Information in short supply on O'Farrell era of open government

Back on deck and looking forward to a lively 2013.

Just in time to see the Sydney Morning Herald take a look at performance or non-performance in NSW under the Government Information (Public Access) Act in "It's time for transparency". Sean Nicholls concludes the O'Farrell government has fallen a long way short of ushering in a promised ''new era of open government.''

More specifically Nicholls also reported on the refusal of access to a government commissioned report on the controversial second casino license in "O'Farrell keeping new casino report close to his chest", leading to this editorial yesterday "Transparently, can-do Barry can do better":

"Freedom of information, we are tempted to say, is like the quiet, well-behaved child who parents find easy to ignore. Many a promise is made but many a promise is not kept. It is never a surprise that the ardour of oppositions for greater transparency should cool when they nab themselves the keys to the ministerial suites. Again, we expected better of O'Farrell's team. Myriad problems have been revealed with the Government Information (Public Access) Act, known as GIPA, more than two years after it replaced the old Freedom of Information Act. Among them is an unfulfilled promise to abolish application fees."

Prompting some letters today ("O'Farrell Inc").

I've commented previously on the abolition of application fees commitment. The government's reasons for changing it's mind on this, once elected, were feeble at best.

But the biggest GIPA problem is that apart from the anecdotal, some good, some not good (quite a few frustrated, disappointed and delayed applicants find me one way or another), we just don't have information about how things are going.

I've mentioned a few times previously that a report on the operation of the GIPA act across all agencies for 2010-11 (and another for 2011-2012) required by section 37 of the Government Information (Information Commissioner) Act is yet to appear 18 months later.

The separate commissioner's annual report on the operation of her office is the source of some of the problems referred to in the Nicholls article. However information as follows, not contained in that report, would at least throw a glimmer more light on how the review process itself is operating:

The top five or ten state government agencies the subject of GIPA review applications and complaints, and in each case the number.
The same for local councils.
The same for ministers.
The number/ % of finalised review decisions that substantially affirmed the agency decision.
The number of instances where the OIC did not affirm the decision and recommended reconsideration.
The % of those matters where the agency accepted the OIC recommendation.
The names of agencies that did not act on OIC recommendations in more than one instance.
Anything meaningful on the average cost of an IPC review or of the different categories of matters resolved in various ways.
Anything meaningful on time taken in resolving IPC review and complaint matters and the backlog in terms of time since receipt.

Some cabinet records still too sensitive for release 27 years on

The annual release by the National Archives Authority on 1 January of cabinet papers covered more than 700 records from 1984-85, the first two years of the Hawke government. 

You have to seriously question why some of these records are locked up tight for 27 years or so. Sure they were documents submitted to cabinet but many contain nothing of sensitivity. Most of the state freedom of information laws include an exemption for cabinet documents for 10 years. Beyond that other exemptions may apply depending on content and the effect of disclosure.The Commonwealth should follow this lead.

And we can only muse over what is still deemed too sensitive to release after all this time. Archives announced that "a small amount of material" was withheld from 30 of the papers released. One submission was wholly withheld, including its title. 

I haven't had a chance to look closely at what was withheld and the reasons except

information withheld from Cabinet Submission 3249 - Review of Australian honours system - Decision 6667, September 1985. 

The timing, just weeks after the decision by the Federal Court in the Kline case on FOI access to contemporary documents about the operation of the Honours system was exquisite.

The Archives summary was that disclosure of the redacted material would constitute a breach of confidence and the unreasonable disclosure of information relating to the personal affairs of any person (including a deceased person). (Archives Act s 33(1)(d) and (g)).

But the actual notice of decision reveals that deleted material now more than 27 years old contained information from "personal and private correspondence between the Governor General  and Her Majesty The Queen." As such documents are not subject to the Archives Act, "the public disclosure of this information would constitute a breach of confidence."

The personal affairs exemption claim seems to be based entirely on the assertion that the Governor General and The Queen were engaged in "personal communication." Really? It sounds official not personal to me. In any event the nature of the information seems almost certain to fail the personal affairs ("matter of private concern") test.

As Professor Anne Twomey has pointed out Australia doesn't control records relating to Governor-General/ Monarch communication.  Under UK law, disclosure of communications with the Queen and other members of the Royal household are absolutely prohibited from release for a minimum of 20 years from the time they are made, and then for the continuing lifetime of the relevant member of the royal family, plus an extra five years after their death. 

It's controversial in the UK, and in this neck of the woods hardly in keeping with standards of transparency we might expect from our head of state or her representative.

The absence of a public interest test in most exemption provisions of the Archives Act is a significant gap in the law regarding access to historical documents.

As to other records, most were withheld on the basis of an exemption claim under section 33(1)(a) of the Archives Act, "withheld to protect Australia's security, defence or international relations." Presumably its mainly spook material. But you have to wonder just how long is long enough before we can know all that cabinet knew at the time decisions were made about such matters as Long-term plans for Antarctic programs, Antarctic airfields, a proposed Aeroflot office in Australia, and International atmospheric experiments in Northern Australia, to name just a few.

Parts of three records, Review of Offshore Constitutional Settlement – petroleum and minerals, Review of Offshore Constitutional Settlement – titles legislation, and Briese allegation relating to the conduct of Mr Justice Murphy were withheld on grounds of legal privilege, something the ALRC recommended years ago should be removed as an exemption claim for archived documents.

