Australia and OGP, news both heartening and disappointing

Heartening that the Office of Australian Information Commissioner released information on Friday that provides a fuller picture of where things stand regarding Australian membership of the Open Government Partnership. And that the OAIC and Attorney General's have at least been thinking about it since May last year when the Attorney General said 'let's join." The outline of what is required for a formal application and a path toward the London Conference later in the year is being discussed between agencies.

Also good to see that the OAIC responded to the request for documents released via Righttoknow in best practice mode, a contrast to other recent experience. Within a week the office provided informal (Administrative Access) to the full text of all three communications with other agencies about the OGP in 2012-13, as well as providing contextual information in an accompanying letter. No run - around of the oft encountered variety there.

However disappointing  that behind the scenes, activity on OGP membership at AG's and the OAIC has been at snail's pace. We already knew Foreign Affairs and Trade weren't paying much (any?) attention. And that the thinking within the bureaucracy on what might flow from membership seems limited and, well, unexciting. You have to wonder if anyone on the inside has ventured forth to discuss what could be with anyone outside the parliamentary triangle? 

(Update-later developments here and here)

Sound decision by OAIC

This (possibly first) challenge to a decision by the Australian Information Commissioner - not to investigate a complaint - before the Federal Court of Australia was as lame as they come. The Court said the application to the OAIC was frivolous and fundamentally misconceived. It dismissed the challenge and awarded costs against the applicant who was awaiting extradition, but certainly knew his way into a courtroom when the matter was heard just before Christmas: two matters before the Australian Human Rights Commission, a matter before the Family Court of Australia, and a matter before the High Court of Australia. Phew!

CIA accepts email FOI requests

Fair dinkum. Meanwhile Dr Hawke considers among other issues whether Australian intelligence agencies should continue to enjoy a blanket exemption from the Freedom of information Act. 

The heading "CIA enters 21st Century on FOIA submissions" reminds that Federal agencies here covered by the act have taken this step, and from some submissions to the Hawke review, may be regreting the application process has been simplified and made even easier via Righttoknow for example. But many state government agencies are still back in the stone age as we found from a quick look around a while ago.

South Australian Police still take the gold boulder- asking that you personally front up to a police station with your completed application form. Others such as NSW Roads and Maritime provide the convenient option of dropping your application into an office or dropping it in the mail. 

 

To be fair some NSW agencies such as Finance and Services moved into the 1990s in the last year or so, accepting an email application and EFT payment.

 

But there are plenty of others in NSW, SA and Western Australia still opening the stamped envelopes each morning, scanning the application before whacking it into the manila folder. And expecting the applicant has followed the guidance to pay the application fee-strictly cash, cheque or money order, thank you. (Memo to those of tender age: once upon a time, long before electronic payment there was something called a money order.....).

NZ not up for major information access reforms

The New Zealand Government has responded to the Law Commission review of the Official Information Act, picking at a few of the 137 recommendations but rejecting the need for major reforms.  

Among the NZ commentariat  No Right Turn who said he would be quite happy if the LC report died quietly in a ditch somewhere and was forgotten, thinks that is pretty much what has happened. Wellington Barrister Steven Price on the other hand had a more positive view about the Law Commission's proposals writing just before the Government response was released.

The full text of the response is ironically, hard to locate but thanks to some expert ferreting by a NZ colleague the link is here.

Of particular interest is the thumbs down given to the proposal for statutory creation of a new oversight office along the lines of our information commissioners. The Ombudsmen are doing fine thanks.

And the big NO to the recommendation that the OIA extend to the Offices of Parliament, Parliamentary Counsel Office, the Office of the Clerk and Parliamentary Service, and the Speaker of the House, in respect of administrative and financial information and excluding any audit, assurance work, inquiry or investigation activity.

"The government does not agree with the Law Commission’s recommendation and supports the status quo.  New Zealand has an open Parliament by international standards and Parliament currently makes a great deal of information available.  Parliament has processes for developing rules around access and use of information and this is more likely to achieve the desired balance between access to information and the proper functioning of Parliament.  This approach is consistent with the approaches taken in the Australian and Canadian federal parliaments and the US Congress. .... the existing scrutiny provided through the Parliamentary estimates and financial review processes is considered appropriate.  This scrutiny is publically accessible and provides transparency in the work and spending of the Offices of Parliament."

Hmm, off the rails a bit there.

The Australian federal parliamentary departments at present are covered by the FOI act as they lament in a submission to the Hawke review. They want coverage cut back - roughly to what the NZ Law Commission recommended. 

That's the situation in Tasmania. 

The Westminster houses of parliament are covered in the UK. So is the Scottish Parliament, the National Assembly of Wales and Northern Ireland Assemby. And as I understand, parliaments in Ireland, India, South Africa and Mexico, to list a few more. 

NZ does FOI well and leads the likes of us in many respects. 

But big picture, modernising reforms have gone to the backburner.

