Debate ongoing regarding government contracts

In the Letters page in the Sydney Morning Herald on 25-26 February Miles Lane of Roseville urged greater transparency regarding government contracts: “What can be so confidential about a simple construction contract to build a tunnel, road or desalination plant?”

He said that all such documents should be made readily available on line and that he would vote for a government that supported such a system.

With NSW Parliament resuming tomorrow he may get a chance to see where the Government stands on this issue. As mentioned in this blog on 10 February “Disclosure of Government contracts”, the independent member for Bligh, Clover Moore has a Bill before Parliament which will require state and local government organisations to disclose specified information about contracts on their website within 90 days.

Will the Government bring on debate on this Bill or let it languish like many other private member bills? Will the Government vote differently than it did on the last occasion similar legislation was before the Parliament when it voted against such mandatory disclosure requirements?

FOI reveals FBI objections to Guantanamo interrogation methods

Extensive media coverage in Australian and overseas press at the week end about the release of documents which revealed that FBI officers strenuously objected to aggressive interrogation techniques at Guantanamo Bay in 2002 and 2003.

The news stories arose from a court victory by a group of US organisations who had been seeking documents through FOI applications. Full details are contained on the American Civil Liberties Union website. The documents recently released had previously been made available to the ACLU in December 2004 with most of their contents deleted but a court ordered additional disclosures. The matter is scheduled for further hearing in April. To date more than 90,000 pages of government documents have been released as a result of the FOI lawsuit.

That’s a lot of FOI processing and a lot of time, money and energy expended on a court battle over the last two years.

Electronic Health Records developments

Saturday’s Sydney Morning Herald article “Reversal of privacy promise” provided an update on the NSW Health pilot schemes for the introduction of electronic health records. The article says that the Government has backed away from promises to keep the scheme voluntary and that the scheme will keep a record for every person who uses the health system. The report said that the Government will need to put in place a regulation to allow the scheme to proceed in this form as otherwise it involves a breach of HPP 15 in the Health Records and Information Privacy Act.

The Department of Health website includes a Healthelink update and a media release dated 21 February which provides more details about the Hunter pilot ("Hunter patients in health technology revolution").

Participation in the scheme is voluntary but these documents indicate that for those who choose not to participate a record of their non participation will be maintained. The privacy implications of this don’t seem too serious but its almost inevitable that the express consent provision in HPP 15 regarding the inclusion of information in a linked system will be altered at some point to an opt out option.

Schwarzenegger to identity thieves: "I'm watching you"

Identity theft continues to be the major privacy issue in the US. The California Government organised a summit "Teaming Up Against Identity Theft on 23 February" with lots of sessions about how to manage the issues and reduce the risks.

One of the workshops, Privacy Practices for Government Agencies, included a session led by the California Office of Privacy Protection whose website has some useful tips on the subject.

FOI cost order against applicant

The NSW Administrative Decisions Tribunal (ADT) in Miriani v Commissioner for Fair Trading decided in favour of a award of costs against another FOI applicant where it was clear that the application for review had no merit. This case involved a new hearing of the application for costs after the Appeal Panel found that an earlier decision erred in law in failing to provide the FOI applicant an opportunity to make submissions.

Blueprint for public sector reform

The NSW Audit of Expenditure and Assets Report by Michael Vertigan and Nigel Stokes provides the detailed basis for the initiatives announced yesterday by the Premier and has now been posted on the Government’s website.

The Report does not specifically discuss costs or benefits of FOI and privacy functions but it presents wide ranging suggestions about how government performance across the board could be improved.

Chapter 6 on restructuring government confirms that the changes announced yesterday are just the first step in a major reorganisation. While the Report includes a reference to the large number of independent or watchdog agencies in NSW it doesn’t specifically recommend any changes in the number or functions of the watchdogs at least.

The Report questions the need for separate bodies and boards for many government functions in NSW, an issue pointed out to the Government by the then Auditor General Tony Harris in a 1997 Performance Audit, Corporate Governance. His recommendations for review were never acted on.

Chapter 7 is the roadmap for efficiency reforms in the NSW public sector.

One of the surprising elements of the Report is that it feels the need to reiterate the importance of ideas like integrated planning and budgeting, focus on results, and the need for meaningful and monitorable performance measures.

