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Friday, October 24, 2014

Annual report season: wading through

More on content soon.

But the absurdity of Federal Government plans to disband the Office of Australian Information Commissioner is striking, given that the OAIC handled record numbers of complaints and review applications while managing to increase the closure rate of matters, and can point to important achievements in pursuing FOI and privacy themes and responsible information management in the digital age. With leadership on many fronts including culture change to break down excessive secrecy out the door, if parliament passes the bill it's advance Australia backwards.

The Reports published to date cover different ground:
Some comprehensively cover the operation of information access and privacy protection legislation including the commissioner functions and agency compliance:
Office of Australian Information Commissioner
Office of Information Commissioner (Queensland)(pdf)

The Information and Privacy Commission (NSW) report covers the functions of both commissioners but not agency compliance - statute requires a separate report on the operation of the GIPA act generally.

In Victoria there are reports from the Freedom of Information Commissioner (Victoria) and the Office of Privacy Commissioner (Victoria) (pdf). (From 17 September 2014 the OPC was replaced by the Office of the Commissioner for Privacy and Data Protection (Privacy and Data Protection Victoria)).

The Office of the Information Commissioner (Western Australia) reports on FOI related matters. There is no WA privacy legislation that covers state and local government agencies.

The Ombudsman Tasmania (the state has no information or privacy commissioner as such but the Ombudsman has information access and privacy protection oversight and merits review functions) and the Ombudsman SA who has an information access merits review function are yet to report,. So too State Records SA, responsible for the annual FOI report and Privacy Committee report; and the Office of  Information Commissioner Northern Territory.

Wednesday, October 22, 2014

Whitlam, political giant, first to promise 'open government'

Forty six years ago "Open Government" first featured in political debate in Australia.It's a long journey.

From Whitlam's famous ALP launch speech 1972:
We want the Australian people to know the facts, to know the needs, to know the choices before them. We want them always to help us as a government to make the decisions and to make the right decisions. Australia has suffered heavily from the demeaning idea that the government always knows best with the unspoken assumption always in the background that only the government knows or should know anything. Vietnam was only the most tragic result of that belief; the idea that the government must always know best permitted the Liberals to lie their way into that war. They could never have got away with it otherwise. Over the whole range of policy at home and abroad this corrupting notion of a government monopoly of knowledge and wisdom has led to bad decisions and bad government. The Australian Labor Party will build into the administration of the affairs of this nation machinery that will prevent any government, Labor or Liberal, from ever again cloaking your affairs under excessive and needless secrecy. Labor will trust the people.
Whitlam's plan to legislate a freedom of information act 'along the lines of the US act' eventually came to pass ten years later when Malcolm Fraser finally overcame the forces of resistance, although that was the start not victory in the ongoing attempt to overcome 'excessive and needless secrecy.'

And personal recollections:

In 1965, as a freshly minted recruit in the then Department of External Affairs and playing rugby for ANU alongside his son Tony, Gough then Opposition leader, presenting the prizes at our end of year function. I didn't win one, but loved the speech to a grand final losing team.

Ambassador Ralph Harry, me in background Vietnam 1969.
In 1969, as Second Secretary at the Australian Embassy Saigon and a freshly minted Vietnamese language graduate from the RAAF School of Languages at Point Cook, interpreting for Gough on his visit to Vietnam including with then Prime Minister Tran van Huong. Huong's deep southern accent was hard to follow even for the locals, let alone someone not long in Saigon who'd spent a year of instruction from teachers who spoke with impeccable northern accents. Talk about white knuckles!

December 1972 as an officer in External Affairs Canberra where just about everyone was excited at the newly elected PM's foreign policy agenda, not to mention social reforms.

In 1973, as First Secretary at the Australian Embassy Washington, being part of the team kept wondering for a while whether newly minted Prime Minister Whitlam would get the traditional audience with Nixon as ALP ministers poured a bucket on Nixon and Watergate engulfed the administration. Then when he did arrive, as the Embassy's man on Capitol Hill accompanying him on the visits to congressional leaders. Gough had them in the palm of his hand, recounting little known facts about US history that some of his interlocuters had never heard. Being at his National Press Club speech when Edward Gough Whitlam was introduced by longtime US based Australian correspondent the late Peter Costigan as "E Go Whitlam" to the amusement of the Australians present. Gough seemed not to notice. And after the visit trying to find out from contacts at the White House what Kissinger said to Gough when he asked everyone else in the room to leave as he wanted to speak to the PM alone. My contact didn't know either, but said that was a Kissinger standard tactic-he did it the previous week with the president of malawi-to duchess the visitor into thinking he was really special. I never found out if it worked on Gough.  

Vale, a giant who makes many before and since look miniscule.

Senator Wong: Some PM&C barriers to FOI requests "do not meet laugh test."

In Senate Estimates for the prime minister's department on Monday Opposition Senator Wong had a few moments to raise questions about the handling of her Freedom of Information applications, and wasn't moved by the standard response: the department takes its FOI responsibilities seriously.