Administration of Australian Honours system not matter of administrative nature

Go figure.

In a unanimous decision the Full Court of the Federal Court of Australia in Kline v Official Secretary to the Governor General [2012] FCAFC 184 decided that all requested documents concerning the operation of the Australian Honours system were not documents related to matters of an administrative nature, and  as a result were outside the scope of the Freedom of Information Act.

The documents requested included information about a particular nomination as well as other more general information about the handling of nominations. Formidable obstacles (available exemptions) beyond issues considered in this case were always likely to stand in the way of access to documents about a particular nomination. As to those more generally concerning the operation of the Honours system arguments favouring disclosure haven't held sway in this long running saga.

The Governor General's Office conceded that the act extended to documents concerning such things as staffing arrangements, the costs of running the Office, and statistics about the activities of the Office. But the Court ruled that documents that relate to the substantive functions of the Governor General including to any administrative task that underpins those functions were outside scope.

The decision accords with and follows earlier decisions in this case by the Official Secretary, Freedom of Information Commissioner Popple and AAT Deputy President Hack, and suggests the weight of opinion is all one way, favouring a narrow construction of s 6A.

One set of requested documents - working manuals, policy guidelines and criteria for an Honours award- would seem not to be policy documents required to be published by Government House as part of the Information Publication Scheme, or as a result of this decision, documents related to matters of administration. Sir Humphrey would be proud.

The Court agreed that context is important when considering the word “administrative” in legislation. It relied upon observations by Gleeson CJ in Carr v Western Australia [2007] HCA 47; (2007) 232 CLR 138 as justifying disregard for the objects of the act when it came to the interpretation of s 6A:

[5] ... In the interpretation of a provision of an Act, a construction that would promote the purpose or object underlying the Act is to be preferred to a construction that would not promote that purpose or object. As to federal legislation, that approach is required by s 15AA of the Acts Interpretation Act 1901 (Cth) ... That general rule of interpretation, however, may be of little assistance where a statutory provision strikes a balance between competing interests, and the problem of interpretation is that there is uncertainty as to how far the provision goes in seeking to achieve the underlying purpose or object of the Act. Legislation rarely pursues a single purpose at all costs. Where the problem is one of doubt about the extent to which the legislation pursues a purpose, stating the purpose is unlikely to solve the problem. For a court to construe the legislation as though it pursued the purpose to the fullest possible extent may be contrary to the manifest intention of the legislation and a purported exercise of judicial power for a legislative purpose.

[6] To take an example removed from the present case, it may be said that the underlying purpose of an Income Tax Assessment Act is to raise revenue for government. No one would seriously suggest that s 15AA of the Acts Interpretation Act has the result that all federal income tax legislation is to be construed so as to advance that purpose. Interpretation of income tax legislation commonly raises questions as to how far the legislation goes in pursuit of the purpose of raising revenue. In some cases, there may be found in the text, or in relevant extrinsic materials, an indication of a more specific purpose which helps to answer the question. In other cases, there may be no available indication of a more specific purpose. Ultimately, it is the text, construed according to such principles of interpretation as provide rational assistance in the circumstances of the particular case, that is controlling.

Yes but another line of argument is that S 6A defines the scope of the application of the FOI act to the Office of the Governor General; that the objects in s 3 confer rights of access for a number of purposes including to increase scrutiny, discussion, comment and review of the Government's activities; that the act is beneficial legislation and any ambiguity should be resolved in a way that is most favourable to those it is intended to benefit; and that the words in s 6A accordingly should be given a meaning that is fairly open consistent with the objects. 

No dice I'm afraid but this would suggest a broader interpretation of "administrative" along the lines of "concerning or relating to the management of affairs" consistent with some NSW ( N (No. 3) v Commissioner of Police, New South Wales Police Service [2002] NSWADT 340 upheld in the Supreme Court on a question of law) and WA cases that didn't get a look in here.

Instead the Full Court reasoned: 

21. In our view the relevant distinction being drawn by s 6A is between the substantive powers and functions of the Governor-General, on the one hand, and the apparatus for the exercise of that power or function, matters merely supportive of that power or function, on the other. The first respondent accepted, and we agree, that documents dealing with staffing arrangements within the Office, the costs of running the Office, or statistics about the activities undertaken by the Office, could all be the subject of a request for access to which the FOI Act would apply. 
22. The terms of the present requests by the applicant show that the substantive power or function in question was the administration of the Order of Australia, in particular nominations for appointment and the consideration of those nominations culminating in the decision to appoint or not appoint a particular person. The applicant’s requests were for access to documents of the Official Secretary which related to that substantive power or function (including the working manuals, policy guidelines and criteria, review processes and file notes concerning nominations), and not to documents relating to matters of an administrative nature. We therefore reject the applicant’s submission that any document which contains information bearing upon the Office of the Official Secretary’s conduct of the work antecedent to the consideration by the Council of its recommendation to the Governor-General contains information about matters of an administrative nature. 
23, We would add that, in our opinion, the expression “unless the document relates to matters of an administrative nature” goes to the character of the document so that, contrary to the submission of the applicant, a document would not so relate merely because it bore an annotation asking that an administrative task, such as filing, be carried out.

