A slight step into sunlight for TPP negotiations?

That might be jumping to an unwarranted conclusion but a round of DFAT organised stakeholder consultations starting this week, may indicate some of the local and international criticism of secrecy in the negotiations is starting to have some effect. Glad of any input from attendees.

The TPP

Australia's leading FOI cases?

Right2info an international website has published a database of summaries of a selection of national and regional court judgments on the right to information that "illustrate how the courts all over the world interpret and view the right of access to information." I wasn't involved in any input. The one Australian case listed in the 55 summarised is a rather obscure Victorian tribunal decision that hardly lives up to the criterion, to "provide organizations and individuals intending to litigate with a set of good arguments to make their case." Right2info invites contributions of additional cases, case summaries and briefs to make the collection interesting and useful.

So with the 30th anniversary of the Commonwealth Freedom of Information Act looming on 1 December, how about our list of the 10 leading Australian cases (federal, state, territory, and court/tribunal/commissioner) based on the significance of the contribution to FOI/RTI etc jurisprudence, and in extending as far as possible the right of access to information?

Nominations now open and to close on 25 November. 

Send  in the form of a comment on this blog or to me at peter.timmins1@gmail.com, the case name, url if available and a short statement of the reasons for your nomination or nominations.

While we're at we'll also entertain nominations for decisions that represented a significant setback to the achievement of that objective.

Promise to consult a small and selective brains trust before publishing my definitive list.
  
  

Prince of Wales takes a break from FOI pressure at home

What to make of the fawning (to exhibit affection or attempt to please, as a dog does by wagging its tail ..; to seek favor or attention by flattery and obsequious behavior) reception given to the visiting and future king and queen, the Prince of Wales and the Duchess of Cornwall?  Bring on the republic for mine. But back to the knitting.

If you didn't catch it, the Prince has recently had freedom of information problems at home. Dominic Grieve, the Attorney General exercised veto power (remember those conclusive certificates?) to block the release of 27 letters from the Prince to ministers because their contents would “seriously damage” his future role as king were they made public. The Information Tribunal had ordered release overruling a decision of the Information Commissioner. Then the Attorney stepped in-the second time in history from memory. ( See Right2info for the detail.)

As The Telegraph reported, thus "ended a seven-year freedom of information battle over the public’s right to see the Prince’s correspondence. However, it served only to reinforce the view that he sought to influence policy." Former minister Jack Straw's defence of secret correspondence rights for the prince attracted 328 comments, most questioning why.

In Scotland the royal FOI exemption is also an issue.

Did you know the Prince has the right to veto government legislation if it could affect the interests of the Duchy of Cornwall which owns 133,658 acres of land (around 54,090 hectares) over 23 counties, including farming, residential, and commercial properties, as well as an investment portfolio? In another FOI case the Cabinet office is refusing to release details of rules governing when the Prince is asked to give consent to legislation that might affect the Duchy.

Professor Anne Twomey has written about how quaint British notions of secrecy for the crown impact on our right to access information in this our proud and otherwise independent nation.

No justice for Allan Kessing

Bloodless was the word that came to mind for Allan Kessing after reading Minister for Justice Jason Clare's letter refusing his pardon application.You can see why when you read this summary in The Australian and the analysis in Chris Merritt's article
and this commentary today. 

For the minister to sign off on this - in effect with sayonara, goodbye, farewell to Kessing-is pathetic. Coincidentally (?) as another minister rejects Andrew Wilkie's whistleblower protection bill as not properly balanced, but has nothing ready to put on the table five years after the 2007 election when the appalling treatment of Kessing and the lack of protection generally for whistleblowers were such big deals to Labor. 

Kessing didn't but someone did pass the report to journalists at The Australian-and brought to public attention the scandalous state of security at Sydney Airport. There were many  areas of concern regarding the evidence and the conduct of the case. Kessing admitted subsequently he had talked and shown a copy of the report to then Opposition MP now government minister Albanese and his staff.

Mr Clare's letter to Mr Kessing says the involvement of Mr Albanese's office, if proved, would not establish Mr Kessing's innocence. But because he did not reveal the link with Mr Albanese at his trial Mr Clare had been advised that "as a matter of public policy, it is not appropriate for the royal prerogative of mercy to be exercised to pardon a person who seeks to raise a doubt about his or her conviction by raising matters that were deliberately not raised, and tested, by them at trial".
Mr Kessing's assertion that he was innocent of the charge of which he had been convicted meant "the claim that the leaking of the reports was in the public interest is irrelevant to a consideration of your moral or technical innocence of the offence".