Senator WONG: Sure. I actually have a number of questions on FOI for Ms Kelly. Ms Kelly, these are some of the various answers I have been getting to freedom-of-information requests. 
One was that the department stopped the clock to ask whether 'transmitted from the department to the PM's office' included providing the document to the DLO. That is how documents get transmitted. 

It took the department nearly five months to make a decision, when the statutory time frame is 30 days. I did get a statement saying, 'I regret the delay.' 

It took three months to make a decision in relation to an FOI regarding the appointment of Ms Mirabella to the board of the ASC. 

The department has refused to provide the order of precedence on privacy grounds, on the basis that this would reveal the names of ministers—I thought that was a novel response!—and refused to agree to an order for the production of documents on the basis that there had been an FOI request lodged. Perhaps I will leave that. 

But, just on the first four, what is the issue? Why is the department being so difficult in relation to freedom-of-information requests? Honestly, to say to me: does 'transmitted from the Department of the PM&C to the PM's office' include the DLO? Anyone who has worked in a minister's office knows, frankly, that is a ridiculous suggestion.
Ms Kelly : I am not able to deal with those four requests in globo. In relation to each individual request, I would need to have the documents in front of me to refresh my memory in relation to the details of that specific request. The department does take its responsibilities under the act—
Senator WONG: You keep telling me that—
Ms Kelly : seriously.
Senator WONG: You keep telling me that, and I keep saying accountability is serious. But my observation—and you can correct it if it is wrong—is that as many barriers as possible are put up in relation to FOI requests. I am happy to discuss this on another occasion. But that is my observation as somebody who has made a number of requests. Some of these do not meet the laugh test: you do not want to release the names of ministers? They are released; they are public!
In this post 18 months ago I suggested the department's FOI procedures bring into question what inputs from the PM's Office and from senior officers may influence decisions and who in fact makes the decision, but also efficiency and cost given their elaborate nature. It's quite a process. 

Senator Wong's experience isn't unique based on a quick glance at Righttoknow applications to PM&C.

Tuesday, October 14, 2014

NSW Premier Baird takes a step towards restoring trust

NSW, already with the toughest laws in the country regarding political donations is to go further. If the Federal and other state governments don't follow please ask why:
Legislation to be introduced into Parliament today will:
  • Broadly double penalties for a range of offences under the Election Funding, Expenditure and Disclosure Act;
  • Prohibit third party arrangements being used to avoid donation and expenditure caps – carrying a maximum penalty of 10 years imprisonment;
  • Allow for prosecutions for all future offences to be commenced up to 10 years after the offence was committed – up from the current three years; and
  • Require parties to disclose political donations received from 1 July 2014 to 1 February 2015 – this disclosure must be made within one week of the end of this period to the Electoral Funding Authority, to be made public before the election.
Mr Baird said a new, fairer public funding model will be introduced to reduce the corrosive influence of donations in the political system. Under changes to be introduced, the government will lower caps on political donations and spending caps for political parties and third party campaigners while a new model of public funding will be introduced that rewards performance rather than spending.
Update-Parliament passed the bill on 21 October. A fair bit of criticism as reported by Sean Nicholls  including late changes that do not reduce the amount of private donations able to be raised and spent by parties. On the transparency front parties will have to disclose donations received between July 2014 and March 1, 2015 before the election on March 28 next year. The initial proposal was for the disclosure period to end on February 1.

Prime Minister gives Indonesia thumbs down on OGP twice in four months

The Prime Minister plans to 'shirt front' President Putin at the G 20 meeting next month but when it comes to the Open Government Partnership, well, we just don't front.

Prime Minister Abbott twice knocked back invitations from Indonesian President Yudhoyono to attend OGP events this year.

First to the Bali Asia Pacific Regional Conference in May, when he was busy with budget preparations, but we did manage to send an official from Finance.

And then last month to the High Level Meeting in New York, this time with no mention publicly of the invitation or why he or Foreign Minister Bishop, both there on 25 September, or someone senior from the accompanying party or from our UN Mission couldn't join ten heads of state/government, more than 30 ministers and hundreds of others who managed to find the time.

The Prime Minister is off to the inauguration of the new president in Jakarta next week.

President Yuhoyono got nowhere in seeking visible support for the OGP from Australia, valuable in itself, but also as encouragement for strengthening democratic institutions throughout the region. 

President elect Joko Widodo seems similarly committed to the cause. But on form to date the OGP seems unlikely to rate a mention in PM Abbott's briefing book for the visit.

While nothing has been said publicly to explain the government's position it seems that somewhere close to the highest level of government there may be opposition to proceeding to membership of the OGP as a matter of principle or perhaps because of the perceived difficulty of reconciling a membership application with the government's position on a number of fronts here at home. 

The OGP is a platform for reformers, governments interested in the social and economic benefits of open government and in improving governance and public participation and fighting corruption through enhanced transparency and accountability. And who recognise that the task is best undertaken in partnership with civil society.

At some point the OGP Support Unit or the Steering Committee now chaired by Mexico and South Africa will raise the question where Australia stands, with the Dreyfus letter of intent of May 2013 still on the public record.

