External review failings bring 'prompt' access objective into serious question

Michael West in the Sydney Morning Herald Business Day column on Saturday (Here's an office that's hardly free with information) gives the Office of Australian Information Commissioner a real pasting, drawing on the annual report to argue too many speeches, not enough timely Freedom of Information review decisions. 

There are some unfair shots and omissions. West for example makes no mention of the office's responsibilities apart from FOI reviews and complaints. Privacy is a biggie with a heavy caseload of inquiries and complaints, and significant changes to the Privacy Act that come into effect on 12 March. Quite a few of those 59 speeches and presentations West highlights were likely in the cause of promoting discussion and awareness of those changes.

His one liner about Will Matthews and OAIC silence on an FOI case running for 10 years didn't have legs last year when I followed it up. Presumably there isn't much point to the rerun West gives it this time round.

But he is right about unacceptable delay with FOI external review, delay that casts a shadow over the worthy object of the act, ‘to facilitate and promote public access to information, promptly and at the lowest reasonable cost.'

As to why this is occurring, on the demand side applications for external review grew from 110 applications to the AAT in 2009-10 to 456 to the OAIC in 2012-13 - which among other things may say something about agency decision making. Australian Information Commissioner Professor McMillan has been pointing to the shortage of staff to cope, this a year ago and again more recently. I have no idea whether  efficiency shortcomings at the OAIC contribute - the Hawke review report didn't disclose any serious digging, and his first recommendation is that someone undertake a comprehensive review of the legislation and how it is working-something he didn't do.

I'm sure in Opposition current government ministers particular Senator Brandis would have been up in arms over this. One way or another the situation needs fixing. 'Promptly' comes to mind. 

An update on the stats West plucks from the annual report is contained in the September-December quarterly summary (pdf). 

The average time to complete an FOI review decision in the year to date was 250 days (2012-13, 169 days); the age of the oldest case then on the books 1057 days, and the age of the oldest unallocated case 301 days. At the end of December 315 case files had been open for more than 150 days. On the plus side, 257 reviews were completed in the period July-December compared to 419 for the year 2012-13. (And in the privacy space, territory West didn't explore, the office received 4929 phone and 1033 written inquiries, completed work on 1104 complaints and six own motion investigations, issued 31 data breach notifications, gave 42 policy advices and made eight submissions.)

Agencies and ministers' offices know the situation. As Professor McMillan told The Guardian recently:

 ... agencies could be “gaming the system.” It now takes close to 200 days to allocate an application for information commissioner review. He said: “I’m not going to name individual cases, but I have a great concern that agencies will say, ‘Let’s just deny it. The person can appeal to the OIC, it may take them a year or two to get around to it,’ in which case the sensitivity will go out of the issue. "I accept that that happens at the moment. So there is gaming of the system going on.”

Immigration, AGD, DFAT, and NBN Co have some form from my vantage point.

Published IC decisions this year are matters that have all taken 12 months, some far longer. These brought gaming to mind:

BB: the review application was with the OAIC for 13 months while the Department of Human Services argued, unsuccessfully in the end, about release of names of staff.

Welch: in the hands of the OAIC for 26 months, before the commissioner largely upheld the DFAT decision. In October 2011 the department told the applicant that it would not confirm the existence or non-existence of the requested documents, but if they did exist they would all be exempt. In December 2013, just before the IC review decision it revised the decision and released 18 pages in part.

AY: in the OAIC then the AAT previously and back on this occasion over charges after the AAT decided the ABC should think again.The commissioner sided with the ABC on the charges issue but the matter has been kicking around since the application was made in 2011.

AX: took the OAIC 18 months to decide The commissioner upheld some parts of the Civil Aviation Safety Authority decision to deny access to details of CareFlight Fixed Wing Operations. But not the identity of the individual approved as check pilot (publicly available on the website of the company); the identity of the individual appointed as chief pilot (not publicly available however disclosure not unreasonable as the individual has been appointed to that role by CASA); the identities of the general managers and directors of the company and CareFlight NSW which are listed on their websites and is publicly available information; the name and Air Operator’s Certificate number of the company which is  publicly available on the CASA website; and information that an agreement for the company to provide checking and training services had been executed because it is not personal information as claimed.

Talking of gaming, on a personal note, I'm still in the OAIC queue waiting for a decision on Attorney General's Department refusal of access in July last year to anything contained in a briefing note for the Secretary in August 2012 setting out the stage reached in work on a government response to an Australian Law Reform Commission report completed at the end of 2009.

The subject?

The 506 secrecy provisions in 176 pieces of legislation, including 358 distinct criminal offences and the Commission's 61 recommendations for reform. In publishing the report the commission observed:

Secrecy laws that impose obligations of confidentiality on individuals handling government information—and the prosecution of public servants for the unauthorised disclosure of such information—can sit uneasily with the Australian Government’s commitment to open and accountable government. Secrecy laws have also drawn sustained criticism on the basis that they unreasonably interfere with the right to freedom of expression.

Attorney General Brandis is very concerned about interferences with freedom of expression.

Maybe he'll remove the need for me to box on with my FOI knockback in the OAIC by telling us all where things stand in consideration of a report that has now been sitting in his department for four years.

You've got to love 'em!

