Information Commissioner: almost gone, but not forgotten

By David Donaldson

October 13, 2014

Professor John McMillan AO
Professor John McMillan AO

The bill to abolish the Office of the Australian Information Commissioner hasn’t yet been passed — it was introduced into Parliament in early October and is expected to go through next month — but the organisation is busy wrapping up its business.

The OAIC centralises three key functions in one office: privacy, freedom of information and government information policy. The Abbott government announced in May that it would cut the agency.

The abolition will split the OAIC’s responsibilities between three offices: the Department of the Attorney-General will take over advice to agencies and publication of guidelines; the Ombudsman will take freedom of information complaints; the Administrative Appeals Tribunal will look after what are now termed requests for information commissioner review.

In spite of the impending abolition, commissioner John McMillan is positive about the record of the office. “We’ve faced a threefold challenge of working towards the closure of the office, finding work for staff, and managing the workloads with our dwindling resources,” he told The Mandarin last week. “And we’ve been successful on all three fronts.”

To minimise the work left to agencies taking over, the OAIC has had to find innovative ways of dealing with its backlog. Where it previously took over 200 days to raise a new freedom of information appeal, they’ve managed to bring it down to 40. Last year the OAIC received just over 500 applications for information commissioner review, and this year they’ve closed over 650.

“To address the backlog … we restructured our IC review resources in late 2013 to focus on early assessment and intervention,” McMillan said. “By implementing an early resolution model we assisted the parties to take the opportunity to resolve issues early in the process rather than focus on the technicalities of the legislation.

“Focusing our resources in this way enabled us to finalise matters informally and quickly and reduce the total number of reviews on hand and the time involved in each matter.”

The agency has had to cut its Canberra staff from 22 to three, though the over 40 employees in the Sydney office have largely stayed put. “We’ve found that almost all staff have found jobs elsewhere. A couple have taken redundancy packages. So that’s been a very successful outcome,” McMillan said.

Measuring the success

He believes the agency has had three big successes. The first achievement, McMillan says, “was demonstrating an integrated approach to open government, privacy protection and information management. Prior to our establishment in 2010, privacy was a separate office, FOI really had no office, and information policy was an undefined function.

“We demonstrated that open government has to move beyond a reactive FOI approach where somebody says, ‘that’s the document I want to see’ and it’s disclosed. We’ve strongly promoted the need for proactive disclosure, open data and dealing with requests on an administrative basis, leaving the formal legal rights as the backstop you go to when other approaches aren’t working.”

McMillan says the agency has been busy. Between 2010 and June this year the OAIC dealt with nearly 6300 privacy complaints, resolved 1345 FOI review decisions and closed 406 FOI complaints. It also published the principles on open public sector information, held a national information policy conference, and organised an annual privacy awareness week.

And the third feat? “I think we achieved a higher degree of consistency across government in terms of FOI practice, privacy practice [and] awareness of information policy issues,” he said. “One of the biggest complaints leading up to the creation of our office was that there was just inconsistency across government. You had pockets of best practice, and you had really substandard practice.

“I think we brought attention to information rights and information policy in a way that hadn’t existed.”

“It was a highly productive period that was really unmatched by any period in the past. I think we brought attention to information rights and information policy in a way that hadn’t existed. There’s no doubt open government and privacy protection became far more important in terms of agency planning and executive awareness.”

On working with the agencies taking over the responsibilities, McMillan says they’ve been meeting with Attorney-General’s fortnightly to discuss progress and have transferred a lot of records and archives — and even a few staff. Discussions are ongoing with the Ombudsman and Administrative Appeals Tribunal as OAIC staff co-ordinate with their counterparts to pass on experience and arrange for any unresolved matters.

McMillan thinks there’s still a lot of room to improve transparency. “It would be far better if the transparency came about through proactive disclosure in a consistent fashion across government, rather than relying on FOI requests to get the information trickling out in an ad hoc manner … it’s largely cultural change.

“The FOI Act also encourages agencies to use the Information Publication Scheme for proactive disclosure of other categories of information, without really spelling it out. That’s a suitable framework … The advantage of doing it under a statutory framework like that is that it makes it accessible to members of the public, they know where to go. They know if they go to agencies’ IPS entry they’ll find it. It creates pressure for consistent presentation across government … That’s what we’ve been promoting as a sensible and effective way to go.”

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