No minister has said a word in the 30 months since the government received the Australian Law Reform Commission report that recommended the repeal of the draconian s 70 of the Crimes Act that renders the public interest irrelevant to disclosure of information without authorisation.

Amazingly Allan Kessing still smells the wattle and sleeps through the night. You have to wonder how others manage.

Victorian FOI Commissioner

Career (Canadian and Victorian) public servant Lynne Bertolini has been appointed Victoria’s first Freedom of Information Commissioner. Until recently she was director of licensing and approvals at the Victorian Commission for Gambling and Liquor Regulation. Download PDF166.33 KB The new review scheme- which involves abolition of internal agency review of determinations-commences on 1 December. Helter - skelter time!. Good luck.

(Update: Ouch. Jon Faine on 774 ABC Melbourne may have been a bit tough in lumbering the new commissioner with the FOI record of her former employer the Commission for Gambling and Liquor Regulation during this interview this morning. But it wasn't a dream start.

 "I'm not here to talk about specific cases today," Ms Bertolini responds. "I understand there are a number of issues that people have raised with FOI across the public service in general - I intend to ensure there is a proper education program, and people work within the spirit of the legislation." Jon points out her department breached the FOI act, and now she's in charge of it. "It just shows that we have a lot of work to do," Ms Bertolini says.

The office will be open for business on Monday 3 December. All the best.

OGP fits with our interest in supporting spread of democratic practices

Jakarta Post

The Prime Minister is in Bali co-chairing the Democracy Forum attended by 11 heads of state or government and delegates from 80 countries or international organisations. In her opening remarks Prime Minister Gillard outlined how Australia supports democratic practices and speaks out for democratic values, noting

 "Where political speech is free, decision-making is transparent and open and the views and aspirations of citizens find a voice."

Good democratic stuff. 

Clearly we support the idea of transparent, effective and accountable governments with institutions that empower citizens and are responsive to their aspirations. Exactly what the 57 countries that have signed on to the Open Government Partnership are on about.

But not a word from the PM in Bali about our intentions-intermittently over the last year the word "considering" has passed official lips but that's all.

My compelling case for an announcement of our intention to stand with Indonesia and others on this proved, well, non-compelling.

Pity. Maybe someone will twig that the OGP fits with other global and regional interests including support for the EITI. Oh, here's a chance - as a result of an invitation from Foreign Minister Carr, we're hosting that global conference in Sydney in May 2013.

We live in hope. 

Update: There isn't any doubt of course that Australia supports the spread of democratic practices- for further staunch words see the PM's joint press conference and this Media Release while in Bali. The only doubt (but unfortunately not much of that) is where we stand on the OGP.
 

The strange case of the ombudsman's annual report that wasn't

John Wood's account in The Canberra Times about the Freedom of Information request for the annual report completed by Allan Asher before his resignation as Ombudsman last year but not tabled in parliament deserves a wide audience, particularly the darting and weaving over the application before the Australian Information Commission ruled it must be released.

So would the record of any back and forward between the office of the Ombudsman and the minister publicly involved in his departure  Gary Gray, concerning the decision to ditch Asher's version and table that of acting ombudsman, Alison Larkins. 

In 28 years or so I imagine.

Wood with an FOI involvement stretching way back to the seventies and as a former Deputy Ombudsman had the wood on the office on this one, so to speak.

(Update: Markus Mannheim elsewhere in the Times raises other issues and reports this response from the minister:

Special Minister of State Gary Gray has denied he intervened to prevent the publication of Mr Asher's report. Mr Asher alleged this week the minister had interfered with the report, but Mr Gray's office said the claim was ''completely baseless''. ''It would be highly inappropriate for the government to seek to influence the independent office of the Ombudsman,'' the minister's spokesman said. ''At no time did minister Gray or his office seek to alter or delay the ombudsman's annual report. Indeed, the only version provided to the minister's office was [Ms Larkins's] final report, and this was submitted in compliance with statutory requirements.'' Mr Gray's office also said if Mr Asher had evidence of corruption in the public service, it was ''vitally important that he refer it to the appropriate authorities as soon as possible''.

There is more in The Public Sector Informant, these days available on-line-well done Markus in chewing the editor's ear.

GIPA war story

A disenchanted GIPA user provided this account of the experience in response to last week's post. Only one story I know, and in this arena, knockbacks are common and often/sometimes (depending on your perspective) for good reason. Interests for and against disclosure need to be balanced. But I'm aware of others in NSW frustrated by delay and the run around. In the absence of more extensive published information about agency and OIC performance, snapshots such as this provide a sliver of the big picture.

(Removed at the request of the person concerned-it's a long and complicated story.)

What's 30 bucks?

All that's standing between government agencies in NSW and more requests for information than they can handle?