The Australian muscles up for another year opposing privacy cause of action

In The Australian on Monday Legal Affairs Editor Chris Merritt and the sub-editors who came up with this headline "Mark Dreyfus sees free speech risk in privacy law" from an interview with the incoming Attorney General, returned once again to a campaign News Ltd and The Australian in particular have been running against privacy for five years. In the print edition it made front page

Yet as far as I can see Mr Dreyfus was making the same point as anyone else who has looked at this: getting the balance right in framing a cause of action for breach of privacy is difficult. This is what he said: 

"Legislating in an effective way to protect privacy while at the same time not unduly affecting freedom of speech has proved to be a very difficult task," Mr Dreyfus said. "In jurisdictions where they have had legislation I don't think they have got the balance exactly right yet.".....
Mr Dreyfus said yesterday he would not reveal the government's position on the push for a privacy "tort" - or statutory cause of action - until after he had received a briefing from the Attorney-General's Department. But his "present, personal view" was that while there were concerns about invasions of privacy it was very difficult to legislate to enable privacy litigation without adversely affecting freedom of speech. He believed this difficulty probably explained why the government had not yet produced a legislative response to proposals for a privacy tort that were outlined in a government issues paper nearly 18 months ago.

Merritt on this occasion and The Australian otherwise rarely report that many who have turned their minds to the issue think it is doable and worth doing. And that the reasons for providing a statutory remedy for an unwarranted serious invasion of privacy go far beyond  media preoccupation with its own interests.

Three law reform commissions recommended a statutory cause of action.

Almost all legal experts who lodged a submission in response to the government's Issues Paper published in 2011 accept there is a gap in the law. Most agree legislation is the best answer, although some think that judges rather than policy makers will have more and better wisdom. I'm with Professor Moira Paterson of Monash University:

The creation of a statutory tort is arguably preferable because it provides scope to craft a law which clearly addresses the complex policy issues involved (for example, by providing guidance concerning the balancing of privacy with competing interests such as freedom of expression). It also provides an opportunity to provide detailed guidance concerning the operation of the new law.

The Law Council of Australia shifted from opposed, in a submission to the ALRC privacy inquiry, to open minded in response to the issues paper. Two members, the Law Society of NSW and the Law Institute of Victoria favour legislation in their submissions. There is plenty of support from others as well-the privacy foundation, rights groups, advocacy bodies such as the Public Interest Advocacy Center and state privacy law regulators.

Everyone accepts the tricky part is to get the balance right, so Mr Dreyfus is in good company. There are plenty of ideas about that including whether to set the bar low or high, and how to adequately protect freedom of expression which is not absolute and whether to frame this as an element of the cause of action or as a defence. And international precedents and lessons from experience are available from the US, the EU, and four Canadian provinces to mention a few.

While crying freedom of speech is a right above all else there has been scant acknowledgement in The Australian over the years that privacy - despite the difficulties in definition and arising from the changing world around us - is a right under the International Covenant on Civil and Political Rights (Article 17) to which Australia is a signatory with an obligation to protect as well. 

On the likelihood of government action, I'm a realist, now 14 September is firmly in the frame. As Mr Dreyfus said

"I am being brought in with 7 1/2 months to run before the election with a government that has carried out a great deal of law reform already. "I am going to make an assessment of what are the balance of reforms that should be worked on during the remainder of this term and what we should move on in our next term."
 

(The Rudd and Gillard governments have been sitting on this for five years.)

Most of the article was about the consolidation of anti-discrimination legislation - which didn't feature in the headline - plus these comments by Mr Dreyfus about whistleblower protection and the draconian s 70 of the Crimes Act:

Despite leading a 2009 House of Representatives committee that had recommended retaining criminal sanctions for most unauthorised leaks, Mr Dreyfus would not be drawn yesterday on the government's long-delayed legislative response to his committee's report. But before the last election he distanced himself from his committee's recommendation and told a conference that criminal penalties for leaks by public servants "do not match the kind of society that we have . . . they don't match the ease of communication and the availability of information that we have in the electronic and digital age we are living in".

'Complex and voluminous' is only part of the OGP puzzle

What was I thinking?

That Foreign Affairs and Trade would hold a document concerning the Open Government Partnership and the pros and cons of Australia joining?

I imagined the disclosure in November that the Attorney General, in discussions with her advisers in May last year, had suggested Australia should join would prompt a modicum of activity in other agencies with an interest including DFAT.

That these 10 points in the case for Australia joining included a number of foreign policy considerations worth at least a thought.

That someone in DFAT might have drawn to relatively new minister Bob Carr's attention the fact that an invitation to join sent to his predecessor Kevin Rudd by Secretary of State Clinton in August 2011, apparently never received an answer.

That Indonesia and the UK, the current co-chairs presumably have had a word in at least one official Australian ear?

That we would notice transparency is being talked about in the G20.

And that our Embassy in Washington would pick up that the US attaches significance to the OGP and pass this back to Canberra.
 