Russia is the only government to withdraw from the OGP to date. Sixty four other governments have signed up or are in the process of doing so. Here's one enthusiast who found time to say a few words to the New York gathering.

Incredibly ironic in the circumstances if Russia and Australia both shirt front the OGP, chorusing "nyet, spaseeba.” 

Friday, October 10, 2014

Voices for integrity, transparency and accountability

Are politicians everywhere listening?  

Senator John Faulkner in his address Public Pessimism, Political Complacency: Restoring Trust, Reforming Labor (pdf) and the NSW Panel of Experts chaired by Dr Kerry Schott in the Interim Report-Political Donations sang from the same integrity, transparency and accountability songbook this week with a refrain that should be heard in the Federal and all state jurisdictions: the current rules regarding political donations erode public trust and confidence and contribute to the perception of corruption. 

Senator Faulkner (who had plenty to say also about reform of the Labor Party) recalled his reform proposals of 2009 (that never made it through the Senate) including measures
  • to reduce the donations disclosure threshold from its current level of $12,800 to $1,000 and remove indexation;
  • prohibit foreign and anonymous donations;
  • limit the potential for 'donation splitting' across branches, divisions or different units of parties;
  • require faster and more regular disclosure of donations; and
  • introduce new offences and significantly increase penalties for the breach of electoral law.
The Panel established by NSW Premier Mike Baird indicated action is needed to ensure closer to real time time disclosure of reportable donations so that voters are aware of fundraising activity before an election; increased penalties for serious breaches of election funding laws, a longer time period for commencing prosecutions and a new anti circumvention measure-disqualification from office for those who deliberately seek to avoid election finance laws; and mandatory education programs for candidates and members of parliament on ethical conduct and compliance with the Election Funding, Expenditure and Disclosures Act (NSW). A final report with recommendations is due in December; the NSW state election in March 2015.

Wednesday, October 08, 2014

Victoria beefs up FOI Commissioner, Commonwealth scraps the function.

Someone's headed in the wrong direction on the transparency journey, no prize for guessing.

As Federal Attorney General Brandis rolls out legislation to abolish the Office of Australian Information Commissioner, scotching the right to free external review of freedom of information decisions among other retrograde consequences, "in order to reduce the burden on FOI applicants", Victorian Attorney General Robert Clarke announces the appointment of two Assistant Freedom of Information Commissioners to "further strengthen the work of the FOI Commissioner" in handling reviews and complaint. 

Update: Fairfax Media- Victorian Labor says it would go further, enhancing the commissioner's role and extending powers. 

Tuesday, October 07, 2014

On the other hand public servants carrying out routine work functions should be publicly accountable

Public servants, like the rest of us have a right to privacy and protection of personal information. But when it comes performance of functions in the normal course of duties of office, privacy should rarely enter into it. Sensitivity about names should usually take a back seat  to transparency, responsibility and accountability.

The issue arises in the context of freedom of information applications. In some agencies, notably the Attorney General's Department the practice is that names and contact details of senior officers mentioned in requested documents will generally be released but not the names of 'junior' officers of the department and other government agencies. 'Junior' appears to be anyone below SES level.

This is the paragraph that appears in the AGD standard acknowledgement of receipt of an FOI application:
It is the usual practice of the Department to not release the names and contact details of junior officers of the Department and other government agencies, where that personal information is contained in documents within scope of a request.We will take it that you agree to the removal of junior officers’ personal information unless you advise that you would like us to consider releasing that information as part of the documents you have requested.
As the applicant doesn't know at this stage what a requested document contains or whose name might be mentioned, most probably simply shrug 'OK.' AGD then redact the details under s 22 as not relevant to the application. 

Now no great public purpose usually will be served by disclosing names of public servants who simply perform administrative support functions or are peripheral to the main game.

However the assumption of non disclosure in all instances is a bit precious when the 'junior' officer concerned is the officer responsible for carriage of a particular matter.

Given AGD (through the Attorney General) is set to become the source of government wide guidance on the FOI act once the government persuades the Parliament to abolish the OAIC, you have to wonder whether 'privacy creep' might see the non disclosure of names become routine across the service possibly broadening out beyond 'junior officers.'

Take the following two AGD examples from personal experience. 

AGD deleted the name of whoever drafted this briefing note for the Secretary in August 2012 about the government response to the Australian Law Reform Commission report Secrecy Laws and Open Government. The briefing note was signed by then Assistant Secretary Glenn (the decision maker took the trouble to delete his phone number as well) and went through two named first assistant secretaries Matt Minogue and Geoff McDonald on the way to the then secretary. 'No name' obviously knew all about the ins and outs of the topic - that the agency best sit on the report rather than respond to its recommendations publicly - but is not mentioned.

And in response to this request for documents about meetings of agency officials regarding Australia and the Open Government Partnership, AGD deleted the names of 'junior officers' who attended a meeting but that happened to be everyone from four agencies represented, Ausaid, DBCDE, Finance, and PM&C. None of those attending from those agencies were  named in the document released. 

