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Wednesday, October 21, 2015

Public service chief's FOI 'very pernicious' claim based on false premise.

The responses by Australian Public Service Commissioner John Lloyd to questions in Senate Estimates on Monday suggest Mr Lloyd doesn't know what he is talking about when it comes to information access in the cause of transparency and accountability.

Apparently he didn't know when he described freedom of information earlier in the year as "very pernicious." His comments this week showed he hadn't bothered to find out much since March, or talk to others including ministers about the subject.

The Canberra Times and The Mandarin (registration) report his remarks but neither make the point that Lloyd based his claim on a false premise, and on that basis, ventured an opinion few outside the public service share: that FOI as originally conceived was intended ('particularly') to provide access to information about an individual's dealings with government, and that the law had expanded in the wrong direction since.

FOI law since enacted (after years of public service resistance) is about open, transparent and accountable government. The objects of the act in 1982 and since 2010 are reproduced below.

Reviews, investigations, reports and experience over the years showed that the law and its implementation by ministers and public servants fell a long way short of the promise.Things changed since 1982 across technology, public expectations, and thinking inside and outside government about publication of data and pro-active disclosure of other information.

The 2010 reforms as a result took a few steps in the right direction, but open transparent and accountable government is a long journey, not assisted when public servants (no names no pack-drill) look to thwart the ideals. 

Most who look into the subject, including the last reviewer of the FOI act, Dr Allan Hawke don't give credence to the argument that FOI constrains the public service in providing written frank, professional advice.

The direction on the journey is forward, not back to a past that hasn't existed in any event since 1982.

You have to wonder how comfortable and enthusiastic Lloyd is as leader of the public service in a government led by a prime minister whose stated intention is for government to be more open consultative and participatory. 

Come to think of it, how the Prime Minister feels about it.

Lloyd, quizzed (along lines suggested in this post in June) by Senator Rhiannon and Senator Ludwig on Monday about what he meant, said 
"My view is that the FOI laws have extended beyond perhaps what I understood to be the original intention, which was particularly to allow our citizens to have access to information about their affairs that governments were holding. It seems to me that it has come to a stage where people are very reluctant perhaps at times to give advice in writing. I found this throughout my experience in both state and federal governments — both coalition and ALP — over many years. That is often the statement that is made: I would rather not give that in writing. I do not think that was the intention of FOI."
Objects Freedom of Information
As enacted in 1982:
 3. (1) .. to extend as far as possible the right of the Australian community to access to information in the possession of the Government of the Commonwealth by - (a) making available to the public information about the operations of departments and public authorities and, in particular, ensuring that rules and practices affecting members of the public in their dealings with departments and public authorities are readily available to persons affected by those rules and practices; and (b) creating a general right of access to information in documentary form in the possession of Ministers, departments and public authorities, limited only by exceptions and exemptions necessary for the protection of essential public interests and the private and business affairs of persons in respect of whom information is collected and held by departments and public authorities.
As a result of reforms in 2010
 3. (1)  The objects of this Act are to give the Australian community access to information held by the Government of the Commonwealth or the Government of Norfolk Island, by:(a)  requiring agencies to publish the information; and (b)  providing for a right of access to documents.
(2)  The Parliament intends, by these objects, to promote Australia's representative democracy by contributing towards the following:

 (a)  increasing public participation in Government processes, with a view to promoting better-informed decision-making;

 (b)  increasing scrutiny, discussion, comment and review of the Government's activities.

(3)  The Parliament also intends, by these objects, to increase recognition that information held by the Government is to be managed for public purposes, and is a national resource.

(4)  The Parliament also intends that functions and powers given by this Act are to be performed and exercised, as far as possible, to facilitate and promote public access to information, promptly and at the lowest reasonable cost. 

Lloyd on speaking up
Lloyd defended his statement and the right to make it ("I think that, as Public Service Commissioner, I have a responsibility to at times comment on matters which go to the administration and management of the Public Service"; said he hadn't raised it with the minister for public service because responsibility rested with the Attorney General, and he hadn't raised it there either ("They would have been aware of my comment. I did not see the need to actually take it further.") and saw nothing wrong or inappropriate with injecting "a view into the public discussion."

Someone in the Australian Public Service Commission needs to give Mr Lloyd a briefing note before he ventures into public discussion on the topic again. And while he shouldn't need it, a book on how tone at the top influences culture throughout. He has a service wide parish.

A higher authority needs to counter the unfortunate message that FOI has taken a wrong turn and can be labeled very pernicious - extremely "harmful especially in a gradual or subtle way; damaging, detrimental, deleterious."