How goes Victoria's FOI review experiment

Victoria charted new Freedom of Information territory in 2012 when it abolished the internal agency review option, allocating the review function for most purposes to the Freedom of Information Commissioner. 

The Rattenbury bill proposes something similar for the ACT.

The 30 day time frame for review decisions by the commissioner's office was commendable but always going to be ambitious unless accompanied by speedy, streamlined access to agency documents the subject of review, and plenty of skilled resources to do the job.

A failure to make a decision within time or agreed extended time (the act provides for extra time with the consent of the applicant) is deemed confirmation of the agency decision (s 49J) and grounds for a review application to the Victorian Civil and Administrative Tribunal (s 53).

This report today in Herald Sun online about Leader Newspapers’ experience in asking for review of a decision by Ambulance Victoria was prompted by the commissioner seeking two time extensions. The Leader found plenty of support for the proposition that delay is 'completely unacceptable.' Professor Johan Lidberg of Monash University said “The whole point of the commissioner is to speed up the process but that is not working at all.”

The only published information about how it is working out is the Commissioner's Annual Report 2012-13 covering the first seven months of the scheme. The statistics are now eight months old. Things may have got better or worse.

Meeting that 30 day deadline is proving a struggle. Of the 92 review decisions made by the commissioner's office during the period, one third were within the statutory 30 days. 
Applicants agreed to extension of time in 94 reviews and to 121 extensions in total. 

There are no published decisions on the website. Some reviews are no doubt complex and speedy access to the documents in dispute is likely to be an issue in some cases.

The commissioner received 258 review applications in total; 51 were not accepted for one reason or another; 47 were dismissed, 20 after informal resolution and with the consent of the applicant. 

One hundred and ninety review applications were completed. Fifty one decisions (68%) were the same as agency decision, 33 differed in full or in part.

Two agencies feature prominently amid the numbers. Victoria Police, subject to 35 review applications had 20 decisions affirmed, a different decision in 8 cases while 7 applications were dismissed. Worksafe Victoria was the subject of 16 review applications: 8 affirmed, 5 differed and 3 dismissed. 

As to efficiency and effectiveness, the report is not enlightening. Performance measures for the FOI Commissioner's for what they are worth appear only in the Department of Justice Annual Report. The only indicator in the report apart from process numbers is "High" for "Satisfaction with services performed." But nothing about how this was obtained.

There is still plenty of FOI business for VCAT:166 FOI appeals were lodged with VCAT during the period.

The report also contains stats regarding agency experience in dealing with FOI applications including something I haven't seen elsewhere- Appendix E (pdf) lists the names of agency decision makers and a mini scorecard for each of the number of FOI decisions made,  access granted in full or part, and access refused.

On the really big Victorian picture, back to Professor Lidberg:

“Victorian Freedom of Information is one of the poorest functioning access to information laws in the country,” Mr Lidberg said. “It’s slow, cumbersome and expensive to use.”

You can add very dated to that.The 1983 act shows the finest thinking of the nineteen seventies and eighties. Other than a new review system on which the jury is still out, it shows none of the more expansive thinking of more recent times about transparency and open government.

Australia slips two spots in Press Freedom rankings

Australia ranked 28 of 180 countries in the 2014 Reporters Without Borders World Press Freedom Index, down two places from last year. With Attorney General Brandis heading the Freedom Wars on the one hand and transparency clouding over on the other, the 2015 rating should be particularly interesting.

Finland, Netherlands and Norway are at the top, with other rankings of interest New Zealand 9 (down one place) UK 33 (down 4), US 46 (down 14), and in the region PNG 44, Japan 59 (down six), Indonesia 132 (up seven) India 140, Cambodia 144, Malaysia 147, Philippines 149, Vietnam 174 and China 175.

There are no country reports released with the index but we rated this mention in the Asia region report: 

In Australia, the lack of adequate legislative protection for the confidentiality of journalists’ sources continues to expose them to the threat of imprisonment for contempt of court for refusing to reveal their sources. No fewer than seven requests for disclosure of sources were submitted to the courts in 2013 alone

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 the same as this year, 28. We managed 16 in 2009 then 18, 30 and 26 last year.

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.

Some coverage in The Australian and Crikey (subscription).

ACT FOI bill 'best of breed' so far

The draft ACT Freedom of Information Bill 2013 tabled by The Greens Shane Rattenbury last November for public consultation can lay claim (so far, and with no challengers in sight)) to the Australian 'best of breed' title, drawing as it does on reforms elsewhere in the 2007-2010 period.

Mr Rattenbury's support enabled the ALP to form government after the 2012 election. He is Minister for Territory and Municipal Services, Minister for Corrections, Minister for Housing, Minister for Aboriginal and Torres Strait Islander Affairs, Minister for Ageing. FOI might be beyond his portfolio responsibilities, but that didn't stop him taking this step.  It remains to be seen where this goes now - consultation closed on 1 February.

Looming stoush in Canberra over accountability to parliament

The stand off over the government's refusal to provide documents concerning 'on water operations' by the border protection task force as part of Operation Sovereign Borders will be a high profile issue in the parliamentary sitting that commences tomorrow. 

But other Senate orders to produce haven't been complied with either.

Public interest immunity claims will be seen as part of the bigger picture of the general approach to transparency and accountability by the Abbott government.

