Thursday, July 10, 2008

My Introduction to Pakistan

A note to my Introduction to Law Students sent from Islamabad

I received an invitation from the World Bank, at very short notice, to be involved in a workshop on Freedom of Information in Islamabad, Pakistan. So I packed my bags full of the remaining journals and a heap of exams and set off.

At the moment I am sitting in a 5 star hotel in Islamabad surrounded by massive levels of security – packing my bags to return home – and declining the opportunity to sightsee on my final day to keep on top of the marking. As so many of you have shared your reflections with me I have decided to return the favour (but there is no need to read on).

Reflections on Islamabad, revolting lawyers, 15 minute presentations and working World Bank style.

20 June 2008

The invitation arrived late on Friday afternoon on the eve of the long weekend. Was I interested in travelling at short notice to present at a World Bank workshop in Islamabad on my topic area of Freedom of Information?

The short answer was “Yes”. Despite the obvious risks (over 2 pages of travel warnings on the DFAT website, the rise in anti-US (and allied) sentiment after the killing of 15 Pakistani soldiers), and travel time (there and back about 70 hours in planes, airports etc).

I am always keen to be involved in these events because:
Opportunity to meet passionate and inspiring people
A brief and very constrained, but always staggering, exposure to another culture (my great loves are politics, history, culture and ideas)
To link my research and teaching to reality
To share my experiences and insights (developed over 18 years with taxpayer money, previous experiences funded by USAID, AUSAID, Article 19 and various governments and institutions)
To make my limited contribution to good governance in the world

Problems –

Pile of marking (solution take with me and mark on planes etc)
Approval (UTAS not keen to have staff members wandering the streets of Islamabad)
Visa (had 24 hours to get visa from Pakistan High Commission in Canberra after final approval from UTAS. In the end visa arrived 2 hours before my domestic flight to Sydney was leaving).
Family – we now have a routine which everyone just slips into.

The biggest problem was more of an ethical dilemma.

The World Bank wanted me to speak for 15 minutes. In order to get me there and in a state ready to perform they were flying me business class from Sydney-Bangkok-Abu Dhabi-Islamabad and return, accommodating me in a 5 star hotel (room rates $500 US + a night). All other expenses covered (ground transport, food).

A massive expenditure for a short performance. The equivalent of the average per capita income of 20 people in Pakistan. Felt unsure whether I could return value for money.

A little like doing a 300 word briefing paper but one which someone has invested a sizable amount on. Short, to the point but packed with the results of a lot of analysis/thinking but high expectations.

In the end the presentation was well received by a room full of government officials, human rights activists, journalists (very passionate, very forthright, demanding and given their precarious position incredibly brave) and policy analysts. The Information Minster was scheduled to deliver a speech that was going to be broadcast on national TV but a phone call from the Prime Minister’s office led to her cancelling.

I also got the following tick of approval from one of the most outspoken activists there (imagine Sushila, Sanjeev's grandmother from the Kumar’s at No.42 with attitude and fire in her belly) she wrote:

“Your presentation was right up there, and you very astutely picked up on our most pressing issues (accuracy/reliability/credibility/utility, etc.) - ref my points about the politicization and expediency-oriented manipulation of govt. data & info - and not just the run-of-the-mill gripes about "access" and the cost-of-retrieval issues of minor documents!!!”

On reflection I could understand the World Bank’s strategy. The 3 international experts (from India, Mexico and Australia) draw more attention to the workshop and a higher level of interest from NGOs and government. I spent the day before the workshop meeting with NGOs and individuals briefing them on international experiences and some of the key issues. Pleasing to see during workshop many of these groups and individuals debating the points we had discussed the day before.

A number of these groups, individuals and officials will stay in touch so there will be hopefully a long term return on the World Bank’s investment.

The papers are full of stories of attacks, explosions throughout Pakistan. The streets are lined with barricades, armed guards, and military trucks.