So any document that relates to supporting, assisting, facilitating, or implementing what the Governor General does as part of her functions is beyond the reach of the FOI act. A fair and reasonable degree of transparency and accountability for the representative of our head of state?

 The Canberra Times appears to be the only media to pick up on the decision to date.

Conference

Open Government miniconf in Canberra 29 January 2013. No mention of the Hawke review?

Australian privacy law adequacy under EU directive?

Just before Christmas the European Commission formally recognised the adequacy of personal data protection in New Zealand, opening the way for increased trade with the European Union. The NZ Office of the Privacy Commissioner (OPC) has been working for more than 10 years towards this outcome. 

The EU’s 1995 Data Protection Directive states that personal data can be transferred to countries outside the EU and the European Economic Area only when an adequate level of protection is guaranteed. 

The Media Release announcing New Zealand adequacy listed other countries recognised by the EU as providing adequate protection:

Andorra, Argentina, Australia, Canada, Switzerland, Faeroe Islands, Guernsey, Israel, Isle of Man, Jersey and Uruguay and the United States’ Safe Harbor scheme

 Australia? 

For years it's been said here there had been no ruling, that the EU had not granted Australia ‘adequacy status’ nor stated that Australia’s privacy regime was inadequate. 

Maybe simply too much Ho, Ho, Ho at this time of the year in Brussels?

There is no reference to recognition of Australian adequacy on the OAIC website.

While changes to the Privacy Act in 2004 and some of the recent amendments (still a long way from coming into force in May 2014) may have helped the cause, inadequacies cited in the ALRC 2008 report that have not been addressed include the small business and employee records exemptions and, in the context of cross-border data flows, the development and publication of a list of laws and binding schemes that effectively uphold principles for the fair handling of personal information.  

Elsewhere in EU published material is this reference to an agreement between the EU and Australia on the processing and transfer of European Union-sourced passenger name record (PNR) data by air carriers to the Australian Customs Service. 

But no published opinion about the adequacy of Australia's privacy law along the lines of that issued for New Zealand and others.

Christmas sign-off

Wikimedia Commons-US Army

You're done and I'm done despite the fact the job's never done.  So all the the best from Summery Sydney, to occasional and regular readers and thanks for the input during the year. 

I'll be here intermittently returning more regularly from around the middle of January.

Enjoy!

Allan Kessing deserves more than a medal

The revelations this week about Customs won't give solace or much comfort to Allan Kessing, even of the cold kind. But they vindicate his warnings in reports written 10 years ago that were ignored by authorities and perhaps provide just a little satisfaction.

From the report of his media conference with Senator Nick Xenophon today:

Mr Kessing said in April 2005 he approached Anthony Albanese, the then-opposition transport spokesman, and briefed one of his staffers about his concerns surrounding the reports, before meeting personally with Mr Albanese. Information contained in Mr Kessing's reports appeared in The Australian newspaper a few months later. Mr Kessing claims he then was the subject of a witch hunt. His home and that of his recently deceased mother were raided in 2005, and the Australian Federal Police spent $250,000 tapping his phones and putting him under surveillance, he said. In 2007 Mr Kessing was convicted for breaching Section 70 of the crimes act, but denies he supplied The Australian with the report. Mr Xenophon said in the wake of this week's revelations about alleged corruption and criminal activity at Sydney Airport, Mr Kessing should be pardoned and his two reports publicly released."The scandal is that this man who deserves a medal for the work he did 10 years ago was actually persecuted through the courts, had his life effectively ruined," Mr Xenophon said.

Have the best Christmas you can, Allan.

And the same to former Customs bosses, Mr Albanese and current and former staffers, ALP leaders who made much of the injustice to Kessing before the 2007 election propelled them into government, and Minister Jason Clare and those that drafted for him the refusal of the Kessing pardon application.

When the government gets around to legislating for comprehensive whistle-blower protection after five years of promise, let's call it The Kessing Act.

FOI -$41 million well spent?

Effectiveness - results, outcomes - features in the the Terms of Reference for the Hawke review of the Freedom of information Act and related acts.

Efficiency is not mentioned.

However Dr Hawke was directed to consider “the role of fees and charges’ and “the desirability of minimising the regulatory and administrative burden including costs, on government agencies.” The Attorney General managed to turn that into this in her Media Release: 

"$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."

In my submission (now published with a few other new ones) I argued that it is clearly desirable to minimise costs and the administrative burden through efficiencies while seeking to achieve desired outcomes and results. 

Efficiency requires an assessment of how well systems and resources are utilised and applied in the implementation of the laws. 

We don't know much about this.

Dr Hawke should do some digging for information that would throw light on what resources are allocated to the information access function, whether agencies fully utilise available technology, what constitutes good practice and whether agencies apply such methods and practices.

The $41 million cost estimate for the FOI function in 2011-2012 included staff costs of $33.8 million, and $6.5 million in legal advice and litigation costs.

The averaged agency cost per request was $1876, up from $1799 the previous year and double the cost in 2007-2008.

It is unclear what gave rise to the increase. Or what agencies are doing to reduce costs.

Responding to requests for information is a cost of doing government business in a democratic society. The public has rights and cost should not be a significant barrier that stands in the way of exercise of those rights. 