All this suggests NSW has fallen a long way behind in public sector management. These ideas have been the bread and butter of public sector reform over the last 15 years and are well entrenched in public service elsewhere.

Qld Information Commissioner in FOI mess

Brisbane's Courier Mail on 23 February in an article headed "Lawyer launches bid to jail FOI head" reported on a court battle raging between Queensland's Information Commissioner and "a rogue lawyer" who describes himself as an "FOI warrior".

The lawyer has taken legal action over the way in which the Information Commission handled a complaint regarding an FOI application for documents from the Crime and Misconduct Commission.

According to the report he served court documents on the Commissioner at her home address; she complained to the police that she was being stalked; the lawyer has now taken court action against her for contempt of court and sought access to documents concerning her complaint to the police; and she objects to disclosure.

Phew!

Big changes in NSW public sector

The NSW Government’s Economic and Financial Statement released today contains no specific reference to administrative issues associated with privacy and access to government information. The continuation of the 1% efficiency dividend is one factor designed to reduce the overall public sector workforce by 5000 over the next few years, and privacy and FOI functions will be affected by the planned mergers and amalgamations of government agencies.

Reducing numbers of staff while not changing the functions that must be performed is usually not a workable solution to limiting the costs of government.

The Statement refers to the Audit of Expenditure and Assets Report commissioned in August last year and relies on that report as justification for many of the announced changes. It also refers to a number of other recommendations still to be considered. However the Report itself does not appear to have been released today.

RTA exempt documents tabled in Parliament

The Daily Telegraph today provides details of changes to traffic light phasing in inner city locations which they claim have been made to help funnel traffic into the Cross City Tunnel. The report says that the details are from a document tabled to a parliamentary inquiry into the Tunnel.

The Telegraph says that an FOI application by the opposition for documents containing this information was refused by the RTA on the grounds that disclosure could facilitate the commission of a terrorist act.

IT security system failure may have privacy implications

Canterbury University in New Zealand suffered a major security failure on its student website over the week end, with the possible result that student ID, medical conditions, emergency contact details and outstanding payments could have been accessed and changed by anyone with a university computer user code and password.

The University’s Director of IT said that there was no evidence of a hacker and that the problem may have been caused by heavy traffic during enrolments last week.

The incident raised the possibility of a breach of privacy legislation on the grounds of failure to ensure that reasonable security safeguards were in place to protect sensitive information.

The NZ Privacy Commissioner said that while it was convenient for people to access information about themselves, they needed to know that the system was secure.

Thanks to David Fraser's Canadian privacy blog for the lead.

High stress in the NSW public sector

The Daily Telegraph reported on 21 February that documents released under the FOI Act reveal high levels of stress in the NSW public sector with one in five RTA employees off work at any one time because of mental stress, body stress, or physical injury. Prison officers, police, nurses and fire fighters also feature prominently in the list of public sector workers making workers compensation claims.

Paranoia in the US National Archives

The New York Times has reported that a seven year old secret program at the National Archives has seen thousands of historical documents removed from public access despite the fact that some had already been published by the State Department and others photocopied years ago by private historians.

Several experts interviewed for the story say that the program is removing material that can do no conceivable harm to national security, and is part of a marked trend towards greater secrecy. They say the Bush administration has increased the pace of classifying documents, slowed declassification and discouraged the release of some material under the FOI Act.

Among the documents previously available and now withdrawn is a 1948 memorandum on a CIA scheme to float balloons over countries behind the Iron Curtain and drop propaganda leaflets. It has been reclassified as part of the program, even though it was published by the State Department in 1996.

Access to local council records

The NSW Department of Local Government’s Practice Note 16 on Meetings Practice is primarily about good practice meetings management for local councils, but also includes some comment about information access issues.

Section 1.4 discusses what should or should not be included in Council business papers with a reminder that details of council payments (cheque warrants) should not be listed and copies of plans should not be included (with a comment about the vexed problem of copyright); Section 1.6 is about public access to business papers and charges, reiterating the Department’s views about copying charges. This section has a reminder for councillors that documents held or acquired in the course of civic duties are council documents not personal documents of the councillor.

Section 2.13 is about the tape recording of council meetings.

Those in local councils responsible for information access issues might find these parts of the document useful.

