That theme was illustrated in yesterday's Legal and Constitutional Affairs Legislation Committee Estimates hearing [PDF] -
Office of the Australian Information Commissioner [16:02]
Senator RHIANNON: We will start with the Open Government Partnership. Could you give us an update of where this is up to, because I had understood from some of the material that I was reading that there was an expectation that Australia was down to formally complete preparation by April 2014, when the steering committee next meets, which I think is in Indonesia. Are we on track?
Prof. McMillan [OAIC]: I am not the one to give the update. I think the question will have to be directed to the department, as I have had no formal involvement in the discussions beyond supporting Australia's membership in various speeches and commentary.
Senator RHIANNON: Mr Wilkins or Senator Brandis, could you give us an update on where the Open Government Partnership is up to, and Australia's approach to enter this?
Mr Wilkins [Attorney-General's Dept]: That was actually for this morning, I think.
Senator RHIANNON: So you cannot—
Mr Wilkins : All I can tell you is that it is progressing and there has been some discussion amongst departments. There is some issue about which department should ultimately be charged with taking it forward, but that is about all I know of the top of my head.
Senator RHIANNON: But wasn't it that we were about to become part of the Open Government Partnership?
Senator Brandis: I can give you some information about this. Australia announced its intention to join the Open Government Partnership on 22 May last year. There have since been three interagency meetings to discuss progress, including the requirements of an action plan. One of those meetings was held before the elections, on 17 July, and the other two have been held since the election, on 29 October and on 5 November. So the action plan is in development. I hope that helps.
Senator RHIANNON: So can we meet the deadline? I understand the meeting of the Open Government Partnership is in April 2014. Will we meet the deadline with regard to submitting our national action plan?
Mr Wilkins: My understanding is that it is not a deadline, actually.
Senator RHIANNON: Much of the material you read—with due respect—certainly presents an expectation that we were going to enter at that April meeting and that the national action plan is not ready. If that is not the case, it would be very good to get that on the public record. That is what I am trying to explore.
Mr Wilkins : As I said, we had people up here this morning to answer these questions. I did not realise it was going to be raised this afternoon, so I suggest we take it on notice.
Senator RHIANNON: I understand that, if we do not get our action plan in by April 2014, Australia and Russia would be the only countries to have indicated that they were going to do that and then effectively withdraw because they failed to meet the deadline.
Senator Brandis: Senator Rhiannon, your sources in Russia would be better than mine.
Senator RHIANNON: Senator Brandis, you are the one who is closer to Mr Putin.
Senator Brandis: There is an assumption in your question which is not necessarily right, as Mr Wilkins has pointed out to you, so I think it is really a hypothetical question.
Senator RHIANNON: It is not hypothetical. This is your opportunity to put it on the record so people know, so it is not secretive. You are the one who is running the secretive government here, Senator Brandis.
Senator Brandis: Senator Rhiannon, if you had asked this question at the appropriate point in the estimates this morning, when the officers with direct responsibility for this work were here, then you would have got an immediate answer. But none of the officers with responsibility for this work are here, because you have decided to ask your questions in the wrong part of the estimates program. Anyway, we will take it on notice and get back to you.
CHAIR: We are dealing with the Australian Information Commissioner.
Senator RHIANNON: Yes, thank you. This is for the Information Commissioner. I notice that section 3 of your act requires prompt action, and that word 'prompt' is obviously very important, but when you look at the annual report there are those worrying figures about how some things are taking so long. Could you indicate how you are working to ensure that you can undertake your work in a prompt manner.
Prof. McMillan : Thank you, Senator. It is a concern to the office that there is a delay in dealing with some of the applications for IC or merit review of FOI decisions, FOI complaints and privacy complaints. Our figures on the delays and on the workload are published quarterly on the web and we have drawn attention to them quite often. But I must say that, while it is a genuine concern to the office, we continually strive for better, more efficient performance. For example, the figures published on the web in December indicate that the rate of completion of cases has risen in IC review cases to 1.4 cases per day, compared to 0.7 in the previous annual report. Similarly, the completion of privacy complaints has risen to six per day, compared to 3.79 in the previous annual report. In the last three years, we have published 163 OAIC review decisions and closed probably over 900. So 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—as you have indicated, senator—emphasises a prompt dispatch of FOI matters.
