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Thursday, August 21, 2014

Last week for NSW statutory review submissions

A reminder, to me to get cracking as much as it is to you, that submissions to the statutory review of the NSW Government Information (Public Access) Act and the Government Information (Information Commissioner) Act close on 29 August.

I'm no fan of the way these reviews are conducted- a notice that the review is underway that few will ever see, terms of reference limited to "determine whether the policy objectives of the Acts remain valid and whether the terms of the Acts remain appropriate for securing these objectives", no discussion or issues paper, no dialogue or fora for interested parties to engage and discuss, and almost certainly no attempt by the agency conducting the review or any agency to survey users, or frequent users. On the other hand government agencies will be well armed with suggestions that reflect their interests.

Somewhat similar to the unsatisfactory process in the review of the Commonwealth act by Dr Hawke that the government has now had a year to chew over.

In Queensland the review of the RTI act and aspects of the information privacy act kicked off a year ago with release of two discussion papers but not a word since.


Report due in NY next month on government support for civil society

Eleven months ago Australia joined 20 other governments in a High Level Forum in New York chaired by President Obama in support of civil society.

The governments later issued a joint statement that noted their "deep concern that many governments are restricting civil society and the rights of freedom of association and expression, both online and offline"; commited to take action "to respond to growing restrictions on civil society that undermine its ability to perform its crucial role.. an alarming trend"; called on "representatives of civil society, the philanthropic community, the private sector, and other governments to partner with us in supporting and defending civil society"; and agreed to meet again at the opening of the 69th United Nations General Assembly to review progress toward these objectives.

The General Assembly convenes on 16 September. 

Someone in DFAT is no doubt beavering away on what Australia can say about our efforts to this end.

Speeches by Minister Andrews and plans for the National Centre for Excellence will feature; so will government financial support for the C20 and facilitation of the Global Summit earlier in the year.

A specific commitment in the joint statement was to strengthen support for existing mechanisms that encourage civil society participation such as the Open Government Partnership. The government's current public position is that whether Australia should join the OGP is still 'under consideration' so there is a month (it's been three years) to tidy that up.

I'm sure the report won't go there, but squaring our stated support for an active civil society with other words and deeds would constitute a challenge:
  • cuts to funding community legal centres and removal of a clause from the funding agreement that confirmed their role in policy debate and advocacy;
We will hear more at home on the last three issues given this recent speech by Shadow Attorney General Mark Dreyfus.
The Abbott Government, however, has taken us backwards. Hopefully, this government will have learned a serious lesson from its failure this week in relation to section 18C. And if this government has any integrity about its stated principles, it will cease its attacks on free speech in this country.
In particular, the Abbott Government must renounce its hostility to environmental groups and wider civil society, and reinstate government support for the involvement of CLCs in advocacy and law reform processes. Senator Brandis must get to work on the journalist shield laws he promised, and encourage his Cabinet colleagues to cease their attacks on the independence and capacity of the ABC to report what is happening in our nation.
And the Government must also abandon repressive changes to our competition law that would shut down the public’s right to protest through organised actions against corporations.
Freedom of speech must not be reduced to a simplistic slogan, employed as a war cry in the pursuit of base political objectives. Freedom of speech must be respected as a fundamental right in our society, a nuanced and deeply important value that we must fight to uphold, and to strengthen
- See more at: http://nofibs.com.au/2014/08/11/labors-mark-dreyfus-qc-takes-a-stand-on-freespeech-abbott-and-brandis-honour-voltaire-only-in-the-breach/#sthash.UsKJQm3u.dpuf
   
The Abbott Government, however, has taken us backwards. Hopefully, this government will have learned a serious lesson from its failure this week in relation to section 18C. And if this government has any integrity about its stated principles, it will cease its attacks on free speech in this country.
In particular, the Abbott Government must renounce its hostility to environmental groups and wider civil society, and reinstate government support for the involvement of CLCs in advocacy and law reform processes. Senator Brandis must get to work on the journalist shield laws he promised, and encourage his Cabinet colleagues to cease their attacks on the independence and capacity of the ABC to report what is happening in our nation.
And the Government must also abandon repressive changes to our competition law that would shut down the public’s right to protest through organised actions against corporations.
Freedom of speech must not be reduced to a simplistic slogan, employed as a war cry in the pursuit of base political objectives. Freedom of speech must be respected as a fundamental right in our society, a nuanced and deeply important value that we must fight to uphold, and to strengthen
- See more at: http://nofibs.com.au/2014/08/11/labors-mark-dreyfus-qc-takes-a-stand-on-freespeech-abbott-and-brandis-honour-voltaire-only-in-the-breach/#sthash.UsKJQm3u.dpuf
The Abbott Government, however, has taken us backwards. Hopefully, this government will have learned a serious lesson from its failure this week in relation to section 18C. And if this government has any integrity about its stated principles, it will cease its attacks on free speech in this country.
In particular, the Abbott Government must renounce its hostility to environmental groups and wider civil society, and reinstate government support for the involvement of CLCs in advocacy and law reform processes. Senator Brandis must get to work on the journalist shield laws he promised, and encourage his Cabinet colleagues to cease their attacks on the independence and capacity of the ABC to report what is happening in our nation.
And the Government must also abandon repressive changes to our competition law that would shut down the public’s right to protest through organised actions against corporations.
Freedom of speech must not be reduced to a simplistic slogan, employed as a war cry in the pursuit of base political objectives. Freedom of speech must be respected as a fundamental right in our society, a nuanced and deeply important value that we must fight to uphold, and to strengthen
- See more at: http://nofibs.com.au/2014/08/11/labors-mark-dreyfus-qc-takes-a-stand-on-freespeech-abbott-and-brandis-honour-voltaire-only-in-the-breach/#sthash.UsKJQm3u.dpuf

