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Monday, March 24, 2014

Leave of absence

I'm traveling in Asia, the Middle East and Europe for much of the next month so leave you to your own devices to follow the ins and outs of issues usually discussed here. I'll check in as opportunity provides and can still be contacted by email. Enjoy...

Friday, March 21, 2014

Open letter to Foreign Minister: the OGP, Indonesia and Australia

If you think similarly, you might like to let the Minister know:
Julie.Bishop.MP@aph.gov.au 

Minister,

On Lateline recently you mentioned "about 60 areas of co-operation between Australia and Indonesia covering about 22 Australian government departments and agencies."

If not already included can I suggest that the Open Government Partnership is another area for co-operation with direct benefits for both countries and consistent with our efforts to advance Australia's foreign policy interests?

The OGP is a global effort to make governments better, and to make governments more transparent, effective and accountable with institutions that empower citizens and are responsive to their aspirations.

Indonesia is the current lead co-chair of the partnership. Sixty two countries have joined including the US, UK, Canada, Korea, and the Philippines, or like New Zealand are in the process of doing so.

Then US Secretary of State Clinton invited Australia to join in September 2011.

In a joint statement issued by the White House in September 2013 on behalf of Australia and twenty other countries the Government stated its commitment to strengthen support for the OGP and for other mechanisms designed to improve democratic practices.

However little has been said publicly about Australia undertaking steps to complete membership requirements. In May 2013 the then Attorney General Mark Dreyfus said that we would achieve this by April 2014.

A ministerial level meeting of the Steering Committee will be held in Bali on 4-5 May followed by the first Asian regional conference to be hosted by the Indonesian Government. President  Yudhoyono  will speak at the conference. The Indonesian Government intends the meeting serve as a platform for countries and communities within the region to connect, share and learn from each other on the benefits and opportunities across open and good governance practices.

I understand an invitation to attend has been sent to you, and to Attorney General Brandis and Minister for Finance Cormann.

The Bali meetings provide the opportunity for Australia to stand with Indonesia in this cause, to acknowledge the important role that government has played in the development of the OGP, and to publicly reaffirm our support for the aims, objectives and principles that underpin the OGP initiative.

The absence of senior government representation would itself convey an unfortunate message about the level of our interest in the issue and the regard we have for Indonesia’s leadership in the promotion of good government throughout the region.

As the OGP involves a partnership between government and civil society the Government might also encourage participation in the Bali regional conference by those who can assist in establishing and extending ties with non government organisations that are key to the promotion of open, transparent and accountable government throughout the region.

Hopefully Australia can move promptly to complete the final steps that need to be taken on our membership by endorsing the Open Government Declaration and developing a national action plan in partnership with interested parties outside government.

I have written separately to Attorney General Brandis and Minister Cormann who appear to have carriage of these matters.

Thank you for your consideration.

Peter Timmins

Wednesday, March 19, 2014

Who's up to assesing Australia's OGP national action plan - and it's still a glimmer in a public servant's eye

We - well some- are waiting with ba(i)ted breath for the Government to fully and publicly embrace the Open Government Partnership by signing the Open Government Declaration and starting a meaningful partnership with civil society on a national action plan to progress ideas concerning open transparent and accountable government and public participation in government affairs.

The OGP is still working on the basis that Australia will have this done and dusted by the time the Ministerial Level Steering Committee meets in Bali on 4-5 May.

There is virtually no chance of this as whatever work is underway within government on a draft plan is yet to be shared with those outside. At best we are well back in the queue.

But once a plan is submitted, the OGP Independent Reporting Mechanism mandates an ongoing interest in progress towards achieving the commitments in the plan.

So a little ahead of itself, as the Australian plan is apparently still being hatched somewhere in Canberra at this stage, the OGP Support Unit is seeking individuals to carry out research in 33 countries to assess government progress on implementation of plans including, of relevance in this neck of the woods, those developed by Australia, Indonesia and New Zealand.

Preference in each case  is to be given to nationals of the country to be evaluated and with experience relevant to the plan. Hmm, could be interesting.

Applications by 1 April to IRM@opengovpartnership.org- use the following email title: “OGP IRM Researcher [Your Country]”

Monday, March 17, 2014

Oh for an Aussie Sunshine week!