A couple of comments received following that posting last week about the NSW GIPA act included one from a journalist with a lot of FOI experience to the effect that scrapping the $30 application fee for GIPA requests would be a huge mistake in NSW on the basis of Commonwealth experience:

FOI units get inundated with every single ill-considered thought bubble application from nuff-nuffs, political crackpots and Opposition staffers demanding “all documents relating to…”. The end result is a choked, overloaded FOI system where the objective of the FOI unit is simply to rid itself of its growing stockpile applications. With Federal FOI requests, I repeatedly find a lack of thoroughness in the searches and responses. The $30 fee is a sensible – and hardly expensive – hurdle that make applicants stop and think about their request for a bit. There are not endless resources in the public sector."

There is plenty of room for debate about fees and charges that goes beyond what and who is a nuff-nuff, and what constitutes an "ill considered thought bubble" although we might find some common ground on the latter, including some requests by journalists that seem to fall into this category.

And of course the NSW fee isn't unreasonable, given it is the same now as it was when first set in 1989. Adjusting for inflation, that $30 would be be around $56 today. (The more significant issue is the barrier that charges can constitute to the exercise of access to information rights.)

As to Commonwealth experience, applications for non-personal information under the Commonwealth act are up since application fees were abolished and other minor changes made to the charges regime in 2010. However at around 5000 in the year to June across the entire government spectrum, pathetically low are the words that immediately come to mind. But it is up around 16% on the previous year. And it's true some agencies that have never been bothered much by FOI have had significant increases in FOI activity.

Submissions from government agencies to the review of charges by Australian Information Commissioner Professor McMillan- an inquiry now hand-balled to Dr Hawke with a "find how to reduce costs" plea - were as dark and gloomy as my journalist correspondent about what had happened within government agencies during the first year of the new charge arrangements. Lack of resources and presumably some cutbacks given the belt-tightening underway was and remains a legitimate complaint. 

However as I commented at the time:

 Some give the impression that dealing with an increased number of "non-personal" information access requests is a nuisance and diverts resources from the "real work" of advising and assisting government to develop policies and to manage programs to implement them. Amid those grumbles there is little acknowledgement that information access itself is a service, with citizen rights and agency obligations mandated by law, backed by policies including the Declaration of Open Government that give new prominence to accountability and transparency. All for the stated purposes of enhancing representative democracy through increased public participation in government, encouraging scrutiny, discussion, comment and review of government activities, and to recognise that government information is a national resource. Not to mention that Parliament intended that functions and powers set out in the FOI act are to be performed and exercised, as far as possible, to facilitate and promote public access to information, promptly and at the lowest reasonable cost. (Sound familiar?-2010 FOI act amended objects, s3)The changes to charges and abolition of all application fees were conscious government decisions, taken in part to mitigate to a degree the cost barrier to use of the act. As Defence, and Agriculture Fisheries and Forests also point out in submissions, the administrative cost of processing $30 application fees far exceeded the return.The "not fair, applications are on the rise" tone in some submissions suggests the long anticipated culture change has a long way to run. As has public awareness of FOI, and public engagement in the affairs of government. Heaven forbid, even more use of the act could be in prospect.

 Research and evidence about cost, scope for efficiencies, and the impact of fees and charges on the exercise of rights to information would help the discussion in NSW, Canberra and elsewhere. Particularly experience in Tasmania where they retain a small application fee but have abolished all other charges. Floodgates?

In any event, I'm not holding my breath in anticipation of the O'Farrell government acting as it promised prior to the election by now supporting the Robertson bill to abolish the GIPA application fee.

 

The Nikita O'Farrell tag doesn't quite do it.

Leader of the NSW Opposition John Robertson introduced the Government Information (Public Access) Amendment (Removal of Application Fee) Bill into parliament last week giving the O'Farrell government the opportunity to deliver on a commitment made in the lead up to the election. Or not, as the case may be. Not a bad political ploy but the bill will languish in the pile that goes nowhere unless the government feels inclined to act.

The bill might prompt someone at the Office of Information Commissioner to dust off the file opened in October 2011 for a public consultation on fees and charges, the purpose of which was  "to see whether the fees and charges provisions help to promote the objects of the GIPA Act to maintain open and accountable government by facilitating access to information at the lowest reasonable cost."  Nothing has been said in the year since, publicly at least.

Mr Robertson apart from rubbing the government's nose in an undelivered promise, had plenty to say about access to government information under the GIPA act, referring to "deliberate" overcharging, and some refusals for questionable reasons of opposition requests, with an agency claim that the board minutes of Infrastructure NSW were Cabinet-in-confidence sounding a bit rich.