It is a Queensland case but this post three years ago canvassed the issue following a decision by Assistant Information Commissioner Henry (The Amanda Flynn Charity Ltd and the Crime and Misconduct Commission) who said:

22. The routine personal work information of public service officers is personal information within the meaning of the RTI Act, however, the potential harm that could be caused by its disclosure is, in most circumstances, minimal or nonexistent. This is due to a number of factors including:

  • the requirement that government departments be open and accountable in their operations
  • that public service officers are employed in the business of government which delivers services to the public and the public is generally entitled to know the identity of the service deliverers, advice givers and decision makers
  • the publication of public service officers' appointments in the Government Gazette; and
  • that a reasonable public service officer would expect that information that is solely their routine personal work information would be made available to the public.
In an earlier post (which needs a little updating to reflect Commonwealth reforms enacted since) I commented confidently:'s clear that generally names will not be exempt. (In the usual situation) the routine disclosure of information about the names, and positions of government employees in the conduct of public functions is now an important accepted element in the transparency and accountability framework within which government operates in Australia.
And referred to this example of one jurisdiction that leaves no doubt about the issue:
The Freedom of Information Act of Western Australia (Schedule 1 Clause 3) provides the clearest statement of the situation. The act provides specifically that matter is not exempt for the purposes of the personal information exemption merely because its disclosure would reveal, in relation to a current or past  officer of an agency, prescribed details relating to the person; the person’s position or functions as an officer; or things done by the person in the course of performing functions as an officer.  Prescribed information (Freedom of Information Regulations Clause 9) includes details of the person’s name; any qualifications held by the person relevant to the person’s position in the agency; the position held by the person in the agency; the functions and duties of the person, as described in any job description document for the position held by the person; or anything done by the person in the course of performing or purporting to perform the person’s functions or duties as an officer as described in any job description document for the position held by the person.
Intimidation, harassment or threat to life and safety understandably change the equation. 

But public servants who are key players in the policy process regardless of seniority should be made of sterner stuff than the FOI decision makers at AGD think is warranted.

Monday, October 06, 2014

Is alleged misconduct by a public official deserving of privacy protection?

I'd suggest the intuitive response from most of us is no, and some might firm this up with a 'never', or 'rarely'. 

But of course it all depends on a whole range of circumstances: who is involved and the nature of the alleged conduct; in those jurisdictions that have an anti corruption body whether the misconduct is of a kind requiring notification, otherwise the stage reached in any investigation; the impact disclosure may have on further investigation, etc, etc. If an investigation has concluded, is there a difference if it found misconduct occurred or didn't occur? Was the investigation thorough and appropriate, did it reveal systemic issues, etc, etc....

(This current UK case is slightly off subject but rather special: a disgraced Royal Navy captain is suing the Ministry of Defence because he says his human rights were breached when a military press officer leaked the story of how his verbal abuse of junior officers led him to be relieved of the command of the warship HMS Somerset. The press officer was also charged with misconduct in public office for selling stories to the press!) 

Federal public servants

So put to one side what might be said about the issue and elected officials - our federal parliamentarians don't have a code of conduct by the way..

The Australian Public Service Commission is seeking comment on a discussion paper about the extent to which information about the outcome of a misconduct complaint should be disclosed to the complainant and to others. Public servants are bound by the APS Code of Conduct, set out in section 13 of the Public Service Act 1999 (the PS Act), which codifies required standards of behaviour.
(You'll need to be quick with a submission - the paper seeks  comment by 7 October 2014 to the Ethics Advisory Service: by post to: Ms Karin Fisher Australian Public Service Commission 16 Furzer Street Phillip, ACT 2606.)

Agencies tend towards non disclosure

Apparently a 2008 APSC guideline that outlines in broad terms the issues relevant to disclosure of information to the complainant and disclosure more generally isn't doing the job. The discussion paper notes
"recent cases, as well as enquiries to the Commission's Ethics Advisory Service, have highlighted a tendency across the APS to err on the side of non-disclosure—a tendency apparently underpinned by agencies' concern that providing more than the minimum of information could constitute a breach of the Privacy Act 1988. Agencies' hesitancy to provide information about the outcomes of misconduct complaints has left them vulnerable to criticism by the public and by the Courts, which risks undermining public confidence in the administration of the APS."
Questions posed in the paper:
  • What information should be provided to people, including members of the public, who allege breaches of the APS Code of Conduct about the outcome of their complaints?
  • Should information about proven misconduct be disclosed to people other than complainants, such as the wider agency workforce?
  • If information should be disclosed to people other than the complainant, under what circumstances?
  • What do agencies need to consider in making decisions about these matters?
 Privacy, FOI, PIDS?
The privacy framework that applies to APS agencies and employees "recognises that employees' personal information can sometimes be disclosed, and may need to be disclosed where doing so would serve the broader public interest." Provisions of the Freedom of Information Act 1982  and the Public Interest Disclosure Act 2013 may be relevant in particular instances.