In the four weeks in November-December that Parliament sat following the September election, the Senate issued 10 orders for production of documents, all with deadlines before the end of 2013. As at the end of January the Government had not complied with nine.

The orders issued in this period are at pages 42-46 of this answer to a question on notice by the Clerk.

The one instance of compliance involved the WestConnex project and documents provided to Infrastructure Australia by the New South Wales Government. When the Senate Procedural Information  Bulletin was published and the non-compliance rate with orders of the 44th Parliament stood at 100%, the Bulletin labelled it "an unprecedented situation."

At the Committee hearing on the OSB public interest immunity claim Immigration Minister Morrison said the documents sought in the Order contain

"operational information, which includes but is not limited to on-water tactics, training procedures, operational instructions, specific incident reports, intelligence, posturing and deployment of assets, timing and occurrence of operations and the identification of individual attempted voyages, and passenger information including nationalities involved in those voyages."

Disclosure to the Senate would "prejudice current and future operations, put people at risk who are involved in our operations and unnecessarily cause damage to Australia's national security, defence and international relations."

The Legal and Constitutional Affairs References Committee will report by 21 February.

As the Clerk of the Senate told the committee the big picture comes down to the

"means to balance competing public interest claims by governments on the one hand, that certain information should not be disclosed because disclosure would harm the public interest in some way, and by parliament's claim, as a representative body in a democratic polity, to know particular things about government administration, so that the parliament can perform its proper function of scrutinising and ensuring accountability for expenditure and administration of government programs.."

Senate powers to enforce an order are limited. Failure to respond to an order to produce is treated as a "a political question." The Clerk: 

"We have no powers to sort out the political questions. We suggest the parties go away and do what they can to sort the matter out." 

Hardly satisfactory you would think, particularly in light of the failure over the years to sort many such matters out even when the Senate seeks to impose procedural penalties as the Clerk explained in this letter of advice.  But preferable apparently to the other available options, for the Senate to vote to impose a term of imprisonment for a contempt or impose a fine, powers that have never been exercised. 

In response to questions about what else could be done, Dr Laing identified the NSW Legislative Council as having

"the best system around at the moment for adjudicating these matters They have chosen a system of adjudication and the council has a process whereby if there is a claim like a public interest immunity claim made in response to an order for production of documents, the process nonetheless involves the documents being handed into the custody of the Clerk and if there is a contested subset of those documents then an independent arbiter is appointed to assess the documents in the light of the claim of public interest immunity that is made and then to provide a report. It is then a decision of the council whether to publish the arbiter's report and a further decision of the council whether to then publish any of those documents.

It's not as if we haven't seen unresolved disputes over production of documents in the past including plenty in the Rudd/Gillard years. The first 44 pages of the Clerk's answer referred to above, include details of Senate Orders for documents and the outcome in recent years:
2008-2010: 33 orders not complied, nine partially; 17 complied with. 2010-September 2013 -26 not complied with, seven partially; 19 complied with.

All the parties in the Senate should share an interest in charging an independent arbiter with responsibility to sort these things out, but that would amount to a shared interest in good governance in the public interest. Both major parties threw cold water on the idea in 2009-2010. What odds?

Whisteblower law commences, to mostly silence, little applause

The Gazette of Law and Journalism (subscription) has published my article on the Commonwealth Public Interest Disclosure Act. 

The act came into force on 15 January 2014. 

To almost no acclaim, despite the fact it brings the Commonwealth public sector somewhat into line with all the states and territories, was first recommended by a parliamentary committee in 1994, and is seen by the experts (with various qualifications) to be a reasonably good shot at a scheme of this kind. 

Parliament passed the bill through the final stages in the last days of sittings prior to the September election, six years after Labor put in on their agenda. The Coalition supported the bill through both houses. Now in government, it has the task of implementing the law.

The Prime Minister is the responsible minister. On leave at the time, neither he nor then acting prime minister Warren Truss issued a media release regarding commencement of the scheme, or commented then or since. SBS was one of the few media outlets to mention it.(The Ombudsman issued a media release in June.)

This was a missed opportunity to set tone at the top by drawing to the attention of officials and the public the worthy objects of the act: to promote integrity in government by encouraging officials to make public interest disclosures, ensuring those who do so are supported and protected from adverse consequences, and that disclosures are properly investigated and dealt with.

The only reference to whistleblowers from Abbott government ministers to date concern the 'treacherous' Edward Snowden.
(By the by an Australian in similar circumstances wouldn't find any solace in this law as going public with any intelligence information or information about intelligence agencies is not a protected disclosure. Sections 70 and 79 (based on provisions of the Official Secrets Act 1911 (UK)) of the Commonwealth Crimes Act impose a duty to treat this type of information as secret, full stop. Four years ago the ALRC identified over 500 other secrecy provisions in the law book and recommended changes. No minister in any government since has said a word in response. Meanwhile those in Australia who work at the Guardian and the ABC who have accessed Snowden's documents can ponder what they would do if a Snowden showed up here with Australian material: s 79 as it stands provides for between two and seven years imprisonment for a person receiving information knowing or having reasonable ground to believe, at the time when he or she receives it, that our official secrets have been communicated to him or her without authorisation. I digress..)

