FREEDOM OF INFORMATION

Open Government Australia in its Draft National Action Plan includes Commitment 3.1 – Information management and access laws for the 21st century.

Accountability Round Table Submission 4 –  Commitment 3.1: Information management and access laws for the 21^st century.

Guiding principles

As with the other matters, we have approached the task of analysing and responding on the proposed on Commitment 3.1 on the basis that the guiding principle for government and its partner, civil society, is the principle that public office is a public trust and that we, as partners, in this task, must put the public interest ahead of any personal or private interest.

As Sir Gerard Brennan has said  (https://www.accountabilityrt.org/integrity-awards/sir-gerard-brennan-presentation-of-accountability-round-table-integrity-awards-dec-2013/ )

“ It has long been established legal principle that a member of Parliament holds “a fiduciary relation towards the public” … and “undertakes and has imposed upon him a public duty and a public trust” …. The duties of a public trustee are not identical with the duties of a private trustee but there is an analogous limitation imposed on the conduct of the trustee in both categories. The limitation demands that all decisions and exercises of power be taken in the interests of the beneficiaries and that duty cannot be subordinated to, or qualified by the interests of the trustee.

As Rich J said ..
“Members of Parliament are donees of certain powers and discretions entrusted to them on behalf of the community, and they must be free to exercise these powers and discretions in the interests of the public unfettered by considerations of personal gain or profit”.

The proposed content of Commitment 3.1

On first reading, the statements of the “Objective ”, “Status Quo”, “Ambition”, “Relevance” and “OGP Grand Challenge” may seem relatively straightforward and uncomplicated.

On closer consideration, however, it becomes very difficult to understand the content of the proposed Commitment. We submit that this flows in large measure from incomplete statements of the “ Objective” and “Status Quo” and a resulting lack of clarity in relation to the “Ambition”  , all of which impact on the assessment of “Relevance” and “OGP Grand Challenge”.

In Appendix A we have analysed that material in the draft NA P Commitment 3.1 to identify those matters requiring attention. It has been necessary to go through the draft section by section to identify issues and facts that in our submission should be included and to put forward alternative content which we submit will better identify those issues and the relevant facts.

We submit that doing so will enable government and civil society to be better informed to identify and address what is needed “to reform the framework for managing and accessing government information”..

Considering the material that we have incorporated into the draft of the NAP, suggest that two major issues emerge.

1. The need to address the resourcing of the FOI system.

There is no sign, as yet , of any action being taken up, or public commitment being made, to remedy the serious lack of necessary resources, financial and physical and human, for the OAIC to carry out its statutory FOI functions and its intended responsibilities in the implementation of Australia’s first National Action Plan. We submit that, if the lack of resources is not able to be addressed before the NAP is finalised, before it is finalised, it must have added to it a  commitment that that issue will be addressed.

2. The choice of the lead agency

What criteria should be applied in determining the choice of the lead agency?

The issue of open government is a particularly difficult one.   A major problem is that those (elected and non-elected) to whom we entrust the power to design, manage and control the relevant systems have the challenge to face that what they have done as public officers from time to time may be made public. In dealing with that reality when reviewing and developing recommendations for the operation of the relevant systems, it is critical to recognise and bear in mind that they have to manage a conflict of interest situation.

Guidance through that conflict of interest situation is to be found in the  ancient ethical and common-law principle that, in their role, they must put the public interest first and ahead of their own. The vast majority of people have forgotten this principle, including those holding public office.

On this sort of issue, we submit that it is critical that the lead agency is one that is independent of government and outside the political situation. It is also critical that the lead agency be one in which government and the community can both have confidence.

Unfortunately, government agencies suffer from the disadvantage in that regard that community trust in the integrity of government has never been lower. The reality is that our community will lack confidence in government departments and their Ministers.

The draft NAP puts forward, as the lead agency, nominates the Attorney-General’s Department as the lead agency.  In addition to the problem of the lack of community confidence generally in such departments,  community confidence in that agency being the lead agency will not have been be helped by its managing of the resourcing and role of the OAIC detailed in our Submission 1 and referred to in the detailed analysis that follows in this Submission, Appendix A.

We submit that there is no necessity for the Attorney-General’s Department to be the lead agency.

In this particular instance, what is needed is an independent national statutory body to fill that role. It needs to be a body that is independent of government and is experienced in examining and researching the questions of changes to government systems and the Law. It should also be one that consults with the community and government. There is such a body –the Australian Law Reform Commission. We note that it has over the years on several occasions been engaged to review the Commonwealth information systems and particular aspects of them.