On that front, Samantha Power senior director for multilateral affairs and human rights in the White House said recently President Obama has a personal interest in the OGP initiative, having launched it in the UN General Assembly in 2011. At the time he challenged leaders to respond with ideas for how to achieve more transparency, fight corruption, harness new technologies for innovation, and empower citizens. Powers said President Obama often brings the subject up, spontaneously, with foreign leaders and described the OGP as "President Obama’s signature governance initiative."

"Governance initiative" may be a term unfamiliar to our leaders. Neither the Prime Minister nor the Leader of the Opposition mentioned anything of the kind in their major set pieces last week, despite crying "trust me" in unison. 

Setting off on a partnership with civil society of the kind envisaged by the OGP could be part of what is required as a start to restore confidence, quite apart from the international dimension of the case for joining. But it would be a long journey, requiring genuine commitment and hardly likely to get far by 14 September.

Maybe DFAT is out of the game, not attaching any significance to how our strange distancing from the OGP initiative plays with others including close friends and is leaving any action (?) to domestic oriented agencies. Consequently DFAT hardly holds a scrap of recent paper on the subject.

If that is the case movement at the station in AG's, OAIC and PM&C, to name just three that should be taking an interest, is subterranean.

FOI Classic: 'voluminous and complex' request turns up single document

The document contains one sentence of relevant information that was already in the public domain.

The agency had assured several times that it would make a 'quality decision' on my freedom of information application. At least it delivered on that, releasing the sentence in full.

Based on my 30 years experience, the Department of Foreign Affairs and Trade in this case is in the gold star class for bureaucratic, time wasting, costly administration of the FOI act. On this basis no wonder FOI costs $41 million, Dr Hawke.

The application to DFAT was as simple and straightforward as I could make it: the most recent assessment of the pros and cons of Australia joining the Open Government Partnership, limited if they couldn't handle that easily, to anything relevant received or created since 1 October.

Two and half months later, following one consent to extra time, two extensions granted by the OAIC because the application was "complex and voluminous", and because the department said another agency needed to be consulted, DFAT found one document that mentions the Open Government Partnership, and apparently nothing relevant to what was requested.

The document is a message from the Australian Embassy in Washington about release of the Publish What You Fund Aid Transparency Index that includes a sentence that the report "recommends Australia consider joining the Open Government Partnership."
(By the by, anyone in DFAT or AUSAID reading Open and Shut (in my dreams) last October would have known this two days before Washington reported on the subject.)

If we can believe DFAT made a thorough search, by 18 November, the date of my application, not another fact, thought, advice or opinion had been committed to paper across the entire fudge factory on the substantive issue of the case for Australian membership of the OGP.

In November in response to a separate request the Attorney General's  Department had released an assessment of the pros and cons of Australian membership submitted to the Attorney General in May 2012. The only negative identified at that time was potential overlap between the OGP and other international initiatives. That was a misreading of the unique government-civil society nature of the OGP, and in any event something that hadn't stopped 46 countries joining up. The Attorney General responded at the time to the brief  suggesting a letter to other ministers proposing we join.

What happened thereafter hasn't emerged, but DFAT certainly wasn't stirred into action. Nor the Minister's office either. I wrote to the Minister (via his aph email) on 20 October suggesting he ask the Department for a briefing on the OGP after having offered a few thoughts why Australia should join on foreign policy and other grounds. Apparently not a scrap of such a paper exists, so presumably he didn't and the department didn't think he needed to know anything about the OGP either.

The DFAT FOI case study, recounted in detail below also shows the Office of Australian Information Commissioner was easily hoodwinked into granting more time on the basis the request was not one or the other, as s15AB allows, but as DFAT submitted, both complex and voluminous. Twice.

DFAT's claim that another agency, AUSAID, needed to be consulted about something as innocuous as this is also spurious.

Remembering my experience with DFAT in 2011 when publicly available information was initially withheld for reasons akin to "the end of the world as we know it", either I'm just having a bad run or what goes at DFAT as normal FOI needs a serious close look.

The 2011 episode suggested a culture of excessive secrecy and an abundance of caution. That also comes through in DFAT's submission to the Hawke review- more on that another time. 

This latest, even being generous about the impact on available staff of the annual Christmas/ New Year flight from Canberra, suggests a bureaucracy that prefers to fire off letters from the precedent box rather than taking steps to respond helpfully, fully and promptly in accordance with the spirit and intent of the act. How much of the unnecessary time spent on this ends up charged to the cost of administering FOI should be interesting, if it can be unearthed.

Given that the OAIC has issued over 4000 approvals for extra time you also have to wonder what serious consideration is being given to agency applications there before they reach for the "Granted" stamp.

In this case the agency reasons all along sounded like poppycock to me.

For those seriously interested in the tortuous path to nothing much at all.....

Australia 26 in world press freedom ranking

Australia was ranked 26 of 179 countries in the 2013 Reporters Without Borders World Press Freedom Index, in the Satisfactory category and up four places from last year. 