The public also has a right to enjoy lowish costs as one of the dividends flowing from the hundreds of millions spent on improved information management systems within government over the years. In fact there should be another dividend- access to tools that assist in knowing more about what information government holds, to better inform requests from outside the loop.

The available evidence suggests some agencies are not operating optimally. 

The Auditor General for example has drawn attention to record management shortcomings over the years, shortcomings that must significantly impact on FOI administration.

The Cornall report on DIAC refers to aspects of poor process, leading to long delays and presumably high cost to the agency.

At the National Information Law Conference in Canberra in November the officer in charge of FOI at Foreign Affairs and Trade described the FOI unit as resembling a craft shop when he assumed responsibility, with officers utilising tape and pen to redact information by hand from documents prior to release. Software for this purpose had been utilised subsequently. How widespread “craft shop” practices are in FOI administration across government is unknown.

The degree to which ministers and public servants purposefully game the system, and the resulting effect and cost is also unknown.  And we don't know to what extent an abundance of caution in interpreting the law, delay in responding to requests, inadequate searches for relevant information and poor decisions based on the premise that the applicant is unlikely to challenge add to cost.

What this FOI matter cost the Department of Industry, Innovation, Science, Research and Tertiary Education is unclear but it is certain to be in next year’s cost statistics. It wasn’t brought on by the applicant’s behaviour.

A major efficiency issue is whether the right decision is made on an application the first time. Information about the extent to which original decisions are consistent with the law is limited and only comes to light in the event the matter receives later visibility through the review process.Most matters are settled before final decision-we don't know how many poor decisions show up. And many applicants may simply live with the results of a poor decision and walk away at that stage.

So in my submission, Dr Hawke should look into all this while considering “the role of fees and charges’ and “the desirability of minimising the regulatory and administrative burden including costs, on government agencies.” The Attorney General could of course have given him terms of reference that put efficiency much more clearly in the frame.

As to the future regarding charges Professor McMillan’s report is a good start to discussion.

However the proposed flat 40 hour cut off, without more, needs rethinking. The proposal is an attempt to put more certainty around the substantial and unreasonable diversion of resources provision that has been in the FOI act since it commenced. It's origin is a NSW ADT decision years ago that interpreted similar words in the NSW act to mean that anything that involved 40 hours processing time was getting into substantial diversion of resources territory. However it was not a strict rule and other factors, including the nature of the information sought needed to be considered.

Inside a Victorian FOI training room

Fiona Hudson of the Herald Sun came away from this freedom of information conference in Melbourne convinced that the start position in FOI processing is the search for a relevant exemption. I don't know if this is a fair assessment shared by others who were there - I wasn't.

Hypotheticals like the case of the fake ferry involving complex facts are a useful teaching aid. As long as the context and lead in is a strong message that the start position is that the applicant has a right to ask, and the agency must release what is requested unless there are good reasons why not based on a fair reading of the exemptions- reasons that will withstand scrutiny not just plucked out ot the air.

The reference to a "quick and dirty" decision that can be tidied up if and when the applicant seeks review that left Hudson agog is indicative of a tendency to game the system. Just how widespread this is in Victoria and elsewhere we just don't know. But it strikes a familiar chord

While the documents were fictitious, the response from the 40 or so people in the room - many of them FOI officers or legal advisers for councils or state government agencies - was all too real.They took to the task of suppressing the information with alarming zeal.
I had spent the day alongside them learning about recent changes to Victoria's FOI regime at a Leo Cussen Centre For Law conference on November 30 - the eve of the amendments taking effect.
Feeling a little like a poacher-turned-gamekeeper, I'd handed over $520 and signed up under my real name. A tag revealed who I was and where I worked, but no one seemed to be bothered about curtailing their comments.
The lectures were helpful, but the real value of the day was the insight into the minds of the people who handle the dozens of applications for public information that Victorians file every day to government, councils and agencies.
Some presenters were at pains to reinforce that the FOI Act gives members of the Victorian public rights of access to official documents and to remind those in the room that the public deserved timely, consistent and complete responses to their FOI requests.
I cheered inwardly as one officer urged others to be open, active, helpful, efficient, collaborative and to think in the public interest.
But comments and questions from some other presenters and attendees left me agog. One, for example, bluntly admitted a tendency existed in some agencies to deliver "quick and dirty decisions", which could be "tidied up" if the applicant sought an internal reviews.

Does anyone know how the first month went for the Victorian Freedom of Information Commissioner?

NZ sits on OGP as a "low priority" while members soldier on

An application under the Official Information Act via FYI for documents concerning New Zealand consideration of the case for joining the Open Government Partnership has produced this Foreign Ministry briefing note from February 2012.

 Like the brief from Attorney General's in Canberra in May 2012, it cited no arguments against joining, suggesting it was a matter of weighing the cost against the likely criticism for not signing up that would likely follow such a decision. Two recommendations were redacted, so the document isn't quite the full story but the note to the minister recommended that membership should be an overall low priority with a ministerial submission on joining to follow once scope, costs and the risks of membership were understood. As this is the only information held by the ministry, presumably that's where things stand 10 months later.

