Legal and Constitutional Affairs Legislation Committee
Estimates hearings, 23 May 2012
Office of the Australian Information Commissioner
- Prof. John McMillan, Australian Information Commissioner
- Dr James Popple, Freedom of Information Commissioner
Senator RHIANNON: I understand that you have the power to investigate systemic problems with agencies. I was interested to ascertain how many of these you have conducted. Also, if you had additional resources, would you conduct more?
Prof. McMillan: This is in relation to freedom of information? We have similar powers in relation to privacy. In the freedom of information space we have only initiated one own-motion investigation, and that was an investigation into an aspect of freedom of information processing by the Department of Immigration. The Department of Immigration receives the largest number of requests of any agency, over 11,000 requests in the last reporting year. Over 80 per cent of those requests are handled within the statutory deadlines but there was a particular problem in the larger and more complex requests that are handled by the department in Canberra, so we have initiated an own-motion investigation on that aspect of departmental operation. We have not initiated any other own-motion investigations at this stage. We do have active discussion involvement with agencies where there is regular consultation between our office and agencies about individual problems and systemic issues, but no other formal investigations have been commenced at this stage.
Senator RHIANNON: If you had additional resources, would you conduct more?
Prof. McMillan: There is no other topic that is prominent at the moment. We have an integrated office and, for example, in the last year we conducted I think nine own-motion investigations in the privacy area. Our resources are spread across a range of different functions. There is no other freedom of information topic that we have identified at this stage for an own-motion investigation.
Senator RHIANNON: So I take it that resources is not the determining factor.
Prof. McMillan: Resources are one factor but probably priorities are greater. For example, I mentioned earlier the monitoring we are doing of compliance by close to 250 agencies with the Information Publication Scheme. That is an own-motion activity in a sense and we think that is a higher priority project at this stage.
Senator RHIANNON: I understand 12 months after proactive disclosure obligations on agencies commenced you have just started work to assess how government agencies are complying with their Information Publication Scheme obligations under the act. Could you report on your observations to date of proactive disclosure and how it is going?
Prof. McMillan: That is the project I mentioned earlier that will be in three stages. The first is a self-assessment survey by agencies of their compliance with the Information Publication Scheme. There will be a second round of that survey and then there is a desktop review that is also commenced and over the course of the next three years will cover close to 250 agencies. That is the project. The only information we have at the moment is our own kind of anecdotal, episodic information we pick up from complaints. I suppose I can be summarise it by saying I am heartened by the positive steps taken by agencies but I am aware that there are tensions and issues and there are practical challenges faced by agencies, including resourcing issues for agencies.
Senator RHIANNON: Could you share with us some of those tensions and issues and which departments have those tensions and issues?
Prof. McMillan: I will not name any individual agencies because we have not done any investigations and the act does require that we follow a natural justice procedure before we publicly criticise any agency. Most of our successful work is undertaken by discussion and negotiation with agencies. Among the problems that have been raised with us are publication only of details of information and not the documents online. Secondly, there is the problem—not so much under the disclosure log but under the Information Publication Scheme—of information that was one published being taken down. We are investigating a couple of complaints about that at the moment to see whether it was just part of normal archival practices within the agency or whether there was something more sinister, as the complaint alleges. We have also had complaints, particularly from journalists, about same-day publication under the disclosure log—that is, documents published on the disclosure log on the same day that they are released to the journalists. The complaint is that they can lose the benefit of their request. And we have had agencies raise with us the practical challenges they face in converting hard-copy documents into a web-accessible online form, particularly the costs. So they are among the challenges that have been raised.
Senator RHIANNON: When will you be able to release the assessments you are making and match it up to specific agencies so we can have more details about how each department is performing?
Prof. McMillan: The self-assessment survey by agencies should be completed this month. We have hired a professional firm to help us analyse it. I would hope that we will get their report in the next month. I may be in a position then to publish the details as early as, say, July. Whether I will publish it in an anonymised form or whether there will be a scorecard element—the best-performing and least-performing agencies—is something I have an open mind about.
Senator RHIANNON: A new league table!
Prof. McMillan: Yes, a league table! Without seeing the results, I still have an open mind. As I said, given that this is a new program and that it is at an early stage, we are best succeeding by encouraging discussion between us and agencies about what is good practice. Certainly I expect that we will highlight best practice. It is very easy to identify agencies that are examples of best practice, and that has a profound educative effect, in my experience.