The most fascinating topic, for a law teacher, has been the continual struggle and protests by lawyers seeking a restoration of the rule of laws and the sacked Supreme Court judges. Just before my arrival the Lawyers Long March had just taken place (where thousands of lawyers and others, spent 4 days marching on Islamabad – some have claimed it as the largest mass demonstration in Islamabad). The daily papers have numerous items, opinion pieces and letters to the editors about various aspects of the protest actions of the lawyers. I wonder how many Australian lawyers would take to the streets to preserve or restore the rule of law and the independence of the judiciary?

Another fascinating glimpse is on the gender relationship in this strongly Islamic country. The Islamic and secular overlays in Pakistan result in numerous incongruous episodes.

This report states” Gender is one of the organizing principles of Pakistani society. Patriarchal values embedded in local traditions and culture predetermine the social value of gender.” Yet the constitution has 4 specific provisions ensuring equality of gender and equal treatment.

Even in my couple of days here I could fill several pages full of examples of how this plays out in every day life. Yet I have met and been impressed with talented activists who make it clear that Benazir Bhutto was not a rarity in Pakistan politics or life. Yet in a quick moment I have seen these same women quickly slip into a deferring role. Class, education and fierce determination seem to create spaces within this so-called – patriarchal hierarchy – for some women but it seems to be an uneasy space, precarious and a struggle to achieve and maintain.

So at the end of this short trip I have developed my presentation skills a little further, been inspired to try to improve them more (a number of the presentations were very impressive) and seen a little more of the interaction of macro policy (World Bank, UNESCO) with micro engagement (locals who now the context, the reality and have to put the ideas into operation once the jet-setting international experts are long gone).

After finishing writing the above I gave into temptation and have just back from a shopping expedition (clothes for my daughter and wife) and an afternoon spent in the National Heritage Museum.

Enjoy your holidays


Wednesday, May 28, 2008

Tasmania's New Premier Keeping Options Open on FOI

Hansard 28 May 2008

Mr BARTLETT - I am clearly on the record as saying that I am open to looking at anything we can do as a new government to strengthen our democracy and strengthen trust in that democracy. I have already had some conversations with academics about the FOI laws in this State. I have been watching the debate closely in other States as well. I will be taking further advice about the act as it currently stands, its sense of longevity and how it might improved in the future.

I will have to chase these mysterious academics down to find out what they have been discussing. Although I do have a rain check to meet with the then Deputy Premier (now Premier) at some uncertain time in the future.

Have always been bemused at the Tasmanian Government's reluctance (both Liberal and ALP governments)to sit down and talk about FOI. The only time I got to make any direct representations was with Peter Patmore over lunch at the Vietnamese Kitchen in June 1999.

“Mr GROOM - Two years ago you said you were looking at a two-paged paper from Rick Snell and you said you were preparing legislation. That was in the Estimates of 1999. I have a little marker here. It was an interesting discussion then. You said you had had the meeting with Rick Snell from the university last week - this is in June 1999 - and you asked him what he thought might be appropriate. Funnily enough, he had it all typed out - two pages of it. You took it from him and 'that is going to be the subject of a discussion brief from my department'. You had had an expert, you said, saying where you should go with FOI and you indicated you were proceeding with that and would be making a public statement when you were in a position to give a considered response.


Mr GROOM - Are you able to give a considered response now, two years later?

Dr PATMORE - I think I have had sufficient time to give a considered response, yes. The major change was of course the conclusive certificates; we identified that before the election as one of the major issues. We have provided the Ombudsman with an additional $100 000 to assist. On administrative law, we expanded the Ombudsman's role and there is a plan for the creation of a new administrative appeals tribunal, a division of the Magistrates Court, so that is part of the Ombudsman's role, not necessarily with FOI, and I am currently looking at some aspects of FOI….. Tuesday June 5 Estimates Committee B (Patmore) Part 1 Pages 1-69.

In the end Dr Patmore got annoyed when the Greens introduced a private member's bill on conclusive certificates which the Government supported but which ended any more interest in FOI reform.

Since that time I have been engaged in giving advice and being sought for input from everywhere except 15 Murray Street Hobart.