Extracts from Senate Estimates follow:
Senator RHIANNON:I just want to return to that issue that I started to ask at the wrong time. Could you expand on what you meant when you made the comment about the FOI laws being 'pernicious' — very pernicious', I think it was.
Mr Lloyd: It was in a speech I gave to a Public Service function. My view is that the FOI laws have extended beyond perhaps what I understood to be the original intention, which was particularly to allow our citizens to have access to information about their affairs that governments were holding. It seems to me that it has come to a stage where people are very reluctant perhaps at times to give advice in writing. I found this throughout my experience in both state and federal governments— both coalition and ALP—over many years. That is often the statement that is made: I would rather not give that in writing. I do not think that was the intention of FOI.
Senator RHIANNON: Do you feel that your comments were accurately reported?
Mr Lloyd: Yes.
Senator RHIANNON: If I understand what you are saying, you are committed to the FOI process, but you consider that it is not working. Is that a fair summary of what you are saying?
Mr Lloyd: I am committed to the FOI process, and every officer has an obligation to comply with the law. But in the role of commissioner I proffered my view as to how it stands at the moment.
Senator RHIANNON: Could you expand on how the law has gone beyond what was
Mr Lloyd: I think I just outlined that then. When FOI laws were introduced they were particularly designed, as I understood it, to ensure that citizens could have access to information the government held about them, whether it was in what is now the Department of Human Services, Centrelink or whatever. It seems to me that now it is used for various purposes, often involved in the controversy of the day. As I mentioned in the previous answer, as a senior official of 20 or more years, I have been struck by how often it seems to be that people are very cautious about giving advice in writing because of FOI.
Senator RHIANNON: Have you raised this matter with the minister for the public service?
Mr Lloyd : No, I have not. I am the Australian Public Service Commissioner. I was asked a question and I was giving a view that I have.
Senator RHIANNON: I am surprised by that response, because it seems such a significant response. You have made a very important observation and it is being reported publicly. Did you choose not to raise it with the minister or did you see that it was not necessary? Could you expand on that, please?
Mr Lloyd: The minister was obviously aware of the comments which I made. The administrative responsibility for FOI rests with the Attorney -General's Department, I think, and I did not see a need to take it further with the minister
Senator RHIANNON: So what action do you think is needed, going back to the challenge that you have identified with regard to how FOI is operating in Australia?
Mr Lloyd: I injected a view into the public discussion of this, that I saw it as moving beyond its original intent. I am not a legal expert in the FOI area, but I think I have a right as Public Service Commissioner to state a view.
Senator LUDWIG: Did you get yourself involved in the legislation as it is now written? When did you last get an update on the FOI legislation and what it currently provides for?
Mr Lloyd: We get—
Senator LUDWIG: No, you. 
Mr Lloyd: I am just trying to think of what we get. Me personally?
Senator LUDWIG: Yes.
Mr Lloyd: I have not read it for probably a year or more. We get inquiries about FOI. I conducted an investigation into elements of the Home Insulation Program and in doing that I looked at FOI material. I did not go through and read every section of the act, but I certainly made myself familiar with FOI requirements.
Senator LUDWIG: What I am trying to get a sense of is this. You indicated that when the FOI legislation was first introduced, more than 20 years ago now, you had a particular view about what it might have covered then, which was access to public information on individuals. You still hold that view, as I understand it from your evidence. But the FOI legislation that is currently promulgated is far broader than that, so you are not reflecting a contemporary view of FOI. I just wanted to clarify that you are reflecting your view of some 20-odd years ago about what you think FOI should look like.
Mr Lloyd: No, that is not what I am saying.
Senator LUDWIG: Perhaps you could correct me, then.
Mr Lloyd: What I am saying is that, as a senior, experienced public official, my view is that the way FOI works at the moment is less than ideal. I think it has gone beyond its original intent, certainly, notwithstanding what the current legislation is.
Senator LUDWIG:That is what I thought I just put to you. So you think—
Mr Lloyd: No. I am not reflecting a view of 20 years ago.
Senator LUDWIG: You think that the current FOI legislation has gone well beyond what it should. I do not know where you get the ability to do that, but the legislation is the legislation, as I understand it, and it reflects what the current view of FOI is. You might hold a personal view that it is in excess of what it should be, but that is what it is. It concerns me that you are reflecting a view that it has gone beyond where you think it ought to have gone, which might also then create a bias by you in how you implement it.
Mr Lloyd: No, it does not create a bias in how I implement it, because I am required to adhere to the law. But also, as Public Service Commissioner, I have a number of roles to be informed about the management of the Public Service and, although it is not my direct responsibility, it does, in my view, bear upon it, so I put forward a view.
Senator RHIANNON: But, Commissioner, considering your leading role—you are the commissioner— people look to you, and what you say will clearly influence the people who work in the Public Service. When you speak in that way, and particularly when you do not follow it through on recommendations or just engaging with the minister, can't you see that it could be interpreted that there is a bias that there is a failure in the FOI, and therefore people under you may become more reticent in how they engage with this process?
Mr Lloyd : I was not saying there is a failure. What I was saying was that I had a view about it: that it had moved away from its original intention. I think that, as Public Service Commissioner, I have a responsibility to at times comment on matters which go to the administration and management of the Public Service.
Senator RHIANNON: So if there is that responsibility, which is—
Senator LUDWIG: You do not have a role to reflect that the legislation currently does not reflect your view.
Senator RHIANNON: Yes. So you have identified that responsibility. What I do not understand is why the responsibility just has stopped with that comment and you did not follow through on that.
Mr Lloyd: When I made the comment, it was reported. As I say, the responsibility rests with another portfolio, and they would have been aware of my comment. I did not see the need to actually take it further.
Senator RHIANNON: You made that speech. When I look back on how it was reported, I am not sure if you intended to make those comments or if it just came about through questions. I think at the last estimates, when Senator Ludwig was questioning you about this, you made comments about how you had notes and you spoke to the notes. That left me with the impression that maybe you had intended to put these comments about FOI, which I think puts it on another level. Or was it just, as it was originally reported, a response to a question?
Mr Lloyd: That is a very long question you asked me. Senator Ludwig, I think, at that time was talking about the nature of speeches and the lack of them on my website. In response to what I understand to be your question, the comments were made, as I recollect, in the answer to a question from the floor, but they reflect my views. I was asked a question and I considered it and answered conveying my views.
Senator RHIANNON: So you did not have that as a prepared part of your speech. It was a response. 
Mr Lloyd: No, it was not part of the speech
Senator RHIANNON: I was also interested in whether your views have changed on this matter, because you were with the Institute of Public Affairs and then you have come into this position. Now that you have seen FOI on the other side of the fence, so to speak, I was wondering if your views have changed from your current work.
Mr Lloyd : No, I think my views are formed by my broad experience as a senior executive over about 30 years or so, in state and federal coalition and ALP governments, and the IPA. It is just part of my views.
Senator RHIANNON: Thank you.