While performance information beyond the anecdotal is thin, Mr Robertson's claim that this is "the most secretive government in this State's history" is way off the mark. 

Pick any government that pre-dates Greiner and the introduction of the Freedom of Information Act in 1989, for example, including any from the long list of Labor governments. The late Peter Wilenski described NSW in the late 70's early 80's as a 'bastion of secrecy' and no-one demurred. Throw in the later improved but still barren decade for the open government cause from 1995 where even ministerial media releases weren't posted on the internet during the Carr era so as to avoid leaving discoverable footprints, and pleas from the Ombudsman for reform were routinely ignored. All power to Nathan Rees, still there in Mr Robertson's team, for steps in the right direction in 2008-2009. 

As to this 'killer' line, 'Joe Stalin' might have better suited Mr Robertson's purpose:

You would have got more information out of the Soviet Union under Nikita Khrushchev than you do under Barry O'Farrell in New South Wales. 

(Comparing tyrants isn't all that useful but Wikipedia comments on "The Kruschev Thaw" as allowing some freedom of information in the media, arts and culture that "all together helped liberate minds of millions and changed public consciousness of several generations of people in the Soviet Union." Positively enlightened compared to old Joe.)

With GIPA two and a half years on,18 months of that overlapping O'Farrell's time in office, it's a mixed bag. Journalists tell me generally things are somewhat better than the pre-GIPA days, adding plenty of caveats and exceptions. But a steady stream of individuals pass on to me tales of woe and classic runarounds. Frustration at the long delay in the Office of Information Commissioner in dealing with review applications is also high on the list of grumbles, heightened where the agency goes its merry way despite a recommendation from the OIC that it think again. 

There is a dearth of published information about the operation of the GIPA act, agency compliance with publishing requirements, or performance in dealing with informal and formal requests - another OIC file that needs retrieving and a dusting.

The Government Information (Information Commissioner) Act 2009 requires (s 37), in addition to an annual report on the work and activities of the office, a report from the commissioner on the operation of the GIPA Act generally, across all agencies "as soon as practicable after 30 June in each year."  The act commenced on 1 July 2010. No report has been published to date for the year to 30 June 2011, nor so far for the period ending 30 June this year. I've asked on several occasions where things stand-months ago the commissioner told me she was in editing mode on the 2011 report. The parliamentary presiding officers and the Attorney General are to get a copy-maybe its stuck there?

No one asked about the s 37 report or much at all about agency performance when the NSW parliamentary Committee on the Ombudsman, the Police Integrity Commission and the Crime Commission held a brief meeting (one hour four minutes) in May with the Information and Privacy commissioners to discuss the 2010 and 2011 annual reports on the operation of the office. 

No one asked either about whether the NSW external review model with an ADT and OIC option but limited OIC powers was working as hoped, or could be improved. 

Questions, questions.

Answers, please?

Freedom of Information review announced

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

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

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

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

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

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

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

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

The review is to report by 30 April 2013. 

Whistleblower protection still over the horizon

Itsmine

Independent Andrew Wilkie tried to get things moving on whistleblower protection legislation by introducing the Public Interest Disclosure (Whistleblower Protection) Bill 2012  in the House of Representatves on Monday. But any hope that the government would pick up and run with it were quickly disappointed. Special Minister of State Gary Gray chose a media release to announce the bill was "well-motivated but falls short of necessary safeguards and balance." 

No amendments will suffice apparently. While "the government shared Mr Wilkie’s strong desire to provide effective protections for Commonwealth employees willing to identify instances of maladministration, misconduct and corruption" it's, ho hum, we need time to finalise our position and get our version ready for parliament.... next year.

If you need a recap:

• ALP commitment to act on whistleblower protection prior to 2007 election. (They also talked then about justice for Allan Kessing, but that's another incomplete story.)
• House of Representatives Standing Committee on Legal and Constitutional Affairs (Dreyfus) asked to examine models in 2008 and reported in 2009.
• Government responded to the recommendations in March 2010 in a positive manner and went a bit further than the committee in some respects, including on public disclosures. Then attorney general McClelland said at the time “The Government supports a pro-disclosure culture in the Australian public sector, underpinned by enhanced whistleblower protection mechanisms, as part of its commitment to integrity in Australian governance. Whistleblower protection is about ensuring that there are appropriate processes in place, and protections offered, to facilitate the disclosure of wrongdoing, misconduct and corruption. The Government is committed to providing best-practice legislation to achieve this end. The Government will develop legislation reflecting this Government response for introduction during this year.(ie 2010). A further announcement about the legislation will be made in due course.”
• The Gillard agreement in September 2010 with Andrew Wilkie to enable formation of her government included a commitment that parliament would pass the law by July 2011.
• The Australian Public Service Commission State of the Service Report 2010-2011 released in November 2011: "The government is finalising the Public Interest Disclosure Bill. The legislation is intended to set up a scheme that provides for the investigation of unacceptable conduct in the Australian Government sector and extend the protections available to people reporting wrongdoing. The legislation is expected to be introduced to parliament in 2011.
• October 2012: Government commitment to legislate in 2013.