Monday, May 26, 2008

Stateline Interview 23 May 2008

In a Stateline interview on the 23 May 2008 see transcript the Tasmanian Ombudsman, Simon Allston, and the Australia’s Right To Know Coalition spokesperson Lucinda Duckett supported a review and updating of Tasmania’s Freedom of Information laws.

The Tasmanian Ombudsman announced that it was only his limited resources that had prevented him from undertaking a similar review as the one announced by the NSW Ombudsman.

It was pleasing to see the ARTK making a very positive contribution to the debate.

The Tasmanian Government refused to comment on air but in a background document it took the line that there was little need to reform the Act because it was roughly similar to other state Acts.

However with the sudden resignation of the Premier Paul Lennon on 26th May the new Premier David Bartlett may decide to embrace a series of possible reforms. It would be certainly a major boost to Australian reform efforts if the Bligh reform program was not the only one being seriously considered. Indeed it might cause the WA and Victorian governments to reconsider both their proposals and approaches to reform.

Wednesday, May 14, 2008

Freedom of Information Reform in Tasmania - Some Initial Ideas

FoI Reforms in Tasmania

The 17 year old Freedom of Information Act was conceived and based upon ideas about government information that stretch back to the 1960s. Furthermore the original design and intent of the legislation was heavily modified before being accepted by the major political parties. It was then trimmed further prior to its commencement in late 1992 by the Liberal Government. Throughout the 1990s it was starved of funds and just managed to survive an attempt at a massive reduction in its scope and operation in the mid 1990s. At other times it was targeted by secret plans to subject it to a sunset clause after 2 years.

The Bacon and Lennon governments have co-existed with the legislation but have never been overly supportive or keen to reinvigorate the legislation.

Due largely to staffing restrictions the various Tasmanian Ombudsman since the mid 1990s have taken a very low keyed approach to both the interpretation and application of the Act and in taking any wider supervisory or quality control activity.

This restricted approach seems to be slowly changing under the current Ombudsman, Simon Allston.

What is needed?

A 3 month (maximum review) by the Tasmanian Law Reform Institute and/or the Tasmanian Administrative Review Advisory Committee:

The review could build upon the work and ideas of:

Queensland Independent Review Panel
• Discussion Paper January 2008
• Final Report (early June 2008)
Australian Law Reform Commission
• 1996 Report and current review
NSW Ombudsman review (current)
Changes made in WA, Vic and the Northern Territory Information Act

Developments in New Zealand, Canada, UK and USA

Some initial proposals

Information Commissioner created (could be Ombudsman) to cover FOI, Privacy and state records.

Information Commissioner to have ability to release exempt information in the public interest.

Information Commissioner to have the ability to order release of information.

Information Commissioner to carry out supervisory, advisory and training functions.

Information Commissioner and Ombudsman to be approved by both Houses of Parliament.

Freedom of information to be funded and administered as any other policy program.

Time period for Information Commissioner reviews to remain at 30 days.

Maximum time limits on applications to be progressively decreased from 30 days to”:
• 20 days
• 15 days
• 10 days

A once-off request for extension up to a maximum of 15 days

Agencies be required to process 50% of requests within 50% of the maximum deadline.

Cabinet documents to be more accessible.

Automatic release of cabinet documents after 10 years unless covered by another exemption.

Internal working documents to be automatically released after 5 years.

All exemptions subject to a public interest test.

Information released under FOI be made publically available on Agency websites.

The government to republish FOI Handbook.

Information Commissioner tpo publish determinations of FOI reviews.

Limits on vexatious applications.

Changing Objects section to include increased openness and progressive release of information as a specific aim of the Act.

Parliamentary oversight of FOI including a “dedicated focus on information as a dimension of all government activity”. Creation of a joint Accountability Committee.

A shift to pro-active or push model of release so that there is routine and active dissemination of information.

Optional internal review.

Internal review timeframe reduced from 14 days to 7 days.

Decisions by gazetted FOI officers under s.21 shall not be subject to any Agency approval process unless that process has been approved by the joint Accountability Committee.

