute to advancing openness and help those using it to defend and promote the right of access to information.

Shortcomings that cost the Australian law points include:

• No constitutional right of access to information;

• Blanket exclusions from the act for intelligence organisations and a range of other executive government agencies. Private sector bodies in receipt of significant government funding are not covered. All in all a deduction of 20 points in Category 2 for these weaknesses.

• Excessive "wiggle room" on time limits.

• Fees-not limited to cost of reproduction.

• The extent of secrecy provisions in other legislation.

• Broadly framed exemptions, some not based on a harm test. No universal public interest override, for example for disclosure of information about corrupt conduct.

• No sanctions for improper public service employee conduct such as undermining the act or destruction of documents. 

Australian foreign aid transparency: improving but poor

AUSAID, the government aid agency, has been ranked 18 of 72 donors in the 2012 AID Transparency Index developed by Publish What You Fund. We scored 58% against 43 indicators drawn from the standards agreed in the International Aid Transparency Initiative that AUSAID signed up to last year.

One is the quality of the Freedom of Information Act, described in our case as Average on the basis of the Global Right To Information Rating by the Centre for Law and Democracy and Access Info Europe.

The country assessment acknowledges a remarkable improvement in transparency but 58% still places AUSAID in the overall poor category. It notes Australia has not joined the Open Government Partnership (I know, I know "the matter is under discussion") - which would require us to have a national open government action plan developed in consultation with civil society, with our goals and steps to achieve them subject to international scrutiny and comparison:

AusAID improved remarkably with the third largest increase in score of all donors from the 2011 Pilot Index, having improved its score by 31 percentage points and its rank by 16 places. This improvement is largely due to its publication of activity data in IATI, resulting in AusAID scoring on 15 more indicators in the activity level than it did in 2011. However, it does relatively poorly at the country level, ranking 31st on this level, particularly when compared to its top 10 rankings for both the activity and organisation levels. AusAID’s IATI files are available in English. AusAID should continue to improve the quality and scope of its IATI data and produce a refreshed implementation schedule by December 2012. It should also endeavour to publish country level documents such as MoUs, evaluations and results consistently. Australia should also consider joining OGP.

.

Integrity missing in world class public sector integrity claim

Back in 2009 when Kevin Rudd was running the show, the goal for the Australian Public Service to be the world's best was said (by Rudd) to be a perfectly reasonable aspiration. In 2012 we're right up there, according to Special Minister of State Gary Gray who twice recently told us so in responding to comments by Jennifer Westacott about the state of the service and measures that keep ministerial staff in line.  This:

The public service is an important source of advice but it cannot alone determine the path forward, only advise on the possibilities and pitfalls while also carrying out fair and proper administration – a job the APS does, better than any other in the world. 

Alex Brollo

And in short form, in this Media Release: "Australia's public service world-class"- with special mention of integrity.

I'm confident we're pretty good in comparative terms, but world champs??

As Stephen Bartos observes in The Canberra Times today, with no corruption-fighting body with investigative powers, and no effective whistleblower protection law there are  large holes in the integrity framework. The Securency scandal suggests something world class at the Reserve Bank but in the wrong category. And there would appear to be plenty of scope for things to sail under the radar given all those contract, appointment and promotion decisions, as well as opportunities afforded by loose or non-existent laws concerning post government appointment. Not to mention gaps in the law and the odd freedom of information failing that from the outside looks awfully like gaming the system; weak lobbying and political donation rules; and antediluvian secrecy provisions such as S 70 of the Crimes Act and over 500 others identified in an ALRC report that appears to have gone into the bin.

In survey results that appeared in last year's State of the Service Report  public servants were asked about familiarity with the Standards of Ministerial Ethics, the Register of Lobbyists, and the Lobbying Code of Conduct. Around 50% in each case had not heard of them, or were not sure.  No-one was asked about familiarity with the Open Government Declaration, with freedom of information reforms of 2009-2010 or asked to respond to any questions designed to gauge general attitudes concerning open government, or appreciation of the law regarding respect for information privacy and what that entails.

World class?

In a companion piece for Fairfax today Professor A.J. Brown tries hard, very hard, to come up with an explanation for the government's foot-dragging on whistleblower protection law since 2007, just one of our long way short of top class efforts. But:

At the end of the day, there seems to be no rational reason to explain the government's slowness to introduce its legislation. That only leaves irrational explanations, which can only be guessed at.

I'm sure Minister Gray can help?

Broader issues arising from report on FOI processing at Immigration

DIAC banner

The Office of Australian Information Commissioner report on its own motion investigation into delays in processing "non-routine" freedom of information requests in the Department of Immigration and Citizenship (DIAC) provides an insight into what happened in this agency when the act was used to seek information on matters of public interest and political sensitivity. 

