Timothy Pilgrimphoto Michele Mossop2nd feb 2012Timothy Pilgrim Federal Privacy CommissioerGovernment policy on freedom of information remains in limbo. In 2014-15, thanks to resistance from the Senate, prime minister Tony Abbott and his Attorney-General, George Brandis, failed in their initial aim of fully abolishing the Office of the Australian Information Commissioner. But they certainly succeeded in reducing its resources and public standing.
Though the office’s statutory functions were later fully restored under the leadership of the privacy commissioner, Timothy Pilgrim, who took on the extra role of information commissioner, funds available for FOI functions remain well below former levels. Throughout this period, the office has kept a low profile on FOI issues while concentrating more on privacy and access to government data.
How effective, then, is the current FOI regime? A recent Australian National Audit Office report, The administration of the Freedom of Information Act 1982, provides some useful evidence. The report begins with a brief statistical overview of FOI applications made across the Australian Public Service. The annual number of applications has fluctuated over the years, declining from 2007 to 2010 and increasing since. The great majority of applications (80 to 90 per cent) are requests for personal information rather than information on policy matters, which helps to explain why most requests go to departments such as immigration, human services and veteran’s affairs, which deal directly with members of the public. The Public Sector Informant: latest issue
The report than concentrates on two areas: first the information commission’s office itself and then FOI administration by the government as a whole, using a sample of three departments (attorney-general’s, social services and veterans’ affairs) chosen as representative in areas such as number and types of application, rejection rates and processing timeliness.
The audit of the information commissioner’s office’s efficiency and effectiveness in administering the FOI Act occurs against the background of the office’s recent upheavals. For example, we learn the office’s total spending on FOI-related activities in 2016-17, though slightly recovered from the low point of 2015-16, is still only about half the level of 2012-13, the last complete financial year before the government tried to abolish it. (Interestingly, the funds allocated to the office as a whole remained roughly constant over that period, reflecting the government’s greater interest in protecting privacy than in FOI.)
The office’s most important FOI function is processing applications to review the merits of FOI decisions made by individual government agencies. Almost from its inception in 2011, the office struggled to keep up with a backlog of applications, largely because the lack of an application fee encouraged more applications than the office was resourced to deal with. Over the years, it resorted to several devices to reduce the number of applications, including referring more applications back to agencies for consideration. It also increased the proportion of applications where it exercised its statutory discretion not to review on grounds such as the application being frivolous or vexatious, or the applicant not cooperating with the office. The ANAO comments tartly that exercising such discretion should be based on the merits of the application and should not be used “as a workload management tool”.
The office also lowered its sights for how quickly it aimed to process applications for merits review. In its first two years, it set itself an official target of completing 80 per cent of reviews within six months, a figure it conspicuously failed to meet. Then, in 2013-14, it quietly extended the target period from six to 12 months, securing a much higher rate of completion (from 25 per cent to 71 per cent). Two years later, the rate was over 80 per cent and the office was able to boast it had at last achieved its target. Certainly, the office’s effort in dealing with its backlog in such straitened circumstances is to be commended. But achieving a deliberately reduced target provides no independent evidence of achievement. More relevant is the average time to complete a review, which stands at more than a year (372 days), hardly grounds for self-congratulation.
On the office’s other functions, the ANAO gives a tick for how it provides guidance and aid to agencies and FOI applicants. However, it is more critical of how the office handles the information about FOI compliance that it collects from agencies and then reports to parliament. The ANAO finds numerical inconsistencies in reported information and raises doubts about the reliability of the data reported. Given that many agencies themselves have complained about the burden of complying with the demand for quarterly statistics, one may question how much care they take over the accuracy of their returns. When quizzed on this issue, the office said it took some steps to “risk manage” the collection of statistics, but the number of agencies and the resources available prevented it from conducting a thorough check.
Clearly, this is one area where the budget cuts forced a substandard outcome. Another is the office’s regulatory role in FOI, where it was hard-pressed to provide any evidence of significant activity. In response to a direct query from the ANAO, the office said the reduction in resources for FOI had not forced it to abandon any of its statutory functions. Nonetheless, some are obviously given lower priority.