Most importantly a cultural change that sees government transparency made an essential modus operandi of government and that there is an attitude to harvest the dividends of transparency.

Monday, May 12, 2008

FOI Reform in Australia - The current state of play

To listen to an interview conducted with Adrian Middeldorp, 3rd year B.Media student (University of Adelaide)Program MediaRites Radio Adelaide 101.5 FM Broadcast date: 13 May 2008 3:05pm (approx) on the current state of FOI reform at the Commonwealth level see

I have also written an opinion piece in The Australian on 25 April largely focusing on the NSW Ombudsman review but referring to the Commonwealth reform process.

Peter Timmins blog Open and Shut has been providing the best coverage of this issue.

My principle concern is not that Kevin Rudd will not deliver - his many statements in the last couple of weeks gives him no option. My concern is how he will deliver and the final size and nature of the package.

Prime Minister Rudd and his Special Minister of State John Faulkner have left the Australian Law Reform Commission review into FOI floundering with limited terms of reference granted to it by the previous Attorney-General. Whilst the President of the ALRC has indicated a willingness to exploit "the any other matter" clause in Ruddock's terms of reference clearly the ALRC wants a green light from the new government.

Therefore if the Prime Minister sticks to his timetable (end of 2008 or at the latest the 1st day of sitting in February 2009) it will be without the updated input of the ALRC,and to the best of my knowledge, with no input from anyone outside the ALP or the federal bureaucracy. Some like Michael McKinnon, the FOI Editor for the Seven Network, is hoping that the federal government is simply waiting for the Solomon Report for FOI Reform in Queeensland to be delivered (maybe by early June).

At least in Queensland Premier Anna Bligh has started to put into operation some of the possible changes that could emerge from the Solomon Report. The Queensland Whole-of-Government Response to Solomon's discussion paper indicated that, since Anna Bligh has become Premier, Cabinet documents ( about 500 pages) have been released on at least 3 occasions - 2 in response to FOI requests and 1 without the need for an FOI request.

It would be refreshing if the Rudd Government had shown the same willingness to dip their toes into the waters of greater transparency.

I find it difficult to understand why Senator Faulkner or any representatives of the government appear totally reluctant to engage in any dialogue about the shape,depth and design of any proposed reforms. Whilst the public service and Ministers are key stakeholders so are citizens. A lack of consultation may have had some merit if in the first days of the Rudd Government an FOI amendment bill had hit the floor of parliament and new FOI policy instructions had governed the way the first FOI requests of 2008 had been dealt with.

Saturday, February 23, 2008

Looking at the Political Economy of Transparency

The Political Economy of Transparency: What Makes Disclosure Policies Effective?

Archon Fung, David Weil Mary Graham Elena Fagotto , December 2004,Ash Institute for Democratic Governance and Innovation, John F. Kennedy School of Government, Harvard University

The authors present a very targeted approach to evaluate the effectiveness of various transparency systems. Whilst the authors only mention FOI, or access to information schemes, in passing nevertheless their analysis raises many important questions about the effectiveness of current FOI or likely FOI schemes.

In particular their analysis challenges the assumed or intuitive benefits of a transparency scheme like FOI simply delivering automatic public benefits. The authors detail several critical junctures or relationships that can play a determinative or influential role in the delivery of these benefits. The focus of the analysis is both on the design and the dynamics of these systems. The authors contend that there are a number of difficult to satisfy conditions for any transparency system to be considered effective:

“Our analysis suggests that transparency systems must meet two challenging conditions in order to be effective. First, they must embed information into the ordinary decision-making and action processes of information users and disclosers. Second, the responses of both users and disclosers must ultimately be congruent with policy objectives.” [at 29]

A particular benefit of this analysis is that the authors focus on users, disclosers and the functioning of public policy. Many attempts at evaluating or critiquing FOI schemes tend to do so predominately from one focus, generally users, and almost never about the impact upon policy. Furthermore, less explicit in this paper compared to earlier versions, the authors examine the dynamics of the transparency process including the moves towards and away from effectiveness.