Recent cases

The paper summarises recent cases that indicate "a greater degree of disclosure is acceptable to the community than the Commission's existing guidance suggests:
In Banerji v Bowles [2013] FCCA 1052 (dealing principally with public comment and the right to freedom of expression rather than the right to privacy) it was noted by the Court that the applicant had previously made a complaint against another employee in the agency, whose conduct was investigated as a result, and had been given a letter advising her that ‘appropriate action’ had been taken by the agency in relation to her complaint but that the Privacy Act prevented disclosure of any relevant details. In commenting on this matter, Neville J said:
the letter is (a) less than informative (or otherwise illuminating), and (b) classic ‘Yes Minister’ speak.
The judge questioned how a complainant might obtain any relevant information or raise any questions about a matter that involved serious misconduct if they were told that no relevant information could be provided, and noted that ‘such an information vacuum might understandably give rise to a certain angst or tension in the workplace, which is not necessarily of the complainant's making.’
Similarly, in ‘J’ and Department of Health and Ageing [2013] AICmr 21 (8 March 2013), which concerned a complainant's request for information about the outcome of an investigation, the Australian Information Commissioner stated:
[T]o the extent that … a disclosure demonstrates that an investigation has been properly undertaken, that disclosure will improve general confidence in an agency's capacity to conduct future investigations.
Importantly, the Information Commissioner also noted that the result of the complainant's freedom of information request might have been different if the agency had provided more information and more detail—‘not necessarily in written form’—in the first instance about the outcome of the investigation.
This case also referenced Carver and Fair Work Ombudsman [2011] AICmr 5, in which it was noted that wide disclosure of evidence provided to misconduct investigations
could reasonably be expected to affect the willingness of people to provide evidence for future Code of Conduct investigations which, in turn, would have a substantial adverse effect on the management … of the agency's personnel.

Friday, October 03, 2014

Abolish information commissioner bill may be in trouble in the Senate.

Michael McKinnon FOI Editor ABC reports that the Freedom of Information Amendment (New Arrangements) Bill could be blocked in the Senate, raising the question what will happen with reviews if the OAIC continues but the money runs out by the end of the year.

Accountability Roundtable raises the trust deficit in lead up to Victorian election

Colleen Lewis on The Conversation writes that the Accountability Roundtable has sent a letter (with detailed attachments) to the leaders of Victoria’s major political parties seeking a pre-election commitment to act on three serious issues after the November 29 poll. The Roundtable seeks a commitment to support:
  1. Giving greater powers to Victoria’s Independent Broad Based Anti-Corruption Commission (IBAC)
  2. Holding an inquiry into public funding of political parties, individual members of parliament and political candidates
  3. Strengthening the public’s right to know, with improved Freedom of Information rules.
The Accountability Roundtable draws attention to excessive secrecy and heightened concern about opportunities for corruption as well as the fact that open and accountable government is critical for economic growth, reflected in the expansion of the Open Government Partnership to 64 countries in three years (and on which the Federal government continues to maintain stony silence).

The Roundtable urges action to give effect to the long standing, but forgotten, common law and ethical principle that public office is a public trust, and that holders of public office must, in exercising the powers entrusted to them, give priority to the public interest over their personal interests.
Effective laws properly administered are crucial ingredients in the mix but FOI in Victoria is stuck in the dark ages. Both this government and Labor when it had the chance haven't done much to bring it into the 21st century. The Greens can point to a long consistent record of advocating change but with no opportunity so far to bring those changes about. 

Government fails to make the case for abolishing information commissioner

In introducing the Freedom of Information Amendment (New Arrangements) Bill 2014 in the House yesterday the government argued that the Office of Australian Information Commissioner should be abolished primarily because of complexity in the system of external merits review for FOI matters. 

If complexity was the issue it had a number of options to improve on the model adopted in 2010, short of junking the whole thing, should it have taken the trouble to look, think and discuss beyond the confines of the Attorney General's Department. 

After all, the limited review of the FOI act in 2012-13 by Dr Hawke (still without a response 18 months later) concluded that the establishment of the OAIC "has been a very valuable and positive development in oversight and promotion of the FOI Act." (page 24). 

And specifically on the complex review system cited by the government as the major policy reason for the decision: 
"The current system of multi-tiered review has been in operation for two and a half years.  At this stage there is insufficient evidence to make a decision on whether this is the most effective or efficient model for reviewing FOI decisions, particularly in relation to the two levels of external merits review.  The Review considers this issue warrants further examination and recommends that the two-tier external review model be re-examined as part of the comprehensive review recommended in Chapter 1." (Page 36)
Apart from 'removing complexity' the government claims measures in the bill will save $10.2 million over four years, "part of the government's continuing commitment to repair the budget" and the Explanatory Memorandum adds that it "furthers the government's commitment to smaller government."

There is no mention in the Second Reading speech that abolition of the office will remove the independent statutory monitor of compliance with the FOI scheme, the leader responsible for promoting a pro-disclosure culture in government and awareness of the right to access government information more broadly. Resource limitations and other factors may have limited the office capacity to get far in all this, but abolishing it certainly won't advance us on this never ending journey.