Sunshine Week in the US, so on St Patrick's Day no less, I'm green with envy at the  organisation, scope and range of activities to highlight the importance of access to public information funded by the Knight Foundation, Bloomberg, American Society of Newspaper Editors and Reporters Committee for Freedom of the Press. This selection of resulting media coverage on day 2 turns the mind to what the same enthusiasm, enterprise and effort might achieve here. Alas...


Friday, March 14, 2014

Minister's veto on FOI release of Prince Charles' advocacy letters not based on reasonable grounds

 A long running-now in its ninth year-battle waged by The Guardian for access under the UK Freedom of Information Act and Environmental Information Regulations to 27 letters sent by Prince Charles to ministers in the previous Labour government took another turn this week.
Are you ready:
the Court of Appeal quashed a certificate issued by the Attorney-General that vetoed an Upper Tribunal finding that reversed the decision of the Information Commissioner who had upheld the departments' decisions to refuse to disclose the letters.

In plain speak, the Upper Tribunal decision stands, that the letters in so far as they contain 'advocacy correspondence' should be released,

For the moment at least. Leave has been granted to the Attorney General to appeal to the Supreme Court.

The Tribunal found that "it will generally be in the overall public interest for there to be transparency as to how and when Prince Charles seeks to influence government... In broad terms our ruling is that although there are cogent arguments for non-disclosure, the public interest benefits of disclosure of “advocacy correspondence” falling within Mr Evans's requests will generally outweigh the public interest benefits of non- disclosure."

It did not rule that purely personal or social correspondence, or "correspondence within the established constitutional convention that the heir to the throne is to be instructed in the business of government" should be disclosed. [Court of Appeal at 18].

The key finding in the unanimous Court of Appeal decision(pdf) was that the purported exercise of the veto power was unlawful on administrative law grounds in that the Attorney General did not have 'reasonable grounds' to issue the certificate under the FOI act, and with regard to environmental information the certificate is incompatible with EU law.

'Wednesbury unreasonable' features strongly.

Analysis by Dr Mark Elliott of the University of Cambridge (Public Law for Everyone) and Jon Baines (Information Rights and Wrongs) suggest the Court itself may have erred in setting the reasonableness bar too high. 

Having found the Attorney General improperly issued the certificate, the Court did not delve into the the reasonableness of the views cited by the Attorney General in disagreeing with the Upper Tribunal decision:
that (i) so-called advocacy correspondence formed part of The Prince of Wales’s preparation for kingship; (ii) The Prince of Wales and Ministers would feel “seriously inhibited” from exchanging views candidly and frankly if advocacy correspondence were not kept confidential; (iii) disclosure would jeopardise the perception of the Prince as politically neutral; (iv) the advocacy correspondence had a “constitutional function”; and (v) the correspondence reflected The Prince of Wales’s “most deeply held personal views and beliefs”.[41]
Even though Candid and Frank are popping up way down here as well,at least we removed the dreaded conclusive certificates from the Federal FOI landscape five years ago otherwise all that 'reasonableness' business might be highly relevant.

Thursday, March 13, 2014

The great Open Government Partnership silence

Craig Thomler on eGov AU is also scratching his head:
Australia has not yet begun the process of consulting (on an action plan containing concrete and measurable commitments in the areas of transparency, accountability, and citizen engagement) and, given the membership intake is in April 2014, I don't see there is sufficient time for even an abbreviated process. Even if the Australian Government began public consultation this week, the UK recommends allowing at least three months for this process - plus additional time for refining the feedback, detailed consultations with the civic sector and for actually writing and approving the plan.The only nation thus far to withdrawn from its commitment to join the OGP has been Russia, which decided it was not able or willing to meet the requirements of membership. Will Australia join Russia, becoming the second nation to withdraw? Or will it simply delay membership - one year, two years or more? Perhaps we'll find out with a government announcement in the next month regarding its OGP commitment.
Or perhaps all we can expect is ongoing silence. Either way, it is disappointing to see the Australian Government fail to live up to the high standards of openness and transparency that our politicians espouse as a core requirement for our national democracy.

Transparency, accountability and integrity commitments hard to spot in Tasmanian and SA elections

I haven't dug deep in either state but these issues don't appear to have been anywhere near the forefront in the campaigns leading to the elections this Saturday. 