 

Coming on top of the revelations about the industry department last week, it didn't make for a "Right to Know Day" to remember- well remember for the right reasons at least.

 

In the 27 cases the subject of the OAIC report, information had been sought on "the development and operation of immigration detention centres, conditions of detention, the health and reported deaths of detainees in immigration detention centres and the Government's policies on multiculturalism and offshore processing of asylum claims."

 

Outcomes-what was released or withheld and the application of the law to particular documents-aren't part of this. None of the matters have been the subject of published OAIC review decisions to date. Here is one, probably part of the mix concerning access to the Serco contract as written up in New Matilda last November-certainly an abundance of caution there. 

 

On processing, it was a story of delay, delay, delay in getting to a decision. While DIAC officers have had and continue to have a lot on their plate, you have to wonder about management oversight and compliance reporting if FOI applications of this kind took an average of 296 days to finalise, those not finalised had been with the department for an average of 471 days, and the oldest outstanding request for 556 days. Or whether senior officers were aware that the OAIC was getting the runaround after it started making inquiries.

 

Contributing factors to delay, apart from a large workload and a lot of dithering, include poor record keeping practices, the practice of providing a hard copy of any documents to be released to the Minister's office, and a heavily controlled legal framework used for processing this type of application. Some extracts from the report appear below.

 

The Opposition's Jamie Briggs has picked up on minister's office involvement, raising a broader question about general practice:

..the information commissioner in the report goes to the lengths of actually reminding the Minister's office in the report that they don't have a role (in departmental decision making), they shouldn't have a role, they don't have a role at law. So you have to ask the question, why is it that Chris Bowen is requiring the department to send this material to his office before this information is released. And is this a practice which occurs across the government?

Of interest in the OAIC report are recommendations about the management of FOI in DIAC set out in a report of another review. The department in addition to engaging Ernst and Young to look into FOI management last year, commissioned a review in response to the "announcement" of the OAIC investigation earlier in the year. Robert Cornall is a former secretary of the attorney general's department and conducted the review between May and July 2012.

The Terms of Reference included the requirement to identify comparative best FOI practices in other agencies which could be adopted in DIAC. Cornall's recommendations (below) were endorsed by DIAC's Executive Committee on 17 September 2012. The report itself isn't in the OAIC material, or on DIAC's website. (Update: it is now on the DIAC site and on Sean Parnell's FOI page at The Australian as DOCUMENT OF THE MONTH (pdf)). The Departments of Human Services and Defence are exemplars put forward by Cornall apparently, but little detail about the best practice comparators for practice and performance appears in the published material. The OAIC report draws attention to the Cornall recommendations as relevant to FOI processing in other Australian Government agencies, suggesting four principles:

• Effective FOI processing requires cooperation and support between the business line areas of an agency and the section responsible for FOI processing.
• The culture of an agency must be attuned to effective FOI administration. Two ways of instilling that culture are for the chief executive officer of the agency to issue an instruction to all staff directing that FOI compliance is a responsibility of the entire agency, and to include FOI compliance as a key performance indicator in the performance agreements of senior officers.
• Agency processes and practices that support effective FOI processing are internal training and learning strategies, escalation of unresolved matters to senior officers, regular monitoring and review of FOI performance, and high quality records management.
• Agencies should benchmark their FOI performance against the practice and performance of other agencies that have a demonstrated record in effective FOI implementation and compliance.

Extracts from OAIC report (emphasis added)

Groundhog day for privacy amendment bill?

The Senate Legal and Constitutional Affairs Legislation Committee report on the Privacy Amendment (Enhancing Privacy Protection) Bill 2012 recommends passage by the Senate subject to acceptance of twenty recommendations. Chris Merritt in The Australian today  suggests the bill, already approved by the House of Representatives, could now be subject to further change. Merritt lists some of the ongoing concerns about the proposed scheme among stakeholders. The Australian Privacy Foundation told the committee there are many ways in which the bill would significantly weaken privacy protection. But after four years....

International Right to Know Day 28 September

Have a good one. 

 Despite the fact there is a blank when it comes to Australian groups among the 200 organisational members of the founders, FOI Advocates, and on the map of Australia in the world map of RTKD activities 2012. And Australia is not in the list of members of the Open Government Partnership, one year old today, and now with 57 government members - but we live in hope.

On the last mentioned, Australian Information Commissioner Professor John McMillan told the Creating Open Government Conference in Sydney last month that Australian membership is still  "under discussion"- what a marathon!