The absence of such an office was identified as an impediment to effective administration of the FOI Act as long ago as the joint 1995 Australian Law Reform Commission and Administrative Review Council Open Government report and later by the Commonwealth Ombudsman. It took 15 years for government to act on this. The Abbott government is taking us back to the dark days where FOI has 'orphan' status within 12 months of taking office.

No mention also of the cost to agencies of the reintroduction of mandatory internal review before an application for full independent merits review to the AAT, or the cost to applicants if they seek to take matters further with an AAT application fee in most instances of $861. 

No mention also of the abolition of the commisioner's function to provide strategic advice to Government on broader information management policy and practice, or abolition of the Information Advisory Committee.

Whereas up to now an agency has been required to have regard to guidelines issued by the independent commissioner in administration of the FOI act, in future those guidelines are to be issued by the Attorney General.

Debate was adjourned after the minister's second reading, but there is no doubt it will sail through the House. Let's hope there is some real scrutiny in the senate of what is a retrograde step for transparency and accountability.

Paul Farrell has written this in The Guardian today.

In short: 
The Office of the Australian Information Commissioner (OAIC) will be abolished. 
The Australian Privacy Commissioner will continue to be responsible for functions under the Privacy Act 1988 as an independent statutory office holder within the Australian Human Rights Commission.
The Administrative Appeals Tribunal will have sole responsibility for external merits review of FOI decisions.
Those waiting in the OAIC queue for review will be transferred to the AAT-no application fee for them.
Mandatory internal review of FOI decisions required before a matter can proceed to the Administrative Appeals Tribunal. The tribunal will receive a funding boost to assist with processing FOI reviews.
(Oh almost forgot: Continuation of the situation that there is no right to internal review of a decision made by a minister or the principal officer of an agency.
The only extension of time for dealing with an application to an agency or minister is where this is agreed with the applicant. The only 'incentive' for an agency or minister to make a decision in time is that no charges can be imposed for dealing with the application, but that hasn't produced uniform on time decisions so far.
And a deemed refusal - when a decision is not made within the statutory time-frame - is taken to have been made by the minister or principal officer.
In all these cases the only recourse for an aggrieved applicant (or aggrieved third party with an established interest in the matter) apart from a complaint to the Ombudsman in the case of an agency is to seek merits review from the AAT,)
The  Ombudsman will be responsible for investigating complaints about actions taken by an agency under the FOI act-but apparently isn't to receive additional resources for this purpose.
The Attorney-General will be responsible for FOI guidelines and collection of statistics on agency and ministerial FOI activity.

Thursday, October 02, 2014

Bill to disband information commission in House today.

The Freedom of Information Amendment (New Arrangements) Bill 2014 is to be introduced into the House of Representatives this morning. The disbanding of the office of the information commissioner may be a world first, so the explanation of how this and other proposed changes will "reduce the burden on applicants" as the Attorney General claimed on budget night should be interesting.

Ironies abound: the legislation comes a week after an apparent 'no show' by the government at the Open Government Partnership High Level Meeting in New York last week; it's Right to Know Week ( in NSW at least); and according to the daily program the bill is to be introduced by Minister for Immigration and Border Protection Scott Morrison, minister for tone at the top on transparency for the Abbott government.

Wednesday, September 24, 2014

Right to Know day, week whatever.

Right to Information Day in Queensland on 24 September and not just a day but Right to Know Week in NSW 28 September-5 October. 

Celebrate, dance in the street, make a fuss.

OGP High Level meet in NY this week

Ten heads of government/heads of state are to attend the meeting, the latest to sign up President Hollande of France. No official word on Prime Minister Abbott's response to an invitation from President Yudhoyono but as I've heard from New York that a delegation from Australia is expected to attend as observers, maybe that says it all. 

Follow the meeting on Twitter at #OGPatUN and @opengovpart

It will be livestreamed starting at 3.45pm 24 September New York time, by my calculation 5.45am 25 September AEST.

Yesterday President Obama spoke at the Clinton Global Initiative on the importance of civil society:

Citizens remind us why civil society is so essential. When people are free to speak their minds and hold their leaders accountable, governments are more responsive and more effective. When entrepreneurs are free to create and develop new ideas, then economies are more innovative, and attract more trade and investment, and ultimately become more prosperous. When communities, including minorities, are free to live and pray and love as they choose; when nations uphold the rights of all their people -- including, perhaps especially, women and girls -- then those countries are more likely to thrive.  If you want strong, successful countries, you need strong, vibrant civil societies.  When citizens are free to organize and work together across borders to make our communities healthier, our environment cleaner, and our world safer, that's when real change comes.
A citizen is a powerful force for change. That is why more and more governments are doing what they can to silence them -- from Russia to China to Venezuela and more. "This growing crackdown on civil society is a campaign to undermine the very idea of democracy. And what's needed is an even stronger campaign to defend democracy," the President said.  
I'd been told Foreign Minister Bishop intended to be there. 

