Uncategorised 23rd November 2016

Information Access Law and Practice-What you had to say

by Peter Timmins

Further in the series- Issues raised in Submissions on Draft National Action Plan

Commitment 3.1 Information management and access laws for the 21st century 

A hot topic with comments and suggestions emphasising the law and practice concerning the right to access government information-the cornerstone of our democracy-requires a commitment to more support, resources, effective oversight and leadership, as well as a comprehensive review. And disappointment with the draft commitment’s somewhat confusing focus on simply developing a ‘new model framework’ that government will consider ..’if necessary.’

From the PM&C round up:

(Note: This Submission from Professor David Weisbrot of the Australian Press Council not mentioned.)

Nigel Waters    Pacific Privacy (consultancy)    

There needs to be a reversal of cuts to the OAIC, which undermine the FOI laws.
Derek Screen    Individual  

Reverse attacks on the OAIC and the cuts to the OAIC
Tim Smith    Accountability Round Table    

The actions taken by the Attorney General to abolish the OAIC and the subsequent reduction in funding and resources have prevented the OAIC from carrying out its statutory functions and responsibilities. These actions are in contradiction to the purposes and objectives of the OGP.

The OAIC will continue to be unable to address its statutory functions and powers, and be unable to perform its proposed NAP duties and obligations (specifically referenced in draft commitments 2.2, 3.1 and 3.2).

The Government’s approach to OAIC funding and resourcing for at least the next two years (as discussed at the most recent Budget Estimates) will hinder the implementation of the NAP and result in the continuation for at least two years of Australia’s serious breaches of Australia’s commitments and obligations as an OGP participating nation.

– appointment of the FOI commissioner;
– additional resourcing be provided to enable the OAIC to discharge its functions;
– the OAIC requires a presence in Canberra;
– the Government to put out a public statement clarifying its position on the intended resourcing, financial and human, of the OAIC to cover all its statutory functions and proposed National Action Plan functions and the Interim Working Group to change all aspects of the present draft which are in conflict with, or fail to address the objectives and principles of the OGP;
– put the public consultation on hold until the above statement has been released, with new timetables for the finalisation of the NAP prepared by the Interim Working Group.

This is important because: the function of the OAIC is fundamental to strengthening the rule of law; Australia could fail the OGP’s requirements; and our reputation and leadership potential in the OGP will be more seriously damaged.
Amanda Lawrence    Australian Policy Online  

This should also take into account the need for fair use principles in intellectual property laws and the findings of the Productivity Commission draft report on IP reform and the final report yet to be released publicly. Copyright is a key issue preventing effective management of public information including data, documents and other resources.


Justin Warren    PivotNine (consultancy)  

Commitment is vague. Appears to concentrate on creating options for a model of a framework. Should provide more concrete milestones. Any amendment to the FOI Act should consider: ensuring that oversight functions are adequately funded as part of the legislation; and entities who abuse the FOI Act by being overly restrictive in their redactions or demands for processing payments should suffer sanctions. Information that should have been published already should not require an FOI processing charge.
Jack Mahoney    OGP Support Unit 

Milestone 1 – will this be developed through multi-stakeholder input? Is it possible to be more specific about models of access to info laws? Are we talking about the legislative framework, institutional framework for implementation/monitoring/redress, or all of these things?

Milestone 4 – the ‘if required’ in parantheses will create concerns that the final model is already a done deal. Should it also say mid-2018?
Nigel Waters    Pacific Privacy (consultancy) 

Supports this objective – but it should not swing away from privacy protection where personal information is concerned, but also ensure access to business/corporate information is not hindered by reforms.

Recommends harmonising privacy and FOI laws across all jurisdictions – current inconsistences are a major impediment to clear public understanding of the laws, rights and obligations and all too often lead to spurious claims that privacy prevents uses and disclosures of information which is clearly in the public interest. COAG processes should be used to further harmonisation.

There needs to be a reversal of cuts to the OAIC, which undermine the application of FOI laws.

Consider moving responsibility for FOI from AGD who is conflicted in having responsibility for FOI and national security and law enforcement – which will always prevail when there is a tension.

Steering Committee of the Australian Open Government Partnership Network

The Ambition section of this commitment should be included in the commitment statement – “to ensure information access and management policies and practices are similarly modern and appropriate”.

A multi-stakeholder group should be  established to manage a comprehensive review of the FOI Act.

OAIC needs to be properly resourced to support this review.