Perhaps other useful guidance is on the horizon. The Privacy NSW website mentions that Fact Sheet No. 6 "Local Government records and the public interest test" has been removed from the website for revision.

National identity cards

The UK moved a step closer to the introduction of a national identity card with the passage of legislation by the House of Commons. The Bill as passed involves some modifications from that originally proposed by the Government. There are also final legislative steps still to occur. However it seems certain that a card will be introduced despite strong opposition, concern about the cost and uncertainty about what benefits the card will provide.

The newly elected Canadian Government has also indicated it will examine the possibility of a national ID card there.

FOI delivers breaking news reports

While journalists and others have legitimate scope for criticism about the way our FOI laws operate, documents released under the FOI Act continue to provide stories for the major media. Today’s front page Sydney Morning Herald report that there has been a drain of good teachers from our most needy public schools is just one of a recent series of articles generated in whole or in part by FOI applications.

Today’s (Melbourne) Age story regarding a climate change report prepared for the Commonwealth Government but released with options and recommendations deleted, also states that the report was unsuccessfully sought under FOI late last year, but has now been released (with deletions) by the Government. In the last few weeks the Daily Telegraph has published FOI based reports on violence in schools and security problems in NSW rail system.

The Australian has had several stories out of documents obtained under FOI regarding faulty defence personnel clothing.

SBS television achieved a world scoop by airing last week previously supressed photos of incidents in Abu Ghraib prison in Iraq obtained by the American Civil Liberties Union under FOI after a long and drawn out court battle.

Without the slightest irony, Bill O'Reilly of Fox News 'O'Reilly Factor' last week said that the photos had been shown by "some sleazy Australian television channel".

Our SBS sleazy? Coming from Fox News this might be a classic 'pot calling the kettle' accusation.

Familiar but important refrain

Oppositon parties are always committed to greater openness and transparency in government, but the track record is that this enthusiasm passes quickly once electoral success has been achieved. According to the Courier Mail this week the Queensland opposition is committed to changes in FOI including some moderation of the wide cabinet document exemption that exists in that state, and also removing an exemption for state government business enterprises. Good stuff, but the proof of the pudding........

Big Brother coming again

This article in The Age on 16 February and other press converage over the last couple of days comment on Federal government plans to extend message interception laws and concerns that the proposals will lead to unjustified intrusion into the affairs of innocent people.

Proud to be Public Servant

The Secretary of the Department of Prime Minister and Cabinet, Peter Shergold spoke at the National Press club at Canberra this week about the contemporary public service. It was a strong defence of the professionalism and capability of the public service with Shergold citing the many significant accomplishments that only dedicated public servants could achieve. Shergold also responded to what he sees as misguided and unfair criticisms and rejected the accusation that the public service has been politicised during the Howard government term in office.

Shergold also commented about the importance of confidentiality in the relationship between public servants and ministers and said that despite increased opportunities for scrutiny, frank advice can only be guaranteed where confidentiality is assured.

"Of course the Australian Public Service needs to be accountable for the way it plays its role. It is - more than ever before. The Westminster tradition has evolved considerably in the last thirty years: there is now much greater scrutiny of public service decision-making than in the past through Parliamentary committees, the Audit Office, and the Ombudsman; through legislation which, within limits set by Parliament, provides freedom of information to the public; and the opportunity, through an extended panoply of administrative law, for citizens to have decisions reviewed. There is now a network of integrity which did not exist 30 years ago.

Yet confidentiality remains a fundamental requisite of democratic decision-making. A public service which cannot provide its frank advice in confidence will rapidly lose its ability to influence. No government will willingly involve officials in decision-making if they fear that the written advice, or an account of its oral discussion, will end up in the newspapers if the government’s judgement is not accepted. Those who leak the deliberations of government, as opposed to those who whistleblow on corruption, undermine democratic process. They erode the trust between government and public administration which lies at the heart of good governance. They diminish the opportunity for public servants to inform and influence policy and, conversely, reduce the willingness of government to seek the broadest range of advice from across the administration. They undermine whole of government approaches. It is for that reason that I protect the confidentiality of Ministerial decision-making just as zealously as journalists protect the confidentiality of their informants."