Wednesday, August 20, 2014

Open parliaments and pollies weekend in Sydney

Open Australia is organising a Hackfest in Sydney on 21-22 September focusing on parliaments, politicians and elections. The event is timed to coincide with the Global Legislative Openness Week (GLOW) an initiative of the Legislative Openness Working Group of the Open Government Partnership. Good to see this engagement in advance of the much considered issue of whether Australia is to join the OGP.
 

I've lamented-here and here and here, three of many posts on the subject- that our parliaments and parliamentarians are still to fully and eagerly embrace the information age, so interested to see what those who put their minds to it can do with what is available.


Tuesday, August 19, 2014

Australia missing deadlines but not on OGP tardy list yet

Freedominfo.org reports the Open Government Partnership has cautioned 11 member governments over missed deadlines and other compliance issues. 

Australia is not among them despite the fact that the OGP lists us in Cohort 4 and the Calendar for Participating Countries attached to that page has Cohort 4 countries down to officially join in April 2014, and to "Develop action plan in close collaboration with civil society" by June 2014. The Australia page Current status says "Developing 1st Action Plan." 

Although Open and Shut has had an inkling that a decision has been taken to go ahead and there have been many great opportunities recently to make an announcement, the government's stated public position is that whether we proceed to membership or withdraw the May 2013 notice of intention to join remains 'under consideration'.

 
OGP Calendar For All Countries.docx
OGP Calendar For All Countries.docx


OGP Calendar For All Countries.docx

Sunday, August 17, 2014

Time to stand for integrity

With trust in government down, down down and support for democracy itself in decline, how federal politicians might dance around integrity related topics in coming months will surely be a sight to see. It is not just that we don't have a national integrity commission. Political donation and lobbying laws and rules are inadequate as well. In May when The Greens bill to establish an integrity commission came on for brief debate, government speakers weren't having a bar of it. As Bob Bottom recounted two years ago in The Australian it's been talked about for 30 years. The time has surely come. The holes in our integrity system are a national scandal.

Monday, August 11, 2014

Opportunity knocks again for an announcement on Open Government Partnership?

US Secretary of State Kerry is in Sydney for the Australia -United States Ministerial Consultations to commence  tomorrow.

In June, in Washington, he said 
And whether it is support for democracy, rule of law, standing up for human rights, speaking out across the planet, Australia is at our side.
Prime Minister Abbott at the time said it is important to ensure "we are all good international citizens. Because the lesson of history is that we will all advance together or none of us will advance at all."  
  
PM Abbott is in London now for talks with UK PM Cameron. Mr Abbott has spoken of the "enduring community of interest and values between our two countries."  

Last week at the US -Africa Summit the US outlined its support for good governance and human rights including through partnerships to promote openness:
With South Africa, Tanzania, and five other countries, President Obama in 2011 launched the Open Government Partnership (OGP), a voluntary, multi-stakeholder initiative in which governments make concrete commitments to promote transparency, empower citizens, fight corruption, and harness new technologies.  The OGP has grown rapidly to include 64 countries, including Ghana, Kenya, Liberia, Malawi, Sierra Leone, and Tunisia from Africa.  U.S. assistance amounting to approximately $16 million has helped Sierra Leone develop its first OGP National Action Plan with robust citizen engagement, and helped Tunisia become eligible to join OGP on the third anniversary of its revolution in January.  In Liberia, a $16 million multi-year program has helped Liberia implement its OGP commitments to transparency, accountability and citizen engagement.  The United States is also working with several private sector partners and associations to help build capacity to implement open data policies, develop legal and regulatory reforms, and improve accountability and public service delivery in African OGP member countries.
 Last year Mr Cameron said
Open governments backing open economies make for successful nations...the 4 big things that I think we need to do...First, we’ve got to get out there and really make the argument for open government..Second, we’ve got to translate words into deeds. We can’t just talk about open government, we’ve got to deliver..Third, in developed countries we’ve got to practice what we preach. When we talk about transparency elsewhere, we’ve got to show it at home too.. But there is one more thing. We’ve got to give our full-throated support for the groups that support and promote transparency, not least the Open Government Partnership. This is a truly exciting institution.
So two great opportunities this week for Australia, after much consideration, to announce shared values, support for democracy and good international citizenship means we are proud to stand with the US, UK and 61 other countries in the Open Government Partnership?