Update: other views contrast with those of Minister Gray.

Professor AJ Brown writing  in The Australian (paywall) 2 November:

Professor David Lewis:

Mr Wilkie's bill is already winning international support as a means of filling this gap. Yesterday, it was described as impressive by a world expert, David Lewis, professor of employment law at Middlesex University, London, and convenor of the International Whistleblowing Research Network.

He said he was surprised to read a comment by Special Minister of State Gary Gray that the bill falls short of necessary safeguards and balance. "In the 1990s, Australian states led the world in the development of whistleblowing legislation," Professor Lewis said. "This bill clearly demonstrates that lessons have been learned from the measures subsequently enacted . . . it builds on the best statutory provisions elsewhere. "Overall, this bill provides a great opportunity for the Australian federal government to lead the world on whistleblowing legislation." According to Professor Lewis, the Wilkie bill sets clear constraints on when and how whistleblowers should go public, unlike some countries that permit freer access to the media.

Professor Brown's views

The introduction of the federal Public Interest Disclosure (Whistleblower Protection) Bill by independent MP Andrew Wilkie is not before time. It is 18 years since a Senate select committee, chaired by Liberal senator Jocelyn Newman, recommended comprehensive legislation to protect employees who speak up about wrongdoing in government. And it is almost four years since the House of Representatives legal and constitutional committee, chaired by Labor's Mark Dreyfus QC, came down with a strong blueprint in that direction. The Wilkie bill is consistent with the spirit of all these recommendations - and then some. In fact, the background to the bill includes more than $1 million of taxpayer-funded research, involving more than 300 federal, state and local government agencies - the most comprehensive research of its kind in the world. It also reflects more than two decades of experience with what works, and what doesn't, across all Australian states and territories, in the US and in Britain..... Following recent reforms in the ACT, the bill gives more detailed guidance than equivalent media whistleblowing clauses in Queensland and Western Australia.

If a disclosure is reported internally, it is only if no action is taken and there remains clear evidence of wrongdoing, that a whistleblower is entitled to go public. Even then, whistleblowers may only reveal what is reasonably necessary to get the wrongdoing acted upon -- not blurt out whatever they like. And an extra public interest test applies, if the disclosure includes sensitive defence, intelligence or law enforcement information. This is information that could jeopardise an operation, or expose troops, police, informants or the public to harm. This is a broader safeguard than anything announced by the government, which has promised to give extra protection to intelligence information, but so far has said nothing about protecting defence or law enforcement operations..... Mr Wilkie's bill brings quality whistleblower protection a step closer -- something of which Australia should end up being proud."

Chris Merritt also in The Australian 2 November:

CPSU

The Community and Public Sector Union, which represents about 60,000 public servants, has been lobbying for improved protection for disclosures by its members since 2008, soon after Labor promised a federal whistleblower law in the 2007 election campaign. "We were hoping to see legislation coming out of the parliamentary inquiry in 2010," said CPSU national secretary Nadine Flood. "In our view, it has taken too long to introduce legislation. "We would encourage the government to work with Mr Wilkie and others to ensure that legislation passes the parliament during this parliamentary term."

Allan Kessing

Mr Kessing said he welcomed Mr Wilkie's bill, "as it puts into prime position the public interest as the criterion."

Parliamentary privilege and the spirit of 1688.

When parliament sits, public servants are busier than usual with the additional task and a strict deadline to prepare suggested responses on portfolio issues that the minister might use in answering questions. Answers to tricky questions the opposition might raise, providing accurate information to be able to respond to a genuine inquiry, or seeking to correct the record where necessary in the light of misreporting or errors in the media. Or to enable the minister to sound authoritative and on top of just about everything on the off-chance Dorothy Dix shows up.(Gone are the days when John Button could get away with "I don't know.")

The minister always has a fat file, constantly updated at an indeterminate cost to the taxpayer. As Paddy Gourlay suggested in The Canberra Times last year ministers keen on cutting expenditure should "consider more closely the costs and consequences of parliamentary, media and other briefings they request, and just how much of that ends up being of any use - there would appear to be ample scope for better risk management here."

In any event I'm sure most involved probably don't realise they are engaged in highly sensitive work that potentially raises weighty issues of parliamentary privilege.