Meanwhile the minutes of the OGP Steering Committee meeting in London earlier this month refer to the adoption of a Multilateral Partnership Framework that will seek to leverage the capacity of multilateral bodies to support OGP eligibility and action plan implementation - something Australia and NZ wearing various multilateral hats will encounter in those fora; and a decision to expand the Independent Expert Panel by two to ensure greater regional balance – for example, by including Senior Advisors from Asia and Latin America; and a range of pressing financial, resource and other issues that Indonesia and those in the vanguard are facing. 

On additional IEP members, the Criteria and Standards sub-committee will issue an open call for nominations specifically for Senior Advisors from Asia and Latin America, and they will also ask current IEP members for recommendations, as well as draw on any relevant candidates from the last round of nominations. 

You would like to think an Aussie might fit the Asia bill, given Australia in the Asian Century and all that, but alas I'm dreaming.....

Hawke review submissions

Finally sent my submission off to the Hawke FOI review on Monday morning.  

AG's have picked this time to revamp their website so previous links to the review don't work, producing a 404 Not Found. 

The relevant page and the handful of submissions published so far is here. (A search for Dr Allan Hawke  and FOI Review takes you nowhere at present.) 

Of interest in newer submissions- Jeremy Tager recounts resistance to use of the act for public purposes in an attempt to access environmental information; the three parliamentary departments call for urgent clarification by the Parliament itself of the application of the FOI act to information held by them, and for the scope to be limited to documents of an administrative nature; the Inspector General Intelligence and Security wants changes to a requirement for that office to provide evidence regarding national security related matters to the OAIC and the AAT in order to limit waste of her time; and the Australian Meteorological and Oceanographic Society wants scientists and their work protected from fishing expeditions and from those prying into the peer review process.

Not published by AG's yet, but you can down load a copy of my 20 page submission from The Box. A ramble on impediments in the law and in implementation and a whole lot of question marks about culture, outcomes and results, efficiencies or the opposite, that those of us on the outside don't/can't know about, but Dr Hawke should look into. Talk about bonus christmas reading! 

The submission from the Office of Australian Information Commissioner runs to 91 pages and 30 recommendations. Others out there on the web include a submission from The Greens Senator Rhiannon. And Rick Snell was busy-three submissions here.

There are plenty of weighty issues in these and likely, in other submissions yet to be sighted, that would benefit from more than a one on one chat with Dr Hawke - which seems to be the consultation modus operandi planned for the new year.

Six months-now four-for all this is likely to mean many important issues and good ideas will struggle for attention, or enhancement.

"From next year, Queenslanders will have the most open, accountable and transparent government ever seen across this nation"

So sayeth Attorney General Bleijie in Parliament on 27 November in introducing the Right to Information and Integrity (Openness and Transparency) Amendment Bill 2012. The bill passed on an urgency motion (debate on the bill itself is in the Hansard 29 November at 3012), received assent yesterday 11 December (Act 45/12) and will commence on a date to be proclaimed.

The changes relate to the RTI act disclosure logs and the the Integrity Act - the latter regarding lobbying, with an Australian first in extending the scope to parliamentary opposition leaders, and requiring lobbyists to keep records of contacts and provide information to the Integrity Commissioner.

The legislation was so urgent apparently that as the Explanatory Note ( see under Right to information.....) states:

 "The community has not been consulted on the Bill. The Acting Information Commissioner was provided with a draft of the amendments to the Right to Information Act 2009 . The Integrity Commissioner was consulted, and provided input into, the proposed amendments to the Integrity Act 2009." 

(I can see a difference in wording here that may be significant.)

Leaving the "best ever" claim to one side - and Opposition leader Palaszczuk claimed the bill weakens the existing integrity laws - journalists and media organisations will be disappointed. I've heard some are pushing the Hawke review in Canberra arguing for five days for exclusive use of documents released in response to a Commonwealth Freedom of Information request. Queensland where they have had up to now at least 24 hours before released information is posted on the disclosure log is cited as a less than perfect precedent.

I guess there have been "I'm mad as hell" shouts in light of the fact that the Queensland 24 hour exclusive period has been scotched as a result of the amendments. This provision in the repealed s 78 "However, nothing about the document (including a copy of the document) may be put on a disclosure log until at least 24 hours after the applicant accesses the document" isn't in the substituted section 78, 78A and 78B The new formulation is to post released documents on the log "as soon as practicable" after release to the applicant.

Rumbling in media circles won't be limited to the lack of opportunity to defend the 24 hours period or argue for longer. Another aspect of the new system likely to give rise to media angst is that details of what information is sought are to be posted on the log as soon as practicable after a valid application has been received by an agency and before any decision on release has been made. 

Here are the relevant extracts from the Explanatory Note (emphasis added)

Robbo's bright ideas lead government to 1689 and bring Sir Humphrey centre stage

The NSW Opposition leader John Robertson's latest idea is a good one: that interest disclosures by NSW parliamentarians should extend to family members and be posted online. Required disclosures are limited to the member's interests-hence a discounted car given to the wife of the then treasurer didn't need to be included- and are available for inspection on week days during business hours in Macquarie St.The corresponding federal parliament requirement to notify registrable interests includes those "of which the Member is aware of the Member’s spouse and any children wholly or mainly dependent on the Member." Premier O'Farrell responded that the Privileges Committee should take a look-presumably to see if this would have been OK in 1689.