Finland, Netherlands and Norway are at the top, with other rankings of interest New Zealand 8, UK 29, US 32, PNG 41, Japan 53, and towards the other end, Indonesia 139, India 140, Cambodia 143, Malaysia 145, Philippines 147, Vietnam 172 and China 173.

There are no country reports released with the index and we didn't rate a mention in the Asia Pacific regional summary this year.

Since these surveys began in 2002 the first was our best (12), the next our worst (50), with significant movement within these tram-tracks since. In 2007 when the media coalition Australia's Right to Know was formed to address concerns about free speech our ranking was 28. We managed 16 in 2009 then 18, and 30.

Professor of Journalism and Social Media at Griffith University Mark Pearson lists himself as Australian correspondent for RTF. The report itself doesn't identify those involved in country surveys and reports.

Centrelink not subject to NSW privacy laws

Deputy President Magistrate Hennessy in AGU v Commonwealth of Australia [2013] NSWADTAP 3 reached the unsurprising conclusion that Centrelink, part of the Commonwealth Department of Human Services is not a public sector agency for the purposes of the NSW Privacy and Personal Information Protection Act, and as a result is not subject to the NSW Health Records and Information Privacy Act. 

While it clearly did not come within the statutory definition of a (NSW) agency, the appellant's unsuccessful arguments revolved around provisions in the legislation that seek to bind the Crown in all capacities. The Appeal Panel said these provisions were for the purpose of overriding the common law presumption that the Crown is immune from civil suits, not to extend the act's privacy principles to Commonwealth agencies.

Not mentioned in the decision is that the Department and Centrelink are subject to the Commonwealth Privacy Act.

Privacy law, Commonwealth or state is confusing and messy, and the combination even more so. It is not surprising that citizens such as AGU can get off on the wrong foot. Surry Hills Legal Centre representing AGU perhaps should have picked up that arguing obscure points while pursuing remedy through NSW law to an ADT review and an appeal was always something of a lost cause.

Good government an issue in 2013?

With possibly 225 days to go, scandal the headline from Canberra and Sydney and both leaders saying "trust me", you never know. 

Not that Tony Abbott at the Press Club yesterday did any better than the Prime Minister the day before on this front. Neither at this stage sees the need for a good government agenda or plans or initiatives regarding integrity, accountabilty and transparency, parliamentary reform and increased public participation. And perhaps wonder why voters don't take them seriously on the "trust me" plea.

The Abbott speech included just a nod to democracy and the people:

Government is important – my colleagues and I are in the parliament because it matters and because we care about our country – but, in a democracy, the people must come first. My colleagues and I want to reach out to all the decent people of our country to reassure you that government can have your best interests at heart – rather than just its own survival.

 The  Q&A didn't take things further.

PM pre-occupied with governing, but not with the how

News.com.au

The Prime Minister at the National Press Club yesterday frequently referred to "governing" but in the speech and later questions had nothing to say about her governance agenda. So

 "Today, I will outline my approach to this work of governing .........This is the plan for 2013. A plan to govern.....We must get on with the business of governing.....  Governing first, electioneering second..... There’s plenty for this Government to be getting on with – plenty of work to do for our nation. I will devote the days of governing to that work and then, at the time now fixed, to asking the Australian people to endorse my plan to keep building a strong, fair, smart nation.

The PM kept it going during the Q&A that followed:

So for me this is about governing and getting the job done and that's what you will see me doing.

Getting the job done is well and good. In a democracy how, is equally important.

 Plans for improving democratic practices didn't rate a mention.

In response to a question about the low level of public confidence in our institutions, and whether parliamentary reform was part of the agenda, the PM simply blamed the opposition for the chaos and left it to Minister Albanese to deal with Christopher Pyne's new found interest in improving things. Two of many issues still in the in-tray are a Code of Conduct for parliamentarians and action on many Belcher Committee recommendations regarding parliamentary entitlements that have been gathering dust for years.

No grand statement of intention from the PM that "My government will govern in ways that seek to engage and encourage public participation in a new spirit in a tried and true democracy." 

Or lowering the sights just a little, "My government will govern in  accordance with the highest standards of integrity, transparency and accountability" followed by specific references to a national anti corruption plan, a national version of the state corruption investigations bodies, whistleblower protection legislation, electoral funding and lobbying reform. No follow on from her 2010 commitment to "let the sunshine in" or a flicker of interest in lining up with G20 friends in the Open Government Partnership "a global effort to make governments better... (for) more transparent, effective and accountable governments -- with institutions that empower citizens and are responsive to their aspirations."

No mention of that ALRC 2008 recommendation that the exemption enjoyed by political parties from the Privacy Act should be removed. Let alone opening up another front by taking on most media organisations over Finkelstein, the related parts of the Convergence Review, and the privacy cause of action for a serious and unwarranted invasion of privacy. Submissions in response to an issues paper on the latter closed 14 months ago. Not a peep since.)