Yes, under access to information laws in Queensland, WA and NSW briefing notes on contentious issues, possible parliamentary questions or PPQs in some parlance and House folder notes to others, have been found to be exempt from disclosure or contrary to the public interest to release because to do so would infringe the privileges of parliament.

The privileges of parliament are an arcane subject that takes us way back to 1688. 

I expect, if we could check, that the leaders of the Glorious Revolution would be highly amused to learn that the spirit of that year is invoked to favour non-disclosure of information prepared by public servants for possible use by the minister to answer questions that may or may not be asked. Or at least some that I've seen in my day. 

Despite these rulings there are instances where question time briefs have been released without fuss. As far as I'm aware parliament wasn't outraged and no one complained of a limitation on freedom of speech. Whatever would they have made of that in 1688?

FOI humming along in the west

The Annual Report 2011-2012 of the Western Australian Information Commissioner (PDF) - 3095kb indicates business on the rise, but no major problems, no areas of great concern.  No hint at all in the report of the need for big picture freedom of information reforms, or open gov or open data developments. Other observations from the west are welcome of course.

Commissioner Bluemmel reports applications for external review (114) were up 9% from the previous year. Of those cleared, 57 (44.5%) were conciliated, 27 (21%) confirmed the agency decision,13 (8.5%) varied the decision, and 2 (1.5%) set aside and substituted the commisioner's decision. 

The office has some useful performance indicators but time taken to finalise reviews is not one of them- it doesn't appear to rate a mention this year other than the fact that two additional staff have helped address a backlog and the commissioner expects further positive effects from next financial year. (Two years ago delay was a big deal.)

The WA PI's are:

Effectiveness:

Satisfaction of parties with review processes: 81%;

Satisfaction of agencies with advice and guidance provided: (98%)
Extent to which complaints resolved by conciliation: 55% against a target of 60%.
Efficiency:

Average cost of reviews finalised: $8395
Average cost of advisory services delivered per recipient: $196

On agency stats:

"The number of access applications made to agencies under the Act has steadily increased, from 3,323 at the end of the first full financial year of operation of the Act (1994/95) to 16,634 in the year under review. That represents an increase of approximately 400% in 17 years from 1995 and 5.8% from last year (15,716). As in recent previous years, the Western Australia Police received the highest number of applications made to a single agency (2,446 - an increase of 3% from last year), with the next highest number received by Royal Perth Hospital (1,969 - an increase of 5.1% from last year), followed by Sir Charles Gairdner Hospital (1,208 - an increase of 8.6% from last year). A further 5,923 applications were received by various other health service providers (hospitals, health services and the Department of Health), representing an increase of 8.24% over last year."

Of the 16,634 applications received by agencies in 2011/12, 633 (just over 3.8%) were received by local government agencies and 16,001 (96.2%) by state government agencies- 89.7% of the state government agency decisions granted access in some form.

WA ministers continue to receive more applications than counterparts elsewhere - 146 in this reporting period. 

The commissioner's gripes include non-compliant agency notices of decision:

"For example agencies frequently cite clause 4(2) but fail to explain why the information in the document has commercial value or why disclosure of the document in question could reasonably be expected to destroy or diminish that commercial value. It is necessary to explain the elements of the exemption and how they apply in a given case. The FOI Act has been in operation for nearly 20 years and, in my opinion, there is no excuse for any government agency to be ignorant of its obligations concerning the legislation.The obligation to provide applicants with notices of decision that contain all of the information prescribed by s.30 is intended to ensure that the true basis of a decision is clearly explained to the applicant. If an agency gives an applicant a notice of decision that does not contain sufficient findings of fact and a clear statement of the basis on which an exemption is claimed, it is unlikely that the applicant will have a clear understanding of the reasons why access is refused and why the requirements of any exemption clause are satisfied. An applicant is entitled to reasons for the agency’s decision. Only if applicants understand all of the elements involved in applying a particular exemption and why access is refused are they in a position to decide whether to accept the decision or to test it by way of external review on complaint to the Information Commissioner.An inadequate notice of decision from an agency invariably increases the time it takes for this office to deal with a matter on external review

And agencies unnecessarily consulting third parties or placing undue reliance on the objections of third parties.

Habib broke the camel's back-no kidding!

This may have surfaced previously-I hadn't noticed-but in the Cornall report on DIAC Freedom of Information processing, in a discussion about good practice at Defence, Cornall was told "the Habib FOI request broke the camel’s back in Defence’s legal area and led to a reorganisation of the way in which Defence managed FOI, and the establishment of the Freedom of Information and Information Management Branch." 