He added however that in some fields public servants must be in a position to make independent decisions without ministerial interference or direction

"Ministers cannot change the outcome of a tender process which has been delegated to a public servant, or use public funds in ways for which they have not been appropriated, or ask to see the advice that their departments have provided to a previous government, or tell a public servant how to respond to an FOI application, or - without the agreement of the Opposition - commit a future government during an election caretaker period, or decide on which senior executives are appointed to their departments. In these, and many other ways, power is balanced between the Australian government and its public administration so that, on occasion, the only possible response will be “No, Minister”."

Australia Day Award for FOI Implementer

David Roden currently Director Management Services in the Premier's Department was awarded a Public Service Medal in the awards announced on Australia Day. David was in charge of the FOI Unit in the Premier's Department from the time the Unit was formed in 1988 to prepare for the introduction of FOI in NSW and continued in that position until the Unit was abolished in 1991. He provided outstanding leadership and support for FOI during this time. The abolition of the FOI Unit was said at the time to be justified because of the Unit's success in managing initial implementation across the public sector. The Ombudsman and others criticised the decision on the grounds that it failed to recognise that the culture change required by the FOI Act requires constant leadership and support. Unfortunately FOI in NSW over much of the period since has been "orphaned" with few signs of open support and encouragement from the top.

National Electronic Health Record Projects

Insiders involved in the development of electronic health records no doubt have a good idea about the state of play but to outside observers the whole process is something of a mystery. At least on the basis of recent media reports it seems to be one step forward and another back.

The recent announcement of a delay in the NSW Health tender for a electronic medical record supplier (see our posting below 10 February - NSW health records project delayed) has been followed by an agreement at the Council of Australian Governments meeting last week to allocate $45 million over three years to development of a national system of individual health care identifiers to be used to link electronic medical records.

According to an article in The Australian Financial Review on 14 February this project is one of three projects being overseen by the National E-Health Transition Authority, an independent organisation charged with developing standards required to effectively roll out national electronic health records.

While the technological issues are obviously daunting there are also major privacy issues that need to be addressed. As reported by the Review the Chief Executive of the Authority said that the three projects will commence in July and be completed within three years. He said that a study into privacy issues associated with the proposed individual health care identifier was yet to be completed and it was too early to say whether patients would be able to opt out of the system.

Under current NSW legislation the inclusion of any individual’s health records in an electronic system require the express consent of the individual concerned.

Cuts in the "backroom" in NSW Public Sector

Much media speculation over the last few weeks about the outcome of a review of public sector costs in NSW being undertaken by the Assistant Treasurer Michael Costa. According to reports the Government is looking to cut 4000 jobs but not sacrifice “frontline” service positions, and there is some talk of further departmental mergers or amalgamations.

All will be revealed of course soon – the report was due last November – but it will be interesting to see what, if any changes the Government will make to the many overly complex administrative requirements that still are a feature of the public sector and consume large amounts of time and public money. FOI and privacy protection of course could turn out to be “backroom” functions affected by staff cut. The real issue that should be addressed is streamlining processes, greater proactive disclosure of government information, simplified laws, and timely and effective central support for those involved in the management of these issues.

The Daily Telegraph on 31 January, in a report about the review said that the main business lobby group in NSW, Australian Business Limited had made a submission to government on cost reduction that called for the abolition of the NSW Privacy Commission and the Office for Women.

We will watch this space!

Privacy and identity document verification

The Federal Government has embarked on the first phase of an online document verification service which will allow government agencies to send document details in real time to the agency that initially issued the document in order to check its authenticity.

The Australian Financial Review on 13 February reported that a trial commenced last week between the Department of Foreign Affairs and Trade and Department of Immigration. The ACT, NSW and Victorian registries of births deaths and marriages and the Australian and New Zealand road transport and traffic authorities are also involved.

The NSW Privacy Commissioner on 12 December issued a Direction under the Privacy and Personal Information Protection Act (PPIPA) to permit the NSW RTA to collect personal information from the two Federal departments in the trial and to use and disclose certain information to those departments.

The Financial Review reports that the Australian Privacy Foundation and the Australian Council for Civil Liberties are critical of the Government’s failure to undertake an independent privacy assessment. Both organisations say that the Federal Privacy Commissioner should assess the trial and associated privacy issues.