(Update: Ah nope: The AUSMIN communique runs to about 5500 words but no room for the OGP apparently. David Cameron squeezed in a phone call to the PM while away on holiday.)

Still hopeful....... 

Turnbull no open data hack

Lots of enthusiasm (as evident from the twittersphere) at GovHack 2014. Winners according to IT News excelled "in the field of using government data in creative and meaningful ways to create applications that help make sense of our social and economic milieu."

Malcolm Turnbull did the honours in Brisbane. If there was a prepared speech it should show up here. Meanwhile the minister explains the intelligence community's interest in our metadata, narrowly defined, during the ITNews Q&A.

Tuesday, August 05, 2014

FOI umpire rules 'gaming' experts at Immigration onside

A year ago the reasoning of the Department of Immigration in dealing with Freedom of Information applications encouraged through the Detention Logs struck me as tortuous. I said I'd be amazed if it withstood scrutiny. 

Last week Freedom of Information Commissioner Dr Popple did just that in Farrell and Department of Immigration when he upheld the Department's claim on the key issue that it can treat 121 FOI requests for documents as a single request, or as two or more requests, under s 24(2) of the FOI Act. 

Explained in this one paragraph:
  1. Each of the 121 FOI requests referred to in [4] and [5] above seeks further information about an incident referred to in the spreadsheet that the Department published on its disclosure log in August 2012. The requests relate to different incidents, but I am satisfied (for the purposes of s 24(2)(b)) that each request relates to documents the subject matter of which is substantially the same: that is, documents referred to in the spreadsheet and relating to incidents within the detention network between 3 October 2009 and 26 May 2011.This approach is consistent with the scheme of the FOI Act, which strikes a balance between facilitating a person’s right to access documents and allowing an agency to provide that access as efficiently as possible.
The amazing bit is that different reports qualify as documents the subject matter of which is substantially the same because the incidents they refer to are listed in the same speadsheet and occurred somewhere within the network of detention centres over the same 18 month period. And this is consistent with the scheme of the FOI act??

The broader ramifications of Dr Popple's interpretation of the act are interesting or concerning depending on your perspective.

Could any agency emboldened,Treasury for instance, argue requests for different documents mentioned or referred to in the 2014-15 Budget papers, or for any documents prepared on any subject in the lead up to the budget, referenced in that context and timeline, are requests for documents the subject matter of which is substantially the same?

In his decision, which relates to nine separate applications for IC review from ten IC review applicants, each expressed in identical terms, Dr Popple rejected [22-27] another aspect of Immigration's decision ruling the Department cannot treat as having been withdrawn those of the 121 FOI requests whose applicants advised the Department, during the request consultation process, that they did not wish to withdraw or revise their requests. The Department has been ordered to continue to process those requests. 

So the issue drags on and on. Immigration could do what it will in the light of the decision, or the Department, Farrell or any of the other OAIC review applicants left standing could seek review by the AAT - the first mentioned is probably better placed to fork out the $861 required.

Immigration's approach to dealing with these applications may have had the desired effect of holding the line and seeing off most of those involved who were interested in the issue at the time but not in jumping all the hurdles faced on the way through.

As not all aspects of that tortured reasoning of a year ago surfaced in Dr Popple's decision here is a recap of the path Immigration followed. It's turning out to be a tribute to 'smart lawyering' but no great advertisement for transparency and accountability.
  • requests made within a two week period in June and July for different reports by different people about different incidents often in different detention centres could be dealt with as a single request as the documents requested are 'documents the subject matter of which is substantially the same'; 
  • the time required to process what was regarded as a single application was three hours, the estimate for a single request of this kind, times the number of requests;
  • the resulting total time to process what was taken to be a single request would involve substantial and unreasonable diversion of resources away from other tasks, a practical refusal reason under s 24AA. (Before s 24AA can be activated, the applicant must be consulted and given an opportunity to revise the request. If the applicant does not respond, the agency can deem the request to be withdrawn.)
  • when some of those consulted didn't respond the request was deemed to have been withdrawn, even of those applicants who responded they did not wish to revise their request. As a deemed withdrawal is not an access refusal decision, none of the requesters had a right to review by the Australian Information Commissioner.