“Transparency is effective regulation only if it influences the performance of targeted organizations in the direction of a specified policy goal. Improvements in quality, scope, and use are necessary, though not sufficient, pre-conditions for effectiveness. Systems that do not keep pace with changing markets and public priorities can become counter-productive. “

Another benefit is that this analysis can be used in conjunction with Stiglitz’s information asymmetry, Terrill’s individualism and structuralism, compliance analysis and has a capacity to be easily used as comparative tool with other transparency systems and/or between transparency systems in different countries or over time. It also can be used in conjunction with Taylor’s concept of information polity and information mapping.

The authors challenge the assumption that:

“A single idea unites these otherwise disparate systems. It is that public intervention to require the disclosure of factual information by companies, government agencies, and other organizations can create economic and political incentives that advance specific policy objectives. “ [1]

The contention is that this process is much more complicated and dependent on a higher number of variables than normally considered. In terms of FOI the authors analysis turns our focus away from the mechanics of the delivery process (application processes, fees, reviews, release rates etc), as important as these are, and turns our questioning to the achievement of the policy outcomes associated with FOI. Whilst these policy outcomes or purposes have multiplied over the last 15 years their achievement is still the justification for the cost of FOI schemes and the foundation of demands for reform or refinements to existing arrangements.

The authors point out the diversity of users in any transparency system can be problematic “journalists, representatives of consumer groups, and competitors often have countervailing interests in ferreting out some of this missing information and making it widely available in news stories, rating systems, and advertising.” [1] That diversity problem is compounded by FOI because it is so reliant on individual applicants, rarely acting in concert or with shared purpose, to attempt to trigger the release of information.

In an earlier study the authors focused much more on the effectiveness of information intermediaries (journalists, members of parliaments, citizen organizations) as key contributors to or influences upon the effectiveness of transparency schemes. The authors argued that “disclosure policies are likely to be more sustainable where advocacy groups or entrepreneurial politicians representing user interests are able to continue to participate in the policy-making environment. “[38] The authors presented this example:

“National environmental and right-to-know groups translated complex data concerning toxic releases into a Web-based system that made possible searches by community, chemical, company, and facility. Absent such organized political activity and groups to interpret information and put it to use on the behalf of users, the expected political dynamic will return, and disclosure policies will stagnate or erode[38]”

Furthermore all of these information users face the further difficulty of combating or offsetting information asymmetry, in contrast to the government, in that they cannot compel disclosure. [1] Schemes like FOI do allow for forced release, subject to legislative exceptions and variable compliance. However FOI schemes differ from the normal type of government disclosure schemes outlined by the authors in that they cannot “require comparable metrics, format, and timing”. [1]

The authors differentiate between policy effects and policy effectiveness and recognize various levels of effectiveness along a continuum from ineffective to highly effective [1]. (for the purposes of their study they settle on 3 categories at [18] including moderately effective)

“Transparency systems may have effects without being effective. They have effects when they alter choices of information users and disclosers in observable ways. They are effective, however, only when they alter choices in ways that significantly further policy objectives.” [1]

The authors argue that

“Transparency systems are highly effective when they change the choices of information users and disclosers in ways that significantly advance policy objectives. Such systems are moderately effective when they alter the choices in less significant ways that nevertheless advance such objectives.” [2]

The authors seeks to explain that some transparency regulations “(i) lack effects while others (ii) have effects yet fail to advance policy objectives, while still others (iii) are effective.” [7]

The authors use the concept of action cycles to argue that a transparency system’s effectiveness is dependent on the degree (and direction) to which it contributes to an action cycle in public policy. The authors recognize that “transparency systems introduce new information into existing complex patterns of decision-making by buyers and sellers, community residents and institutions, voters and candidates, and other participants in market or collective action processes.” [2] Most FOI literature tends to ignore or assign little importance to these existing complex patterns of decision-making. Once the decision has been made to release the information or the narrative of a losing fight against an obstinate bureaucracy is finished then the FOI literature turns away from the story.