Maybe it goes without saying like 'truth, justice and Oi, Oi, Oi!'

Glad to hear from you if I've missed something important (and credible).

Tasmania
Tasmanians for Transparency received little encouragement from the major parties in putting forward a 12 point plan (see below) for honest government-see Honest Government not on the election agenda for the Major Parties and Liberals score zero on honest government plan. At least they had a go.

Among the many sprinklings of fairy dust ALP Policy states 
Labor believes in open government and will make every effort to eliminate “commercial-in-confidence” and similar clauses from government contracts and will only retain these where there is a compelling reason to do so. Government contracts will normally be published, where they can be readily scrutinised by the community. 
Perhaps Liberal Party Policy contains something relevant but it doesn't leap out at you. I'll leave The Greens and Palmer United to a deeper digger.

South Australia
Nothing obvious on these issues in the election spread in The Advertiser.

No headline in ALP Policy.

 Liberal Party Policy includes a Justice Action Agenda that contains a commitment to Strengthen the ICAC(pdf) and Strengthen Open Society through Shield Laws (pdf), and at least this mention:
Our commitment to shield laws is part of our Justice Action Agenda to ensure a fair, accountable government and transparent society. Shield laws support the media’s legitimate role in uncovering often difficult evidence and then using that to hold the powerful to account.
In contrast and good for them, transparent and honest government is clearly front and center for The Greens. 

 Palmer has endorsed a team of independents for the upper house.

12 POINT PLAN FOR HONEST GOVERNMENT IN TASMANIA

Privacy law changes - losing ground or catching up?

Plenty of material out there from the Privacy Commissioner and others about the changes to the Privacy Act that came into effect on 12 March. 

The headline in Business Spectator - Privacy Act revisions:Little bark no bite - was a little off the mark on the 'bite', as the Privacy Commissioner has substantially extended enforcement powers should the commissioner chose to exercise them, including to require enforceable undertakings and pursue civil penalties of up to $1.7 million for serious or repeated privacy breaches. 

But as Paul Wallbank in that report points out, the changes have been a long time coming, in many respects are designed to fight yesterday's battles and "may do little to address genuine concerns in a world where data can be cross-matched from multiple sources and processed anywhere on the planet."

This announcement on 30 January 2006 started things, well sort of rolling:
I, Philip Ruddock, Attorney-General of Australia, having regard to:
  • the rapid advances in information, communication, storage, surveillance and other relevant technologies
  • possible changing community perceptions of privacy and the extent to which it should be protected by legislation
  • the expansion of State and Territory legislative activity in relevant areas, and
  •  emerging areas that may require privacy protection,
refer to the Australian Law Reform Commission for inquiry and report pursuant to subsection 20(1) of the Australian Law Reform Commission Act 1996, matters relating to the extent to which the Privacy Act 1988 and related laws continue to provide an effective framework for the protection of privacy in Australia.
The Australian Law Reform Commission after a mammoth consultation and review effort delivered a comprehensive report in 2008 - three-volumes, 74 chapters and 295 recommendations.

Six years on, eight years after the acknowledgement of 'rapid advances' we have legislation to give effect to what the then government described in its response as the 'first phase'  reforms. 

Many aspects are positive, particularly the attempt to build privacy protection into the DNA through documented policies and procedures that are potentially subject to performance assessment by the Commissioner at any time.

But many of the ALRC recommendations are buried in the mist of time. And what looked like 'rapid advances' to Philip Ruddock in 2006 look like first reports about the Wright brothers when considered in the light of developments since the commission reported in 2008. Drones for one probably weren't preying on his mind. 

Among the recommendations put aside for second and third stage consideration but appear to have sunk beneath the waves include the removal of the exemptions from the act enjoyed by businesses with turnover of less than $3 million (there are some exceptions) and by registered political parties, and changes to the conditions for continuation of the exemption for media organisations in the conduct of journalism. Another that got to first base but no further so far is mandatory data breach notification - legislation didn't make it through Senate in the last parliament and is yet to be heard of since. 

Another biggie was to be Federal government leadership on national harmonisation.

As Professor Barbara McDonald from the Australian Law Reform Commission told a parliamentary committee recently
"At the moment, a lack of uniformity means there’s insufficient protection of people’s privacy because people don’t know what’s against the law and what’s not.”
Don't hold your breath.