Every big government decision in 2013 and many smaller ones as well were always going to be made with one eye on the Opposition and the other on the media to see how it might play in voter-land. As a result of yesterday this hasn't changed. Both eyes will be fixed on the calendar at 14 September while counting from here on.

The Opposition are mainly silent or against just about everything mentioned above. Both government and opposition keep saying 'who can you trust' without engendering any.
The Greens and the independents have good government agendas, but what leverage in this long, long year remains to be seen.

NSW Parliament still in pre-internet transparency world

Kate McClymont in Saturday's Fairfax Media

"For years before he left New South Wales Parliament in mid-2011, Labor powerbroker Eddie Obeid entered ''not applicable'' in the section of his pecuniary interest declaration asking whether he had received income from a trust. But the accuracy of those declarations are being queried following sensational revelations in a corruption inquiry this week about the millions of dollars that have flowed through six Obeid family trusts, including millions that came to the Obeid family as proceeds from an allegedly corrupt government tender.

If anyone had been looking during those years the "N/A" entries might have been noted then as passing strange. But few would seem to have bothered to trundle down to Macquarie Street on a weekday between 10 and 4 to inspect the register available for public inspection only at those times.(Fact sheet 07 - The register of pecuniary interests - Parliament of NSW pdf)

Publication on-line is a 21st century boost to transparency and accountability that is yet to fully register there.  

There was no mention of it just recently when access to the register was discussed in the NSW Parliament. 

I'm not aware there has ever been a response to this recommendation 10 years ago by the NSW Independent Commission Against Corruption:

"That the register of pecuniary interests be established as an electronic database that can be accessed via the internet by Members of parliament and members of the public."

Regulation of secondary employment for Members of the NSW Legislative Assembly - Report to the speaker of the Legislative Assembly (September 2003) (pdf) [Recommendation 11]

Access to the register online would be convenient for the public, save staff time dealing with anyone who did bother to ask to see the register, heighten the chances that disclosures would be more accurate and kept up to date, and bring to public attention sometime sooner than years later, obvious gaps or failures to disclose. (Mr Obeid was always said to be among the richest members throughout his time in parliament.)

In a welcome development, the Federal parliament these days publishes the Senate Register and House of Representatives Register online. 

As parliaments do elsewhere in various forms, for example

Queensland

The House of Commons

The House of Lords

Scottish Parliament

New Zealand.

The NSW registers aren't the only important documents that sit in musty folders in Parliament House waiting for someone to take a look that should be online. In all our state parliaments, so too do documents relating to payment of entitlements, and other details of support for parliamentarians provided at taxpayers expense.

 Let's get with it, folks. 

"New-fangled ideas" about use of the internet for transparency and accountability purposes are here to stay.

(As Sean Nicholls reports today, Labor opposition leader John Robertson didn't get far in proposing to his colleagues that second jobs for parliamentarians should be banned and interest disclosures should extend to spouse interests as well. Really.)

Australia Day Honours

Congratulations to those acknowledged for community service in the Australia Day Honours. No FOI or privacy "names" leapt off the page but let me know of any gongs that warrant recognition here.The Order of Australia relies entirely on community nominations. So if you were wondering...

According to the Federal Court the working manuals, policy guidelines and criteria for awards concern the exercise of "substantive power or function" of the Governor General.  As such they are outside the scope Freedom of Information Act. They are not published or otherwise available.

Democrats (Australian variety) might find this hard to cop. So too Republicans (Australian version) when reminded "The Queen is the Sovereign Head of the Order of Australia." Relax, I'm sure royals don't meddle here. Unlike the UK where on a broader scale the release of papers showing exercise of powers to veto legislation are raising issues concerning lack of transparency over their role in lawmaking. Don't worry about s 59 of our constitution either. The Queen's powers to disallow any law within one year of the Governor‑General's assent have never been exercised.

Back to the Honours, lawyers (all versions) and citizens might be puzzled that "the Governor-General is the Principal Companion and as Chancellor is charged with the administration of the Order" but, as the Federal Court decided, anything to do with the administration of the Order does not relate to matters of an administrative nature.

Enjoy the Australia Day weekend. 

Bring on more transparency about the Honours system.

And the Republic.

(Update: Anne Summers on The Drum kicks off a lively discussion on the whole issue.)

Who chimed in and said what to the Hawke Review?

The webpage for submissions to the Hawke review of the Freedom of Information Act displays a note, "Further submissions will be published on this site shortly." So although the deadline was 7 December, more submissions may be in the wings. And unknown others may have taken the confidential submission route.

Submissions from 56 organisations and individuals have been published. A few submitters lodged more than one. My somewhat arbitrary categorisation is:

• 24 government agencies (that includes the OAIC, the AAT and the parliamentary departments);

• 16 individuals (that includes academics such as Rick Snell and Moira Paterson, and for want of a better word, activists, me included, and others with expert credentials such as Megan Carter);

• 13 interest groups and political parties (that includes the media, librarians, archivists, scientists, lawyers, and The Greens and the Pirate Party)

What to make of the line-up?