The development of a national framework for open government policy was an issue my office took up in an Issues Paper in 2010, Towards an Australian Government Information Policy. We plan to return to that theme in another paper in November this year to mark the second anniversary of the office.
A related development mentioned earlier in this conference by other speakers is the international Open Government Partnership (OGP), which 57 countries have now joined. One of the requirements of membership is that a country publish a national action plan that contains concrete open government commitments and projects. Expert external evaluation of a country's performance against the commitments in the country plan is another requirement of OGP membership. Impressive plans have already been published by, among others, the United States, United Kingdom and Canadian governments. The Australian Government has not yet announced whether it will join the OGP, though the matter is under discussion.

On the fore-mentioned interest in right to information advocacy here, Australia's Right To Know has the name but zero recent form.

(Update: not dancing in the street mind you, but the Office of the Queensland Information Commissioner acknowledges Right to Know Day, which also gets a mention in the Office of Australian Information Commissioner weekly email update :
Today is Right to Know Day! Right to Know Day was created at an international meeting of information advocates in Bulgaria in 2002, with the goal of promoting the global movement of increasing access to information and awareness of Freedom of Information (FOI) worldwide.  For more information visit the Freedom  of Information Advocates Network website: http://www.foiadvocates.net/).

"Gaming" FOI gets a workout

The Australian Financial Review today looks at issues associated with the car industry subsidy Freedom of Information imbroglio, in which the AFR itself is center stage, publishing on-line my opinion piece 'It's clear FOI simply isn't working properly", and articles, "Keeping the lid on open government" by Marcus Priest and Mathew Dunckley, and "Roxon warns of unreasonable FoI blocks" by Marcus Priest. Not a paywall in sight.

The industry department is not the only agency under the spotlight.

The Global Mail also has articles by Bernard Lagan about a 10 month saga to access documents from the immigration department. The GM complained, one of 27 complaints that led to an own motion investigation by Australian Information Commissioner Professor John McMillan into what the GM describes as "the closed-mouth chaos of a critical government department." The report was released by the OAIC yesterday.

In summarising the report ("The Government Lowdown Runaround") Lagan recounts that consultants had been called in to look at management of the FOI function:

Ernst & Young uncovered a culture of fear among immigration officials when it came to releasing information to the public. In their previously unreleased report to the department's managers, Ernst & Young consultants wrote: "FOI staff report that many Department of Immigration staff are not comfortable with the new disclosure environment where there is a widespread fear of releasing information and a failure to recognise that FOI is everyone's responsibility." Ernst & Young urged Immigration's chiefs to counter what they called a "fear of releasing information" culture within the department, saying there was a lack of consistent leadership for changing internal attitudes toward FOI.

Problems identified by the OAIC included undue deference to the minister's office, not enough staff, inadequate arrangements for controlling delays, inadequate staff guidance, poor record keeping, inadequate communication with people applying for information, and poor engagement with the Information Commissioner's staff.

The report lists undertakings by the department to put in place changes which include instructing all Immigration staff they had to meet FOI requests on time, that FOI performance be included in the performance agreements of senior staff, that there be more training for FOI staff and that the department improve its record keeping.

And hopefully less waiting for a nod in the right direction from the minister's office.

Gunns down, NSW wood price out

Despite objections by the two companies involved, the NSW Administrative Decisions Tribunal (Nature Conservation Council of NSW v Department of Trade and Investment, Regional Infrastructure and Services [2012] NSWADT 195) has ruled in favour of disclosure of information under the GIPA act concerning current wood supply agreements with Forests NSW. The information included the sustainable yield,  resource price and allocation of hardwood

In evidence a senior executive of one of the timber companies said he was not aware of any publicly available information of this kind. Evidence on behalf of the applicant from an economist and an environmental consultant cast doubt on this and on the claimed adverse effects of disclosure on business and commercial affairs. Judicial Member Montgomery balanced the considerations as follows:

197. I consider that there is a strong public interest consideration favouring disclosure of the redacted information in order to increasing (sic) the financial accountability of the First Respondent. I agree with the Applicant that there is a clear public interest in an agency that is dealing with public assets being accountable for the manner in which it contracts to sell those assets. This interest is strengthened by the fact that the Agreements were entered under a system that did not involve an open tender.

198. I also consider that there is a strong public interest consideration favouring disclosure of the redacted information in order to further public policy development around the management of the publicly owned hardwood forest estate in NSW.

199. I also consider that there is a strong public interest consideration favouring disclosure of the redacted information in order to encourage community engagement with government about sustainability.

200. I consider that there is a public interest consideration against disclosure of the redacted information because there is some risk that the Second and Third Respondents could be placed at a commercial disadvantage in relation to other contractors or potential contractors if the redacted material is disclosed.

201. I consider that there is a public interest consideration against disclosure of the redacted information because there is some risk that the commercial value of some aspects of the redacted information could be diminished if the redacted material were disclosed.

202. I consider that there is a public interest consideration against disclosure of the redacted information because there is some risk that the Second and Third Respondents' business, commercial or financial interests might be prejudiced if the information has not been released already were disclosed.