The absence of high level, visible and forthright leadership on this integrity measure, in the current context - Snowden the 'traitor', the absence since assuming office of government statements about the importance of transparency and accountability, the closed shop regarding "border security," the uniform shift away from publication of incoming minister briefs, silence on the previous government's commitment to join the Open Government Partnership - will see public officials draw their own conclusions about the significance that should attach to it.

That's even before any attempt to come to grips with exceedingly complex legislation.

Guidance material concerning the PID act has been published by the Ombudsman.

But more guidance, awareness, training and evidence or scuttlebut that conveys the general impression over time to those gathered around the water cooler that the scheme works will be needed to counter the view that many of the public spirited who have trod this path in the past have done so with career ending consequences.

In the article I work through the definitions of "disclosable conduct" and "protected disclosure" to illustrate that any public official inclined to seek the protections will need to tiptoe carefully through a minefield, where missteps and mistakes could prove costly. 

You might like to test your own level of understanding of the definitions in Part A Division 2 of the act.

There are lots of questions that arise about what constitutes disclosable conduct. One, the scope of “an abuse of public trust.” The term is not further defined in the Act or the published guidance so far and could prove to be a lawyer’s picnic, given the notion that something akin to a trustee describes the relationship between the government and the people in a democratic society.

New information commissioner and a new external review tribunal in NSW.

And with the GIPA act up for statutory review this year, 2014 could be a big one here.

Information Commissioner
Elizabeth Tydd replaces Deirdre O'Donnell who stood down last July. Ms Tydd was most recently the executive director of the Office of Liquor, Gaming and Racing, a real hot seat in Sydney in recent times. And before that assistant commissioner of the Compliance and Legal Group at the Office of Fair Trading, and deputy chairperson of the Consumer, Trader and Tenancy Tribunal, now part of the newly minted NSW Civil and Administrative Tribunal

It's a big job with much to be done to lead the open government 'revolution' foreshadowed in 2010. How far things have moved in that direction is an open question with plenty of suggestions from users that it's not far and certainly not enough.

But information about agency performance in NSW is patchy, and anecdotal. No reports on the operation of the GIPA act across all agencies required each year of the commissioner by section 37 of the Government Information (Information Commissioner) Act have been published. As to the much mooted 'culture change', ???
 
The commission annual report (pdf) 2012-2013 is as thin as those that have gone before regarding the performance of the commission and the effect and impact of a no doubt busy year.

The basic stats are 46 formal GIPA matters finalised, 237 information access reviews, one investigation, 50 ADT matters, 58 complaints, 388 requests for assistance, and 161 privacy internal reviews.

The measures cited in the report as performance measures provide little insight into what has been achieved or efficiency, effectiveness, or quality in delivering the goods. Timeliness in dealing with GIPA reviews is an acknowledged source of agency and applicant dissatisfaction. 

On this score the restructure referred to in the report, with employee numbers down to 25 from 33 a year ago must have played a role.The financials assign $496, 370 to 'voluntary redundacy'.

However after ploughing through the report this reader is none the wiser about the state of the game. A sample of unanswered questions: the state government agencies, local councils or ministers' offices at the upper end of the scale for GIPA review applications and complaints; the number/% of finalised review decisions or negotiated resolutions that substantially affirmed the agency decision or recommended or flowed from reconsideration; the % of GIPA review matters where the agency accepted the OIC recommendation to undertake further review and the names of agencies that did not act on those recommendations (the IPC is limited to recommendations and does not make determinative decisions-therein lies a problem); the correlation between the OIC view and the ADT where a matter followed that course; the average cost of an IPC review and time taken in resolving review and complaint matters and the duration of matters that make up the backlog.

Tribunal
NCAT commenced operating on 1 January 2014 replacing more than 20 of the State's existing tribunals including the Administrative Decisions Tribunal. (Super tribunals are the Admin law flavour of the decade: the establishment of NCAT, follows the creation of VCAT, QCAT, and (WA) SAT. And SA was thinking about it some years back.)

Mr Robertson Wright SC, the inaugural NCAT President,was sworn in as a Supreme Court Judge before assuming the position. Prior to his appointment Mr Justice Wright was a barrister for 30 years and a part time judicial member of the Administrative Decisions Tribunal since 2007.

The ADT deputy president (full time from commencement of operations in 1998) Magistrate Nancy Hennessy heads the Deputy President of NCAT responsible for management of the internal appeals list. 

Most members of the merged tribunals are probably making the transition but for whatever reason deputy president Higgins isn't listed. Members include experienced FOI/GIPA and privacy hands Steve Montgomery, Peter Molony and Naida Isenberg in addition to Deputy President Hennessy.

In the final ADT annual report Judge O'Connor's reflections include that in 1998, ten years after the FOI act commenced in NSW with the FOI review function allocated to the District Court, there was no body of FOI case law to guide decision making. The ADT in 15 years published around 400 FOI decisions.

In 2012-2013, the ADT had 96 GIPA filings and 43 privacy matters, around the same number as the previous year. Average disposal time 28 weeks. 

The significant appeal cases noted in the report include two GIPA decisions: NSW Office of Liquor Gaming and Racing v Fahey [2012] NSWADTAP 55, and Department of Family and Community Services v Edwards [2013] NSWADTAP 17.

US 'hand on heart' intentions regarding surveillance leave Australia trailing, again

President Obama's speech regarding the NSA and associated surveillance reforms hasn't gone as far as many would want. Stilgherrian's take seems close to the money.