Overall it is a pretty disappointing response on an issue of citizen rights concerning a law that seeks "to promote Australia's representative democracy" by "increasing public participation in Government processes." (FOI objects).

The citizenry failed to stir. Busy listening to Les Mis???
(Update-and a sharp contrast to the 240 submissions on proposed consolidation of anti-discrimination laws)

Perhaps this was to be expected given the review's low visibility. A single media release by the AG, no speeches, events or issues paper, sparse mention in the mainstream media. And limited buzz or encouragement for discussion and debate in the terms of reference that are as dry as dust.

And of course November- January is hardly a great time for such stuff, given most of us tend to be otherwise preoccupied.

In one of my "Dear Dr Hawke's" (and in remarks at the National Information Law Conference in Canberra in November) I wondered if any government agency would bring the review to the attention of those with whom they have dealings, particularly those that take a close interest in issues covered by the agency including FOI applicants. Or mention the review on their website. Not any as far as I can see.  

Citizen perspectives, satisfaction, disappointment, how the agency has used FOI to enhance public participation or engagement, or lessons learned about how the law might work better for the public don't rate a mention in agency submissions.

Some agencies with a direct interest because they, or matters of prime concern to them, are specifically mentioned in the terms of reference - Department of Prime Minister and Cabinet (cabinet documents) and the intelligence agencies ( currently a blanket exclusion) aren't anywhere to be seen so far. (Update: a joint intelligence community submission has now been published). PM&C, along with Treasury, another no show, have been long-time close friends of Frank and Candid, who also have a special place in this, thanks to Attorney General Roxon's terms.

Maybe in the confidential file?

Other notable absentees from the debate include big business, maintaining its silence on this important good government issue, much the same as it has for the last 30 years except emerging from time to time to argue why business information needs solid protection. Nothing at all from any business industry association or top end company this time around.

Ditto the union movement, prominently involved in the lobbying for a freedom of information act thirty years ago but rarely sighted since.

Civil society organisations are thin on the ground but the Public Interest Advocacy Center, the Australian Privacy Foundation, the Accountability Roundtable and the Environmental Defenders Network made submissions. Not so other civil liberty and human rights bodies. (This post last year found civil society actors engaged in this territory hard to spot.)

The media coalition Australia's Right to Know, leaders of the reform charge in 2007-2008 didn't manage a submission, but most coalition members subscribed to a joint submission. One member, the Nine Network made an additional submission, while another, SBS made its own own. The ABC and APN didn't bother. (ARTK, hardly visible since 2009 has completely disappeared from its previously hard to find website.)

Open Government/Open Data groups and individuals other than Craig Thomler have stayed outside the discussion.

And a handful of citizens who have tried their hand at FOI recounted something about their experience.

What to make of the submissions?

Most submitters took the Attorney General's bait and limited their contribution to responses on the matters Dr Hawke must consider as listed in the Terms of Reference. As I tried to point out, the statutory terms - which stipulate a review of the operation of the FOI and Australian Information Commissioner acts-can't be limited by the Attorney General's terms. In my view the statutory requirement extends the review to the effectiveness of the law and its provisions in attaining the policy outcomes stated in the objects section of the FOI act,  culture, resources and efficiency issues associated with the implementation of the law, and  the outcomes and results in the light of what the government said it was trying to achieve.

 It isn't just about the reforms of 2010. But that is the focus of most submissions.

Rick Snell, Megan Carter and a few others among us (I'd include the OAIC in this) raise big picture issues including the need for rethinking and redrafting information access to produce law fit for the 21st century, in place of a current act that reeks of pre-internet days, and is turgid complicated stuff, even if some of us revel in it. The reality is such a task is beyond this review that must be completed by 30 April. My submission suggested Recommendation No 1 should be full-scale re-examination probably best passed to the Australian Law Reform Commission.

Submissions from outside government generally argue for changes that broaden access rights, extend coverage, limit charges, streamline the review model.

From the inside on the other hand there is plenty of special pleading for more protection (NHMRC, Superannuation Complaints Tribunal, the parliamentary departments, the Ombudsman, the OAIC (in respect of applications it receives) to name a few), for no weakening in the current protections (for example NBN Co, CSIRO, SBS), and across most agencies, arguments for winding things back through charges and other changes apparently in order to stem the tide of requests for non-personal documents. 
(Comment: while agency and OAIC resourcing is an issue, other factors should be under the microscope: cultures that pervade agency decision making and what this adds to cost and time; efficiency, another great unknown; estimated cost including the $41 million figure bandied about needs closer examination. And the need to bear in mind that improving rights of access was, and presumably remains the government's objective. Only around 5000 requests of this type were received in 2011-12 across the entire government sector, hardly a staggering number.)

There is a lot of rats and mice stuff in submissions as well.