In a later hearing on Monday Senators asked Prime Minister and Cabinet officers about Mr Lloyd's comments:

Senator RHIANNON: What advice has the department provided to the government regarding Public Service Commissioner Mr Lloyd's comment on freedom of information that was made earlier this year?
Ms Kelly: I can answer that. No advice has been provided.
Senator RHIANNON: Has the commissioner made any comment to your department about this?
Ms Kelly: I heard the exchange that you had with the commissioner earlier this afternoon, and I was aware from public commentary that the comment had been made, but the comment had not previously been formally conveyed to the department by the Public Service Commissioner.
Senator RHIANNON: I would like to understand how PM&C responds when the PM's appointments make comments that are controversial or appear to contradict their function. How does the department deal with this? Does it send a transcript to the Prime Minister, does it provide analysis
or recommendations or does it just leave it alone? I imagine it is case-by-case, but could you explain how that works when we have this situation wherein somebody who has been appointed to such a significant position appears to contradict something that is quite fundamental to how the government works?
Ms Kelly: If I could confine myself to the circumstances of Mr Lloyd's remark: Mr Lloyd is an independent statutory officer. He is charged with oversighting the Australian Public Service and, in that role, public administration is very much at the heart of his interests. He has made a comment about a public policy issue. A number of other people make comments from time to time about that issue. As an independent statutory officer Mr Lloyd is charged with responsibility for the APS and public administration, and he is entitled to his view—which he put in response to a question, as I understand from his evidence earlier this afternoon.
Senator RHIANNON: Considering public policy is something dynamic, it is developing all the time —and clearly your department has a role in driving that—when such a significant statement is made do you consider it? Do you consider what needs to change or if it needs to change? I feel that there needs to be more explanation. Sur ely it does not just hang there.
Ms Kelly: FOI is actually the responsibility of the Attorney - General's portfolio, so perhaps it might be more appropriate to canvass matters of FOI policy under the Attorney General's estimates because it is not the policy responsibility of the Department of the Prime Minister and Cabinet.
Senator RHIANNON: So no response at all?
Ms Kelly: As I said, Mr Lloyd is a senior independent statutory officer charged with oversighting the public service, and so public administration is at the heart of his interests. He has expressed a view about a public policy issue about which many people express views and which is a matter of some debate.
Senator RHIANNON: Isn't FOI right at the heart of how our public service is operating and it helps give confidence to the public and it is a day -to day aspect of the work of our public servants?
CHAIR: Senator Rhiannon, Ms Kelly has indicated that FOI lies within the Attorney-General's portfolio, and probably if you are going to ask general questions about FOI they would be best directed to the Attorney-General's portfolio.
Senator RHIANNON: I will have that opportunity—
CHAIR:You will.
Senator RHIANNON: I was just asking one of my final questions

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