The government last year after much ducking and weaving over the recommendation to legislate a cause of action for a serious and unwarranted breach of privacy ( supported by the NSW and Victorian law reform commissions who reached the same conclusion years ago) wrapped this issue in yet another reference to the ALRC to inquire into the protection of privacy in the digital era, to look at "innovative ways in which law may reduce serious invasions of privacy in the digital era" and "the necessity of balancing the value of privacy with other fundamental values including freedom of expression and open justice."

The Commission is to report by June 2014. And the process starts all over again?




Tuesday, March 11, 2014

'FOI crowdsourcing' part of the investigative toolkit

Homegrown examples of resort to crowdsourcing to raise funds for FOI requests by Delimiter and the Pirate Party, and crowdsourcing of a different kind in the Detention Logs project organised by Open Australia, The Guardian and others are highlighted in this FreedomInfo.org. article that cites innovative approaches in use of FOI in Canada, Germany and the United States as well.

Monday, March 10, 2014

Australia and the OGP: no news is well, no news

But Minister for Foreign Affairs Julie Bishop is in London for the Australia -UK Ministerial Consultations this week.  Probably far too undiplomatic for the top table but given UK enthusiasm for the OGP someone from the other side might suggest to one of her entourage that the government should  look at the file and then say and do something positive. Hint: like publicly embracing OGP objectives, moving towards signing the Open Government Declaration and talking to people outside the parliamentary triangle about a national action plan.


And as the government waits for Indonesia to agree on a basis for future co-operation and Minister Bishop points to "about 60 areas of co-operation between Australia and Indonesia covering about 22 Australian government departments and agencies and authorities and that is continuing" you would hope DFAT and AGD are in that mix somewhere. 

They know that Indonesia is the current OGP lead co-chair, and that being positive about the OGP is not just in our own interests but mutually advantageous. And as the Indonesian Government is taking the lead role in calling on the region to come together in Bali in early May to "connect, share and learn from each other on the benefits and opportunities across open and good governance practices" that we should be straining at the leash to grab the opportunity to be there with a smile and a bucket of enthusiasm.

As Attorney General Senator Brandis told the G 20 Anti Corruption Roundtable in Sydney on 28 February:

“Without good governance, the best government, as Jefferson saw, is no guarantee against the deterioration of the state. And of all the threats to good governance, there is none more insidious - and potentially ruinous - than corruption.Combating corruption is for all those reasons a critical issue for all governments, and is something that calls for constant vigilance....... What is most important of all - and this a point made by among others, Transparency International - is to foster, by legislation, by governance arrangements and by widely accepted ethical standards, both in public and private sectors, a culture in which corruption is understood to be the evil that it is; that it is swiftly identified, decisively extinguished and firmly punished.”


C'mon guys!

FOI fees and charges back in the frame?

The issue of FOI fees and charges has been sitting in the in-tray in Canberra waiting to be dusted off again when the time is ripe. And that time might be now given the the National Commission of Audit is reporting on the performance, functions and roles of the Commonwealth government and 'everything' is said to be on the table.

Apart from the occasional leak, intended or otherwise, it seems likely the Government will sit on the report, the interim said to run to 900 pages, pick what it chooses to act upon and release at the same time it makes those announcements in the Budget statements on 14 May.

I doubt Treasury, Finance and others missed the opportunity to run up the flag the claimed high costs associated with Freedom of Information, the increase in use of the act and the relatively small amount of cost recovery in the way of collected charges. All leading almost certainly to suggestions for increased fees and charges, at a minimum along the lines advocated by Australian Information Commissioner Professor McMillan two years ago.

The main concern about any changes is that that no one appears to have looked closely, if at all, at efficiency and effectiveness in the administration of Freedom of Information and how this contributes to cost, or at the benefits side.

The latest ball park for total cost across government of $45.3M in 2012-13, plus an additional $3.1M for the Information Publication Scheme and approximately $5M for OAIC FOI and information policy work.

But to say again
The $45 million represents agency estimates. How much of the cost can be attributed to inefficiency, failure to invest in technology, refusal to make sought after information available promptly and at lower cost without the need for formal applications,gaming the system by putting applicants through the run around, we don't know.  Dr Hawke apparently didn't inquire. Probably the tip of an iceberg but take a look at the pedantic, bureaucratic and no doubt costly to the taxpayer correspondence generated by applications made through Righttoknow.)
(Interesting to see that this post written in February 2012 about agency submissions - grumble, grumble - to the review by Professor McMillan is at the top of the most viewed posts in the sidebar.)