But in his speech President Obama at least paid lip service, maybe more, to the importance of some reforms and the need for a degree more transparency regarding privacy intrusive practices.

The speech includes an attempt at reassurance for those at home ("I’m confident that we can shape an approach that meets our security needs while upholding the civil liberties of every American") and abroad ("I have taken the unprecedented step of extending certain protections that we have for the American people to people overseas.."), and for some foreign leaders ("unless there is a compelling national security purpose, we will not monitor the communications of heads of state and government of our close friends and allies"), while putting 'big data' and privacy firmly on the agenda for comprehensive review including examination of whether "we can forge international norms" on how to manage data and promote the free flow of information in ways that are consistent with both privacy and security."

I may have missed it but I haven't heard a word from our leaders on revelations about the collection and sharing abroad of our metadata; the Prime Minister was sorry for the embarrassment caused by reports about tapping the phone of the wife of President Yudhoyono but that's all and President Yudhoyono now reveals he felt betrayed; and we have tried to let bugging the cabinet room in Timor Leste and the seizure of documents held by a Canberra solicitor go through to the keeper or at least to the International Court of Justice, while it remains is big news there and in Jakarta. 

On "big data", while it is a subject of interest and concern to the OAIC, according to this search the words are yet to be uttered together in Parliament, let alone in the context of privacy.  

The Greens Senator Ludlam, with support from Labor (but not the Government), succeeded in December before Parliament packed up for the year in moving for an inquiry by the Senate Legal and Constitutional Affairs References Committee that might touch on some of these matters :

Comprehensive revision of the Telecommunications (Interception and Access) Act 1979 (the Act), with regard to: (a) the recommendations of the Australian Law Reform Commission For Your Information: Australian Privacy Law and Practice report, dated May 2008, particularly recommendation 71.2; and (b) recommendations relating to the Act from the Parliamentary Joint Committee on Intelligence and Security Inquiry into the potential reforms of Australia's National Security Legislation report, dated May 2013.

Keep an eye on that space, it might be the best we can hope for.

Closed shop war footing for Australia??

The Prime Minister this morning likened his mission to stopping the boats to a war, and said it should therefore be understandable that his government was a closed book on asylum operations so as to not give vital information to the "enemy"...

"In the end we are in a fierce contest with these people smugglers and if we were at war we wouldn't be giving out information that is of use to the enemy just because we might have an idle curiosity about it ourselves," Mr Abbott told Network Ten's Wake Up breakfast program. (Herald Sun)

Who could ever have imagined this?

'Idle curiosity.' Really?

Flabbergasted!

FOI applicant marooned by comings and goings in Treasurer's Office

Smoke may still be coming out the ears of those at Phillip Morris Ltd as they reflect on recent experience of close to three years spent pursuing Freedom of Information access to documents from the Treasurer. 

More than two of those years involved waiting in the queue for review by the Information Commissioner of a determination by the office of then treasurer Swan in June 2011 to refuse access to documents claimed to be exempt. By the time the decision came up for IC consideration in 2013 the treasurer was a different treasurer and the current incumbent said he didn't have the documents or access to them. Freedom of Information Commissioner Popple decided in December that the FOI act no longer applied to the documents. 

The Commissioner noted that the Treasury department now acknowledged that it held the documents. 

PML is unlikely to be be overjoyed at the prospect of making a fresh FOI request to start the process all over again.

I don't know how many other FOI applicants seeking documents from a minister or in the line for IC review of a determination by a minister found themselves marooned as a result of a ministerial reshuffle or the wholesale replacement of the ministry following the election in September. But with three administrations in 2013, ministerial comings and goings reached record levels.

In the PML case the FOI act applied to the documents (not described in the decision) when PML made the FOI application in March 2011.The Treasurer's office (Wayne Swan at the time) claimed eight of 13 relevant documents held were exempt. In August 2011 PML sought Information Commissioner review of the knock-back. 

Nothing much seems to have happened by the time almost two years later in July 2013 when a new treasurer Chris Bowen was appointed. Bowen was replaced by Joe Hockey following the September 2013 election. 

In October 2013 in response to a query from the OAIC the Treasurer's Office advised that the ‘documents relating to the review are not in the possession of the Treasurer and cannot be accessed by the Treasurer.’ 

On this basis in December Commissioner Popple decided [14-16]  that the IC review cannot continue to be undertaken as the documents were not in the possession of the current treasurer and as a result were not at this time ‘official documents of a Minister.’ The FOI Act no longer applied.

18. Furthermore, I cannot make a decision on this IC review that PML be given access to the documents it has requested. Section 55K of the FOI Act provides that, in making a decision on an IC review, I may ‘perform the functions, and exercise the powers, of the person who made the IC reviewable decision’ (s 55K(2)) and my decision ‘has the same effect as a decision of the agency or Minister who made the IC reviewable decision’ (s 55K(3)). In this case, a previous Treasurer was the person who made the IC reviewable decision, but (because of s 20 of the Acts Interpretation Act) the current Treasurer is that person for the purposes of s 55K. This means that I can only make a decision on this IC review that could be made by the current Treasurer. The requested documents are not in his possession, so I cannot decide that he give PML access to those documents. (This would be the case even if I had possession of the documents myself.) 