Senator RHIANNON: But you will disclose the problems as well?
Prof. McMillan: Certainly we disclose the problems. Whether we nominate the individual agencies is something that I have an open mind about at this stage.
Senator RHIANNON: Just before we leave that one, what can you do if agencies are failing to comply with this obligation?
Prof. McMillan: Firstly, we can make a report to the agency, which may or may not become public. Secondly, we can make a public statement about that. And I must say, we are not shy about making statements that identify individual agencies. Certainly that is well-established practice in the privacy area. In my former role as Commonwealth Ombudsman I regularly identified agencies that had defective administration. That is an option. Publicly criticising defective practice is a well-established practice for independent oversight agencies like our own.
Senator RHIANNON: Thank you. I would like to move on to the review of charges that you have undertaken. I understand that you have proposed that an agency or minister would have the discretion to refuse to process an FOI request for personal or non-personal information that is estimated to take more than 40 hours to process. I imagine you are aware that there has been some controversy around the 40 hours.
Prof. McMillan: Yes. I was well aware when I published the report that there were a couple of controversial recommendations. I knew that was one of them, and I knew it would attract quite a lot of the debate. Let me explain it, I suppose, in two ways. One is that it was an attempt to make workable a mechanism that is already in the act, called the practical refusal mechanism, whereby an agency can decline to handle a request that would have a substantial and unreasonable impact on the agency and divert it from other functions. It is a very elastic standard which is very difficult to apply across government. So nominating a figure of 40 hours was an attempt to make that reasonable. Secondly, a strong theme in the charges report, in this and in our other work is that the world is changing in relation to transparency practices by governments. The best results are had a by a product of publication by agencies of information on the web. That is where you get the greatest public benefit and access and it is an area where resources can be devoted. In terms of the limited budget in agencies for making information available, I think some priority should be given to that area. At the end of the day, the critical thing is to retain this individual right that people have to go to an agency, nominate the document they want to see and say, 'That is the document I want.' My own view is that allowing somebody to go to an agency and say, 'I want to see these documents,' and for the agency to take 40 hours, which is more than one week of a staff member's time, to handle that individual request, was a reasonable balance between the exercise of a democratic right and the other competing ways that agencies can make information available. But not all commentators agree with that value judgment I have just expressed.
Senator RHIANNON: It would be possible, wouldn't it, that some very important FOI applications may well require more than 40 hours?
Prof. McMillan: Yes, it is. There is nothing to prevent a person then making a subsequent request. The focus of my recommendation—that one and many others—is to develop an FOI process that will focus on the documents a person needs, bearing in mind that quite a lot of information in agencies is no longer held in documentary form. But the focus is to try and narrow that process. Then it is open to a person to come back with another request. But it seems to me from my previous experience that some of the requests I see from individuals that take more than 40 hours to progress are really using FOI as the battleground for another dispute between the person and the agency. That dispute is probably better handled by the Ombudsman or in some other way rather than using an unlimited FOI request as the battleground.
Senator RHIANNON: I want to explore how it could go in the other direction. Some agencies may use this provision to frustrate access to important government information.
Prof. McMillan: That is one of the fears that people have raised, that it is for the agency to initially estimate the 40 hours. That is not a new problem in FOI, that agencies always make the estimate of the charges. But one of our distinct roles is to review the agency estimate of the time it will take to handle a request. We have all the powers we need to require further information from the agency and to go in and inspect its records system if necessary. So I believe that we can perform a genuine oversight role in ensuring that this estimate of 40 hours is a realistic one and not a device for subverting the FOI Act.
Senator RHIANNON: That probably takes us to the issue of changing the culture of how FOI works. I would imagine, just reading your material, that that must be a big challenge that you and the government face.
Prof. McMillan: Yes.
Senator RHIANNON: Would you summarise that your broad endeavour is to get more government information publicly available and have fewer complaints about FOI to investigate?