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

While a case can be made for some of the changes proposed by Professor McMillan, that doesn't extend to his recommendation of a flat 40 hours limit on processing time for any single application. The existing test of 30 odd years standing of a limit based on substantial and unreasonable diversion of resources requires consideration of the nature of the application -something along those lines should stay.

As well, there needs to be something to encourage efficiency and speedy processing, not a de facto reward of "time's up" placed within reach of those who dawdle, obfuscate and are inefficient.

An informed debate before decisions are taken would be more consistent with an interest in broadening participation in government than a decision based on a Commission of Audit report not seen outside government until the decision is taken.


Friday, March 07, 2014

Human rights types?

Aren't we all? But If this is you have a look at the Fellowships on offer from the Open Society Justice Initiative to work in New York, London, or Budapest and then in exotic places:
  • Strong commitment to human rights;
  • Prior work experience in the human rights field;
  • Have a university degree in Law or an LLM or MA in human rights;
  • High degree of proficiency in English;
  • Good research, legal analysis, and drafting skills;
  • Willingness to take initiative with ability to work individually and in teams;
  • Organization and attention to detail;
  • Knowledge of French, Spanish or other languages an asset.
 Closing 28 March. Life may never be the same.

To open or not open the curtains on tax paid or not paid by corporates?

'........that is the question: Whether 'tis nobler in the mind to suffer the slings and arrows of outrageous fortune, or to take arms against a sea of troubles, and by opposing end them?'
All power to the AFR:
Assistant Treasurer Arthur Sinodinos is under pressure to make companies publicly reveal how much tax they pay in Australia after previously signalling he wants to scrap transparency laws.

Pull the curtains on My School?

I'm no expert on education but there we were thinking the publication of school data on the My School website, now in its fourth year, was a great step forward for transparency and accountability, arming the community as well as policy makers and stakeholders with vital information about at least some performance indicators from all that money spent on school education.

Only to be corrected by the NSW Minister for Education, obviously a great fan of evidence based policy development, who apparently sees no benefits, only egregious impacts:
Mr Piccoli said he supported the continuation of NAPLAN testing but he wanted an end to the publication of its results because of the "unintended consequences" it created. "I've been told a story of a kid in year 3 throwing up on the morning of the NAPLAN test because of the anxiety surrounding the tests," Mr Piccoli said. "This stress never happened when we did Basic Skills testing in NSW because it was simply a diagnostic tool, it wasn't publicised."

My School "provides up-to-date quality data on the performance and resources available to more than 9,500 Australian schools. The site also allows comparisons to be made between schools. We acknowledge the strong interest in the site, as evident in the number of visitors each year to the site – over 1.2 million in 2013.." 

 Australian Information Commissioner Professor John McMillan may have been prescient last year:
realistically, open government can complicate life for government decision makers. Information available on the My School website for example focuses attention on political choices concerning funding and brings forward questions about priorities, comparisons and fair and equitable allocation of resources.

Wednesday, March 05, 2014

What goes in Canberra on the OGP?

In an attempt to find out what is happening behind the stony wall around consideration of Open Government Partnership issues and the draft national action plan that Attorney General Brandis said in Senate estimates is "in development" I sent the following request to Attorney General's Department today. 

You can follow the bouncing ball at Rightoknow:
Dear Attorney-General's Department,

I am seeking access to the record of each of the inter agency meetings on the Open Government Partnership held on 17 July 2013, 29 October 2013, and 5 November 2013, dates meetings were held as indicated by Senator Brandis in Senate estimates, and of any subsequent  inter agency meeting or meetings.

Please treat this request for specific documents as an administrative access request of the kind suggested in guidance from the Office Of Australian Information Commissioner.

If you are unable to deal with the request in that way please treat
it as an application under the Freedom of Information Act.

If this proves necessary I seek waiver of any charges on public interest grounds, noting the announcement of the decision of intention to join the OGP in May 2013, the limited public references to the initiative in the period since, the potential for transparency and scrutiny to encourage efficient public administration, and if access is granted, the contribution disclosure of the records would make to informed public discussion about the way Australian democratic practices could be improved.