Overall the audit confirms that the newly rejigged office is unable to perform as effectively as its predecessor in FOI. The ANAO is reluctant to make this point head-on, as it would imply a direct criticism of government policy, which is beyond the ANAO’s remit. Nonetheless, the dots are there for careful readers to join. The report provides plenty of evidence that the current level of funding falls woefully short of the minimum needed to fulfil the functions envisaged in the original act.
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This conclusion is confirmed by the audit’s discussion of its three sample departments. While the agencies generally fulfilled their basic FOI functions effectively – for example, the time taken to respond and the application of allowed exemptions – they all fell down in their broader obligations to encourage a more open approach to government information. In particular, they did not meet all the requirements of the information publication scheme, which mandates publishing online certain details of an agency’s organisation and functions (attorney-general’s was particularly delinquent). Some also fell behind in their disclosure logs, which are required to give the public general access within 10 working days to non-personal information that was disclosed on request.
Such failings, though comparatively minor, reflect the absence of a more proactive information commission that could fulfil its wider role as a champion of open government and a monitor of agency compliance. Such a role was clearly intended by the FOI Act and is not, at present, performed adequately.
Revitalising the FOI regime therefore remains unfinished business on the Commonwealth integrity agenda. While the Turnbull government shows little appetite for change, it may face self-induced pressure from its earlier decision to sign Australia up to the Open Government Partnership. The partnership is an international group of countries committed to pursuing more open and transparent government. Inaugurated in 2011 by eight disparate members (including Indonesia and Brazil, as well as the United States and Britain), the partnership now boasts more than 70 member countries. To join, members agree to an ambitious set of principles, including increasing government information about government, supporting civic participation, implementing high standards of administrative integrity and increasing access to new technologies for openness and accountability. They must also agree to develop a national action plan with public consultation, and commit to independent reporting on progress.
Australia has been a reluctant member. The Gillard government dragged its feet and lost office before making a formal decision. The Abbott government deliberately stonewalled, as was to be expected from its decision to abolish the information commissioner’s office. Malcolm Turnbull, however, with his enthusiasm for data access and his desire to adopt a more liberal-minded stance than his predecessor, was quick to sign up. Since then, a small group within the Department of the Prime Minister and Cabinet has diligently gone through the required steps of holding public consultations, developing an action plan and monitoring progress. The group has developed a flashy website, replete with a “dashboard” and colour-coded graphics. At the same time, the whole process is given little or no media publicity, which is deeply ironic for a project advocating more open and transparent government.
As is typical when governments agree to adopt a “new” strategy, the action plan largely consists of existing programs and initiatives bundled together in new wrapping. In the case of FOI, however, the government has at least been required to pick up several reports that have gathered dust, notably Allan Hawke’s review for the previous office (2013) as well as Barbara Belcher’s on red tape (2015) and Peter Shergold’s on the lessons from the home-insulation failure. The reports come together under the heading of developing “a simpler and more coherent framework for managing and accessing government information that better reflects the digital era”. The action plan also commits the government to adequately funding the information commissioner’s office but says, contentiously, that the government has already committed sufficient funds for this purpose.
The Attorney-General’s Department is responsible for gathering views and reporting to government. We are told consultations have taken place and that this objective is “on track”, no doubt while officials grapple with the difficult task of reconciling community views and government policy. One particularly knotty problem will be how to encourage a more proactive approach to releasing government information without giving a strengthened role to an information commission that the minister gutted.
Though the Open Government Partnership process has attracted little media attention, civil society group are following it closely, and are expected to use it as leverage to further their demand for a stronger FOI regime with a well-resourced information commission. For example, members of the Melbourne-based Accountability Roundtable recently wrote an op-ed for Fairfax Media to that effect. The new Nick Xenophon Team senator, Rex Patrick, also introduced a motion calling for office’s funding to be restored and an independent information commissioner to be appointed. The issue will keep simmering away until a future government has the courage to take it up.
Richard Mulgan is an emeritus professor at the Australian National University’s Crawford school of public policy. [email protected]论坛
This story Administrator ready to work first appeared on Nanjing Night Net.