Prof. McMillan: Yes. The quotation that I most commonly use is one by the minister when he was the sponsoring minister introducing these reforms in the parliament. He said—he may want to join the discussion—that the objective was to move the culture of the Public Service from one of information control to information sharing. That is what we have defined as the cultural objective. I think there have been substantial moves across government. If one looks, for example, at the disclosure logs and at the type of information that is now published; if you look at the changes in agency practice—for example, the Defence practice of now proactively releasing its Hot Issues Briefs; if you look at the staffing levels in agencies, in terms of both the number of staff and the seniority of staff now devoted to FOI and publication; if you look at the level of engagement of senior agency officers now in FOI and publication issues, I think there has been a large cultural change. But, wherever one draws the line between openness and secrecy, you can always move it just a little further towards greater openness, and that is our perpetual challenge.
Senator RHIANNON: If we are trying to obtain that cultural shift, wouldn't it be better to oversight how agencies are dealing with FOI actions? Wouldn't that be critical to achieving that cultural shift?
Prof. McMillan: Yes. And that is why, for example, in the Information Commissioner review matters I mentioned earlier, we have a large backlog. The most effective strategy for reducing that backlog and resolving cases is by discussion between our office and the agencies. More often than not, that consultation results in disclosure to a point that satisfies the applicant—and, after all, that is the objective. I mentioned earlier, for example, that we have an Information Contact Officer Network that is attended by roughly 150 FOI and privacy contact officers every three months when we hold it. These are big changes and very useful forums for productive discussion.
Senator RHIANNON: Yes. At the end of the day, you do wonder if agencies will put information out there that is politically damaging to the government, and to break that down is huge. But we will move on to costs—and obviously, if you have any comments on that, I am interested. What scope do you believe there is for reducing costs and also time to process through more proactive disclosure, culture change within departments—to go back to that—and better use of technology such as agency websites and reduced review costs by agencies being less defensive in making applications?
Prof. McMillan: Can I just go back to your point about whether an agency will ever release information that is embarrassing or critical of the government. I should put on the record that one of the important elements of the reformed FOI Act is that it now declares that embarrassment, confusion or uncertainty following release is an irrelevant consideration. An agency cannot consider that. People say—I hear the comment—that agencies will not do that, but the act declares that to be an irrelevant consideration, so it cannot enter into the reasoning, and we scrutinise the reasoning closely to make sure that it is never there.
Beyond that, I agree with you that the future lies in better digital management of information. We have been in close discussion, for example, with the National Archives office, which recently commenced a digital transition plan, which is an exciting opportunity to move Australia substantially forward in this area.
Senator RHIANNON: I look forward to continuing after the break.
[Proceedings suspended from 18:33 to 20:00]
CHAIR: Let us reconvene this public hearing of the Senate's Legal and Constitutional Affairs Legislation Committee. This is our consideration of the budget estimates for 2012-13 for the Attorney-General's portfolio. I welcome back the representatives from the Office of the Australian Information Commissioner.
Senator RHIANNON: To pick up on some of the themes we were talking about before the break, I was interested in hearing your views on whether the FOI legislation is inadequate. I sometimes hear suggestions that the government's commitment to open government may in fact be frustrated because there are missed opportunities and gaps identified in the new FOI legislation that may need to be fixed. What do you see as the biggest problems that need to be addressed and how do they impact on your work, if you judge the legislation is inadequate?
Prof. McMillan: Let me note firstly that the act does require a review to be commenced by the end of the year. Most of the problems that we have identified are technical problems to do with the processing of requests. For example, what position is an agency in once the time for deciding a request is beyond the statutory time frame? To what extent should it continue work or have discussions with my agency? There are also technical problems when there are multiple parties involved. To this point we have not identified any major structural problems in the balance of the act between giving a right of access and requiring agencies to publish—nor in the exemption provisions, nor in review. Later in the year we will be proposing some amendments to give us a more flexible range of powers for disposing of applications.
I will ask the Freedom of Information Commissioner, James Popple, if he has comments, but I will make a final comment and it is something that we often have to remind applicants about. If you go down the path of framing a freedom of information act request, it will not necessarily be as straightforward or as easy as you want. The act necessarily requires you to identify the document that you are seeking and you are probably unaware of the exact title of the document. It is commonplace and not surprising that many requests are framed too broadly or in terms that are difficult for agencies to comprehend. Consequently, there often is a need for discussion between applicants and agencies to clarify exactly what it is they are after or what documents record that information. That explains why one of the chief themes in the report I did on charges is that freedom of information will work better if it is formally supplemented by schemes of administrative access that will be used firstly by an applicant before they decide it is necessary to exercise their formal legal rights under the FOI act. I will just see if James Popple has any other lists of particular problems with the act.