My address for the service of notices is this email address.

Thank you in anticipation.

Peter Timmins.

By the way anyone on the outside interested in the OGP who isn't on our invitation only Google List that encourages dialogue about the issue please contact me at peter.timmins1@gmail.com

Anything goes in NSW on trans-border disclosure of personal information

The NSW Parliament enacted the Privacy and Personal Information Protection Act in 1998.

The act came into effect two years later, allowing plenty of time to prepare, and the parliament gave the authorities (section 19) an extra year at least to take steps to develop special tailored rules in the form of a code of practice regarding trans-border disclosures. Until a code was issued, legislative provisions regarding interstate disclosure would not apply.

Thirteen years later those rules still do not exist. 

The result - no real surprise - is  a ruling in NCAT this week by Senior Member Molony (Bevege v Commissioner of Police, NSW Police Force [2014] NSWCATAD 22) that in the absence of a code the provisions of PPIPA do not apply to disclosure interstate by the Police of personal information about the applicant.

Over five years ago a Crown Solicitor opinion given to this effect in 2007 came to light and the ADT found that a teacher had no recourse under PPIPA when personal information about her was disclosed interstate.

Senior Member Molony in Bevege [at 14] noted that the absence of a code under s 19 "is a matter that the Privacy Commissioner has now taken steps to address" so wheels have ground or are grinding behind the scenes - a code is yet to appear on the IPC website.

The Applicant and the Privacy Commissioner (a change since 2008 when the then commissioner argued the opposite) submitted that as a matter of construction the ordinary limitations on disclosure in section 18 should apply to the conduct in this case even in the absence of a specific rule about  interstate disclosure. 

However Judicial Member Moloney decided he should follow earlier ADT decisions in rejecting this submission "in order to ensure consistency in decision making by the Tribunal"[23].. "There is already a considered decision determinative of the issue. The appropriate forum to seek a reconsideration of that authority is at appeal level"[26].

In an earlier decision GQ v NSW Department of Education and Training (No 2) [2008] NSWADT 319) Deputy President Handley said[14]
that section 18(1) is a general provision limiting the disclosure of personal information, whereas section 19(2) is a specific provision dealing with disclosure of personal information to a person or body outside NSW. The effect of the application of the generalia specialibus presumption, there being no indication that the presumption should not be applied, is that the specific provision - section 19(2) - prevails to the extent of any repugnancy with the general provision - section 18(1). Thus, section 18(1) does not apply in respect of the disclosure of personal information by a public sector agency in NSW, such as the Department, to any person or body in a jurisdiction outside NSW or to a Commonwealth agency.
The Applicant in Bevege contends conduct by the NSW Police involved a breach of privacy when information about her was conveyed to her employer outside the state for no apparent police related reason. 

Not mentioned in the decision is that even if s 19 applied as a result of a code of conduct, or an appeal court overruled the Tribunal on the application of s 18 to a disclosure of personal information outside NSW, the NSW Police are not subject to PPIPA except in connection with the exercise of their administrative and educative functions (Section 27(2)). 

As other complainants about NSW Police conduct have found (just one from last year) this too is a formidable hurdle in holding the police to account regarding the handling of personal information.

On that score four years ago the NSW Law Reform Commission in its report Protecting privacy in New South Wales [2010] NSWLRC 127 considered the scope of s 27[5.54]-[5.68] and concluded
"there is no justification for the current level of exemption for the NSW Police Force." 
The Commission recommended [5.4 and 5.5] removal of the immunity or a significant narrowing of its scope to bring NSW in line with Commonwealth and Victorian privacy law.

Along with a raft of other recommendations, recognised holes, gaps and other inadequacies in NSW privacy legislation, that hasn't been acted upon either. 

Sections 18 and 19 of PPIPA are reproduced below.

Senior Member Molony gave the applicant a glimmer of hope in keeping alive an argument that the Police had breached s 17 of PPIPA in the use of personal information within NSW.

Tuesday, March 04, 2014

Hold that bubbly-Honesty Oscars go elsewhere

Terrrific that Aussies Cate Blanchett, Catherine Martin and Beverley Dunn brought home gold.