Treasury may have had copies of the documents all along and PML might have had a decision on the merits of any exemption claim by now if the original application was made to the agency not the minister, but that didn't happen. A decision by the IC before July 2013 would have determined the merits of the refusal determination but that didn't happen either.

The decision makes no reference to what did happen to the documents when the baton changed hands first in July 2013 and then again in September. Or to the only published guidance on handling documents when a minister leaves office, published by the Department of Finance in the Ministerial Handbook on Entitlements:

"It is normal practice that a Minister will, on ceasing office:

• return departmental records (both electronic and hardcopy) to his or her portfolio department;
• destroy Cabinet papers issued to him or her, keeping a record of documents destroyed (including copy numbers) and advising the Cabinet Secretariat (as outlined in the Cabinet Handbook). The Cabinet Secretariat will provide detailed guidance on disposal procedures when the Minister’s departure is imminent; and
• deposit other official records, including those that originated in the Minister’s office, with the National Archives of Australia. The National Archives seeks to acquire the personal papers of Prime Ministers, Ministers and Parliamentary Secretaries, to ensure the retention of valuable official records and related private material."

(As an aside 'normal practice' seems a loose standard for ministerial conduct in the handling of records-apparently unsupported by legislation or oversight.)

PML and its interests mightn't attract widespread public support but they like anyone else are entitled to a fair go.Two years waiting for IC review isn't just or fair. 

 And if normal practice was followed and the unfinished FOI file and relevant documents were passed back to the Treasury in July as seems likely you would hope someone there might have let the applicant know and discuss where to from there but that level of civility, service and willingness to help appears to have been lacking in this case as well.

Appointing a privacy commissioner low priority for most states

Privacy is a hot topic just about everywhere with a whole raft of issues bubbling away that go to the adequacy of policy, legislation and oversight, if any at all, of what is going on. Amid other concerns about skinny and contracting resources available to those charged with the last mentioned responsibility. 

Yet state governments seem relaxed if the line up, or more correctly, gaps in the ranks of privacy commissioners is a guide to priorities.

Hardly consistent with community attitudes in a survey that was taken before the Snowden related revelations of wholesale harvesting and sharing of phone metadata and other recent developments which have probably pushed concern further up the scale.

Queensland has had an acting commissioner for two years. As this reader points out
this may be contrary to the act:

Hello Peter, Thank you for creating this blog on FOI matters. Yes, Queensland was over a year without an appointed Information Commissioner, after Julie Kinross left the position in August 2012. The OIC website notes that Rachel (Rangihaeata) was appointed in September 2013. And Clare Smith and Jenny Mead have been re-appointed as RTI Commissioner (shared role). However, as yet a Privacy Commissioner has not been appointed; after more than two years without one. Mr Lemm Ex acted in the role for 2 years, and now Clare Smith is acting in the role. The Information Privacy Act (under which the Privacy Commissioner is appointed) clearly states that "there is to be a Privacy Commissioner" (s141) "appointed by the Governor in Council" (s144); and that someone may be appointed to act in the role only during a vacancy or absence/inability of the appointed Privacy Commissioner (s152). Such a long period without an appointed Privacy Commissioner appears to be contrary to the requirements of the Act.

The website of the Office of the Victorian Privacy Commissioner reveals Victoria tops that  - almost a three year gap there:

David Watts was appointed Acting Privacy Commissioner from 13 April 2013. Mr Watts is also the Victorian Commissioner for Law Enforcement Data Security. Following the Attorney-General’s December 2012 announcement of the creation of a new office of the Privacy and Data Protection Commissioner, Mr Watts is leading the transition project to bring the two existing bodies into the one new entity. Legislation to establish the new Privacy and Data Protection Commissioner will be introduced into Parliament in 2013... Dr Anthony Bendall was Acting Victorian Privacy Commissioner from 13 March 2012 until 12 April 2013.

South Australia and Western Australia go one better, make that worse. 

Neither has a privacy commissioner nor a privacy act. The SA Information Privacy Principles Instruction was issued in 1992 as a Premier and Cabinet Circular and SA has a Privacy Committtee. Putting it ahead of the west where legislation appears to have been considered last in April 2007. 

In Tasmania the Ombudsman is a virtual privacy commissioner.

NSW is the only state with an appointed privacy commissioner at present. But....

It is a part time appointment.

Annual cabinet papers released-alas, still plenty of dark secrets

Communications Minister Malcolm Turnbull may have choked for a moment on his breakfast cereal when browsing the list of 1986/87 cabinet papers released and withheld.

Particularly at the news that Cabinet Memorandum 4456 "Australian intervention by affidavit in UK Attorney-General v Heinemann and Peter Wright", the famous Spycatcher case, remains secret in its entirety all these years later on the grounds that disclosure "could reasonably be expected to cause damage to the security, defence or international relations of the Commonwealth."

Turnbull in 1986 took on and won against the might of the Thatcher government, Wright's right to publish in Australia "The Candid Autobiography of a Senior Intelligence Officer" written while Wright was living in Tasmania after retirement from MI5. Turnbull in 1989 wrote his own account of the trial - a bargain these days at $2.98 from Amazon.  

The book contained revelations not quite up there with Edward Snowden but it was a big deal at the time. Some aspects still, according to Archives. 

The number of withheld documents this year, in line with the recent years, is small in comparison with the number released.