Hon. Tim Smith QC

Chair, Accountability Round Table

18 November 2016

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Appendix A – analysis of the present draft for Commitment 3.1

We have below quoted and analysed each section of the Commitment material setting out, in each section, the present draft content, our analysis of it and our suggested content and the case for its inclusion.

1. The opening paragraph:

“We will ensure our information access laws are modern and appropriate for the Digital information page.”

On the face of it that is a reasonable proposition, but what is its scope and it is the detail that matters. We turn to the detail

2. The sections of the document

Section 1. “Objective”.

“Australia will consider options for reforms to the framework for managing and accessing government  information, including the Freedom of Information Act 1982 (FOI Act), the Archives Act 1983 (Archives Act) and, where relevant, the Privacy Act 1988 (with primary focus on the Archives Act and FOI Act), as well as policies and practices relating to information access and management.

ART –  Analysis and comment:

At one level, this statement could not be broader. It is broad enough to include the reforms of 2010 and the operation of the FOI Act provisions and the OAIC Act. It is also broad enough to include the history of the changes made to the operation of the OAIC, the current state of the operation of the OAIC and whether and how those matters should be addressed. (For more details of the latter see –the ART’s Submission One (https://www.accountabilityrt.org/open-government-partnership-national-action-plan-art-submission-1-recognising-the-role-of-the-oaic/).

Reference should also be made to the Introduction to the draft NAP and its statement of the government’s intention

“This National Action plan sets out the initial steps the government will take to achieve the aim of improving and building confidence in Australian institutions and democracy, and to uphold the principles in the Open Government Declaration, including to:

• promote transparency, fight corruption, empower citizens and harness the power of new technologies to make government more effective and accountable;
• uphold the value of openness in our engagement with citizens to improve services, manage public resources, promote innovation, and create safer communities; and
• embrace principles of transparency and open government with a view toward achieving greater prosperity, well-being and human dignity in our own country and in an increasingly interconnected world.” (Page 5)

The absence of any reference to the Australian Information Commissioner Act (OAIC Act) and its operation is puzzling when, if allowed to operate by the Government as Parliament intended and adequately resourced, it would be able to play a major role in ensuring the achievement of above aims of the government in its NAP and the “sound policies and practices relating to information access and management”. It is even more puzzling when it is realised that, the relevance of the OAIC is expressly acknowledged  by its inclusion of the OAIC in the list of proposed government actors for commitment 3.1. (Page 40).

We submit this needs to be remedied and we put forward the following;

“Australia’s objective is to ensure that our information management and access laws and systems will be maintained, reformed and, where necessary, restored, to ensure that we have best practice, and, where we have not, that it be provided. In particular, we will consider the framework for managing and accessing government information, including the Freedom of Information Act 1982 (FOI Act), the Australian Information Commissioner Act, the Archives Act 1983 (Archives Act) and, where relevant, the Privacy Act 1988 (with primary focus on the Archives Act and FOI and OAIC Acts ), as well as policies and practices relating to information access and management”

Section 2 – Status Quo

A.  Paragraph 1:

“In 2010, the Australian Government passed reforms to the FOI Act as part of a broader plan to improve transparency and to encourage public engagement in decision making. The 2010 reforms also included the introduction of the Information Publication Scheme, which requires agencies to provide a broad range of information on their websites, and amendments to the Archives Act to reduce the open access period for Commonwealth records from 30 to 20 years over a 10 year period.”

ART Analysis and Comment.

This is incomplete on important matters and as a result, unhelpful in guiding us in reaching decisions about Commitment 3.1.

(a) The 2010 reforms.

The reforms referred to in this paragraph as having been made to the FOI Act in 2010 were made by legislation amending that Act and also separate legislation establishing the Office of the Australian information Commissioner (the OAIC). The introduction of the Information Publication scheme was an important reform of that legislative program. The legislation also provided for the OAIC to be the regulatory body for that program.[1]  But there was also much more done by the legislation enacted at that time including introducing a much better system of information access laws and procedures including the promotion of a proactive approach within government and an independent body, the OAIC, to monitor the operation of the system and advise government and guide government agencies. The OAIC was also to provide a no charge review system and complaints system.

The significance, and the ambitious nature of this reform, is perhaps better understood when it is appreciated that it preceded the creation of the Open Government Partnership but introduced changes which addressed the objectives and commitments subsequently spelt out by the Open Government Partnership in its Articles of Governance for open and transparent government. These included,

• “promoting increased access to information and disclosure about governmental activities at every level of government” and
• “access to effective remedies when information or the corresponding records are improperly withheld, including through effective oversight of the recourse process” (OGP Articles of Governance page 20).

In doing so it recognised a key principle which was enunciated in the OGP Articles of Governance – “Governments collect and hold information on behalf of people, and citizens have a right to seek information about governmental activities.”