Monday, August 04, 2014

OAIC sides with 'frank and candid' to rule incoming government briefs exempt

The decisions by Australian Information Commissioner Professor McMillan in Parnell &  Dreyfus, and Crowe on the exempt status of incoming government briefs (IGB) under the Freedom of Information Act will please those in government who argue 'frank and candid' advice work depends on protection from disclosure, even though much of the reasoning focuses on the special circumstances of briefs prepared in advance for a new government. 

Much is made of the necessity that the public service get off to a good start with the new boss.

Unfortunately nothing much is made of the values that underpin the work of the Australian Public Service, that is to offer frank, honest timely advice based on the best available evidence. And little weight is attached to the public interest in knowing what government knows, for accountability purposes, and the contribution this information can make to informing public discussion and debate. 

This despite the fact that parts of the briefs should involve public service expert assessment and analysis of issues and challenges facing the nation, in the Crowe case now four years old, and in Parnell one year after the issues were raised with the government.

And that much of it might be pretty bland stuff in any event. As the Commissioner observes in Parnell "many and perhaps most paragraphs in the IGB could be individually and separately released without consequence."
  1. ..Yet the paragraphs together constitute a unique document that is prepared for a special purpose at a critical juncture in the system of responsible parliamentary government. Inevitably, therefore, one is drawn back to evaluating the exempt status of specific content by its inclusion in a document of a particular kind.
The Commissioner notes (Parnell [83]) that there is nothing to prevent ministers and agencies from making some information from an IGB publicly available, and that some have.

But he might have gone further as the South Australian Ombudsman did in commenting about the state equivalent documents in that case found to be cabinet documents:


In my view, there are reasons why the agencies might give access to parts of the portfolio briefs and other briefing documents, notwithstanding that they are exempt.....I consider that there is a strong public interest in members of the public being aware of policy initiatives and other issues that the agencies consider important to South Australia. In my view, access to such information would enhance public participation in discussions about South Australia’s future, and would be consistent with the objects of the FOI Act of promoting openness and accountability, as well as the principles of administration. I consider these public interest factors to be strongest with respect to generic documents, that is documents prepared with either a returning Labor or an incoming Liberal government in mind.
In Parnell & Dreyfus the Commissioner found that the entire 'Strategic Brief' including the list of contents and the transmission letter prepared for incoming Attorney General Brandis a year ago, and parts of the accompanying 'Information Brief' are deliberative process documents [s 47C] and disclosure on balance would be contrary to the public interest. 

In Crowe, the Commissioner applied the same reasoning, but cited some differences between the two [29-35] to rule against disclosure of those parts of a brief prepared in 2010 for prime minister Gillard that had not been released previously.

The decisions come as no surprise given the OAIC decision last year refusing access to the unused 2010 brief prepared for a Liberal Party Treasurer.

There are a number of other requests for IGBs through Righttoknow presumably some in the OAIC intray now awaiting predictable results, and Sean Parnell who tweeted this,
last week (from Communications I think) keeps trying.

As to the public interest...


Open Data-economic and social benefits

The wrap from a World Bank global policy dialogue event last week on the latest evidence of the economic benefits of Open Data and how it can be applied to advance socioeconomic growth in the developing world:
First, while there are several studies on the economic benefits of Open Data in OECD countries, there are few if any rigorous analytical studies on the economic benefits in developing countries. Although there was no discussion of this, I think that the research efforts of the Open Data Research Network can be a start. Secondly, there is no agreed methodology to evaluate the benefits of Open Data, and there is still no proper impact analysis –i.e. identifying a counterfactual- anywhere. There are plenty of concrete, factual examples of benefits and these show very high rates of return for open data investments, but still no agreed method to measure the overall benefits to an economy. The McKinsey report and the Lateral Economics study are good places to start, but these methodologies are themselves very data-driven and their applicability to data-scarce economies is still to be proven. Third, even though there is no standard methodology, it makes economic logic that increasing the re-use of any data will necessarily increase the return on investment on the data, since the value of the data is not depleted by use (an economist would say that data is a non-rivalrous good). 
Fourth, there was wide consensus that Open Data initiatives are quite inexpensive relative to the magnitude of their potential benefits, and are low-risk endeavors. Putting all of these together, we are not yet in a position to tell a government decision-maker that implementing an Open Data initiative will increase GDP in his/her country or region by a specific percentage or amount. But the evidence does suggest that the return on investment is substantial. And let's not forget that Open Data has non-economic benefits as well, such as transparency, improved service delivery, and increased data sharing in the public sector, which decision-makers should also consider.
On those broader impacts, Alex Howard following a separate thinkfest in Washington last week:
If national governments are going to invest time, money, and public attention on releasing data, they should also focus upon releases that have social benefits as well as economic outcomes..... As I've explored in past columns, publishing open data can increase resilience against climate change, offer insight into healthcare costs and outcomes, protect consumers, and fuel accountability and transparency.