I'll pick up in other posts on some of the submissions and significant issues raised.

In a telephone conversation with Dr Hawke a week ago, I urged on him the potential value of some kind of roundtable discussion. Hope he has the time and interest.

Abuse of process sees FOI applicant declared vexatious

Australian Information Commissioner Professor John McMillan has rushed through a decision, the first of its kind, declaring a Freedom of Information applicant vexatious under powers conferred by Section 89K(1) of the FOI Act. 

In the decision dated 17 January Professor McMillan found that "W" in making applications to the Department of Defence, had repeatedly engaged in access actions that involved an abuse of process by harassing departmental staff, and "not cooperating reasonably with the Department in making access requests that do not contain offensive language and that endeavour to comply with the requirements of the FOI Act."

The Department of Defence lodged the application with the OAIC on 7 December, so this zipped through to decision smartly compared to review requests. The just released OAIC quarterly statistics to December reveal the oldest IC review application was 707 days and the average time to completion was 207 days. But I digress...

"W" made 13 FOI applications to Defence over 17 months, and some others subsequently, hardly at the highest end of the use spectrum, but sufficient to constitute 'repeated access actions', the first criterion.The requests relate mostly to "W's" earlier service as a member of the Australian Defence Force in the late 1960s and unresolved grievances. However the form of the applications, other conduct and the language and tone in communicating with staff [some examples at 30] provided strong grounds for the finding that the requirements of s 89L were satisfied: 

32. After considering the content, tone and language of Mr W's correspondence, I am, on balance, satisfied that his conduct constitutes harassment, and an abuse of process under the FOI Act. Both his written correspondence and oral communication with officers of the Department was insulting and offensive, and could understandably be distressing to those officers. Unnecessarily and without satisfactory explanation he has directly impugned the personal and professional integrity of officers in the FOI section of the Department. This was calculated behaviour that bore no rational connection with the exercise of access rights under the FOI Act. The making of allegations that are defamatory, unsubstantiated and inflammatory is more likely to impede the efficient processing of access requests, as frequently occurred in relation to Mr W.

"W" has a right to AAT review.

There have been two vexatious declarations under the Queensland Right to Information Act. In Underwood, applications before the commissioner were found to be vexatious. In Applicant, a person who made 65 access applications to the University, 10 in a twelve month period was declared a vexatious applicant, the relevant conduct involved summarised as:

• comprising multiple and continuing applications over a long period of time, sometimes for the same documents
• comprising unsubstantiated allegations against, and vilification of, the applicant’s staff
• an abuse of access rights – using documents obtained under the IP Act to purportedly substantiate baseless allegations posted on the respondent’s website and to continue the long standing and ongoing harassment of the applicant’s staff
• an unreasonable interference with the applicant’s operations; and
• amounting to a waste of public resources.[23].

This Victorian case involving vexatious litigant issues that went beyond FOI cropped up a few years ago.

(Addition: a South Australian reader draws attention to s18(2a) of the SA FOI act, in effect since July 2002, which provides that an agency may refuse to deal with an application if, in the opinion of the agency the application is part of a pattern of conduct that amounts to an abuse of the right of access or is made for a purpose other than to obtain access to information. One District Court case upholding a decision to rely on the provision is Gabrielson v Nurses Board of SA [2008] SADC 51 (unreported)-available as a pdf from The Box, involving 45 applications in one year, all concerning a grievance matter. No other information available about use of this provision by agencies generally.)

The Australian Information Commissioner has a similar discretion to that exercised by the Queensland commissioner in Underwood, not to undertake or continue a review on the grounds that it is frivolous, vexatious, misconceived, lacking in substance or not made in good faith (s 54W(a)). In its submission to the Hawke review the OAIC said the discretion has been applied in 42 of the 253 IC reviews finalised in 2011–12. No details of the precise grounds relied upon in these instances.

Of course one person's vexatious, or what often appears to be obsessive interest in matters concerning a particular grievance or grievances, is another's pursuit of information for high minded reasons or principle. Public servants have to deal with all types but boundaries need to be in place for applicants who go over and over and over the same ground, and are abusive, harassing, intimidating, or threatening to boot.  

Getting the balance right, and developing an appropriate way of dealing with such matters is complex. Attempting to overreach on this was one reason Victorian FOI reform came unstuck in 2008.

The OAIC thinks there is room for improvement at the Commonwealth level.

In their Hawke review submission the commissioners recommend (No 26) adoption of the Tasmanian approach (Right to Information Act s 20): that the act be amended so as to "permit agencies to decline to handle a repeat or vexatious request or requests that are an abuse of process, without impacting on the applicant's ability to make other requests or remake the request that was not accepted (see paragraphs 209–215)." The decision would be subject to IC review. 

Plenty of room for lively debate on this one. Any agency powers to declare an application  vexatious should be tightly defined. Some information about Tasmanian experience would be useful. As would some reflection on what has happened in the UK where the law contains a similar provision and both an agency and the Information Commissioner on occasion get it wrong.