Mr Robertson's previous transparency idea was the bill seeking to give effect to a promise to abolish GIPA application fees made by the now governing Liberal Party before the last election, a bit of an attempt at political points scoring. Predictably it didn't get anywhere. The government voted it down in the Legislative Assembly on 21 November.

The application fee in NSW of $30 (an agency may waive, reduce or refund the fee ) has remained the same since 1989. It is no big deal although if information access is a right, it could be argued that you shouldn't have to pay to exercise it.

However the resumed parliamentary debate on the bill had me wondering whether Antony Jay and Jonathan Lynn who wrote the Yes Minister series had snuck into town and were now writing briefing notes to be shared among government members. He wasn't alone but Andrew Cornwell Member for Charlestown takes the Sir Humphrey prize:

In a tight fiscal environment we should think about the effect on, say, a university that is subject to the Government Information (Public Access) Act. Most universities have a full-time employee actively dealing with Government Information (Public Access) Act applications, with the $30 fee, under the current arrangement. Universities are afraid that removal of the $30 fee could result in the number of applications multiplying tenfold or a hundredfold. That would result in decreased services for students and increased costs to universities, and it would affect people's ability to deliver better educational outcomes for our kids. Some applications request information from 20 years ago. People have a right to make Government Information (Public Access) Act applications but they are subject potentially to misuse..

......Imagine the increase in middle management that would result from opening up, carte blanche, Government Information (Public Access) Act applications. Organisations, businesses, government departments and other government agencies that are getting on with delivering services to the community would end up with a reduced number of people on the front line and a bloated middle management dealing with thousands of difficult, potentially vexatious and problematic Government Information (Public Access) Act applications that have no relevance to the actual service delivery of those organisations "

He probably ran out of time before he got to the part that hospital beds and libraries would need to close.

As grave predictions were made about what would transpire if the application fee was abolished, no one mentioned how much in application fees is collected a year. Or the cost in agency time and resources of collecting fees, particularly as the vast majority of agencies in NSW don't allow payment on-line (from the Attorney General's own department: "enclose the $30 application fee (cheques and postal orders made out to 'NSW Department of Attorney General and Justice'). 

My guess is it is way in excess of $30 every time a cheque or money order, for heaven's sake, comes in. But apparently well worth it to keep the hordes at bay, if government speakers are to be believed.

No-one mentioned that agencies are encouraged to provide free of charge information in response to an informal request under the GIPA act if there are no public interest reasons why it should be kept confidential. Or whether the barbarians at this gate are numerous enough that we should rethink this dangerous idea.

And no-one provided a scrap of evidence to support claims that the effect would be negative all round. While advice from the Information Commissioner NSW was cited, the report on a review that commenced in October 2011 on fees and charges has not been published. 

The recent comment by the Australian Information Commissioner that abolishing the application fee had had knock on effects in the Commonwealth jurisdiction but he wouldn't be recommending its reintroduction apparently passed everyone by.

The Greens Jamie Parker on the cross-bench provided a touch of realism and sanity.

As to the rest, not parliament's meatiest debate or finest hour.

Another good idea if Mr Robertson is looking for one, is the same on-line disclosure requirement for payments of entitlements to NSW parliamentarians.The annual report for 2011-2012 of the Department of the Legislative Assembly has been published recently. Annual reports by the Department of Legislative Council appear to have gone missing for the moment at least. The only place you find any information about entitlement payments to  assembly members is in Appendix G of the report - global amounts no details. (While not complete because it does not include payments made by the parliamentary departments, and is not close to real time, detailed disclosures regarding payments to or for federal parliamentarians by the Department of Finance and Deregulation are published online, and more regularly than once a year.)

OGP-Irish seat readied, still room for Australia

Ireland's Minister for Public Expenditure and Reform yesterday

 "I intend to bring proposals to Government shortly for Ireland to participate in the global Open Government Partnership, reinforcing our commitment to progress in this area."

From the linked paper, Ireland and the OGP: 

There is strong evidence that the Open Government agenda, comprising measures to secure greater openness, integrity, transparency and accountability of public administration by strengthening public governance, and the effectiveness of the state institutions, is an important determinant of an economy’s sustainable long‐term growth potential.........
OGP membership would support the further development of a planned, structured and systematic approach to key Government reform priorities. 
Successful participation will require public bodies to work in concert with one another to help deliver the full potential of the membership. 
The requirements of OGP participation will be delivered within existing resources and would be expected to build initially on what the public sector is already committed to achieving under the Programme for Government consistent with the main themes of OGP
Ireland’s participation in the Open Government Partnership would be expected to provide an international dimension to many existing national efforts in openness and reform, and has a clear potential to contribute to Ireland’s economic recovery.

Thanks Andrew.

Hawke review submissions

I've pleaded and been given an extension of time but the first four submissions published are all excellent first shots, each raising important issues. Hat tip to Craig Thomler, Rick Snell, Evelyn Doyle and John Wood for being diligent and putting sensible and authoritative observations about the state of foi land and how things could be improved.
 

Dear Dr Hawke (3)

Just one submission in the in-tray with two days to go until the 7 December deadline. (Make that four as at midday on the 6th)

Disappointing so far, but I know there will be more-Rick Snell copied me into his, and that's sure to be up in lights soon. You won't be too tough regarding late entries I hope.

Australian Information Commissioner McMillan provided food for thought in his address last week to the corporate lawyers - Thirty years of the FOI Act- Service, Overhaul or Refit.

