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Friday, September 30, 2016

Clash of FOI titans

According to IT news former Australian Information Commissioner John McMillan (picture right) has commenced a defamation suit against the Canberra Times and columnist Jack Waterford over what he says are defamatory imputations contained in a December 2015 column. 


Waterford criticised the OAIC and McMillan as Information Commissioner and in his previous role as Commonwealth Ombudsman. 

Professor McMillan and his lawyers "contend the article incorrectly painted him as not being a true supporter of open government and freedom of information law."

My comments on the column at the time are reflected in the heading FOI veteran Waterford lets go with a few wild swings and low bows 

Both McMillan and Waterford have each made enormous contributions to the FOI cause going back many decades.

Pity it has come to this.

 

Wednesday, September 28, 2016

Sunshine and rain on Right to Know Day

Right to Know Day 28 September- great to see traffic on the twitter feeds including plenty from Australia at #RighttoKnow

While observance has been trending in the right direction in recent years, its another step in the right direction given Right to Know Day often passed virtually unnoticed here.

Something positive from the highest levels of government on the importance of the right to know would be a welcome development but alas..

So too, with three ministers in New York last week, an Australian presence at the Fifth Anniversary Celebration of the Open Government Partnership would have indicated strong interest and commitment as well.

Alas again....

Further rain amid the sunshine:
 The Center for Law and Democracy in Toronto and Access Info Europe used the occasion to publish an updated Global Right to Information Rating, analysing the quality of the world's access to information laws.

The Australian legislative framework (the Federal Freedom of Information Act) comes in 56 of 111 rated, down four places since the previous assessment.

Mexico tops the list, and of particular interest UK 33, NZ 40, Canada 48 and USA 55.

Among the eye raisers, Russia 34, China 80, Japan 90, France 94, Germany 105 and Austria 111.

You can quibble with some of the scoring in the Australian assessment where we receive 83 points of a possible 150-in a few areas the assessor in my opinion has been off the money -  but  overall the act, hailed in its time in 1982 as up there with the best, is no better these days on these criteria than middle of the pack.

That's before attention to matters beyond the scope of the rating including
  • outdated features of the act that reflect the 70s rather than the twenty teens, for example one of many, Section 17,
  • the Office of Australian Information Commissioner first under threat of closure, then the government's failure to fill positions established by Parliament or fully fund the FOI watchdog role and the office information policy functions,
  • the 'tone at the top'  as a result of the absence of positive leadership and support for transparent accountable government at the same time as senior public servants speak out critical of the law generally ('very pernicious') and about its impact on their capacity to do their job, 
  • the interpretation and practical application of the law in some agencies that give rise to the epithet 'freedom from' rather than 'freedom of' information. Sarah Gill of The Age on Fairfax Media yesterday in "Have we reached peak secrecy?" pulled together some examples, arguing
"Despite the Turnbull government's professed enthusiasm for transparency and accountability, (ie membership of the OGP) this year – marked by a shroud of secrecy over border protection, the targeting of whistleblowers, and the intransigence of the Attorney-General around the release of his diary – could well be the low point for open government in Australia since Freedom of Information laws were introduced three decades ago."
Andrew Dyson SMH
Peak Secrecy? Give hope a chance?
Despite the validity of the examples cited and others that could be added, there are plenty of contenders for the 'peak secrecy' award over the last thirty years that IMO, would beat out the 15 months of the Turnbull era on display so far. The implacable attachment to the conclusive ministerial certificate during the Howard years and the eleven years it managed to ignore any positive reform for example.

As I commented at the six month mark, the record of the Turnbull government suggests hope as well as disappointment.

Six months on, membership of the Open Government Partnership, the yet to be completed National Action Plan of commitments to reform, and the Prime Minister's endorsement of the goals of the OGP as consistent with "Australia's long and proud tradition of open and transparent government" gives hope some chance.



Saturday, September 24, 2016

Voice Up: Right to Know Day 28 September

Australia’s State and Commonwealth Information Commissioners have joined together to promote their commitment to the importance of Open Government and the right to access government-held information and data on International Right to Know Day, 28 September 2016.
The right to information and our ongoing commitment to Open Government is a cornerstone of modern democratic society.
Right to Know Day is an opportunity to encourage the public sector and the community at large to think about exploring the possibilities of Open Government. When done well it increases access to information and data which results in better and more responsive services to the community, as well as increased accountability and the promotion of public participation in government decision-making.
We are pleased to come together to promote the importance of this message and we invite all members of the Australian community to join us in celebrating Right to Know Day on 28 September 2016.
Co-signed by:
Sven Bluemmel, Western Australian Information Commissioner
Richard Connock, Tasmania's Ombudsman
Michael Ison, Acting Victorian Freedom of Information Commissioner
Timothy Pilgrim, PSM, Acting Australian Information Commissioner
Rachael Rangihaeata, Queensland Information Commissioner
Elizabeth Tydd, NSW Information Commissioner and Open Data Advocate.