However you have to wonder why so many of those released needed blanket freedom of information exemption for so long- most state government laws limit the application of the cabinet exemption to 10 years although other exemptions may still then apply to protect sensitive information. No such provision in the Commonwealth act where the cabinet exemption applies until the open access period, moving towards 20 years, kicks in.

Apart from the Spycatcher memorandum, another notable withholding is Submission 4207 "Project Nulka." The Department of Defence in October 2013 was very pleased to commend the book Nulka: A Compelling Story about an Australian ship defence system that is our largest regular defence export.

In the current climate of revelations about US and Australian intelligence gathering, and difficulties in our relations with Indonesia and East Timor the withholding of all or parts of cabinet papers concerning Security and intelligence, and Foreign Affairs ("Australia–Indonesian relations – prospects and approach"; "Australia–Indonesia maritime delimitation negotiations") will lead to plenty of speculation about what is still sensitive 27 years on.
(Update: See Paul Chadwick in The Guardian for an interesting comparison of issues of the 80's and current Snowden related matters. Welcome back to journalism Paul.)

Again this year there are a number of partial withholdings about Antarctica-probably confirming what most who take an interest in the subject know, that Australia's sovereignty claims are shaky if not quite as thin as a melting ice shelf, but we wouldn't want to let on at any time if we can help it.

The list of withheld documents follows. 

OWE – open with exception - means partial release, 'Closed', wholly withheld. 
Section 33 (1)(a) of the Archives Act provides exemption for "information or matter the disclosure of which under this Act could reasonably be expected to cause damage to the security, defence or international relations of the Commonwealth." As with other exemptions in this part of the act there is no public interest test. Decisions to withhold are subject to review by the Administrative Appeals Tribunal

Happy happies

Lots that could be said but I know right across the country you have better things to do than listen, so best wishes and thanks for your interest and contributions throughout the year. Back soon.

Jacques-Wikimedia Commons

Australian Information Commissioner speaks out

In a recent speech Australian Information Commissioner Professor John McMillan flagged important developments since the Freedom of Information reforms of 2010. In addition to highlighting some positives he also explored a couple of gloomier themes including the absence of government leadership on the transparency and open government fronts at a time when these issues enjoy more prominence than before in international affairs. 

Time for others to speak up as well.

 A few comments on aspects of what Professor McMillan said:

"The number of requests to agencies and ministers has increased, from an historic low of 21,587 in 2009-10 to 24,944 in 2012-13, including an 85% increase in the number of non-personal requests. which includes requests from journalists, parliamentarians, researchers, lawyers and community groups.."

( An 85% increase sounds impressive but the total number of non-personal applications in 2012-2013 was around 5000 across the entire government. Pathetically low in my humble.. Given the fact the FOI act proclaims Parliament's intention "to promote Australia's representative democracy by contributing towards..increasing public participation in Government processes, with a view to promoting better-informed decision-making and increasing scrutiny, discussion, comment and review of the Government's activities" maybe we should be pleased with small steps in this direction.)

"The estimated cost of administering the FOI Act rose from $27.5M in 2009-10 to $45.3M in 2012-13, plus an additional $3.1M for the Information Publication Scheme and approximately $5M for OAIC FOI and information policy work.."
(The $45 million represents agency estimates. How much of the cost can be attributed to inefficiency, failure to invest in technology, refusal to make sought after information available promptly and at lower cost without the need for formal applications, gaming the system by putting applicants through the run around, we don't know.  Dr Hawke apparently didn't inquire. Probably the tip of an iceberg but take a look at the pedantic, bureaucratic and no doubt costly to the taxpayer correspondence generated by applications made through Righttoknow.)

"The number of applications for external merit review has risen – from 110 applications to the AAT in 2009-10 to 456 to the OAIC in 2012-13.. In 2010 the Government estimated that the OAIC’s budget would support 100 staff to cover privacy, FOI and information policy functions. This staffing level has never been met..there has been a steady increase in the OAIC’s caseload – in the last year alone, a 20% increase in FOI and privacy phone enquiries, a 28% increase in written enquiries, a 9% increase in privacy complaints, a 13% increase in FOI complaints and a 10% increase in IC review applications. Another new unfunded OAIC task is to prepare for major reforms to the Privacy Act that commence in March 2014 and that require the OAIC to prepare more than 50 legislative instruments, codes, guideline statements and guidance notes. The inevitable consequence is a delay in throughput. At the end of September 2013 there were 60 unresolved FOI complaints, 451 unresolved privacy complaints, and 510 unresolved IC reviews. More worrying is that new FOI complaints were not being allocated to a case officer until 196 days after receipt, and IC review applications until 228 days after receipt. This is contrary to a declared object of the FOI Act, ‘to facilitate and promote public access to information, promptly and at the lowest reasonable cost’ (s 3(4)).
(Over seven months delay until a case officer is assigned to an FOI review application is not just contrary to an object of the act it's the sign of a system not working. Dr Hawke doesn't seem to have put the ruler over how they do things at the OAIC, but resources are clearly inadequate. Labor carries the blame for this failure to September 2013. The Abbott Government has maintained silence on the subject since. )

"Cultural change is occurring within government.."
(Maybe. But users of the act could cite many indications that it's patchy at best. Evidence, in particular something more than the Commissioner's observations, would be welcome on this one.)