I'm for new chasis and engine although some existing parts could work. That would involve a lot of territory in the next few months-more like a job for the ALRC, but they're skinny on resources these days. And of course all that work that went into advising the government in Secrecy laws and open government has been lying around somewhere in Canberra gathering dust for the last three years, along with quite a few recommendations that go back to their 1995 Open Government report that have rarely been mentioned since and were ignored in 2010.

They are a small resilient crowd at the ALRC but even their spirits may have flagged.

So overhaul might be all you can manage in the time but that was part of the problem last time in 2009-2010- new bits on old bones that are weary and showing their age.

Anyway, a submission on such broad ranging topics as the operation of the Freedom of information Act and the OAIC takes a bit of doing. Particularly in the absence of guidance in the form of an issues paper or statement from you on what might be useful. I'm working on it-with distractions like this....

And of course apart from those in government agencies, only rusted on aficionados out here know about the review. There were a couple of brief references in the media, but otherwise only those that stumble across the reference on the Attorney General's Department website (fourth item in the fourth box on the right) or notice it listed as a "Hot Topic" on the OAIC website will know you are on the job and interested in their thinking.

No other government agencies-the ones that deal with those 25000 requests a year-appear to have brought your review to the attention of those that visit their websites. Wonder if they're mentioning it to FOI applicants or with an eye to being helpful to you on the effectiveness front, undertaking a survey or inviting comment from users on the FOI experience? If so, that might be a 30 year first.

In case you're looking to fill in before that in-tray fills, hopefully to overflowing, some useful reading from recent papers includes:
  
Measuring Openness by Sheila S Coronel.
Comments on that paper by Helen Darbishire and Toby Mendel and Coronel's response
Transparency in Troubled Times by Alasdair Roberts
The UK Government response to the Constitutional Affairs Select Committee (pdf) review of the FOI act.

Enough-back to work on the submission.

Cheers.

The OGP: Senator Faulkner says the time for Australia to join is now

Well goodness gracious me.

In a speech at the Melbourne search conference "Integrity in Government - A Work in Progress" today highly respected former minister, now government backbencher Senator John Faulkner spoke about the putative national anti corruption plan, the need for a Code of Conduct for parliamentarians, the long overdue comprehensive whistleblower protection legislation and electoral funding reform, and why there is no excuse for further delay on these important integrity reforms. And

the case for  Australian membership of the Open Government Partnership.

Excuse me while I pass the parcel - sorry can't help adding some emphasis. Is anyone in PM&C, DFAT, OAIC, and AGIMO listening? Take it away Senator:

The fourth key step the Commonwealth Government should take is to become a signatory and support the Open Government Partnership. Launched last year in New York, the OGP was established to promote transparency, tackle corruption, invigorate civic participation and, especially important in this digital age, harness new technologies, so the ideals of freedom and democracy are strengthened in implementing countries.

As the Open Government Partnership Declaration observes: “People all around the world are demanding more openness in government, calling for greater civic participation in public affairs, and seeking ways to make their governments more transparent, responsive, accountable and effective”. With its membership now numbering 57, national governments of the Open Government Partnership commit:To be more transparent at every level, by increasing the availability of information about the activities of government.To engage more citizens in decision making, so they participate more actively in their democracy, thereby making government more effective and responsive.To implement the highest standards of professional integrity throughout administrations, and To increase access to new technologies for openness and accountability.Though it goes by the name “Open Government Partnership” – it is in equal measure a partnership with civil society. Government does not have a monopoly on wisdom. The commitments of OGP member states are put into practice by working with civil society organisations to implement concrete plans of action. Already the OGP is setting a new global standard for good governance.

The OGP roll call of democracies committed to strengthening a global culture of transparency and accountability includes some of our oldest friends: the United States of America, the United Kingdom, Norway, and Canada. I am disappointed that Australia is a notable absentee.

The Australian Government has indicated that it is considering the detail of the initiative but has so far reserved its decision on participating in the Open Government Partnership.

Given the Government’s stated commitment to transparency, accountability and good governance, we should not hesitate to join this international effort to promote these fundamental values.  

Australia has always embraced and benefited from participation in international institutions and initiatives. We should seize the opportunity to do the same with the OGP.

It is ironic that the largest recipient of Australia’s overseas development assistance, Indonesia, is a very active member of the Open Government Partnership and currently a co-chair, yet, Australia is nowhere to be seen.  

When other recipients of Australia’s aid, such as the Philippines and Tanzania, are also members, I find it very hard to justify Australia’s absence. Membership of the Open Government Partnership would assist Australia to spread values of transparency and accountability in our region – a region where 22 of Australia’s 24 nearest neighbours are developing countries.

In light of the Gillard Government’s recent Asian Century White Paper and Australia’s new role as a member of the UN Security Council, Australia should utilise the OGP to encourage and support continuing efforts in our region to strengthen democratic processes and encourage greater scrutiny of government. 

Australia has a wealth of knowledge and experience to share with other nations who comprise the growing Open Government Partnership. For example, last November the Government unveiled a new Transparency Charter, which now publishes, online, detailed current information and results about what our aid program is delivering.