Not sure if this was the Habib FOI request in question, but in 2008 Mamdouh Habib, FOI and Defence were in the news: The Australian reported on an application for all documents held by the Department of Defence about him and his rendition from the time he was arrested in Pakistan in 2001:

"The Defence Department came back with a preliminary assessment of $107,145.55 that includes 1038 hours and 15 minutes to identify the documents and decision-making time examining 85,418 pages of documents that "fall within the terms of the request". It also estimated it would cost $85,603.80 to examine 82,838 pages of documents generally relating to the US rendition program."

And then the fishy bit:

"The revelation about the amount of information Defence has appears to be at odds with evidence given to the Senate estimates committee earlier this year when officials said: "Defence has no record of involvement through meetings or through the provision of advice in the matter of the rendition of Mr Mamdouh Habib." The disclosure has prompted calls from NSW Labor backbencher Daryl Melham for the federal Government to reveal what it knows about the rendition. "There is a public interest matter in this ... This should not have to be like extracting teeth." Greens senator Scott Ludlam has put questions on notice, asking Defence Minister Joel Fitzgibbon to explain to parliament. "There appears to be a roomful of documents about a subject which they told parliament they know nothing about ... Something is a bit fishy here."

I don't know what documents eventually emerged, but it likely was the catalyst for major, positive FOI changes at Defence.

More on Habib and what he endured here 

Lawyers and information access-can the twain meet?

The Cornall report was hard to find when I wrote this post about the OAIC own motion investigation into aspects of Freedom of Information processing of "complex, high-profile and sensitive FOI cases" at the Department of Immigration and Citizenship, but it has since been posted on the DIAC website. 

Cornall observes that at a time when a pro-disclosure approach is required "the Department presently appears to have more of an attitude of resistance to disclosure." He sees the answer in acceptance of FOI compliance as a whole-of-organisation responsibility, and outlines steps to that end. Despite concluding that Defence has a lot to offer in the area of process improvement, Cornall does not recommend DIAC follow the Defence lead to take lawyers substantially out of the game, a factor it cites as a major contributor to its improved FOI performance. 

So the DIAC Freedom of Information and Privacy Policy Section that processes non-personal requests, to be co-located with a new legal unit, will remain responsible to DIAC's Chief Lawyer in the Governance and Legal Division (although it sits in the Governance Branch rather than the Legal Branch). Cornall raises as an option "to place FOI more squarely within the DIAC legal stream which Ernst & Young suggested could increase the effective engagement with their legal staff (which) is critical to success." "However, my view is that the placement of the Freedom of Information and Privacy Policy Section within the Governance and Legal Division is not a key issue as long as the FOI and legal areas work closely together." 

Cornall concludes "It is not necessary to have lawyers as decision makers although lawyers could be appropriate decision makers in some complex or sensitive cases."

Yes, but is "legal" the best perspective for access to information issues and decisions?

I've expressed the view that the information management environment (not that of spin or the law) where a public management/service to the public ethos prevails might be better.

FOI continues to be located in the legal area in many agencies at Federal and state level, perhaps a result of FOI's administrative law heritage. Not just in DIAC but as Cornall discovered in Veterans Affairs, the Australian Taxation Office and Human Services, the three largest Federal agencies in FOI terms.

According to the report, the majority of FOI decision makers in the ATO are lawyers. In DHS the Ombudsman, Privacy and FOI Branch is part of the Legal Services Division and an "FOI legal team has recently been established in the Department’s Legal Services Division for complex matters." Cornall reports the Chief Counsel there "regards the freedom of information area as a high risk area for the department and compliance with the department’s FOI obligations commands a lot of her attention.."

 (Just one of many others, taken from a recent job advertisement:"The CSIRO Legal Team, including the CSIRO FOI/Privacy Officer, is responsible for processing, managing and responding to all Freedom of Information (FOI) requests and privacy enquiries from the public and from within CSIRO")
 

You know that old one, "when you hold a hammer everything looks like a nail"? 

Meanwhile over at Defence, Tony Corcoran in the Freedom of Information and Information Management Branch in the the Ministerial and Executive Communication and Coordination Division, soldiers on (sorry) with a sensible combined responsibility for freedom of information, records management and associated issues.

In my humble, lawyers should play a role in FOI  administration in the same way they do on a myriad of other issues-when required. Public servants without law degrees give effect to the law all day every day in all sorts of areas without a lawyer at their shoulder.

I know the answer, but "what's so special about information access?"

Roll on cultural change. As Cornall emphasises, tone and leadership from the top is crucial.

Two other issues from the report regarding FOI management, not questioned by Cornall but of potential concern and that warrant a closer look across the system:

What goes in "special handling" for requests variously described in one or more of these agencies from the media, Members of Parliament, a political party, advocacy groups, requests seeking policy documents and requests in high profile cases that have attracted or may potentially attract media attention?