203. As I have indicated above, it is my view that there is considerable doubt in regard to the extent of those risks.

204. In my view, the public interest considerations in favour of disclosure outweigh those against disclosure.

205. It follows, in my view, that the determination should be set aside insofar as it relates to the Agreements. In its place the decision should be made that the redacted information in the Agreements is to be released to the Applicant. That information should be released within 30 days of the publication of this decision.

Judicial Member Montgomery in this 2007 Freedom of Information case had ruled that information about the royalty rate then more than 3 years old but still commercially valuable, was not exempt on the basis of evidence that another state had released information regarding rates without any apparent impact on commercial viability. 

Gaming the FOI system?

The Australian Financial Review reports today (paywall) that the NSW Supreme Court imposed a temporary order preventing publication of the content of ministerial briefing papers and memos prepared for cabinet about negotiations with car manufacturers concerning subsidies. The documents were mistakenly released by the Department of Industry, Innovation, Science, Research and Tertiary Education in a response to a Freedom of Information request.

That issue to one side, and noting Minister Combet's assurances that the information mistakenly released is very sensitive and that jobs and investment would be at risk if disclosed, what the AFR has been able to tell us suggests the department may have been gaming the system in this case.

It's a contrast to the picture painted by Australian Information Commissioner Professor John McMillan in recent speeches and articles. While Professor McMillan is right to point out that overall, the "development of open government over the past thirty years in Australia — and over the past couple of years in particular — is an enormous success story", the AFR throws some light on a dark corner. I'd be amazed if this is the only agency with one. (Update-I didn't know at the time about information emerging concerning the immigration department.)

Yesterday the AFR reported that most of the substantive information in the 39 documents the department intended to release had been redacted. "One described a visit by then Manufacturing Minister Kim Carr to Detroit in January to meet General Motors and Ford. Every paragraph in the memo was blacked out, including who Senator Carr met and what was said at a press conference." The titles of the 39 documents weren't disclosed until the internal review stage. Two were “Visit to Ford’s Broadmeadows Manufacturing Facility” and “Toyota announcement on job losses”
.

Today Marcus Priest reports the department redacted publicly available information such as ministerial talking points.

Aaron Patrick details how the information intended to be withheld was neatly contained in red boxes in documents supplied. Some contained "stunning revelations. Parts were embarrassing. Other sections were mundane or contained information on the public record. One table I initially thought was interesting took me three minutes to locate on Google. It was published by the federal Treasury in 2010."

Patrick concludes that FOI exemptions were abused.

The AFR is considering lodging a complaint to the commissioner that the department  withheld information it was legally required to disclose.

FOI: looking for the recall button

The kerfuffle about the blunder by the Department of Industry in releasing documents claimed to be exempt about subsidies for the motor industry to the Australian Financial Review is now in the NSW Supreme Court with the government, supported by Ford and General Motors, seeking orders that would prevent publication, require the AFR to delete all electronic copies and hand over an existing hard copy to the court. While the court has powers and may exercise them, it reminds of this 2006 NSW ADT decision where in a similar although less high stakes case, neither the agency nor the tribunal had powers to haul released documents back-once they were gone, they were gone.

NSW Parliament should do better on openness

Shadow NSW minister for transport Penny Sharpe may have been the only politician in Australia to have said anything about the International Day of Democracy and the Declaration on Parliamentary Openness when she spoke in NSW Parliament last week-text extracted below.

While noting all sorts of things being done elsewhere to open parliament to the people, and the fact that the state parliaments have not been helpful to Open Australia (see this 2009 post on that), Ms Sharpe's only comment on things close to home was:

 "Here in New South Wales we can and we should do better."

Indeed.

For starters by publishing online details of payments to or on behalf of parliamentarians at present buried away in annual reports, travel, and the interests register, particularly gifts and secondary sources of income for those who have other jobs. Publishing on-line papers tabled in parliament following Queensland's lead should also be on the list. How about extending the GIPA act to cover the parliamentary departments in line with developments in Tasmania and the national capital? We could go on....

Hansard doesn't record any hear, hears when Ms Sharpe finished speaking.

Clover Moore, proud record on accountability and transparency

Clover Moore, my local independent member of state parliament and Lord Mayor of Sydney (disclosure I've made donations over the years), has been forced to relinquish her parliamentary position after another resounding win in local government elections earlier in the month. O'Farrell government legislation bans state parliamentarians from holding local government office, but not from holding a second job as quite a few do. Moore leaves state parliament having made outstanding contributions on many fronts as outlined in her Valedictory Speech in Parliament (12.38pm) yesterday. The Index lists 775 Moore speeches, questions and responses in Parliament since 1991.(There were more-she was first elected in 1988.) Improved accountability and transparency, including significant freedom of information reform were always part of the agenda: