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Freedom of Information Amendments proposed

Posted on by Kat Szuminska

On 23 August 2018 the Senate referred the Freedom of Information Legislation Amendment (Improving Access and Transparency) Bill 2018 to the Legal and Constitutional Affairs Legislation Committee for inquiry and report by 30 November 2018.

Here is OpenAustralia Foundation’s submission to the Senate in response.

Prepared by Ben Fairless, Katherine Szuminska, James Polley, Matthew Landauer

Summary
Amends the: Archives Act 1983 to require the reporting of external legal expenses incurred by the National Archives of Australia; Australian Information Commissioner Act 2010 to: ensure that the Information Commissioner holds specified qualifications; and require the separate appointment of the Australian Information Commissioner, the Privacy Commissioner and the Freedom of Information (FOI) Commissioner; and Freedom of Information Act 1982 to: enable the transfer of Information Commissioner reviewable decisions to the Administrative Appeals Tribunal (AAT); require the consistent application of exemptions by decision makers in the context of a review by the Information Commissioner; prevent the Information Commissioner from making FOI decisions if he or she does not hold specified qualifications; prevent agencies from publishing FOI information until at least 10 days after the applicant has received his or her copy of the information; and require the reporting of external legal expenses for each Information Commission or AAT FOI matter that has concluded.

Bills of the current Parliament

The OpenAustralia Foundation would like to thank the Senate Standing Committee on Legal and Constitutional Affairs for extending this opportunity to make a submission to the Committee’s inquiry into the Freedom of Information Legislation Amendment (Improving Access and Transparency) Bill 2018 (the Bill).

Over the last few years the government has acted to undermine and disempower the OAIC, reducing scrutiny of its actions and limiting access of citizens to government information. We broadly support the intentions of the amendments as they serve to reduce some of the ways in which the OAIC has been undermined.

We broadly support the intentions of these amendments, as laid out in the explanatory memorandum, and comment on a number of the amendments.

We recommend that the committee support many of the following proposed amendments

The OpenAustralia Foundation (OAF) recommends that the committee support many of the the amendments proposed in the Freedom of Information Legislation Amendment (Improving Access and Transparency) Bill 2018 (the Bill).

The OpenAustralia Foundation recommends the committee support proposed amendment 1 –  the Archives Act 1983, 55B, reporting on legal expenses we support this amendment.We further encourage the committee to consider if, in 2018, it isn’t unnecessary to wait up to 12 months for the public to know how much the government spent on external lawyers to challenge Freedom of Information (FOI) requests. We therefore respectfully further suggest that this information be required to be ongoingly reported. For example, this information could be declared publicly online within 30 days, in a machine readable format, on their own website, and uploaded to a public repository such as data.gov.au. Summaries would then easily available and downloadable, for the Annual Report, as well as reuse by others who report this information independently, and for external researchers use.

Amendments to Australian Information Commissioner Act 2010 and Amendment 2  At the end of section 10, Amendment 3 Subsection 12(2)

The OpenAustralia Foundation supports qualified assessment of FOI reviews by a sufficiently resourced, fully Independent FOI Commissioner who has appropriate qualifications and who has demonstrated support of FOI as a vehicle for giving people the right to access information.

To the extent that this amendment removes a loophole under which an unqualified Privacy or Information commissioner could exercise the FOI functions, we support this amendment.

Amendment 4  At the end of section 14 Separate commissioners to be appointed

We support the intention that each Commissioner’s appointment be a separate person, so that one person is not doing the work of three people.

The OpenAustralia Foundation broadly support amendment that the office not be left open for more than 3 months is useful in the short term. It’s a defensive maneuver to ensure that the role be not effectively ceased by leaving it open.

However, we have a question about this. Is it possible to compel the executive to make an appointment? Or give the power to the Senate or the House to appoint someone if the position remains vacant for a period of time?

While this comment is beyond the scope of consideration by the committee, the OpenAustralia Foundation would like to suggest a more sustainable way to ensure the role be usefully maintained. Introduce a more robustly Independent process, where the appointment of Information Commissioners is not dependent on the support of the executive that they are there, ultimately, to hold to account.

It’s time for a full review of Freedom of Information

While OpenAustralia Foundation is recommending the committee support this amendments bill, we do so as it is the only thing we are aware of before Parliament that seeks to improve access to information.

We note the recommendations of Dr. Alan Hawke in the 2012-2013 review and the suite of recommendations that yet lie unexplored and untapped in the provision of better FOI service for everyone.

In Australia’s first Open Government Partnership National Action Plan, the Government committed to a range of reforms including Information management and access laws for the 21st century. This too remains stalled or incomplete.

Freedom of Information is essential to a secure democracy

The Government holds information gathered on behalf of the Australian people. The Government is required to make documents in the public interest freely available to the public. Governments also need to give open access to people wanting specific information.

Australia was an early adopter of securing the rights of everyone to access information, but the rest of the world is moving quickly and we’re now falling behind.

Only half a dozen countries secured the rights of everyone to access information when Australia enacted the Freedom of Information Act 1982. As of September 2013, at least 95 countries around the world now have Freedom of Information laws. These are also known as Access to Information and Right to Information laws. [1]  A number of countries have enacted FOI legislation since this report, taking the number to well over 100. This access is a key component of transparency, accountability and civic participation. It’s a way for everyone to scrutinize Government and public sector information, to become better informed, and to take full part in our democratic system. FOI is increasingly strengthened as part of Open Government initiatives, in which Governments are expected to be open and promote openness.

The last time we wrote to support retaining the Office of the Information Commissioner (OAIC), Australia ranked 47th in the world, and today that ranking has further slipped to 65th in the global index of right to information standards. [2]

We can do much, much better.

RightToKnow.org.au

Freedom Of Information (FOI) is a crucial part of the checks and balances in any democracy, and key part of transparency and accountability of Government.

The process of making a freedom of information request is not very straight forward. OAF created the RightToKnow.org.au site with the aim of demystifying and simplifying this process and helping more Australians make FOI requests.

The site not only shows all requests but the paper trail of correspondence in pursuit of the request from those requesting documents and those holding them. Read more below at About RightToKnow.org.au

The site provides an unparalleled public view of the workings of the Australian Federal FOI system.

RightToKnow collects evidence

OAF facilitated 1627 requests in 2017, and 1787 so far in 2018 FOI requests and their related correspondence made to local, state and Australian Federal authorities through RightToKnow.org.au

OpenAustralia Foundation sees how many requests were unsuccessful (refused or did not turn up any documents), and just how many remain unresolved. These await reply, await classification, are overdue, or long overdue for a response. RightToKnow doesn’t provide a way to follow  them through to Information Commissioner review currently.

The OAF has previously provided information relating to unsuccessful requests to earlier inquiries. We are currently compiling the latest statistics and will publish them here as soon as they are available.

Australia needs a fully functional and fully independent OAIC

For accountability, everyone need access to a free merit review system administered by an effective independent office.  We already have that office, in the Office of the Australian Information Commissioner (OAIC). Underfunding the OAIC, then complaining that IC reviews take too long and using public money to hand appeals over to the Administrative Appeals Tribunal (AAT), a system that is inherently more expensive to administer each decision, and which requires legal representation on both sides, looks like a heavy handed, inefficient move at increased cost to the Australian public.

Delay release by the Agency or Minister to the public, by default

Amendment 8  Subsection 11C(6) where the  agency or Minister delay public release of information released to the applicant.

In response to amendment 8, the OpenAustralia Foundation understands that FOI is applicant blind. 10 days is a fairly lengthy delay by default, however delaying release by default can also be a safer option. We’ve seen examples on RightToKnow just in the last couple of months where private information was erroneously published; therefore it makes more sense to default to a delayed release to give both sides a chance to review what’s about to be released.

We note that this would be possible to implement across the board in RightToKnow, and is a provision we have been actively considering.

We note the importance that this provision only binds the agency or Minister; it doesn’t prevent the applicant from making the information they received public immediately.

*Time limit for publication
(6) The agency or Minister must comply with this section within 10 working days after the day the person is given access to the document.”

Further to this provision, there is an opportunity to clarify that documents should be published at this time. Currently what’s required to be published in disclosure logs is a way to access the documents, and not necessarily the documents themselves. This is interpreted by some to not publish the documents online.

Keep Freedom Of Information Free for Everyone

Amendments 9  Subsection 29(1)(d) and 10  After subsection 29(5) suggests granting an exemption of fees if the application processing costs are under $1,000.

The OpenAustralia Foundation opposes amendments giving different rights of access to Members of the House of Representatives and Senators. We believe that the existing 5(b) public interest test would be sufficient here – that is, if the cost is low and a Senator or Member is requesting the information, we believe that it’s likely to be in the public interest that charges are waived..

We believe that making exemptions for politicians makes it more difficult for politicians to notice problems with the legislation that affect everybody else using it.

If this amendment has been suggested because of an understanding that Parliament is currently paying too much in order to have FOI applications approved, we believe this indicates that costs are too high for everybody and would prefer to see them dropped overall rather than an exemption being made for Senators and Members.


Fund the OAIC, and let it serve the Australian Community. Keep Appeals Timely and Free, for Everyone

Amendment 12:  At the end of Division 6 of Part VI, 55JA   Procedure in IC review—notice requirement if lengthy review and 55JB   Procedure in IC review—transfer to Tribunal

To give ordinary users of FOI access recourse when their requests are denied, refused or avoided, then FOI law gives the a right of appeal to an independent office. An external review system which is accessible, free, and appropriately resourced to enable independent and timely assessment of whether the everyone’s rights of access were upheld is essential.

The OpenAustralia Foundation does not support amendment 12 as it stands, it’s a long time to wait for a review. The applicant has probably gone through a 30 day initial, 30 day internal review, maybe some consultation, even where the authority is straightforward in their dealings. It’s possible for the request to be outstanding for 60+ days when the matter gets to the Information Commissioner (IC)  – The IC should be sufficiently funded to be able to make decisions in the normal course of events within 30 days, and allow them to be referred to the AAT.

We do however, fully support waiving the costs associated with referral to the Administrative Appeals Tribunal.

Having been significantly hampered in its operations since the Government attempted to abolish the OAIC, agencies continue to routine refusing requests knowing this will go on unchecked for significant periods of time, and as a result, far fewer cases have be investigated. If fewer people trust the FOI system, fewer requests will be made. Determinations will lead straight to a more costly review process needing expensive legal assistance. That would be a terrible outcome for FOI and for Australia’s democratic health.

There are those who do wish to go straight to the Administrative Appeals Tribunal (AAT), including media reporters following a time critical story. While this bill provides options to allow people to refer a matter to the AAT without waiting a minimum of 6 months, we are concerned that this provides an incentive to not increase the funding of the OAIC to provide an acceptable service to the Australian community, but rather divert funds to a body that necessarily formalises the appeals process.

Framing FOI as a legal problem, not a civic right is plain wrong. FOI decision makers and officers use the language of legal exemptions in interpreting the Act, rather than emphasise the need for openness and of ‘maximum disclosure’ made more explicit in 2010 reforms to the FOI Act.[4] Having learned all the standard tricks of the refusal trade, agencies have become very adept at refusing FOI requests as a matter of course.

Everyone Has a Right To Information

Switching from one argument to refuse a request to another can be a lack of clarity in the initial assessment, a defensive move, a delay tactic, or a blindness to everyone’s rights to know.

As we have noted before, we’ve had an opportunity running RightToKnow, to see how agencies behave. Publicly available FOI requests and their correspondence have given us all an opportunity to see first hand how agencies handle requests.

The evidence we present shows that there are big differences across agencies’ handling of FOI requests. Some agencies handle requests professionally and courteously. Thank you to those agencies.

Some agencies show a systemic culture of secrecy and a disrespect for FOI requests at work; they’re the ones gaming the system.

A systemic culture of secrecy

We support amendment 11.

Australia has unbalanced laws about releasing information. The Government already appears acutely aware of the risks associated with releasing information but much less aware of the risks of not releasing enough information. We have a system which severely punishes those public servants who release information which in it’s view ought not be public, and consciously or not, systematically encourages and protects those who avoid publishing information they could easily share. Thus it becomes safer for every public servant to hold documents close, and release as little as possible by default. This all helps to create the culture of secrecy.

We’re not surprised when we see agencies interpret FOI law to the most minute detail with the purpose of   releasing information to the public by default. They argue against the release of even mundane documents where the material is uncontentious or even publicly available in another form already. At the same time, obstructive agencies also display what might be wilful misinterpretation or incompetence in their failure or inability to give the documents requested.

Such responses show that there is a culture of working harder to refuse rather than share their documents, Whether due to failing inefficient old information storage and retrieval systems, fear or lack of leadership, they’re acting in flat contradiction to their responsibilities under the Freedom of Information Act 1982(FOI Act).

Some are knowingly gaming the system, and we have observed that switching reasons for refusal can fall into that pattern of delaying tactics. For this reason, we support amendment 11.

Amendment 11  Procedure in IC review—consistent application of exemptions by decision-maker  that includes relying on any exemptions in Divisions 2 and 3 of Part IV that were not relied upon in making the IC reviewable decision.

About RightToKnow.org.au

Right To Know aims to make it easier for everyone to make Freedom of Information requests in a few different ways.

  • Helping you make your successful request is the main focus of the site
  • Bringing all the authorities together saves time, you don’t have to trawl the web for the right authority first
  • To make the process easier to understand, it uses plain english
  • To get a feeling for the scope, wording of successful requests, it offers you dynamic search for related requests so you can see how others have done it
  • Clearly communicates your rights of access
  • Guidance appears as and when you need it to keep the request flowing through Right to Know and the Public Authority to whom your request is being made

RightToKnow does not provide help for individuals accessing private or personal information held by government.

About OpenAustralia Foundation

The OpenAustralia Foundation encourages and enables people to participate directly in the political process on a local, community and national level. We believe that we can help to reinvigorate Australia’s civic culture by using powerful and exciting new technologies to inform and empower people, to address the growing disconnect between the Government and the people who elect it.

We currently do this through our five online projects TheyVoteForYou.org.au RightToKnow.org.au, OpenAustralia.org, PlanningAlerts.org.au and previously ElectionLeaflets.org.au. Additionally we provide infrastructure with morph.io These services aim at finding better ways of making government, the public sector and political information freely and easily available and usable by all Australians. We aim to inform people so they can make a positive difference.

The OpenAustralia Foundation is a strictly non-partisan organisation. We are not affiliated with any political party. We are simply passionate about making our democracy work.

Notes and References

*Not included here or at RightToKnow.org.au are requests which were hidden from the website because they contained inappropriately personal requests for information (not what the site is for). This is made clear on the site’s help page.

[1] Right to Information Index: http://right2info.org/access-to-information-laws

[2] https://www.rti-rating.org/country-data/

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People Have Problems Accessing Information

Posted on by Kat Szuminska

‘Australia will ensure our information access laws, policies and practices are modern and appropriate for the digital information age.’ That’s the ambitious task that Attorney General’s Department took on with Open Government commitment 3.1 Information management and access laws for the 21st century, in Australia’s first Open Government National Action Plan.

Attorney General’s Department saw a chance to use a different approach to understanding this problem, and they started by asking people who use Freedom of Information and Archives about their experiences.

Attorney General’s Department staff held consultations with people inside Government, Civil Society Organisation members and people who access information through FOI and archives. Peter Timmins (AOGPN) and me (Kat Szuminska – AOGPN/OpenAustralia Foundation) met with them to reflect on experiences that people have with the current FOI and archives systems. By June 30 this year, all together, AGD had consulted with 32 government agencies, 17 civil society members and nine end users.

To bring real world experiences to the table I asked our valued administrators at Right To Know to share what they’ve seen when people make public freedom of information requests in Australia. 

Here’s what they shared:

 

You must request documents, not information, with your Freedom of Information request

Citizens don’t think in terms of documents, bureaucracies, do. People don’t know what types of documents will have the information they want because they don’t work inside the agency they’re making a request to. They mostly don’t want the whole document—they just want some information. This rule confuse people and makes FOI more legalistic, bureaucratic, and resource intensive for agencies and requesters than need be.

FOI Officers are able to use this rule as a way to push back on requests they would otherwise fulfil if they had said they wanted ‘documents that include’ the information they want.

FOI Officers can actually just fulfil the information request as an administrative/information request, and we see the system working at it’s best when this occurs.

Here’s an example of an FOI officer refusing the request for clear reasons, but then providing the basic information the requester wanted anyway:

Document: https://www.righttoknow.org.au/request/3005/response/8446/attach/2/Jonathan%20Ref%20009%2017.pdf

Request: https://www.righttoknow.org.au/request/retention_period#incoming-8446

Here’s another example of a local council providing lots of information to help a requester:

https://www.righttoknow.org.au/request/description_and_purpose_of_works_2

 

Fees

More on fees. Big fees, little fees etc.

A big issue with fees is where massive, spurious fees are imposed for something that shouldn’t take long. Also fees of any kind being imposed to access docs with a clear public interest is bad

Imposing fees used to slow down requests and impose more process on people.

For instance, estimating a large fee and waiting for the applicant to ask that it be lowered stops the clock on the 30 day timelimit https://oaic.gov.au/freedom-of-information/foi-guidelines/part-3-processing-requests-for-access#ftnref44

 

  1. “it took 33 days from when I made a request to waive charges for a decision to be made.” https://www.righttoknow.org.au/request/mygov_privacy_impact_assessment#comment-527

 

Requests for small amounts, e.g. $15, seem counter intuitive. The cost of administering the small payments if often is more than the amount charged for both agencies and requesters. When fees like this seem arbitrary they kill trust in the process and the good will of FOI officers.

At the state jurisdictions the imposition of fees and forms is the major reason requests are cut short.

On the other hand, many FOI Officers make their own public interest assessment and waive fees. Once again, this is the system working at it’s best. People should be supported in making public interest information public, not charged. Where charges are imposed on public interest requests, income and wealth shape people’s ability to help our government agencies increase their transparency.

Here’s a great example of an officer waiving fees:

https://www.righttoknow.org.au/request/point_bolingbroke_and_ardrossan#incoming-6379

Often the person making the request is more of an expert in the topic than the FOI officer. Accordingly they often know more efficient methods to extract the information they need from the standard systems used by the agency. A more collaborative approach would promote these knowledge exchanges to extract information from government systems more efficiently. In situations where the officer ignores advice from the requester, imposed fees often seem absurd or obstructive.

Forms

Like the ‘documents, not information’ rule, FOI request forms seems to purely benefit agencies and deter people from making requests.

We see lots of requests ending when forms and fees are imposed.

Agencies impose forms when there’s no clear reason to, often going against their Act and Information Commissioner recommendations.

These forms are mostly poorly designed and request information not required by the Act for a request to be processed. This creates a bad experience and deters requesters.

Like small fees, requiring people to fill out forms with information they’ve just emailed the agency seems arbitrary and destories good will between the requester and the FOI officer.

Here’s some examples:

NSW Police requiring forms where the GIPA Act says you don’t need them:

https://www.righttoknow.org.au/request/latest_staff_training_manuals_fo

NT Department of Justice requiring forms against their Act and advice from their Information Commissioner:

https://www.righttoknow.org.au/request/list_of_information_requests_to#incoming-8732

Legalistic culture that intimidates people out of requesting

Inconsistent/nonexistent disclosure log practice

Initially under 2010 reforms many agencies were placing full copies documents on their disclosure log but by 2013 this was ceased by several agencies including a decision of the Executive Board of the Attorney General’s Department to “reduce resources spent on preparing documents for publication”. Other agencies have interpreted the OAIC guidance on disclosure logs which includes a template to be followed in a way that reduces the usability for example the ACCC merely publishes each release labeled with a internal code that doesn’t suggest what the FOI request regards.

At the same time in 2014 the Department of Immigration and Border Protection began increasing the number of documents placed online such that the vast majority are now available.

 

Cumbersome and expensive arbitrary payment methods

No option to pay by Credit Card or Electronic Funds Transfer from many large agencies despite fact that charges could be placed in the Consolidated Revenue Fund centrally

 

 

OAIC doesn’t come into bat for people

Shouldn’t they be making sure agencies that clearly don’t comply with the spirit and letter of the Act are made to comply? e.g. Department of Human Services, Australian Tax Office, Department of Immigration and Border Protection

Read more about experiences with RightToKnow, and some of the work that the OpenAustralia Foundation does to help people get more, and expect more, from FOI. 

What next?

The Government recently published their Mid-term self assessment on OGP including this update:

..the Attorney-General’s Department consulted with government and non-government stakeholders, they  held a workshop in conjunction with the Department of Human Services Design Hub. The aim of the workshop was for AGD to present its findings of the initial consultation (the discovery phase) and for government, non-government and civil society stakeholders to come together to develop and co-design reform options to make access to, and management of, government information easier in the 21st century.

I participated in this workshop, and was asked not to share content from this event. If not before, I’d expect to see an update that includes a round up at the next meeting of the Open Government Forum in October.

Updates about this reform and find out more about how Australia’s Open Government National Action Plan is going at PM&C’s OGP Dashboard

 

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A great win for Right to Know, FOI and transparency

Posted on by Ben

Ben Fairless is a volunteer administrator of our Freedom of Information (FOI) request site, Right To Know. When the ATO started to refuse valid FOI requests from people on Right To Know he made a personal complaint to the OAIC about his refused request. He has some good news to share!

You may have been aware from previous blog posts that the ATO has been refusing to process valid Freedom of Information Requests requests made via Right to Know since August last year.

In response to their failure to respond to my FOI requests, I made a complaint to the Office of the Australian Information Commissioner (OAIC) in my capacity as an FOI applicant. Both I and the OpenAustralia Foundation believe that all Commonwealth authorities have no right to refuse to process valid requests just because they come from Right to Know.

I’m pleased to pleased that I received a letter in response to my complaint from the Information Commissioner, Timothy Pilgrim yesterday. Mr. Pilgrim’s letter supports both my understanding and the Foundation’s position; It is lawful to use Right to Know to make FOI requests. He further recommended that the ATO begin processing stalled requests. You can read the entire letter on archive.org.

Some key points of the Commissioner’s decision are:

“Part 3.48 of the Guidelines issued by the Australian Information Commissioner under s 93A of the FOI Act (the FOI Guidelines), to which regard must be had in performing a function or exercising a power under the FOI Act, provide that a request can be posted on a public website and forwarded to a specified electronic address of the agency or the Minister. The FOI Guidelines reference the RTK website in the footnote, as an example of such a website.” [emphasis mine]

In addition, the Commissioner had something to say about the way the ATO requested Right to Know remove an Internal Review:

The ATO did not ask the RTK website administrators to remove the name of the affected ATO staff, instead, it asked the RTK website administrators to remove a request for internal review of the ATO’s FOI decision.

He also went on to say that:

The powers of the Information Commissioner do not extend to the administration of the RTK website.

The Commissioner then issued a formal recommendation:

Under s 88 of the FOI Act, I recommend that the ATO process valid FOI requests made through the RTK website.

I believe this recommendation is appropriate to complete this investigation.

As citizens, we are really lucky to have an authority like the OAIC who are responsible for looking after our Right to Know. This application and process cost me nothing but time, and was simple and straightforward. The OAIC played a vital role in resolving this problem. Without the OAIC I would need to appeal to a more formal body, costing time, money (several hundred dollars to just appeal) and legal fees that would run into the thousands.

I feel that the only thing that could have been improved in this process was the time it took for the OAIC to review the complaint, however I hope that could be addressed with more funding for this important resource.

As volunteers at Right To Know we all work hard to ensure that it is a safe environment, where people can work productively with government on furthering the government’s own goals of being open and transparent, and will continue to do so with the support of this decision. We look forward to seeing the ATO uphold their responsibilities and processing people’s requests via the Right to Know website.

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Hacking democracy and playing the long game – Luke Bacon at linux.conf.au 2017

Posted on by Luke Bacon

Photograph of the front room of Frontyard. Cards are suspended from the roof across a room, and people look at them, thinking about what the future described might be like.

One of the slides from the talk: Looking in as people consider possible futures and how to reach them at Frontyard Projects in Marrickville, Sydney. Photo by Frontyard, CC BY SA

Last month Henare and I were in Hobart for linux.conf.au. We met lots of really nice people working on a dizzying array of interesting projects.

Linux.conf.au is Australia’s biggest conference for people building and using Free and Open Source Software. People come from all over the world to be there. Henare and Matthew from the OpenAustralia Foundation actually met at the conference last time it was in Hobart 2009, which kicked off Henare’s open source civic hacking.

I spoke on the last day of the conference. It was nerve-racking spot to be honest, but it also meant I got to learn from all the other speakers and draw some of their ideas together.

My talk Hacking democracy and playing the long game was about how I currently understand the ways OpenAustralia Foundation projects actually impact society. I’ve been thinking a lot lately about where our work to transform democracy stands in 2017. It seems like we’re in an important moment to really think about the impact of civic tech, and above all, continue working hard.

Giving this talk was a great opportunity to think this all through and share these ideas. Thanks so much to the linux.conf.au team for inviting me, supporting me to get there, and putting on such a great event—I really appreciate it.

Producing this talk became a way to think through all those ideas–so it does cover quite a lot of ground. It starts out talking about the elements of democracy that we’re interested in, different ways to think about it’s futures, and one framework for understanding how change happens drawn from Lawrence Lessig’s 1999 book Code and Other Laws of Cyberspace.

The second half gets into Right To Know as a case study. I go through how the project is making it easier for people to get information they need from our governments. In the end I go through the practical things you can start doing to support and contribute to this work.

I hope it’s interesting and useful. I’d love to know what you think.

If this sounds interesting and you’re new to the OpenAustralia Foundation, here’s some links for finding out more:

All the conference talks are up on YouTube. Here’s some of the ones I most enjoyed:

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Right to Know, the ATO, independence and transparency

Posted on by Henare Degan

Since August 2016, the Australian Taxation Office (ATO) has been refusing to process the valid Freedom of Information requests they receive from people using Right To Know.

At least two of the people who have had their requests blocked have lodged complaints to the Office of the Australian Information Commissioner (OAIC).

One of them is Right to Know volunteer administrator Ben Fairless, who lodged his complaint in a personal capacity after the ATO blocked his information request.

On November 21 2016, the Freedom of Information Director of the OAIC’s Dispute Resolution Branch contacted us with a request for information to help their investigation into the ATO’s blocking of requests raised in the complaints. We have decided to publish those questions and our answers below.

Note that the OAIC’s questions are unlikely to have been raised by the people who made the complaints about the ATO’s actions to block their requests. Rather, they appear to be based on statements provided by the ATO that match their response to the ABC last August, that we take “no responsibility for supervising posts or removing unacceptable material”. This is false.

We’ve also provided a timeline below covering all communications that we have had with the ATO in 2016. We think it’s important to point out that we responded to over 70% of requests from the ATO within 24 hours. Of those, we responded to all but one in less than 1 hour. We are an independent charity and Right To Know is a largely volunteer administered project, and this record is a testament to the dedication of our community to a well run, transparent and accountable Freedom of Information system in Australia. You can compare it to the response times of all our government agencies at righttoknow.org.au.

We work hard to ensure that Right To Know is a safe environment where people can work productively with government on furthering the government’s own goals of being open and transparent. We stand by our community and join their polite and respectful calls to the ATO to start processing the valid FOI requests made to them by people using Right To Know.

Questions from the OAIC to the Right To Know Team, 21 November 2016

On November 21 2016, the Freedom of Information Director of the OAIC’s Dispute Resolution Branch contacted us with the following questions to help their investigation into the ATO’s blocking of information requests made by people through Right To Know. Here are those questions with the answers we responded with on the December 4 2016.

Who is legally responsible for the maintenance of the RTK website?

As is clearly stated on the The Right to Know website, the footer includes the information that the website is s project of the OpenAustralia Foundation Limited (ABN 24 138 089 942) (“OAF”) a charity registered with the ACNC and was created using Alaveteli, an Open Source software product created by MySociety. It was created by staff and volunteers. Again this information is clearly stated at righttoknow.org.au

Who is legally responsible for the publication of content on the RTK website?

Righttoknow.org.au is more akin to an open email server, rather than a traditional content publisher. We make it very clear to requesters and authorities that their correspondence is automatically be published on the internet as part of this service. Users are able to send FOI requests using the site, and agencies are able to respond to requests. In addition, users and OAF staff and volunteers are able to annotate requests. OAF staff and volunteers are able to modify content (except for attachments). OAF does not own this content

We work hard to ensure that Right To Know is a safe environment where people can work productively with government on furthering the government’s own goals of being open and transparent. We stand by our community and join their polite and respectful calls to the ATO to start processing the valid FOI requests made to them by people using righttoknow.org.au.

How are the contents of FOI requests which are submitted to government agencies through the RTK website, including all correspondence related to the request both from and to the agency, monitored?

Users register on the site and confirm they have a valid email address for the site to send them emails.

Users can then submit a limited number of requests per day. The requests are sent directly to the agency without human intervention, just like sending an email from Webmail.

OAF staff and volunteers will sometimes check requests and remove requests based on our published guidelines. For example, we don’t allow requests containing personal information or requests which are clearly not requests for information.

We rely heavily on our volunteers and others within the RTK community (including government agencies) to report requests that they feel need a second look. We take action on those requests in line with our policies, and in most cases respond the same day

How does the RTK team respond to requests from agencies or individuals for specific FOI requests or other correspondence to be taken down from the RTK website? Please provide any information on the process, timing and criteria for acceding to such requests.

All requests received via contact forms on our site are directed to a central email address (contact@righttoknow.org.au). We assess each request in line with the policies stated on our website and respond promptly.

The ATO has sent us 5 takedown requests. We give every request serious consideration and have responded to each within a day. We agreed with 4 requests and promptly acted on them to remove the material. One of the most recent requests did not meet our takedown policy so we have not taken it down.

We’ve previously been asked to redact the names of ATO staff due to a processing error made by the ATO which put their staff at risk. We responded within an hour and agreed to take down the material, giving the ATO time to supply correctly redacted documents a few days later.

In once case we were not asked to redact names. Instead we were asked to remove a request by a member of the public for an internal review into the decision about their FOI request. The ATO claimed that they found it abusive towards their staff members. The ATO’s takedown request did not meet our takedown policy, so we left the request up on Right To Know.

The ATO has responded by refusing to accept lawful requests* made via Right to Know until we comply with their demands. These include “a manned contact number, address for service, and [undertaking] to remove any unacceptable material promptly”. The ATO has already stated that they’d “probably not be successful in obtaining a court injunction to remove the offending material on the grounds it was defamatory, or threatening in a criminal sense.” (See here for the documents where this is mentioned). This appears to be a clear attempt by the ATO to impose requirements over and beyond what are required by the Freedom of Information Act, which is disappointing considering the ATO was perfectly willing to respond to several requests before our request to remove an internal review.

We work hard to ensure that Right To Know is a safe environment where people can work productively with government on furthering the government’s own goals of being open and transparent. We stand by our community and join their polite and respectful calls to the ATO to start processing the valid FOI requests made to them by people using righttoknow.org.au.

Correspondence timeline

This is a list of all contact between the ATO and Right to Know:

  • 10 March 2016 – ATO request removal of 6 requests containing personal information.
    • Requests were hidden on the same day as they contained personal information.
  • 13 May 2016 – ATO request removal of documents that were inadvertently published which contained names of employees who deal with criminal investigations.
    • Documents were hidden within 1 hour of the request being sent to our designated contact email address
    • Documents were not re-sent by the ATO until 19 May 2016.
  • 21 June 2016 – ATO request removal of a request containing personal and business information.
    • Request was hidden in less than 10 minutes.
  • 30 June 2016 – ATO Assistant Commissioner (General Counsel) request removal of an Internal Review request made by a person using Right To Know.
    • Right to Know volunteers and staff discuss the request and determine it doesn’t meet our published guidelines for removing information from the site.
    • 1 July 2016 – Right to Know volunteer calls the ATO Assistant Commissioner at his request to discuss the matter.
      • Right to Know advise that it appears that the request doesn’t meet our published guidelines for removal.
      • ATO advises that they believe the Internal Review request implies that staff were “untruthful and behave appallingly”. The ATO Assistant Commissioner advises they will obtain an injunction against Right to Know should Right to Know refuse to remove the request.
      • The matter is referred to the directors of the OpenAustralia Foundation.
    • The OpenAustralia Foundation directors decide to no longer respond to the ATO on this request and await the injunction order.
  • 5 August 2016 – ATO request that Right to Know contact a user of the site in relation to the request on 21 June 2016
    • 15 August 2016 – Right to Know forward the information to the user as requested
  • 18 August – ATO stops responding to requests via Right to Know and advises users to contact them directly to make their request.
  • 19 August 2016 – ATO Assistant Commissioner (General Counsel) sends an email about the refused requests to Right to Know
  • 29 August 2016 – Office of the Australian Information Commissioner (OAIC) acknowledges a review request made by a volunteer of Right to Know
    • The review request was made in response to an application made using Right to Know.
    • The review request was made from the volunteer’s personal email account, and it was clearly stated that the volunteer made the application in a personal capacity and not on behalf of Right to Know.
  • 15 September 2016 – ATO contact Right to Know in relation to FOI requests made in relation to decision to refuse to process requests
    • 16 September 2016 – Right to Know advise that we have no objection to the release of the document
  • 14 October 2016 – ATO request removal of request containing a Tax File Number
    • Request was hidden within 15 minutes of ATO email
  • 20 October 2016 – ATO request removal of a request that contains a number of business names and ABN/ACN numbers
    • Right to Know seek clarification within 30 minutes as the information is available publicly (via the ASIC register).
    • No response is received by the ATO
  • 2 November 2016 – OAIC contacts the Right to Know volunteer in relation to the review (now a complaint) acknowledged on 29 August 2016
    • This includes a request from the ATO to remove material previously considered on 30 June
    • The request is referred by the volunteer to the directors of the OpenAustralia Foundation who take no further action as they have not been contacted by the OAIC at this stage.
  • 21 November 2016 – OAIC make a request for information to Right to Know (see questions and responses above)
    • The directors of the OpenAustralia Foundation respond to the request on 4 December 2016

More background material

You can view peoples’ information requests to the ATO on Right To Know. In response to a request made directly through private email to the ATO, they released other relevant documents. You’ll also find correspondence between the ATO and the OAIC relating to the ATO’s actions, and peoples’ analysis of those documents, on Right To Know.

1 comments

There’s no better way to learn how easy FOI requests are than to make one

Posted on by Luke Bacon

Meme from Yes Minister TV show, stuffy minister saying “Freedom of Information?! What on earth for?”

Yes Minister Meme by CryptoParty Sydney organiser Gabor Szathmari

Most people I speak to about making Freedom of Information requests think it’s too difficult to waste time on—it’s for lawyers, not them. When I’ve seen our FOI system presented in a teaching context, the clear message is ‘FOI is too hard, too slow, and too expensive’. The message has sunk in, including with journalists, lawyers, researchers, and activists, many of whom have decided not to worry with it.

This assessment doesn’t ring true with my experience, or what I see in the 2500 requests made through Right To Know, our best public record of our FOI system. The results you get vary wildly depending on what you’re asking for, which public body you’re asking, and who’s processing it for you on their end. In my experience, FOI is often free, fast, and easy. I’ve taken to popping in a request on my phone at lunch when an interesting question comes to mind (#lunchtimeFOI).

The prevalence of the idea that FOI is too hard might explain why each year people in Australia only make roughly 3 FOI requests per 100,000 people, compared to about 70 by people in the UK (an amazing stat Henare calculated). We’ve got some work to do.

There’s no better way to discover how easy and useful FOI requests are than to make one yourself and experience it.

Workshop with CryptoParty Sydney

Picture of Luke Bacon presenting to a group of people at laptops about FOI requests

Luke presenting to the wonderful gang at the OpenAustralia Foundation/CryptoParty Sydney mashup event

Last Tuesday, Henare and I ran a workshop with CryptoParty Sydney to help people who care about privacy and security learn a new way to get the practical information they want from our governments using FOI requests.

CryptoParty attendees are inquisitive people who want real, detailed information. The event was packed out with people keen to learn how to get it.

We ran the event in two sections. Henare kicked things off by introducing everyone to our Freedom of Information rights and system in Australia. He showed how you can use FOI to learn about what’s happening in your local area, or to reveal information that impacts all of us. He also demonstrated why the OpenAustralia Foundation’s Right To Know website is the best way to make requests.

I then lead an hour long workshop for everyone to make a real FOI request. To make the process straight forward, we walked through four simple questions to generate ideas and narrow in to specify the documents we wanted:

  1. What are you interested in?
  2. What do you want to know about that?
  3. Which documents have that information?
  4. Who has those documents?

We created some boilerplate request text for everyone to use (and you can too):

Dear <Organisation with the information>,

Could you please send through <documents with the information you want>.

If possible, please treat this as an administrative/informal request. Otherwise please proceed with my request as a formal information request under the Act.

Yours faithfully,

<Your name>

By the end of the night over 30 requests had been made, with more coming through the week. We were really impressed by everyone’s attitude and great ideas.

A few of the interesting requests were for NSW Police’s guidelines for protecting the privacy of those in custody, the Department of Education’s process for deciding that a student can be exempted from their Unique Student Identifier system, and discussions at the Attorney-General’s Department about banning forms of encryption.

You can see our slides if you’re interested to read more about our process.

A huge thanks to Gabor Szathmari of CryptoParty Sydney for partnering with us and making the event so smooth. Thanks so much to everyone who came and made it a great night!

“Friendly, easy to understand and welcoming.”

Judging from the feedback we received, and the number of requests submitted, I think this was a really successful workshop. One attendee commented that the process was “Friendly, easy to understand and welcoming.” This is the exact opposite of the scary reputation that FOI has in Australia—this really warmed my heart! One person who works in youth support services told me that a lawyer at their organisation asked why they were going to something about FOI, saying “it’s too hard”. Their experience in the workshop completely changed their mind and now they want to empower the kids they work with with this skill.

Sounds exciting?

This is the first time we’ve run a workshop like this to walk people through the process of asking our government for information. There are lots of communities and civil society groups formed around issues like local planning, music, art, human rights, the environment, education, etc. . You might be part of one. If you are, and you’d like to discover how useful and easy it is to make FOI requests, we’d love to talk with you about running more workshops like this in 2017.

4 comments

How to send your Freedom of Information request to many authorities at once

Posted on by Henare Degan

Right To Know makes it simple for you to request information from any public authority in Australia. Sometimes you might want to ask the same question but to lots of different public authorities at once. Right To Know can help you there too, with batch requests.

Batch requests let you write one request that gets sent to lots of authorities at once. This is really handy if you want the same document but from different authorities, like this request for the social media policy of different government departments:

Screenshot showing the page of the Social Media Policy batch request on Right To Know

If you have a request you’d like to make to many authorities at once then get in touch and we can enable batch requests for your account too.

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Happy Right To Know Day – you have the Right To Know, now right across Australia

Posted on by Henare Degan

Photo of Highway 1, Australia stretching into the distance

Highway 1, Australia by Tony Bowden, used with thanks under Creative Commons

Is it safe for your children to swim in the river? How much did your council spend on that fancy new mobile app? Will we be building better public transport? How much graffiti is being reported in your area? What really happened to those stranded whales you heard about?

Australia’s state and local governments create and hold some of the most vital information on your behalf and you have the right to access it. As you can see in the requests above you can use Freedom of Information (FOI) requests to open this government information and answer important questions that help you, your family, and your community.

Now you can use Right To Know to make these requests to any state authority and local government in Australia.

From day one we imagined a single site where you can request information from any government authority in Australia. Today—on International Right To Know Day no less—that becomes a reality.

If you want answers, use your right to know and make a request.

0 comments

OpenAustralia Foundation responds for your Right To Know

Posted on by Kat Szuminska

Today the ABC reports “Tax Office imposes blanket ban on FOI requests via Right To Know website”. In the article the OpenAustralia Foundation’s response provides the context of the Australian Tax Office’s (ATO) refusal to process valid FOI requests made through the Right To Know. We hope to see the ATO continue to process your requests, as they have for the previous 4 years, and return to complying with the Freedom of Information guidelines of the Office of the Australian Information Commissioner.

Here’s the response we sent through to Simon Elvery at the ABC in full:

Up to now we’ve had a good working relationship with the ATO. We’re genuinely baffled by the reasoning they use to justify their refusal to process requests via Right To Know.

Since receiving their first FOI request from a person using Right To Know almost 4 years ago the ATO has helpfully responded to dozens of other requests. From time to time we receive takedown requests from people and government agencies and we act on each and every one of them in line with our clear takedown policy.

In total, the ATO has sent us 5 takedown requests. We give every request serious consideration and have responded to each within a day. We agreed with 4 requests and promptly acted on them to remove the material. One of the most recent requests did not meet our takedown policy so we have not taken it down.

We’ve previously been asked to redact the names of ATO staff due to a processing error made by the ATO which put their staff at risk. We responded within an hour and agreed to take down the material, giving the ATO time to supply correctly redacted documents a few days later.

In this case we have not been asked to redact names. Instead we were asked to remove a request by a member of the public for an internal review into the decision about their FOI request. The ATO claimed that they found it abusive towards their staff members. The ATO’s takedown request did not meet our takedown policy, so we have left the request up on Right To Know.

We work hard to ensure that Right To Know is a safe environment where people can work productively with government on furthering the government’s own goals of being open and transparent. We stand by our community and join their polite and respectful calls to the ATO to start processing the valid FOI requests made to them by people using righttoknow.org.au.

And here’s the ATO’s statement that the ABC provided us:

The ATO’s decision to cease processing requests via the Right to Know website does not relate to one specific case. Rather, this decision was taken due to our concerns about systemic issues with the management of FOI requests through this website. In particular:

  • Publishing all procedural material about FOI requests is not acceptable, nor is having no contact number, address or ability to respond promptly to email requests.
  • We are particularly concerned with the names of staff processing the FOI request being published on the website, when this information is not relevant to the FOI application.
  • We also have concerns that the website takes no responsibility for supervising posts or removing unacceptable material, and the ATO will not be exposing staff to this risk.
  • The ATO complies fully with the FOI legislation. People can make FOI requests direct to the ATO by emailing foi@ato.gov.au or through the paper form available at www.ato.gov.au

1 comments

Another big story from Right To Know, and how you can do it too

Posted on by Henare Degan

Screenshot showing the released document that has a table of agency names

Over recent weeks there’s been lots of interest in a story about Australia’s mandatory data retention regime. In passing these controversial laws last year the government agreed to reign in the number of agencies able to access your data. However, the laws allowed agencies to re-apply for access. Two weeks ago it was discovered that over 60 agencies have done just that. This discovery was reported by most major news organisations in Australia.

While mandatory data retention concerns the OpenAustralia Foundation–after all, most of what we do is on the internet–this post isn’t about that. It’s about the largely untold story behind this recent discovery. It was all down to one person who is deeply concerned about the implications of data retention.

A couple of months ago Geordie Guy submitted a Freedom of Information (FOI) request publicly using our FOI request site Right To Know. What sparked all of the media interest recently is that his request was successful and it revealed the names of most of the 61 agencies seeking warrantless access to your metadata.

Dozens of news stories over several days, all from one person’s request on Right To Know.

The amazing thing is that you can do this too, about the issues that you care about. As you can read in his fascinating article about the process he went through, Geordie knows a thing or two about the FOI process. But you don’t need to and that’s the great thing about Right To Know.

When the agency initially indicated they were planning to refuse his request, Geordie cleverly changed its scope. If you were making a request and the same thing happened, you could add an annotation to your request asking for help from the fabulous community on Right To Know. They’ll almost certainly help you get the information you’re after.

Usually requests are free but in this case the agency decided to charge over $500 for access to these documents. This didn’t stop Geordie either. He successfully crowdfunded the fees for the request in just two and half hours. This isn’t the first time someone has crowdfunded FOI requests on Right To Know. It once again shows that there are people out there ready to support your quest for public access to important documents.

Have a listen to Heidi Pett’s story about this case on ABC Radio National’s PM programme. It’s one of the few media reports that looks at the full story and acknowledges the passionate individuals and volunteers that helped this this important information about our data retention system see the light of day.

We hope it will inspire you to make your own request for information about something you care about. Go ahead and create a new request on Right To Know now.

1 comments