Tuesday, July 29, 2014

Slipper guilty verdict sends a powerful message but won't fix transparency failings

The guilty finding against former Speaker Peter Slipper for dishonesty in the use of his cabcharge should send a message to parliamentarians about the need for close attention to the rules. But as we know from the big fuss last year and earlier this year when instances of questionable use emerged, the rules can be a bit rubbery.

What we do know about use of entitlements largely comes from information published by the Department of Finance about the payments it administers. Last week, the department published details of expenditure in the second half of last year for travel, office fitouts, telecommunications and publications, and for travel, office facilities and office administration for eligible former Parliamentarians. (Here's the take in The Age.)

While this is welcome, and miles ahead of what goes at state level, the system overall is a far cry from the simple, timely, comprehensive transparency and accountability model needed for use of entitlements by parliamentarians and related integrity matters.

Half yearly publication on line of details of payments by Finance goes back to 2008. Reporting categories were expanded in 2009. Publication is nowhere near real time. The latest, July to December 2013 includes information about expenditure some of which was incurred over 12 months ago. Searching across members and senators and over different six month periods is complex, putting it mildly.The Belcher Committee four years ago noted that publication by Finance is voluntary/discretionary and recommended it be enshrined in legislation.Nothing has happened on that score since, or on a raft of other Belcher recommendations.

Details of use of entitlements paid by Finance before 2008 is not published. Possibly available under Freedom of Information. Probably wait at least 30 days and you may have a drawn out fight on your hands. With regard to some information, the member or senator may argue that it is personal and should not be disclosed as Prime Minister Gillard did unsuccessfully in 2012-13 concerning a repayment made in 2007. That was classic gaming the system by grasping at straws to delay disclosure of information that clearly was not exempt.

Payments to, or support provided to senators and members by the Parliamentary departments are not published. They can't be accessed under FOI because parliament exempted itself from the act in June last year. Depending on what you ask for the parliamentary departments may at their discretion provide information or documents. Payments include salaries and electorate allowances, additional salaries and support provided to parliamentary office holders, superannuation entitlements, resettlement allowance payments, and services and facilities to support parliamentarians in Parliament House including the cost of office accommodation, computing and other equipment, telephones, newspapers and stationery: 

Gifts and interests: Published by the House and Senate as a series of notifications by the member but no up to date list of current interests is published and the registers have no search function. 

Payments to or on behalf of ministers, assistant ministers and parliamentary secretaries by their departments,and the cost of support provided are not published. These include official cars for the Minister and spouse; departmental liaison staff; additional stationery, office requisites, furniture and equipment in Ministers’ and Parliamentary Secretaries’ Parliament House Offices and their home State offices; official hospitality; and a range of other services. Maybe available under FOI.

At the Federal level and in the states, apart from sensible, clear rules, we need fully transparent timely disclosure on a comprehensive single fully searchable site to follow the money paid to or on behalf of parliamentarians and ministers, and declared interests.

Monday, July 28, 2014

Australia for more foreign affairs transparency - in New York

Positive comments all round in a Lowy Institute assessment Australia in the UN Security Council including for a push for greater transparency in international dealings. On the home front next?
Australia’s efforts to promote openness over sanctions have been a part of a broader strategy to raise the Security Council’s transparency.‘Transparency’ is not the diplomatic pabulum that it might sound like. Always an exclusive club, the (permanent 5 members) have notably increased their grip on the Council in recent years, conducting most essential negotiations in private.[ See Bruno Stagno Ugarte et al., Security Council Working Methods: A Tale of Two Councils? (Security Council Report, March 2014).] This sidelines the non-permanent members and alienates states outside the Council. In mid-2012 an alliance of small states led by Switzerland launched a General Assembly resolution demanding greater openness, but the P5 put aside their Syrian differences to crush the initiative. As Australia joined the Council, the transparency advocates were still recovering from that fight. Despite the risks of offending the P5, Australia soon emerged as an advocate of transparency within the Council. It worked well with the “Accountability, Coherence and Transparency” (ACT) Group, a coalition of states formed in May 2013 to restart the fight for a more open Council after the 2012 debacle. A diplomat from one of the leading ACT members describes Australia as an “excellent” partner.

Monday, July 14, 2014

Government thinking about FOI changes needs a full airing before, not after decisions

The Fairfax Media report that Cabinet is reviewing/has reviewed Freedom of Information fees and charges, and the recommendations from the Hawke review is not surprising. 

They had to get around sometime to looking at the report to the then Attorney General by Australian Information Commissioner Professor McMillan on charges completed in February 2012, and the Hawke review report completed well over a year ago. 

But both reports, and the Government's thinking about the issues raised deserve a thorough airing that they haven't received to date.

More cost recovery and the search for disincentives to ease the workload are likely the catalysts for action on charges.

Some recommendations ( boosting informal or administrative access) in the McMillan report are sensible improvements, but others such as the flat 40 hour limit on processing time are not. 

There are also issues not addressed in the report that flow from the decision announced in  Budget 2014 to abolish the OAIC.For example, the going rate for a review application to the Government's preferred one tier at the Administrative Appeals Tribunal is since 1 July $861, and that's for starters.

A detailed examination of FOI processing, resourcing and costs should be undertaken before any changes to the charging regime.

The claim that FOI costs something close to $50 million a year to administer has been run up the flag without any evidence as to agency efficiency and effectiveness in carrying out FOI functions or any examination of the benefits side of the equation. This at a time when there is much self congratulation about the 'free data' voluntarily released by government agencies that fueled Gov Hack gatherings across the country at the weekend and may deliver big economic and social dividends.

But free access to what the government voluntarily releases and increased charges over and above what can already be hefty imposts for access to the information government isn't pushing out the door will take some explaining.

How much of the FOI administrative costs 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, and gaming the system by putting applicants through the run around, we don't know. Professor McMillan didn't go there nor did Dr Hawke. It's no doubt 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.

As to the Hawke report (pdf), cherry picking the bits that appeal to those in the government shouldn't be on either. Dr Hawke had limited terms of reference, limited time, completed his inquiry apparently without any research or prying into  dark FOI corners, or talking much to anyone at all outside the Parliamentary Triangle. 

Hence his recommendation No 1
"..that a comprehensive review of the FOI Act be undertaken."
And this concluding observation: 
"I believe a complete rewrite of the FOI Act in plain language is now necessary, so that it is readily accessible and easily understood."

Saturday, July 12, 2014

Sorry emailees, power now restored

Apologies to email subscribers who may have not have had a message in a while. 

Like to tell you that my brilliant technical skills over many hours located the problem and fixed it. The truth be known, I don't have a clue what happened or how it magically corrected itself. The system is back. You may have missed all or some of the posts listed, starting with the most recent.

Apart from the email subscription in the sidebar you can also follow me on Twitter where my modest handle is @Foiguru

Thursday, July 10, 2014

Policy 101: Blind siding rarely the way to bring the troops with you

Independent Senator Nick Xenophon in Crikey today:
The budget in May was a stinker. As one senator reportedly told The Australian Financial Review this week, the budget was “in more shit than a Werribee duck”, referencing the coastal town south of Melbourne that hosts a sewage treatment plant. I have big policy problems with the budget, such as the Medicare co-payment and the cuts to auto sector workers, pensioners, social security, higher education, health, schools, foreign aid and renewable energy funding. But I’ve been gobsmacked at the blind-siding of the whole country by this government. When did the government tell the states they were stripping a lazy $80 billion out of their future health and education budgets? When did the government tell the auto sector it would drain a further $600 million out of industry assistance (that makes $1.1 billion cut in total) that could have gone to restructuring ahead of the exit of the car makers? When did the government tell the universities it was going to cut 20% from federal funding for undergraduate courses and deregulate the sector? When did the government tell self-funded retirees it was taking away their modest seniors’ supplement?

Never, that’s when. Until budget night, that was. The subtext is all about mistrust of the electorate. I’m tipping Budget 2.0, sometime soon. And the government won’t get that through unless it restores trust with the voters.
You could add plenty to the Senator's list of Budget blind siders that add to the trust deficit including the announcement of the plan to restructure the access to information system by abolishing the Office of Australian Information Commissioner, all the time pronouncing a commitment to transparency and accountability and claiming the resulting changes will "improve administrative efficiencies and reduce the burden on FOI applicants."

Is this the senate to sort out public interest immunity claims?

The Senate from here on will likely be an even livelier front for argy bargy over access to government documents.

 But whether there is appetite and numbers among Labor, The Greens, the PUPs and assorted others - maybe even among staunch parliamentarians on the government benches - to push for a mechanism to resolve a disputed public interest immunity claim remains to be seen. Refusal to produce has been treated as a 'political problem' to date. If the matter can't be sorted by negotiation it dies in the ditch at that point.

In February there were indications it was game on. At one point the non-compliance rate with orders of the 44th Parliament to produce stood at 100%. The Senate Procedural Information Bulletin at the time labelled it "an unprecedented situation." The record has improved since.

The Legal and Constitutional Affairs References Committee then huffed and puffed about the refusal to comply with an order to produce documents relating to 'Operation Sovereign Borders' with secrecy about the boats an ongoing issue, given new impetus this week.

The report also recommended the Senate refer to the Procedure Committee "as a matter of urgency" inquiry into the independent arbitration process followed by the NSW Legislative Council regarding responses to orders to produce and any modifications necessary if such a scheme was to be adopted by the Senate. The Clerk of the Senate Dr Laing told the References Committee the NSW system is the best around for adjudicating these matters.

The 'matter of urgency' didn't count for much. The report was tabled on 6 March but there has been no debate and no referral to date.

Meanwhile stand offs continue. 

The Procedural Bulletin reported on the May-June Senate Estimates hearings:
There were numerous occasions when officers or ministers declined to provide information and senators pressed for articulation of the grounds on which the information was being declined. In most cases, the questions were then taken on notice. Some examples include:
  • monthly reports of agency figures on involuntary redundancies (Australian Public Service Commissioner) – said to be advice to ministers (FPA, 26/5)
  • whether the Prime Minister’s Chief of Staff attends Cabinet meetings (FPA, 27/5)
  • appointment and role of the new Cabinet Secretary (FPA, 27/5)
  • the timing of advice on cessation of the Nursing and Allied Health Scholarships Support Scheme in Tasmania (CA, 3/6)
  • further questions about funding for mental health programs (CA, 3/6)
  • the number of Cabinet decisions in relation to free trade agreement negotiations with China (FADT, 5/6).
In other cases, while only skeletal public interest immunity claims were articulated – such as national security concerns in relation to information about drone strikes in Yemen and the death of Australians (LCA, 28/5) – senators did not press for further information....

There are always cases of officers or ministers declining to provide answers on the basis of “longstanding” practice, only to be embarrassed by the discovery of the information from a public source moments later. In this round, the ministerial order of precedence – astonishingly – was claimed to be a secret, but was found shortly thereafter on Wikipedia (FPA, 27/5). It is also reflected in the published ministry list and in the order of occupation of seats on the front benches in each House. Membership of the Government Staffing Committee was also discovered to be public information (FPA, 29/5)...


Despite the recent enhancement of opening statements with the agreement of the Chairs’ Committee, “advice to Government” is still the most common bleat by officers and continues to remain unpursued on most occasions. Apparently, it is also “not the practice” to make legal advice public in estimates hearings, a statement made in the context of discussion of the tabling of departmental legal advice on the legality of settlements in the Palestinian Territories at a previous round of hearings (FADT, 4/6).
In another development Senator Wong has a number of motions before the Senate including 298,
noting "the frequency with which freedom of information legislation is invoked to withhold information from senators and the Senate, not only by reference to grounds of exemption in the legislation but also apparently on the basis that an answer will not be provided if a Freedom of Information (FOI) request has been lodged for the same information;
(b) recalls the observations of the Procedure Committee in its Third Report of 1992 that:
(i) there is no basis in law for the application of the FOI Act to the production of documents to a House;
(ii) if a minister were to regard all of the exemption provisions in the FOI Act as grounds on which to claim a privilege against disclosure of information to a House, this would considerably expand the grounds of executive privilege hitherto claimed;
(iii) the use of the provisions of the FOI Act as a checklist of grounds for non-disclosure does not relieve a minister of the responsibility of carefully considering whether the minister should seek to withhold documents from a House, or from considering the question in the context of the importance of the matters under examination by the House;
(c) resolves That the same principles apply to the provision of information to committees in response to questions asked by senators, which require the same careful consideration by ministers;
(d) declares that declining to provide documents or answer questions on the basis that an FOI request has been made for the same information is an unacceptable response, is not supported by the FOI Act and shows a profound lack of respect for the Senate and its committees.
Secrecy surrounding what is up for grabs in the negotiation of the Trans-Pacific Partnership Agreement continues to attract attention in the Senate.

Meanwhile The Greens Senator Rhiannon is seeking to up the ante in that 'vexatious applicant' matter and the associated refusal of an an FOI application for the Senate vote count software, with this motion that may or may not get a run today:
*330 Senator Rhiannon : To move—That there be laid on the table by the Special Minister of State, no later than 15 July 2014:
 (a) all correspondence and documents, whether written or in email form, from the Special Minister of State’s office and/or the Australian Electoral Commission (AEC) relevant to:
 (i) the decision of the AEC to have Mr Michael Cordover declared a vexatious applicant, and
 (ii) the assertion that Mr Matthew Landauer colluded with Mr Cordover to harass the AEC; and
 (b) the source code of the software by which Senate vote counts are conducted.
(Update: Paul Farrell in The Guardian reports the motion passed on 10 July and quotes Senator Rhiannon:
“There is no justification for the AEC refusing to release information on how the Senate vote is counted,” Rhiannon said. “It is widely known that it is very complex so surely the methodology used should be publicly available. “Why would you stop the public knowing how the Senate vote is counted?..The AEC are not only doing the wrong thing in refusing a legitimate FOI request – in the wake of the WA federal election debacle they are further damaging their own reputation,” Rhiannon said. “The AEC hardline position in trying to discredit Mr Cordover as a vexatious litigant is an abuse of the law under which the AEC operates and raises the very relevant question what do they have to hide."
I'd expect resistance to the software demand which in the FOI context the AEC claims contains 'trade secrets' and information of a commercial value. Whether the Senate or the AAT becomes the forum for battling this out remains to be seen.

Tuesday, July 08, 2014

What's the problem: why not close to real time disclosure for accountability purposes?

With all the talk and welcome enthusiasm in open government circles concerning public release of government data sets, governments, including the legislative branches are yet to fully embrace timely, searchable publication on the internet of information that goes to accountability.

Some quick examples off the top of my head. I'm sure deeper digging would see the list multiply many times over.

Voters go to elections without knowing who has funded campaigns, and at other times have no idea for close to two years who may have kicked the can. Federal election disclosure returns are made available for public inspection 24 weeks after polling day on this website. Annual disclosure returns are similarly made available for public inspection from the first working day in February, ie seven months since the end of the reporting period, and 19 months since any donation made at the commencement of the period. With some variations its the same in the states. Why not continuous on line and easily searchable disclosure close to real time?

NSW joined Queensland and the ACT from 1 July in the publication of ministerial diaries.Its far from universal practice however. Queensland diaries are published monthly at the end of the following month. NSW returns are required quarterly with ministers given a month at the end of the quarter to complete the paperwork. Publication on the Premier's Department website will occur up to four months after the contact. Why not continuous disclosure, searchable across all ministers, close to real time?

(The original post also referred to the failure just about everywhere to provide comprehensive single site searchable information close to real time about parliamentarians entitlements, and up to date searchable information contained in the register of interests. In removing a gremlin I've lost the text!!)

Monday, July 07, 2014

AEC way too quick in reaching for the 'vexatious' FOI button.

Cordover self portrait
Lots of interest on Twitter (@mjec) last week about the Australian Electoral Commission and Michael Cordover's Freedom of Information application for the software used to count votes during Senate elections. 

Particularly that two requests and an application for internal review of the decision on the first of those, and a request for Information Commissioner review by Cordover were enough to send the AEC off to the Australian Information Commissioner seeking a declaration that Cordover was a vexatious applicant.

The AEC's reasoning is puzzling, and the claim seems more like another in the all too frequent gaming the system stakes. 

But it brings to light the fact that it isn't necessary to use the FOI act repeatedly to run the risk of being sent to the FOI sin bin.

While repeated use and abuse of process is one ground, the commissioner can but has never exercised the power, make a declaration where a particular access action involves, or would involve, an abuse of the process, or would be manifestly unreasonable. None of this applies in Cordover's case, a genuine attempt to find out more about the way votes are counted in an agency that is central to the exercise of our democratic right.

The AEC's claim however is a telling example of what an agency could do if it had power itself to deal with an application it regarded as vexatious. Exactly what the Hawke report (90-92) sitting in an in-tray in the Attorney General's Department for 11 months now, recommends: an amendment to permit an agency to decline to handle a repeat or vexatious request or requests that are an abuse of process, without impacting on the applicant’s ability to make other requests or remake the request that was not accepted. The applicant could appeal against such a decision to the OAIC.

Back to the Cordover matter- and by the way follow me on Twitter:@FOIguru

Thursday, July 03, 2014

NSW access to information law under review

The five year statutory review of the NSW Government Information (Public Access) Act 2009 and the Government Information (Information Commissioner) Act 2009 is underway with a call for submissions. Get cracking!

The purpose of the review is to determine whether the policy objectives of the Acts remain valid and whether the terms of the Acts remain appropriate for securing these objectives.
The policy objective of the Government Information (Public Access) Act 2009 is to open government information to the public by:
  • authorising and encouraging the proactive public release of government information by agencies, and
  • giving members of the public an enforceable right to access government information, and
  • providing that access to government information is restricted only when there is an overriding public interest against disclosure, in order to advance an open, accountable, fair and effective system of Government.
The objective of the Government Information (Information Commissioner) Act 2009 is to establish an independent champion of open Government.
 
The review will also consider the relationship between the Government Information (Public Access) Act 2009 and the Privacy and Personal Information Protection Act 1998.
 
The Acts can be viewed at www.legislation.nsw.gov.au

The Department of Police and Justice invites interested individuals and organisations to make written submissions to the review. Submissions should be sent to: The Director, Justice Policy, Department of Police and Justice, GPO Box 6, Sydney NSW 2001 or by email to justice.policy@agd.nsw.gov.au.
If you would like to provide comments in an alternative format please call (02) 8061 9222. If you are hearing or speech impaired please contact us via the National Relay Service on 133 677.
 
All submissions will be treated as public and may be published, unless you indicate that all or part of your submission should be treated as confidential.
 
The closing date for submissions is 29 August 2014.