(b) Changes made to the 2010 reform.

1. The draft material, also makes no mention of the previous government’s attempt since May 2014 to abolish the OAIC, first by legislation which the Senate would not pass and thereafter by control of the OAIC budget.

This has resulted in the present situation where, while the OAIC is able to perform its privacy functions it cannot perform any of its FOI statutory functions other than what the Government describes as a “streamlined” review system of refusals of access to information and its consideration of complaints.

2. It also does not mention that the OAIC has been operating for more than one year with just one person, Mr Pilgrim, performing the role of two of its statutory Commissioners – the Privacy Commissioner and Information Commissioner. He also has been carrying out FOI functions but cannot be appointed to the position of Freedom of Information Commissioner to perform the role of our office because he lacks the required legal qualifications.

Unfortunately, the independence of the three Commissioner positions, a critical aspect of the role and operation of the OAIC, has also been significantly compromised.

3. Reference is not made in the passage to the fact that the three original Commissioners were pointed for a five-year period. For some 15 months until October this year, however, Mr Pilgrim, who had been Privacy Commissioner, was appointed to 3 monthly terms as Acting Privacy and Acting Information Commissioner. The government has departed from that approach recently and appointed Mr Pilgrim to the above two Commissioner offices but it is for only two years not five.
4. The proposed draft also does not refer to the fact that earlier this year the government announced that it was not going to abolish the OAIC and was returning all functions to it (some which had been transferred to the Department of the Attorney-General). This removed an element of uncertainty and on the face of it appears to be a positive move back to the original OAIC model.

But the evidence that is publicly available when examined reveals that the OAIC is not able to perform its FOI functions other than those which it had before the return of the other functions (reviews and complaints).[2]

This must have the additional unfortunate consequence that, as presently resourced, it will not be able to discharge the functions returned or the roles proposed for it in the draft NAP.

5. There have since been a number of reviews recommending changes to the FOI Act, including Dr Allan Hawke’s Review of Freedom of Information Laws and the Belcher Red Tape Review.

Among other things, the Belcher Red Tape Review recommended the Attorney-General’s Department “begin work with relevant entities to scope and develop a simpler and more coherent legislative framework for managing and accessing government information during its life-cycle in a digital environment through staged reforms, commencing with legislation regulating archives.”

ART Analysis and Comment.

While the draft identifies a recommendation of  the Belcher Red Tape Review, it is silent about the content of the Hawke Review.  The statement should at least include reference to the fact that the Hawke review was positive about the operation of the OAIC[3]. It should also include reference to his recommendation that aspects of the FOI system should be reviewed.

On the FOI review issue, ART submits there should be an independent review established to look into the matters raised by the Hawke Review. It should have occurred sometime ago as recommended by Dr Hawke. The ART also supports the objectives of ensuring that the FOI system is appropriately adjusted to ensure that it and the community benefit from the digital environment.

The first and critical task, however, is to ensure that the OAIC has sufficient financial, physical and human resources to enable it to discharge its OAIC and proposed NAP functions.  It does not appear to be appreciated that doing so is needed to enable the OAIC to play an important part in the implementation of Australia’s first NAP.

C. Paragraph 3.  This paragraph dealing with the status quo is as follows;

“The core frameworks of Australia’s information   access laws (in particular the FOI Act and the Archives Act) have not been substantially altered since enacted in the early 1980s, when government operated in a paper-based environment. It is therefore appropriate to consider how access to government information is best managed into the future within the context of digital government.”

We submit this is an incomplete statement which significantly confuses the issues.

ART Analysis and comment .

The paragraph itself acknowledges that there are laws other than the FOI Act and the Archives Act which are part of the “core frameworks” of our information access laws. A few other parts of the Commitment material, as already noted, acknowledge legislation concerning the OAIC.

In 2011,  the “core frameworks of Australia’s information access laws” were in fact “substantially altered ”by the inclusion of the OAIC to play a critical role. In addition, that important framework, one which anticipated the OGP objectives and commitments, has been since 2014, and continues to be, substantially altered by the actions of the Attorney-General and his Department without any legislative approval. (For details see Submission 1). In doing so, we have gone significantly backwards in addressing our obligations and commitments as a participating nation in the OGP (including those cited on page 5 of the draft NAP) for over two years and, in light of recent statements by the Attorney-General, the government apparently intends that that will continue for a further two years at least.

These matters are significant features of the Status Quo.

We are not, of course, privy to the discussions within government. But for the reasons given in our first submission, it is absolutely critical for both the operation of our FOI system and also for the operation of Australia’s first NAP that Australia restores the full operation of the OAIC.

At the same time,  there needs to be a review of the operation of the FOI system as recommended by Dr Hawke.