"A related concern is that agencies may seek to game the system by denying access in the expectation that review applications will sit in an OAIC queue (a perception that we counter by active management of cases from the date of receipt).
(From personal experience DFAT and AGD have form in this respect as does Immigration. The OAIC knows more about any gaming going on than the rest of us - it could name names to good effect; repercussions, something more than a 'tut tut', would be even better.)

The Commissioner was right to draw attention to two other major failings:

Government leadership in promoting FOI and open government:
".... It has been disappointing that the special Executive position of Minister for Privacy and Freedom of Information was discontinued in November 2011; there was no Government response to the report, Review of Charges under the FOI Act, which the OAIC was asked to prepare for Government in February 2012; there was no government response to other seminal OAIC publications, such as the Principles on Open Public Sector Information and the survey of proactive publication practices, Open public sector information: from principles to practice ; there was no ministerial contribution to or representation at the OAIC event to mark the historic 30^th anniversary of the FOI Act in 2012;[8] there was no take-up of a suggestion in an IC review decision that ministerial appointments diaries be published on the web, as they are in some other jurisdictions;[9] legislation to entirely exempt the Parliamentary departments from the FOI Act was moved quickly through the Parliament in May 2013 before the Hawke review had reported, and contrary to a submission to that review from the Parliamentary departments;[10] and in three IC review decisions in 2012-13, I had to reverse decisions in the Prime Minister’s Department and Office, declining to release correspondence from a former Prime Minister, diary entries concerning meeting dates with cross-bench MPs, and the acquittal of Parliamentary entitlements.[11]"
(Some positive words from the top about transparency and accountability followed by meaningful deeds are three months overdue and counting.)


Australia falling behind world leadership: 
"A third area of disappointment is that Australia, one of the first countries to enact FOI legislation and more recently to launch Gov 2.0 strategies, is now falling behind the open government momentum in some other countries.[12]. We have been slow to join the international Open Government Partnership that was formed in September 2011 and that now boasts 61 member countries. We do not have a detailed national open government action plan, as do the UK, Canada, the US and many other countries. Nor have we adopted the Open Data Charter launched by the G8 nations in June this year.
It is important also that we echo messages from abroad that point to the profound philosophical shift occurring in the open government agenda. An example is the opening sentence of the 2013 Communique of the G8 nations – ‘As leaders of the G8, we are committed to open economies, open societies and open governments as the basis of lasting growth and stability’. Another illustration is the observation of UK Prime Minister David Cameron in opening the annual summit of the Open Government Partnership in London in November 2013:
[F]or years I’ve argued that there is a golden thread of conditions which allow countries to thrive: the rule of law, the absence of conflict, the absence of corruption, the presence of strong property rights and institutions. And open government should be woven deep into the heart of this thread."
(As chair of the G20 we need to get our act together, pronto, reaffirming our commitment to the OGP, setting up a partnership with civil society to develop a national action plan that contains 'stretch commitments' across a range of transparency, accountability and open government priorities including endorsing and acting upon the Open Data Charter. The only country to date to join the OGP and then back out is Russia. Not desirable company or a lead to follow.)

Freedom wars: preparations underway

In Opposition both Prime Minister Abbott and Attorney General Brandis spoke of the freedom wars. 

The guns are now being primed.

The announcement by Senator Brandis of the appointment of Tim Wilson of the Institute of Public Affairs as a Human Rights Commissioner follows last week's Freedoms reference to the Australian Law Reform Commission to review Commonwealth legislation to identify provisions that unreasonably encroach upon traditional rights, freedoms and privileges including freedom of speech.

With regard to the Wilson appointment, Senator Brandis explained:

During the election campaign, I promised to create at least one “Freedom Commissioner” at the Australian Human Rights Commission. Next year, I intend to bring forward reforms to the Commission. In the meantime, I have asked Mr Wilson to focus on the protection of the traditional liberal democratic and common law rights, including, in particular, the rights recognised by Article 19 of the International Covenant on Civil and Political Rights.

Article 19 states:
1. Everyone shall have the right to hold opinions without interference.

2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.

3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:

(a) For respect of the rights or reputations of others;

(b) For the protection of national security or of public order (ordre public), or of public health or morals.

Article 19 includes the right to seek information.

So it remains to be seen whether the ALRC and Mr Wilson interpret their respective briefs as encompassing the Freedom of Information Act - Dr Hawke acknowledged a more comprehensive review was needed than he had undertaken - and the chilling effect of hundreds of secrecy provisions in Commonwealth laws identified close to four years ago in an ALRC report that has been undisturbed and gathering dust in the Attorney General's Department ever since.

The Institute of Public Affairs is strong on freedoms but less so on other rights, arguing earlier this year that even self regulation should be optional for the media. (Since 2000 media organisations in the conduct of journalism have been exempt from the Privacy Act if they self regulate with no reference to the adequacy of self imposed standards. There are plenty out there that don't consider they do this anywhere near well enough. I'm sure in any event that the Attorney General and Mr Wilson know the ICCPR contains provisions other than Article 19 including Article 17 which puts protection of privacy up there as a human right as well.)

Mr Wilson is no slouch at utilising his right to access information, attracting the ire of one government agency in 2011 for making 750 FOI applications in a four month period including 440 on one day.