 
SOLOMON LECTURE: This year, Queensland's annual Solomon Lecture will be the centrepiece of the Right to Know campaign. The Lecture will be live-streamed on Right to Know Day, 28 September 2016. The lecture topic is "Collaboration in Place: The central role of information and data in securing Queensland's future prosperity", presented by Professor Anne Tiernan, Director of the Policy Innovation Hub at Griffith University.
Watch the event live online (9am) @ www.ustream.tv/channel/the-edge-external-events or register to be in the audience at the State Library of Queensland, Stanley Place, Southbank @ https://2016solomonlecture.eventbrite.com.au

If you are in Sydney celebrate at the monthly OpenAustralia Foundation Pub Meetup Tuesday 27 September Upstairs at Trinity Bar 505 Crown St Surry Hills from 6.30 pm.

Cheers!!

Wednesday, September 07, 2016

"Brandis diaries case shows how Freedom of Information has been deliberately neglected"

Rick Snell, University of Tasmania makes a welcome return to the commentariat 

"Federal Attorney-General George Brandis has lost a two-year bid to keep the summaries of meetings in his ministerial diary from being considered for release under the Commonwealth Freedom of Information Act.

A Federal Court judge in the Administrative Appeals Tribunal (AAT) and a full Federal Court bench decided the reasons advanced on Brandis’ behalf to not process a Freedom of Information (FOI) request were less than persuasive.

Shadow Attorney-General Mark Dreyfus, who originally filed the FOI request, called the decision “a victory for transparency and accountability” and has hailed the case as a landmark. Yet as a “landmark” decision, it speaks more forcefully to how both the Abbott and Turnbull governments have allowed the Commonwealth FOI Act to fall into a state of neglect.

The Brandis decision laid bare the inadequate and flimsy nature of the exemption claims made by the Attorney-General’s Department. Ironically, in the first two decades of the Commonwealth FOI Act, the Attorney-General’s Department was regarded by many as its fiercest advocate and guardian. Under Brandis it has forsaken that worthy heritage.

The sad thing was that the information in question was so basic and simple. The weekly summary of a diary produced in Microsoft Outlook contained the barest fragments of information about Brandis’ meetings – date, time, duration, location, and purpose of meetings.

Detailed information and supporting documents related to the meetings were not requested. There were 1930 individual entries Brandis and his staff needed to consider for release.
In terms of FOI decision-making, the “diary case” is one of the easiest jobs any government department could be asked to undertake. The majority of entries would not trigger any exemption claims under the FOI Act. If exemptions were technically triggered they would end up being released in the public interest or fail to justify the claim for secrecy.

Yet Brandis was prepared to spend two years, the resources of the public, an estimated A$50,000 in taxpayer funds for lawyers and the time of four Federal Court judges in preventing their release.
The basic arguments were that the information was prima facie sensitive, would take too long to look at, and unreasonably divert the time and resources of the department. It was, and is, a task a first-year law student could do in a couple of hours.

The reasoning by Justice Jagot in the AAT and the full Federal Court was sound. Their interpretation of the FOI Act was crystal clear; no Commonwealth FOI officer could justify making these arguments in the same circumstances in the future.

But this was exactly where the law and good practice stood in June 2014 when this saga commenced.

In a report released in December 2015, the New Zealand Ombudsman criticised the game playing of some New Zealand government agencies. In Australia it seems the federal government is prepared to play the game simply to hide information for as long as possible.

Under the Abbott government, funding to the Australian Information Commissioner and FOI Commissioner was terminated at the end of 2014. No legislation abolishing the positions was ever passed but the funding was not restored. The FOI Commissioner left and the Information Commissioner worked for several months from his own home – a script worthy of Yes, Minister, or Utopia.

Eventually some funding was reallocated in 2015, but not enough to restore staffing to previous levels. Since the middle of 2015, the Privacy Commissioner has been continually appointed as acting Information Commissioner.

Last century Malcolm Turnbull earned his stripes as a public interest advocate in the Spycatcher case. Yet he now presides over a poorly funded and hamstrung Office of the Australian Information Commissioner. In addition, Turnbull has allowed Brandis to waste taxpayer dollars on arguments that failed to gain any traction. Australia’s information policy settings have corroded.

The best, benign neglect of FOI policy by the Abbott and Turnbull governments has undermined the institutional capacity to deliver effective, informed and high-quality advice.

If an attorney-general is prepared to stonewall, for two years, access to bland diary summaries, it is little wonder that the release of more vital information like the Nauru files only happen via leaking. Brandis’ actions undermine accountability and the ability of people to participate in democratic debate in an informed manner.

The latest decision on the Brandis diaries is important. At the very least, it acts as encouragement to those refused information under the FOI Act that there is a chance to play the information game under a fairer set of rules than those used by the Australian public service and government ministers."

The Conversation
Rick Snell, Associate Professor - Acting Dean of Law, University of Tasmania
This article was originally published on The Conversation. Read the original article and comments from readers.