Dr Popple: The only thing I would add to Professor McMillan's answer is around the issue of charges. As he says, those have been dealt with in the recently released charges review, but there is also the systemic issue about the exercise of the discretion that agencies and ministers have to reduce or waive charges. That is an important thing. It is important that it is in the act. But the way it works is that frequently we need to do an IC review, as it is called in the act, which is a merits review of decisions that are really preparatory decisions about whether or not someone should pay or how much, even before you get to the substantive question of whether or not the documents can be released or whether they can only be released after having been edited. So a disproportionate amount of our time is spent dealing with issues that are important but still do not go to the substantive question about whether or not the documents should be released. That is something I think we will be taking up in the context of the review later this year that Professor McMillan referred to.
Senator RHIANNON: You said that most of the problems are of a technical nature and not structural. Should I conclude from that that you do not think the legislation itself has to change but more the management of some aspects? Is that a fair summary?
Prof. McMillan: Certainly I do see the need for legislative amendment of some provisions. I have made recommendations to that effect in the charges report. For example, one recommendation is that the provision that deals with waiver of fees on public interest grounds could be better framed. But the essential structure of the act is good—that a person can make a request and an agency has a legal obligation to assist the person, to decide within a certain time and can only withhold if the document falls within one of a number of exemptions, and there are rights of appeal internally to my office and then the Administrative Appeals Tribunal and there are also disclosure obligations. I think it is a good act and that it embeds the legal right of access quite well.
Senator RHIANNON: It looks like at this stage the only amendment would possibly be around charges, but that could change.
Prof. McMillan: That would be my recommendation. But the review of the act later in the year will be public. There are other limitations in the act that I am sure will be taken up. For example, the act does not apply to the security intelligence agencies. I know that there are some who feel it should. That will be a live issue. The US FOI Act does apply to the CIA. That is a major issue, obviously. I am sure it will come up.
Senator RHIANNON: Have you got a view on that one?
Prof. McMillan: No, I do not have a view on that at this stage, except that to the extent that I have contact with the security intelligence agencies I would say, 'It is best that you develop practices that model FOI procedures.'
Senator RHIANNON: That will be interesting to explore. I just want to finish up on the KPIs. It has been raised with us that they have been quite modest. 'Unambitious' was one word given to me. I understand that 80 per cent of the reviews are to be completed in six months and 80 per cent of FOI and privacy complaints are to be finalised within 12 months. Would you describe them as unambitious?
Prof. McMillan: In terms of the present performance of the office, those are ambitious targets. For example, in relation to IC reviews, we have at the moment around 200 that are beyond the 150-day mark for reasons that I addressed earlier. So a target of doing 80 per cent within six months is ambitious and will give us great satisfaction if we do that. In the following year, it may be appropriate then to have a much tighter target. But, again, everybody wants these processes to go quicker, but the reality is that they almost inevitably take longer than everybody involved in the process would like. You get an application from a person, who takes a few days or a week to clarify it, and then you send it to an agency and get their comments and before you know it two or three months can have passed. If there is a disagreement, two or three months can zip before your eyes. I think they are realistic targets at the moment, and the real challenge for us is to meet them by the next budget round.
Senator RHIANNON: So the challenge is to meet them within the budget—is that what you said?
Prof. McMillan: These KPIs are defined in the budget papers, so I am putting it in the terms that the challenge for us is to meet those targets by the time the next round of budget papers is prepared. But yes, you are right: budget is relevant in another sense; we have to meet them within a tight budget as well.
Senator RHIANNON: That is what I wanted to understand. Did you mean by that that if there were more resources those percentages could be different?
Prof. McMillan: We are realistic, looking at all the government announcements and the firm commitment to efficiency dividends and to reducing the deficit, that there will be no extra money in this budget. But, as I foreshadowed, we have a number of projects underway in-house to try to tackle the backlog and to develop different ways of doing our work. If those projects do not achieve these targets then certainly we will have something to say to this committee, or elsewhere, about our budget level.