The prizes went elsewhere at the Honesty Oscars "honoring creativity in global anti-corruption campaigning":

Best Visual Effects: the International Budget Partnership’s “Open Budget Survey 2012″ (Pfffffffffft! Australia is not among the 100 countries rated by OPB for Fiscal Transparency)

Best Activist in a Leading Role: Sely Martini deputy director of Indonesia’s anti-corruption watchdog group Indonesia Corruption Watch 

Best Activist Anthem:Dr. Sley and Da Green Soljas of Cameroon.

Best Director: Rakesh Rajani,Tanzanian civil-society leader (and member of the Open Government Partnership Steering Committee)

Best Picture: Open for Change for Open Development Explained

Monday, March 03, 2014

Incoming government briefs:psst, go for 'frank and fearless' and pass it on.

No-one who follows these things closely would be surprised that public servants were tick tacking about the Freedom of Information applications received for the incoming government briefs prepared for Abbott government ministers at the time of the September 2013 election.

Treasury took the lead in October with the unusual step of posting a notice of determination refusing access on its disclosure log , presumably for the purpose of getting the word out and around. Other agencies followed suit in a complete about turn from 2007 where some had released parts of briefs and 2010 when just about every agency pro-actively published more substantial segments, significantly contributing to public understanding of issues facing government.

In Senate estimates last week ALP Senator Dastyari did some probing about the shift in gears at Finance and how the 2013 decision was reached. Finance released 18 pages of innocuous material on Christmas Eve. That was something of a difference -  others ran the argument that the entire document was exempt and had to be withheld.

Finance Minister Cormann said the decision was nothing to do with him:
"I have no involvement in these sorts of decisions or in the timing of the announcements. What I get as a courtesy is regular notification on what FOI requests are pending, and I get regular updates on what releases have been made, but I have absolutely no involvement in any of the decision making whatsoever. I essentially get provided with information for noting.
Secretary Tune explained he had decided to publish a redacted version in previous years but this time the ball had been passed to Deputy Secretary Connell:
I guess the second time around I thought we should take it right through the FOI process and have a look at it in a proper way. I accept that prima facie it looks like an inconsistency. But the first time I might have jumped the gun a bit, and the second time we decided to follow due process in full.
Deputy Secretary Connell ran through the decision making process: no, there had been no external advice "at all", only input from the internal legal team. It was her decision. After it had been taken she advised the Secretary "for noting."

Senator Dastyari later in the session tabled an email to Deputy Secretary Connell from the Deputy Secretary of Attorney General's Department David Fredericks presumably providing her with a copy of his decision to refuse access.

Ms Connell stood by her previous answer that no external advice had been received. This was not advice about the FOI determination. She had received the email
"...in my role as deputy secretary and not as decision maker. It was general advice that was sent out to a number of my colleagues. The key piece of advice in here goes to the heart of the policy advice we do receive often—that a decision on whether or not to release a particular document or particular information is a matter for the decision maker to consider. So I became decision maker for a similar request, I think, and I made a decision some seven weeks later, but I did not consult, I was not directed and I did not engage with other decision makers when I made that decision.
Treasury had broadcast its decision to the world and AGD had circulated their version to dep secs around Canberra (it is here (pdf) dated 8 November). I imagine the Finance internal legal team, if not Ms Connell were keeping close tabs on developments, heartened by the Australian Information Commissioner's decision in Crowe.

So no surprises about the take up in Finance and elsewhere of the argument that disclosure would endanger the development of a trust relationship with the minister, mean public servants in future would offer limited bland rather than frank honest advice, and operations of the agency would suffer substantial adverse effect.

And I'm sure it had nothing to do with the fact that keen judges of such things across the public service could detect changing tone at the top. For example in 2010 then shadow finance spokesman Andrew Robb, who prior to the 2013 election looked likely to be Finance minister but took Trade, had said the public service briefs prepared before that election warranted state secret status, if a public service 'down tools" was to be avoided:
''The red and blue books are fundamental to successful transition to government, and that's another important plank of convention in the way in which our government runs,'' he said. ''That material is based on frank and fearless … advice by the public service, and if they thought that could become public knowledge, they would not conduct that sort of assessment again.''
The long Q&A in Estimates here for the buffs:

Thursday, February 27, 2014

Cut back on published contracts in the name of cutting red tape?