A statement on Australia's  support for civil society?

Monday, September 22, 2014

What chance a 'principled framework to balance secrecy and open and accountable government' ?

Close to zero I venture.

The August 2012 briefing note finally released (well, minus attachments) in response to my FOI application for work undertaken on the Australian Law Reform Commission Report Secrecy Laws and Open Government of December 2009 reveals little progress in those three years on what should have been a major project across government but it doesn't tell the full or current story. 

FOI reforms mooted in 2009 and referred to in the ALRC report were introduced in 2010, but as we know the government is intent on removing a central element of those reforms by disbanding the Office of Australian Information Commissioner.The ALRC strongly supported the concept in its report.

Whistleblower protection law referred to in the ALRC report and mentioned in the briefing note came to pass (finally again) in 2013.

The Attorney General could enlighten us with a statement about where things stand in 2014 although the file might be buried at the bottom of in-trays in AGD. The advice from within no doubt says the report was commissioned by the previous government and arguably no response is required from this one.

However the disclosure reminds that the ALRC recommends a rational, comprehensive approach to reform of the crazy patchwork of secrecy laws currently on the books and sits there possibly gathering dust while the government today introduces changes to legislation that will add to our sizable collection of secrecy laws. I haven't seen any mention of the report in the discussion of the National Security Legislation Amendment Bill (No. 1) 2014 or  the changes to legislation foreshadowed by the Attorney General and still to come. 

Maybe it's too much to expect in the current climate but the ALRC proposed "a new and principled framework striking a fair balance between the public interest in open and accountable government and adequate protection for Commonwealth information that should legitimately be kept confidential."

More than 60 recommendations outline what should be done to bring about some coherence and consistency in the statute book's 500 plus secrecy provisions:

  • repeal the wide catch all offence provisions in the Crimes Act - s 70 is described as "seriously out of step with public policy developments in Australia and internationally" - and introduction of a new general offence provision limited to disclosures that harm essential public interests, 
  • principles to guide review of the hundreds of specific secrecy offences in legislation and the creation of any new ones such as those currently before parliament,
  • and measures to improve information handling practices across government including sorting out in a more definitive fashion the relationship between FOI and secrecy laws. 
The draconian s 70 'unauthorised disclosure' provision is among the worst of the complex, confusing and uncertain secrecy laws on the books. We have had voices urging change to this provision that go back to former High Court Chief Justice Sir Harry Gibbs in 1991. One of the few  against change however was the recently replaced secretary of the Attorney General's Department Roger Wilkins, who told a senate committee way back in 2008 (page three of the transcript Thursday 27 November 2008 (PDF 192KB):"My personal view. I am not sure of the government's view on this. My personal view would be that you should not interfere with section 70 of the Crimes Act. That should remain intact". 

Whether in Wilkins time, extending to 2014, ministers had a chance to consider the matter is another question.

In 2014 a new principled framework for secrecy and open government is way overdue.

The ALRC has laid out how to go about this. Alas, no sign of starters. 

Friday, September 19, 2014

Attorney General's Department to lead on FOI decision making, but where?

Ever get the feeling you have been done over by experts?

Me too after a 16 month battle over access to a document held by the Attorney General's Department.

The worry is that the 'experts' in this case are those chosen by the government to provide guidance to other agencies about the act after the Office of Australian Information Commissioner is disbanded at the end of the year.

A win of sorts in the end as the department has now conceded in light of an assessment by the Office of Australian Information Commissioner (I was in the queue there for 12 months) that contrary to the original and internal review decisions, the document is not a deliberative process document exempt under s 47C and should be released. 'Concede' for the most part that is.
LaurMG 'Frustrated man at desk'
AGD argues now and for the first time that two attachments aren't an integral part of the document itself but separate documents outside the scope of the application, so why don't I just make a fresh application.To my amazement the OAIC agree that the attachments (they don't appear to have seen them) are separate documents, but tell me the door is open to argue the toss about this in the AAT at $861.Thanks. Argh! 

I'll leave comment about the substantive issue of the response to the report to another post but as to FOI, don't laugh when you see that the document in question is about the government's response to the Australian Law Reform Commission report Secrecy Laws and Open Government in Australia. 

The report was completed and handed to the then attorney general in December 2009. Once tabled in Parliament in March 2010 it hasn't been heard of since.

In May 2013 I lodged an FOI application for the most recent summary of work undertaken and yet to be undertaken on the report. The AGD said it held one relevant document, a briefing note to the then secretary dated 24 August 2012. (Hmm, yes I too read something into the fact the most recent document was nine months old at the time.) 

But no dice on access - the document contained matter "in the nature of consultation and deliberation" and the factors against disclosure, "for instance release of the material could damage the relationship between an agency and the Government," outweighed any factors in favour of disclosure.

The back and forward with the department is at Righttoknow and in previous posts here and here. I sought review by the OAIC in August 2013. When they got around to it, they concluded the exemption did not apply, the document should be released and the department complied.