Milestones only meet an extremely limited goal – the development of a new model framework for the government to consider. The commitment stated is broader than this. The ambition of the milestones should be lifted to lead to Australia ensuring modern appropriate information management and access laws, policies and practices fit for the 21st century.
Karen Burgess    The BubbleGum Club    

The current FOI framework are used in a way that prevents access.

Often information is not in an accessible format.

Deepening of appropriate access to people’s information and better protection around rights for people with a disability to gain access to their own information in a written, visual or auditory format.
Dr Madeleiene Roberts        

Requires a whole of government approach to achieve the commitment and increase the public’s confidence: there needs:
– a requirement to clearly document and explain the reasons for decisions;
– a culture of open decision-making; and
– shared responsibility for poor decisions.

Need to re-examine and modify the security classification system
Moira Paterson    Monash University    

There are 3 issues that stand out:
1. The need for more high level championship of FOI and the implementation of a pro-disclosure culture
2. The need to ensure that the OAIC is appropriately resourced and staffed to enable it to fully carry out its functions
3. The need to implement Dr Allan Hawke’s recommendation that there should be a comprehensive review of the Freedom of Information Act

Stan van de Wiel    Individual  

There is no obvious control on the processing of requests within the agency . When it comes to appealing to the AAT or the Commissioner, the agency will only release selectively (if at all), knowing full well that the “public” is rarely able to take matters further.
Evelyn Doyle    Individual (2) 

• Strengthening of the Freedom of Information Act including cultural change within government to public access to information.
• Funding the OAIC adequately to oversight FOI policy, manage complaints and reviews as well as consider punitive action where breaches of the Act have occurred. These punitive actions could be in the form of fines to the responsible agency.
• Continue the work of open data which would provided clearer and useful information on contracts, grants and procurement processes in addition to improving FOI. This will have a benefit to both agencies and the public in reducing workload once the structures are in place.
• Implement mandatory workshops within agencies to clearly outline obligations to the FOI Act in the same way that Security Training is provided.
• Foster a culture of admitting mistakes as an opportunity to learn and improve processes.  This will have a positive flow-on effect to FOI.
Paul Murphy    Media, Entertainment and Arts Alliance 

Disturbing trend being displayed for government to frustrate legitimate scrutiny of government by the public and by the media on behalf of the community. Open and transparent government should mean that the default position of information should be freedom of access. A thorough review of freedom of information laws – and attitudes – within government is needed.
Mozart Olbrycht-Palmer    Pirate Party 

Reduction of exemptions so that more documents are accessible by the public, including the removal of exemptions for deliberative materials.
Natasha Molt    Law Council of Australia  

The Law Council notes that it has been specifically included as a non-government actor in relation to this Commitment. In light of the matters raised above, the Law Council looks forward to participating in the public consultation process regarding any proposed amendments to the FOI regime.
Kat Lane    Australian Privacy Foundation    

We support this objective provided it doesn’t swing the balance away from privacy protection where personal information is concerned.

Harmonisation of privacy and FOI laws across all Australian jurisdictions (by levelling to highest common standards) should be a high priority.
Tim Smith    Accountability Roundtable (4) 

Necessary that the OAIC have the required funding to carry out its statutory FOI functions and its intended responsibilities.

No necessity for the Attorney-General’s Department to be the lead agency.
What is needed is an independent national statutory body to fill that role, such as the Australian Law Reform Commission.
Cassie Findlay  

Commitment lacks detail.

Need to address the complexity and conflict amongst the existing laws. Commitment should emphasise the need for harmonisation as well as modernisation.

Include information security requirements for government information and
government policy and directives on open data in the scope of the review.

Ensure that indigenous Australians including the stolen generations, and care leavers, are explicitly included for consultation, and that this is stated in the commitment.

Brendan Manning  

Outcomes being sought do not satisfy many concerns addressed by Dr Allan Hawke’s review of Freedom of Information Laws.

Need to promote a culture of disclosure and transparency.

Public servants must continue to be frank, fearless and professional in the provision of advice of ministers, knowing that the FOI Act provides the necessary protections should they be required.
Henare Degan 

Be more specific. It doesn’t get much more vague than “consider options”.

Needs to include more ambitious plans. An example might be legislating that datasets must be proactively released if they get requested via FOI.
Luke Bacon      

Great to see government and civil society coming together to identify
improvements to public access that can be made by improving our FOI and records

A measurable aim, like ‘increase the number of government documents made accessible in response to information requests’ for example, would help us achieve concrete improvements for citizens as we implement this commitment.
Peter Timmins  

The action steps listed as milestones reflect a narrow less ambitious plan. The milestones should set out the path to be followed to ensure law and practice are fit for the 21st Century.