In order "to pursue the deregulation agenda and reduce red tape for agencies in their reporting processes" Department of Finance officials in Canberra told Senate estimates this week of a proposal to increase the threshold for publication of information about government contracts online on Austender from $10,000 to $20,000. 

The change would mean non publication from 1 July of contract details that represent four per cent by value of total contracts but a much higher percentage in terms of the number of contracts.

AtelierMonpli
While the administrative burden for agencies would ease, what it means for transparency is also clear: less not more. 

What other cutbacks on the publication of information in the name of the deregulation and reduce red tape agenda are in the pipeline remains to be seen. 

Austender publication of contract information quarterly is a Department of Finance requirement that rests on policy not legislation. A Senate Order requires reporting of contracts over $100000 including on the extent of use of confidentiality provisions. The Senate Finance and Public Administration Committee has a current reference on this.

Former Finance Minister Penny Wong pointed out in Estimates the lack of consultation with the parliament about the Austender proposal and raised the possibility of changes down in the Senate Order threshold if the Austender level is raised.

The Auditor General and others have been calling for rationalisation and improvement in the systems for years. Poor search capabilities are another issue.

Disclosure obligations for contracts (grants and a range of other information we expect or should expect agencies to make available as a matter of routine) should be incorporated in legislation as a publication requirement - a highly desireable Freedom of Information reform waiting to happen.

The Q&A in Estimates follows. 

In a busy Estimates week Information Commissioner fails to draw a crowd

It's been a big week for the estimates committees operating simultaneously in Canberra with hard decisions for senators about where to spend time asking what. 

But for all the (legitimate) concern about transparency and accountability, The Greens Senator Lee Rhiannon was the only senator in addition to the chair to make it for the 15 minutes in total spent quizzing the Office of Australian Information Commissioner in Attorney General's Estimates on Monday.

About half the time was spent revealing little (revealing in itself) about Australian membership of the Open Government Partnership with an associated exchange of barbs between Senator Rhiannon and Attorney General Brandis - over who is closer to Russia.

No questions at all to Information Commissioner Timothy Pilgrim despite the big changes to privacy legislation to commence on 12 March, which might have prompted interest in preparedness and adequacy of resources for the exercise of enhanced powers that include pursuit of civil penalties of up to $1.7 million for serious or repeated privacy breaches. 

And a myriad of other privacy issues relevant to the operation of the OAIC passed without question. Including what one of the biggest known privacy breaches, details of thousands of asylum seekers in Australia inadvertently made accessible online at Immigration,tells us about compliance, and the need for mandatory data breach disclosure legislation which failed to make it through parliament last year. (Presumably the bill is battling for oxygen amid behind the scenes discussion about reducing rather adding to the regulatory burden on government and business.)


Australian Information Commissioner Professor McMillan put the best light on published statistics about the delays experienced by review applicants and complainants:
"....the office battles gamely to deal with a growing workload and, as far as possible, to meet the stated objectives of the FOI Act, which..emphasises a prompt dispatch of FOI matters." 
The resource situation at the OAIC and the generally dark cloud hanging over information access went unexplored.

When questioned about the extent agencies game the system Professor McMillan said his public comments on this were aimed at  discouraging behaviour of that kind, that naming names would require a lot more digging beforehand, and in any event 80% of cases are resolved and documents released without the need for a published OAIC decision. However it is a concern if perceptions of gaming are out there and third parties seeking review of an agency decision to disclose may also be part of any problem.
(Comment: those perceptions are out there, based on experience. It might help the cause if, with or without names. agency decisions based on a wing and a prayer that are in effect reversed when challenged but before a formal OAIC decision are highlighted publicly. And in future reforms, provision is made for some sort of disincentive or discouragement such as payment of OAIC/applicant costs by the agency concerned where a decision with little or no merit or less than adequate understanding of the law, its spirit and intent is uncovered.)

Professor McMillan remains positive overall:
 "Our experience is that, for the large part, agencies and ministerial offices do strive to meet the objectives of the FOI Act. As I have also said on a number of occasions, my view is that the changes over the last three years have caused quite a significant cultural change in government. It is apparent that considerably more is released not just in terms of volume but also in terms of the range of documents. A quick glance at FOI disclosure logs on agency websites indicates that."
(Comment: ah yes, but......)