As we stated in our first submission,  action to restore the capacity of the OAIC to discharge its statutory and NAP roles needs to occur as soon as possible and if it cannot be done before  the NA P is finalised, it needs to be addressed in the NAP in the form of a commitment.

Proposal for a revised  “ Status Quo”.

We propose the following rewording of this section of the proposed draft NAP

“In 2010, the Australian Government secured the passage of  major reforms to the FOI Act as part of a major reform of the FOI system. They were intended to introduce a proactive approach within government which would recognise the right of the people to access information held by government on their behalf and provide an independent body to monitor the operation of the system and advise and guide government agencies.. The 2010 reforms also included the introduction of the Information Publication Scheme, which requires agencies to provide a broad range of information on their websites.  It also provided a no- charge review system and a complaints system to be conducted by the OAIC. In doing so it anticipated the objectives and participating nation commitments of the Open Government Partnership, including those cited in the proposed draft NAP. It also amended the Archives Act to reduce the open access period for Commonwealth records from 30 to 20 years over a 10 year period.”

There have since been a number of reviews recommending changes to the FOI Act, including Dr Allan Hawke’s Review of Freedom of Information Laws and the Belcher Red Tape Review. The Hawke report was published in 2013. It provided a positive review of the operation of the new OAIC system. It also recommended that there were matters that should be reviewed and urged that that be done .That is yet to be done.

Among other things, the Belcher Red Tape Review recommended the Attorney-General’s Department “begin work with relevant entities to scope and develop a simpler and more coherent legislative framework for managing and accessing government information during its life-cycle in a digital environment through staged reforms, commencing with legislation regulating archives.”

We submit that it is in the public interest that the reviews be carried out.

Section 3 – “Ambition”

The draft NAP states;

“To develop a simpler and more coherent legislative framework for managing and accessing government information within the context of digital government, supported by efficient and effective policies and practices.”

ART Analysis and Comment.

The stated objectives should always be among the objectives of any legislative framework reform. Is the draft suggesting something more than that?

The manner of the inclusion of the reference to the context of digital government is perhaps unfortunate in that it might be construed as limiting the commitment to that particular aspect.

The statement of the “ambition” may also have been affected by contents of the preceding paragraphs. If regard is had to all the relevant background, and our objectives and commitments as a participating nation of the OGP,  we can and should aim high.

Proposal for a revised  “ Ambition”

ART suggests a simpler ambition statement –

“ Implement best practice information management and access laws for the 21st century”.

Section 4 – Relevance

The draft NAP states;

“This commitment will advance the OGP values of access to information and public accountability by:

• ensuring government information access laws are modern and capable of meeting the demands of the digital age;
• increasing awareness of public access rights to government information; and
• improving efficiency of processing access to information requests;”

ART Analysis and Comment.

The OAIC has a pivotal role to play in enabling Australia to address the above three areas of relevance.  It already has the powers to do so. What is needed is a commitment to the adequate resourcing of the OAIC, including , three Commissioners not one, a head office in Canberra and an Independent review by a body such as the Australian Law Reform Commission¶

Provided those issues are addressed appropriately in commitment 3.1 and other relevant NA P commitments, the statement on the subject of relevance should stand

Section 5.  OGP Grand Challenge

The draft NAP lists;

• Increasing Public Integrity
• Improving Public Services

 

ART Analysis and Comment.

Why have only  two of the grand challenges? Would be appropriate to include “More effectively managing Public resources”? – cf Commitment 3.3

In addition, the present management of a public resource, the OAIC, may be saving the budget a few million dollars per annum but is resulting in a failure to effectively manage that resource and depriving Australia of the benefits flowing from it, including economic, environmental and social benefits.

As former Prime Minister David Cameron, one of the founders of the OGP, has said:

“Transparency brings risks – indeed we often find that out here on a day‑to‑day basis – but it is absolutely critical. Time and again, history has shown us that open governments make for successful nations.”

 

Tim Smith for Accountability Round Table

18.11.2016

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[1] https://www.oaic.gov.au/about-us/access-our-information/our-information-publication-scheme/#who-regulates-the-ips

[2] Detailed material concerning the publicly available evidence may be found in the attachments to our first submission.

[3] “In essence, the Review found the recent reforms to be working well and having had a favourable impact in accordance with their intent.  It has engaged more senior people in the process and triggered a cultural change across the Australian Public Service, although there is still some way to go on this aspect.  Further effort, driven from the top, will be required to embed a practice where compliance with the FOI Act is not simply perceived as a legal obligation, but becomes an essential part of open and transparent government.”  https://www.ag.gov.au/consultations/pages/reviewoffoilaws.aspx