Internal audit reports and strategic direction documents are also being published online. Against this backdrop it is not surprising our Agency for International Development – AusAID  - was recently ranked 18 of 72 donors in the 2012 AID Transparency Index developed by Publish What You Fund – The Global Campaign for Aid Transparency.

Encouragingly, the report notes that AusAID had improved its transparency score by 31 percentage points and its rank by 16 places, but, it also made quite clear that Australia should consider joining the OGP.

One example of an international transparency and accountability initiative which Australia has committed to is the Extractive Industries Transparency Initiative or EITI. At last year’s Commonwealth Heads of Government meeting in Perth, Australia actively urged leaders to recognise the importance of sustainable natural resource management and commit to the EITI.

The EITI promotes better governance in countries rich in oil, gas and minerals by seeking to reduce the risk of corrupt diversion or misappropriation of funds generated by the development of a country’s resources.Australia is a member of the EITI Management Committee and has so far committed $17.45 million (2007 to 2015) to the World Bank administered Multi-Donor Trust Fund and the EITI Secretariat.

With the only other EITI-compliant country in our region being Timor Leste, the OGP would provide an excellent opportunity for Australia to encourage our other developing resource-rich neighbours such as Indonesia, Papua New Guinea, and the Solomon Islands to sign on. 

The OGP presents a great opportunity for Australia – a technologically advanced and open democracy – to underpin future commitments to openness, transparency, and accountability through engagement with an internationally recognised and respected multilateral initiative. Membership could only strengthen our democracy and governance. Through the Open Government Partnership we can advocate strongly for more openness in other nations while enriching our own.

The time for Australia to join is now.
 

'Australian chair' still vacant at OGP London meeting

If someone had followed through on Attorney General Roxon's "let's join" proposal in May, the Australian government would have a presence in London this week for meetings of the Open Government Partnership. 

Not at the big table reserved for steering committee members mind you, or at any of the subcommittee meetings, just at the Peer Exchange meeting for all incoming participating countries. 

Given some of the weighty issues on the agenda that need sorting we might of course bring to the meetings some of that capacity and skill that propelled us onto the UN Security Council. And some of our 30 years experience in the FOI game. But it might take time for our legendary diplomacy to produce results that move us from the 'new boy/girl' seats at the back into a position to contribute and learn from others-and that would be after we get around to deciding to sign up and take action to acquit our membership responsibilities.

Apart from an opportunity to talk to those from governments prepared to lead on open government on the big scene, any Australian representative present in London might have had a chance to chat also if they are there, to Mary Robinson, Ireland’s first female President and former UN High Commissioner for Refugees and Graca Machel from Mozambique and wife of Nelson Mandela- two of just announced senior advisors of an eight member Independent Expert Panel that will oversee the OGP Independent Reporting Mechanism.

"They will also play a key role in international and regional outreach on IRM report findings and implications. Together with the technical experts they will help ensure that the IRM delivers high quality, credible and independent reports each year on what OGP participating countries are doing to deliver on their commitments."

Meanwhile those who won't be in London or at other meetings but are interested in improving this aspect of democratic practice at home and abroad can follow developments through the excellent reporting by Toby McIntosh from Washington.
 

Walkleys for familiar FOI names

Walkleys 1965

Congratulations to all the Walkley Awards for Journalism winners, particularly to Steve Pennells who won the Gold Walkley and two other awards for his news and feature articles in The West Australian newspaper on the Rineharts.

And especially to these sharp 'freedom of information' as well as top journalism practitioners:
 
Television reporting
Michael McKinnon and colleagues Sharri Markson, Lee Jeloscek, and Adam Walters at Seven News, Seven Network for “The cabinet leak” (a NSW story from memory. Update-
stories that revealed the NSW Government went against advice from Treasury, the Energy department and even the Crown Solicitor to support ethanol blended petrol – a decision which favoured one of its biggest donors Dick Honan of Manildra. A GIPA success -McKinnon tells me it was "a leak backed up by some great NSW treasury docs." "One week after the primary story went to air on January 23, Premier Barry O’Farrell overturned the ban on regular unleaded fuel in his first major backflip."

Business Journalism
Nick McKenzie and Richard Baker, 7.30, ABC TV and The Age, Fairfax, “RBA faces questions over bribery connections” (who forged on despite this sort of FOI runaround).

Investigative Journalism
Linton Besser and Kate McClymont, The Sydney Morning Herald and The Age, “Exposed: Obeids’ secret harbour deal” (the first step in a shocking story now unfolding before the ICAC).

Television Current Affairs, Feature or Special
Geoff Thompson (who recounted  recently at the National Information Law Conference the story about the remarkable FOI backdrop to the School for Killers) and Mary Ann Jolley and Mary Fallon, Four Corners, ABC TV, “Unholy silence” 

On the related topic of transparency and reuse of data, the combined forces at the SMH and the University of Technology Sydney team that did some innovative work on the Register of Interests (don't call Senator Faulkner for a soundbite):
Best Digital Journalism
Stuart Washington, Tom Allard, Conrad Walters and UTS Team, The Sydney Morning Herald, “Sky’s the limit on political gifts

And completely off-subject, you just have to love the NT news winner of the Award for Best Three Headings to Paul Dyer, for “Eyeful tower”, “Dogs of phwoarrr!” and 

“Why I stuck a cracker up my clacker.”

As to what appeared below that headline, good taste dictates we don't go there.