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Old 15th Dec 2013, 23:04
  #1651 (permalink)  
Join Date: Apr 2007
Location: Go west young man
Posts: 1,732
Bureaucratic obfuscation of the FOI and the PAIN initiative??

Although Fort Fumble are not on their own in taking the Mickey Bliss when it comes to the FOI Act, they are perhaps close to the best at it and have a long and checkered history of doing so...why?? Put simply they have much to hide and protect from the prying eyes of 'Joe Citizen' and many members of the IOS.

The FOI Act has a relatively short history (1982) but much like the RRP it is very much convoluted, debated, reformed...err deformed and reformed.... So much so to actually outline a full history timeline would put most on here to first session drinks on day four of the Ash's test.

Therefore let's just go back half a decade to the year 2009 where there was a Rudd government initiative, message from (former) Cabinet Secretary Senator Faulkner....

"....A key Government election commitment was to restore trust and integrity in the use of Australian Government information, and to promote greater openness and transparency.

One of the ways the Government intends to deliver on this commitment is through major reforms to the Freedom of Information Act 1982.
Both in practice, and as a symbol, ‘freedom of information’ represents the pinnacle of citizens’ right to know: a legal requirement to give the Australian community access to information held by the Australian Government....

....To fulfil the rest of our election commitments the Government will later this year introduce further bills into the Parliament containing broader reforms. These bills will deliver the first substantial overhaul of the Freedom of Information Act since the Act’s inception in 1982.

Information held by the Government is a national resource and should be managed in the public interest. Access to government information increases public participation, and leads to increased scrutiny, discussion, comment and review of government activity.

Given the importance of the FOI Act in making this possible, it is essential that these proposed reforms are discussed and evaluated as widely as possible.

To this end, I am pleased to release exposure drafts of the Information Commissioner Bill 2009 and the Freedom of Information Amendment (Reform) Bill 2009 for public comment...."

{Note: There were 45 FOI reform exposure draft submissions, some of which are well worth a read...}

This initiative led (amongst other things) to the introduction of the Office of the Australian Information Commissioner (OAIC), however the jury is still out on whether we are left with a better functioning and principled FOI Act as per Senator Faulkner's message??

Trolling the submissions I came across one in particular (ps Thanks to the IOS member who pointed me in the right direction....) which is significant in light of the PAIN request: Whistleblowers Australia (my bold)...
"... The first problem was that the bureaucrats were given extra ordinary discretionary powers which enabled them to deny or frustrate public access to information. Exemptions were claimed because they were available, and not because they were "necessary for the protection of essential public interests".

In fact, most exemptions claimed were simply for the protection of bureaucrats, and in some cases, their political masters. Or in other words, the exemptions were persistently claimed to avoid transparency and evade accountability.
But simply claiming exemptions for those matters would highlight those accountability issues and attract attention to them. In so doing, it would actually cause questions to be focused on those particular exemptions. So the trick used by bureaucrats was to claim every exemption possible, thereby burying the specific accountability issues in a forest of other exemptions.

The second and more important problem was that there was nothing to stop bureaucrats from following this course of action. It was not an offence to wilfully and deliberately obstruct access to information which should have been provided under the act...."

And this is where it gets interesting (i.e. PAIN initiative) so hang in there...

"...The 1986 Brazil Direction was a direction of Cabinet. It required that “agencies are not to assert legal professional privilege unless real harm would result from disclosure of the information (see Brazil Direction). The phrase real harm distinguishes between substantial prejudice to the agency’s affairs and mere irritation, embarrassment or inconvenience to the agency.”

The direction was binding on all agencies and it remains in force (see FOI Memorandum at PMC web site).Yet it has been totally ignored by agencies since 1986. Agencies flagrantly disobeyed that direction at will. As a consequence that unchallenged disobedience has rendered impotent the powers of the Parliament, Cabinet, Ministers, and the courts and tribunals. Yet not one bureaucrat has been held to account for a breach of that lawful direction. This conduct is clearly a breach of the Code of Conduct yet no disciplinary action has been taken against any bureaucrat for breaching that code.

This is a single but powerful example of the contempt shown by bureaucrats for directions, policy statements and guidelines issued by the Government, the Cabinet and Ministers.

Because bureaucrats or agencies were never sanctioned for non compliance with lawful directions they have continued to flagrantly ignore the Objects of the Act, the FOI guidelines and Memoranda, the model litigant policy and/or the directions under the Judiciary Act.

There is no record of any bureaucrat being held to account under the Code of Conduct for abuse of process under the FOI Act. This is despite repeated complaints by the courts and the media and the public about the abuse and misuse of the FOI Act by bureaucrats.

Neither of these problems have been resolved in the Exposure Draft. Most importantly, the Information Commissioner has been denied powers to directly act against such misconduct...."

History will show that the WBA submission and recommendations (like so many other excellent, insightful, constructive, submissions in similar type consultation processes..), was duly ignored by the powers to be andthe Exposure Draft was largely left untouched/ unamended. Subsequently the WBA prognosis/ prophecy, as outlined above, has come into fruition.

In the case of Fort Fumble's obfuscation of the FOI Act, we went from loading up a train of sometimes totally irrelevant exemptions, to a case of selective interpretation of individual but still largely irrelevant FOI exemptions to thwart the possibly embarrassing release of certain FOI requested information. How we progress..not..

Therefore I fully support the PAIN initiative, you have to start somewhere and S42 (LPP), S47F, S47G is as good a place as any....

{Comment: Might I suggest that 47E (see below) should be added as I came across a disturbing case where (once again) the smoke screen of the mystique of aviation safety has reared its ugly head, in this case the Information Commissioner was a victim of MOAS Syndrome...more to follow on that fairy tale}
47E Public interest conditional exemptions—certain operations of
A document is conditionally exempt if its disclosure under this Act
would, or could reasonably be expected to, do any of the
(a) prejudice the effectiveness of procedures or methods for the
conduct of tests, examinations or audits by an agency;
(b) prejudice the attainment of the objects of particular tests,
examinations or audits conducted or to be conducted by an
(c) have a substantial adverse effect on the management or
assessment of personnel by the Commonwealth, by Norfolk
Island or by an agency;
(d) have a substantial adverse effect on the proper and efficient
conduct of the operations of an agency.
Note: Access must generally be given to a conditionally exempt document
unless it would be contrary to the public interest (see section 11A).
Addendum: Link for pdf - FREEDOM OF INFORMATION ACT 1982:FUNDAMENTAL PRINCIPLES AND PROCEDURES (ref: Brazil Direction Appendix 2)
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