And exactly what's involved in the practice of briefing the Minister’s Office about upcoming FOI decisions, in some cases allowing five days for comment, and how any of this impacts on decisions.

 

Corby FOI decision not as exciting as media reports suggest

The two mainstream media reports of a freedom of information decision by Deputy President Hack in the Administrative Appeals Tribunal suggest a large number of previously withheld documents are to be forced out of the hands of the Australian Federal Police: Eamon Duff in The Sydney Morning Herald "Corby granted access to case files" writes the decision paves the way "for reams" of new documents to be released. Jared Owens in The Australian "Schapelle Corby wins access to police records" reports Ms Corby won access to "a slew" of new Australian Federal Police records detailing the agency's dealings with Indonesian authorities at the time of her arrest. 

Not sure if Duff and Owens spent much time reading the decision, or whether they accepted someone's wishful thinking about the outcome, and hate to disappoint Corby supporters or others interested, but it was no big deal either in quantity or (to this casual observer of things Corby) the potential significance of the released documents.

Deputy President Hack decided to grant access to two documents, nine pages of another and additional parts of two other documents previously withheld. The Deputy President notes [6] a "good many" of the relevant documents sought had been released in full by the AFP in determining the application. More documents or parts of documents had been released during pre-hearing stages in the Tribunal [8]. 

In most respects Deputy President Hack affirmed the AFP decisions to deny access. The law applicable was the pre-reform Commonwealth FOI act as it stood prior to November 2010. It's largely a safe conservative decision, much of it devoted to dealing with 19 documents that  the AFP "wrongly, and too generously" listed as relevant despite the fact they do not answer the request [23]. 

Several of the claims by the AFP were faintly ridiculous as outlined below. But for the rest the AFP not Ms Corby had the win. When the penny drops expect more of this from Corby supporters. It's no conspiracy, just FOI-land.

Drawing from the published decision, the documents to be disclosed are:

Victoria's "disappointment" file keeps growing

Yet another summary of Victoria's transparency promises, set alongside performance, this time in Failure to launch by Farrah Tomazin in the Sunday Age. No room in her impressive litany for two matters raised here- the mystery five weeks before commencement on 1 December 2012 of the Freedom of Commissioner scheme, of any visible sign of preparation; and the opaque system for payments made for and on behalf of parliamentarians in Victoria. 

Tomazin concludes with the observation about Premier Baillieu and his team that "good leadership isn't about promising higher ideals in opposition, only to back down once in government."

Walkley Award finalists know their FOI

Among the Walkley Award for Journalism 2012 finalists are names familiar to many in government who deal with access to information requests. Congratulations to all who made the list, especially:

Print News Report 
Hedley Thomas, The Australian, “What the floods inquiry didn’t hear: Wivenhoe ‘breached the manual’”

Sustained Coverage of an Issue or Event
Commended: Linton Besser, The Sydney Morning Herald, “Fraud probe snares top bureaucrats"

Business Journalism
Nick McKenzie and Richard Baker, 7.30, ABC TV and The Age, Fairfax, “RBA faces questions over bribery connections”
(Comment: McKenzie and Baker have been on the Securency story since 2009, when they revealed that a subsidiary of the Reserve Bank had paid million-dollar commissions to win global banknote contracts, overcoming FOI obstacles like this along the way.  They won the Walkley for Investigative Journalism last year. The RBA stories are still running in 2012 having led to criminal charges and forced a parliamentary inquiry. They are also finalists this year for best Scoop of the Year, “Church’s suicide victims” and McKenzie for Newspaper Feature Writing for “Why did Abraham Papo die?”)

Investigative Journalism
Linton Besser and Kate McClymont, The Sydney Morning Herald and The Age, “Exposed: Obeids’ secret harbour deal” 

Commended: Sharona Coutts, Joel Tozer, Clare Blumer, Adam Glyde and Paul Farrell, The Global Mail, “Patients at risk”

Best Digital Journalism Category
Stuart Washington, Tom Allard, Conrad Walters and UTS Team, smh.com.au, “Sky’s the limit on political gifts”
(Comment: Don't ring Senator Faulkner for a soundbite.)

Commended: Sharona Coutts, Joel Tozer, Clare Blumer, Adam Glyde and Paul Farrell, The Global Mail, “Failing the aged: a multi-billion dollar mess”

Television News reporting
Sharri Markson, Lee Jeloscek, Adam Walters and Michael McKinnon, Seven News, Seven Network, “The cabinet leak”

Let me know of others that I may have missed who plied the FOI/RTI/GIPA trade to make the finals.