Senator RHIANNON: I did notice your comments recently about the departments gaming the system. Could you explain what you meant by that, particularly in the context of what you are suggesting is that some departments may know that they can get away with not actually responding in a timely and proper fashion.
Prof. McMillan : My comment was made in a speech I gave last year and it has been repeated a number of times since, in which I said: A related concern is that agencies may seek to game the system by denying access in the expectation that review applications will sit in an OAIC queue. I then added a comment that is not as often reported, that it is: … a perception that we counter by active management of cases from the date of receipt. But clearly it is a concern to the office that, if there is a perception that a denial of access will take some time independently to review, a denial may sit in a queue until the sensitivity is taken out of the issue. But, that said, the reason I am public about it is to discourage behaviour of that kind. 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.
Senator RHIANNON: That is very welcome news to hear about a change of culture. With the gaming or the possible 'let us just deny it' attitude, are we just talking about a couple of agencies or 20 per cent? I imagine why that is being quoted widely, because people were concerned to read that. So we just trying to understand where it is at now.
Prof. McMillan : As I said, our figures indicate that we receive upward of 500 OAIC review applications per year and 150 or so FOI complaints. In addition to that, there is a much larger number of FOI requests to agencies. It is difficult in numbers of that kind and where things are shifting around and, as I said, we are closing equivalent numbers each year. It is difficult to quantify or put a metric around what is good behaviour, what is bad behaviour and what is acceptable or mediocre behaviour. Equally, whenever I have been asked about the gaming comment, I have always said, 'Look, I am not naming individual agencies, because it would require an individual process involving procedural fairness before anybody was known.' But it is a concern I have and there are instances in which the office works hard to ensure that FOI matters are resolved and documents are released without the need for a published OAIC review decision. Eighty per cent of our cases are resolved on that basis. So, as I say, it is as much a perception or a worry issue that we are addressing there.
CHAIR: We might have to leave it there. Could I just ask a question. You mentioned that reviews were requested in denial of access cases. Also, there are reviews from where access is given but the party involved appeals. Is that right?
Prof. McMillan : Yes. CHAIR: What is the percentage?
Prof. McMillan : That is sometimes called third party review. That is one area, I might say, where we have a distinct concern that if an agency has made a considered decision to release documents and then a person or a company who was consulted during the process objects, they have the right under the FOI Act to lodge an application for an OAIC review. That prevents the release of any documents until the review process has run out, which can include a right of appeal to the AAT. That is one area. It is not necessarily government agencies that could take advantage of that—what I have called gaming the system.
CHAIR: There may be legitimate claims—
Prof. McMillan : There may be.
CHAIR: why the release of information by the department is wrong and legitimate reasons why there are requests for reviews. I understand from a recent involvement that I had that it was something like a year before a matter could be heard. Is that correct?
Prof. McMillan : Yes, there are cases in which there are delays in excess of that. At the moment, many cases that are coming in go through an early resolution triage process and are resolved quite early, but once we decide that a case has to move to the OAIC review queue—in which a decision under the act can be made only by one of the three commissioners—there can be a delay in excess of a year, but not always.
CHAIR: Do you have statistics to quantify how many of the review requests are in relation to denials and how many are in relation to agreement given, but with a third party objecting?
Prof. McMillan : Yes, there are detailed statistics on all of those matters in the annual report. I do not have them at hand, but I am happy to independently draw attention to some of those statistics.
CHAIR: Thank you for your attendance here. Thank you, Mr Wilkins, for writing to me in relation to the Royal Commission into the Home Insulation Program. The better thing is to table this letter. Are you happy to do that?