Given the assertions about the public interest considerations against disclosure you would  think the relationship between the department and the attorney would be shot to pieces as a result of the disclosure. And that officers of the department now won't do their job properly.

More realistically neither will happen as I expect this was classic gaming, grasping at straws to delay the inevitable or see me off.

I wonder whether the department bothered to alert the Attorney General to the disclosure when they released the briefing note on 5 September, given the dire predictions about likely effect; whether the OAIC said anything to the department about wasting the time and resources of both; or whether senior management at AGD pay any attention to poor form like this.

AGD cited the following public interest considerations against disclosure. Who knows, they may turn up in a "how to" guide in future for dealing with an application for a document just like this - years old that throws light on the department's handling of a major costly and comprehensive law reform report. The only question, how to what?
  • "whether it is contrary to the public interest to disclose draft material that has not gone before the relevant minister (or ministers) and does not reflect the government's settled policy (or even a settled view within an agency) and would have cross-portfolio implications if released
  • whether it is contrary to the public interest to provide the public with a factually incorrect sense of direction that an agency (and the Government) is taking on matters of criminal law, where the material in question uses strong language that would suggest it is the Government's final settled position when it is not
  • whether an agency could effectively discharge its responsibilities if material prepared for internal consultation and consideration was released prematurely  and damaged  the relationship between an agency and the Government and
  •  whether it is contrary to the public interest to disclose material that would inhibit policy officers  from considering (and documenting) a full range of draft responses to ALRC recommendations."

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Thursday, September 18, 2014

Australia's support for democratic values on display in New York next week

The government's participation or non participation at two high level meetings in New York next week will be an indicator of the importance it attaches to support for democratic values and matching words with actions.

No, not talking about the Prime Minister participating on 24-25 September in a meeting of the UN Security Council convened by US President Obama to address the threat posed by foreign terrorist fighters, delivering Australia’s national statement at the General Assembly, or meetings with key leaders ahead of the G20 meeting in Brisbane.

Or talking about the Climate Summit on 23 September the day before he arrives when Foreign Minister Bishop will be in Australia's seat as UN Secretary-General Ban Ki-moon welcomes 125 heads of state and government or deputies.

No, talking about two other high level meetings that the likes of President Obama, President Yudhoyono and other heads of government and senior ministers think important enough to squeeze in while they are in New York - meetings about support for civil society and for open, transparent and accountable government.

Where will Australia stand?

With civil society?
On 23 September at the Clinton Global Initiative, President Obama will reconvene partners to advance the Stand with Civil Society agenda. The State Department describes the forum this year as providing "a platform for partners to take stock of progress made to date, define a strategy for the next year, and make commitments that will have a lasting impact on the future of civil society."

It follows a meeting a year ago where President Obama brought together government and   philanthropic leaders to launch the agenda, 
"a groundbreaking effort to support, defend and sustain the work of civil society amid a rising tide of restrictions on its work. Together with the philanthropic community and working through existing initiatives and partnerships including the Open Government Partnership (OGP), the Community of Democracies, Lifeline, and Making All Voices Count, participants agreed to collaborate to: (1) promote laws, policies, and practices that foster a supportive environment for civil society in accordance with international norms; (2) coordinate multilateral, diplomatic pressure to roll back restrictions being imposed on civil society; and (3) identify innovative ways of providing technical, financial, and logistical support to civil society. 
Australia was there last year, the government signing on to this joint statement issued by the White House at the time. 

No reply so far to my email to DFAT about Australian representation.
(Update: A Yes on this one: Although it is not mentioned in the Media Release outlining her schedule in New York I have been informed the Foreign Minister will attend the Clinton Global Initiative event as part of her visit.) 

With the Open Government Partnership?
On 24 September President Yudhoyono of Indonesia and President Peña Nieto of Mexico will chair a meeting at UN headquarters, “Open Government Partnership: Citizen Action, Responsive Government." The gathering will celebrate the third anniversary of the OGP.

Seven other heads of state or government (so far) are listed as speakers to government and civil society represenatives of the 64 countries that have joined or are in the process of joining the partnership, including President Obama, the presidents of South Africa, Tanzania and Croatia and the prime ministers of Georgia and Norway.

President Yudhoyono has sent an invitation to Prime Minister Abbott to attend.
This follows his invitation to the PM to attend the Asia Pacific Regional OGP meeting in Bali in May. The PM said he was unable to accept on that occasion because of Budget preparations. 

At that meeting President Yuhoyono noted that Asia-Pacific countries are under represented in the OGP and called on others in the region to join.
Australia has mostly dithered since first invited to join the OGP in September 2011. The previous government indicated intention to join in May 2013.

The latest public statement by Finance Minister Cormann is we are still 'considering.'
Participation in the meeting would confirm Australia stands with Indonesia, Korea, the US, UK, Canada, New Zealand and other OGP members for open, transparent and accountable government that encourages and empowers citizens and is responsive to their aspirations. 

No reply to my email to the PM, Foreign Minister, Minister for Finance and local member Malcolm Turnbull about the invitation from President Yudhoyono.