Another feature of the authors’ analysis is their focus on exactly what changes in the behaviour of users, disclosers and policymaking with the release/nonrelease of information under FOI schemes:

“when transparency systems provide highly relevant and accessible information that users incorporate into the considerations that determine their actions, we say that information becomes embedded in users’ decision-making processes. When such systems produce user responses that disclosers incorporate into management decisions, we say that those responses become [4] embedded in organizations’ decision-making processes.” [5]

The authors maintain that there are differences between standard-based, market-based, and transparency-based regulatory systems which are captured in their Figure 1 below [at 7]:

transparency analysis

FOI seems to fall into the third category, transparency based, where there are ambiguous signals by users and disclosers and there is a large amount of discretionary responses left to individual government agencies.

The authors analysis offers the chance to pursue the FOI process into more meaningful territory as these two quotes illustrate:

“Our central claim is that the best way to understand why some transparency policies work and others do not is to assess whether and how the information produced by those policies becomes integrated into decision-making routines and consequent actions of information users and disclosers. Ours is an inductive, backward-mapped approach that begins not with the perspective of policy makers but with the perspective of information users and disclosers (Elmore, 1979).”[8]

“Our analysis of cases suggests, however, that simply placing information in the public domain does not mean that it will be used, or used wisely. In practice, information cannot be separated from its social context. Individuals and organizations simply ignore information that is costly to acquire or that lacks salience for decisions.” [8]

A transparency system has “effects when the information that it produces enters the calculus of users and they consequently change their actions and when information disclosers notice and respond to user actions. It is effective when discloser responses

significantly advance policy aims.”[8]

As the authors note “This description suggests multiple points at which information can fail to spur action and at which action can fail to spur reaction or can provoke perverse responses.” [8]

The authors contend that information must have value for the users, be compatible with users’ decision-making routines [11] and ’even if information is valuable and compatible with routines, it is unlikely to become embedded in users’ everyday choices unless it is also comprehensible to them. [12]

This analysis when applied to an FOI system pinpoints some of the problems that have arisen. First whilst often the information will have value – the process relies on wide and often blind net casting and will regular return excessive amounts of redundant information. Secondly, there is no connection to the users decision-making routines. The fit is better with some users ie journalists and other information intermediaries. Thirdly the access granted is to raw and direct information often divorced from its context and surrounding relevant information

The authors argue that “disclosers are more likely to incorporate user responses into their decisions if those responses have value in relation to disclosers' goals, are compatible with the way they make decisions, and prove comprehensible.“ [13] The literature about agencies perceptions of users, their motivations and the utility of their requests seem to militate against disclosers working towards making the FOI system more effective.

A lack of congruence in goals and actions and misinterpretations of new information can reduce the effectiveness of transparency systems, even if information becomes embedded in routines. [18]

The authors analysis add some interesting extensions on existing FOI analyses. It will also draw more attention to the implementation and evaluation of FOI schemes.

See “Clarifying Transparency” by Mary Graham and David Weil, April 23, 2002 Reprinted from the Financial Times

The Political Economy of Transparency. What Makes Disclosure Policies Sustainable? By Archon Fung, Mary Graham, and David Weil , October 2003 Institute for Government Innovation, Occasional Paper, Fall 2002.$File/rwp03_039_fung.pdf.

Cambodian Update

The final weeks in Cambodia was a blur of activity. When I left at the end of the first week of August progress looked promising. The Ministers of Defense and Interior had signaled no objections to the draft policy.

On the 21st of August the drafting team approved a version to send to the Minister for MoNASRI. Since that time there has been an unfortunate silence from within MoNASRI as to the progress of the policy.

I returned in mid November to carry out more consultations and attempted without luck to find out more from MoNASRI. I participated in briefings to the 5th Commission of the National Assembly and in another two day National Workshop for NGOs and civil society.

3 months on still no movement. I had to turn down an opportunity to return to Cambodia last week to participate in a conference at the National Assembly. By all accounts the conference went well but no advance on why the draft policy has not been forwarded for review to the Council of Ministers.