 

Transparency on world leaders' agendas

Australia, by actions as well as words, should be giving this a kick along as well. 

But our international voice is somewhat muted because of our disinterest to date in joining the major global initiative on transparent, accountable government, the Open Government Partnership.
 
We have of course been as pleased as punch to be part of the G20, and since December as the prospective chair and host in 2014, to join Mexico (2012 chair) and Russia (2013 chair) in the troika of past, current and future chairs. As the Prime Minister explained, membership of the troika is a key leadership opportunity:

As part of this group, Australia will play an enhanced role in guiding the G20’s work in the lead-up to our G20 Presidency in 2014.

Other leaders of the G20, and of the other group of the even more powerful and influential, the G8, are talking up transparency in their list of priority global issues. 

Russia, an OGP member, has three priorities for its year in the G20 chair: growth, through quality jobs and investment, trust and transparency and effective regulation. (Somewhat aspirational perhaps, both at home and abroad, but worth encouraging and supporting nonetheless.)

The UK, to host this year's G8 meeting in June, and separately the current lead OGP co-chair has three G8 priority issues in its sights, as outlined in this speech by Prime Minister Cameron - trade, global taxation matters, and

... making our world and making businesses in our world and making governments in our world much more transparent, much more open.  Now there’s a very high-minded objective to this but there’s also a slightly more down-to-earth and national interest objective to this. There is a high-minded interest because when you look around the world you can see some of the poorest countries that find they have mineral wealth – they have oil or they have coal or they have gas – and it turns out to be a complete curse rather than a blessing because the money from that material wealth is taken from the people, not shared by the government, and a more transparent way of dealing with this can make sure these resources are a blessing for those countries and not a curse. But there is a slightly less noble motive in all of this which is that in Britain, in the United Kingdom, we have some of the toughest rules about transparency, about openness, about the way we do business, about not bribing, about not being corrupt.  And we have those rules, and actually, frankly, it’s in our interest if those rules are applied all over the world.

G8 countries apart from the UK that belong to the OGP are the United States, Russia, Italy, and Canada. France (who apparently sent a representative to a December OGP meeting of all members and prospective members), Germany and Japan do not.

G20 member countries that belong are Argentina, Canada, Italy, Indonesia, Mexico, South Africa, United States, Russia, Turkey, Brazil, Republic of Korea and United Kingdom.

G20 members that don't, apart from Australia, are Germany, China, Japan, France, India and Saudi Arabia.  

Given the OGP aims "to secure concrete commitments from governments to promote transparency, empower citizens, fight corruption, and harness new technologies to strengthen governance", you would think it was right up our alley.

So did the Attorney General in May last year who said (to her department at least) "let's propose we join", but the wheels seem to have fallen off somewhere since.

The United States and Brazil initially led the OGP. Currently Indonesia co-chairs with the UK. The UK's lead chair OGP priorities are:

- Show that transparency drives prosperity, by demonstrating the value of open governance, inclusive development and citizen empowerment.

- Secure the foundations of the OGP as a globally recognised and respected international initiative

- Do more to communicate the opportunities that open government provides.

- Build on the unique working relationship between participating governments and CSOs that is a fundamental facet of the OGP .

Presumably the Brits have had a word to us about standing and speaking up? And why the hesitation to stand alongside Indonesia, among other good company, on this governance, pro-democracy, anti-corruption issue? 

Indonesia will become lead chair in September 2013, potentially bringing our non-membership into closer focus. (Mexico will assume co-chairmanship in September 2013, and becomes lead chair in September 2014.)

As to who in Canberra is driving (or responsible for parking) the OGP, who knows?

Attorney General Roxon might usefully do some prodding. Foreign Minister Carr could be asking as well, after Senator Faulkner put the issue on the table recently.

DFAT meanwhile is making a meal of my FOI request for documents that would throw some light on what policy thinkers there think about it all. A decision is now expected on 30 January, about 70 days after the application was lodged.

The G20 Taskforce in the Department of Prime Minister and Cabinet, among others should be up to speed on this, given our enhanced G20 leadership role. If it hasn't done so, someone there might usefully pick up the phone to see if DFAT, AG's, OAIC, AGIMO, and AUSAID and RET (who both have an interest in the related Extractive Industries Transparency Initiative) have anything to say. 

If the taskforce needs a quick summary of the case for Australian membership here are 10 points worth considering.  

PM&C Associate Secretary Dr Gordon de Brouwer (in conversation here, in Moscow in December with Ksenia Yudaeva, Chief of the Russian Presidential Experts’ Directorate) might find a briefing note handy when he heads off as the Prime Minister's special representative at the next G20 'Sherpa' meeting.

An announcement that we are to seek membership would be even better and welcome in many places including Jakarta and Washington. And the start of a government-civil society partnership on the homefront that has been sadly missing to date.

Hat tip to Toby McIntosh of Freedominfo.org for the heads up on some of these developments.