Terry O’Gorman of the Council for Civil Liberties said that a greater concern was that the system would be extended beyond government to the private sector, “where there is greater potential for misuse of information” and the possibility that agencies would eventually do more than just check the veracity of a document, such as exchanging more personal information.

NSW FOI and Privacy training programs

Our training programs for 2006 will get underway in March - Introductory programs for State Government agencies on FOI and privacy are scheduled for 15 and 16 March; and programs for Local Government on Information Access (FOI and Section 12) and privacy for 29 and 30 March. See the link above for further details and click here for the booking form.

FOI and South Australian election

With elections due next month, FOI has become a political hot potato in South Australia. According to The Advertiser ministers have accused the opposition of lodging FOI applications to tie up government agencies while the opposition have complained to the Ombudsman that government agencies are dragging the chain in order to avoid releasing documents prior to the election on 18 March.

The Advertiser on 7 February reported that the Ombudsman has asked that documents sought in several opposition FOI applications be released before the election. The opposition Treasury spokesman was told in December that 30 of his FOI applications to the Trade and Economic Development Department could not be answered until 22 March, 4 days after the election. He subsequently lodged a complaint with the Ombudsman.

The SA FOI Act requires applications to be dealt with in 30 days.

FOI related defamation case still before the courts 10 years on!

The Australian Financial Review 11-12 February has a long article “The revenge of Len Ainsworth” which details action taken by Mr. Ainsworth over the last 25 years in pursuing NSW Police through the courts. Mr. Ainsworth, an 82 year old billionaire poker machine pioneer, has filed 420 complaints with the NSW Ombudsman and launched innumerable legal actions, arising from what he claims to be a deliberate attempt by members of the NSW Licensing Branch to discredit him and to shut him out of the lucrative US poker machine market.

The article says that his current and last legal battle is a defamation action commenced in 1996 against a former police officer Leslie Burden arising from a letter written by Mr. Burden to the then Police Commissioner in 1993. The letter was released to Mr. Ainsworth after an FOI request. He alleges it contained defamatory matter. After several decisions and appeals the case is still before the NSW Court of Appeal. The decision under appeal was that a defamation occurred but no damage resulted.

One of the earlier cases, Ainsworth v Burden (2003) NSWCA 90 involved consideration of Section 64 of the NSW FOI Act and whether, as a result of release of the letter under the FOI Act, Mr. Burden had an absolute defence against any action for defamation. The NSW Court of Appeal decided that Section 64 only provides a defence for any defamation that may have occurred in releasing the document. It provides no protection against any action for defamation that might have occurred in writing and sending a letter to the minister.

This appears to be the only case in which there has been consideration of the protection available in Section 64 of the Act.

NSW health records project delayed

The Australian Financial Review reported on 10 February that “NSW Health has pulled the plug on two technology upgrades in a shock move that will compound delays to the $240 million introduction of patient and medical records technology in public hospitals.

Tenderers for the supply of clinical information software for the electronic medical record project have been told that none of the bids met all requirements. The project aimed to provide public hospitals with updated technology to manage patient records.

The Review reported that the project has been on hold for two years after questions were raised about the cost of implementing clinical information software from the US based Cerner Corporation, originally selected as the sole supplier in 2002.

Project documents are to be re written and re issued in July.

The NSW Government stated at the time that the introduction of the electronic medical records was one of the main reasons for the Health Records and Information Privacy Act (HRIPA) which passed the NSW Parliament in 2002 and took effect in September 2004.

Lleyton Hewitt's privacy subject to confidential settlement

The enfant terrible of Australian tennis and his actress wife have settled out of court a claim that his privacy was breached by a (gasp) harbour cruise operator who took photos of the pair while on their boat in December 2004. It is unclear in Australian law whether there is a right to sue for damages arising from a breach of privacy, but the Hewitts and the cruise operators reached a confidential settlement, obviously finding some balance between Hewitt's claim and the $3,971 they still owed for the harbour cruise.

According to one media report, the photographs are still being offered for sale.

Australian Identity Card "a dumb idea"

Federal Government consideration of the merits of a national identity card continues but critics of the idea are highlighting weaknesses in the arguments so far. Anna Johnston the chair of the Australian Privacy Foundation in a paper posted on Australian Policy Online, puts forward six reasons why the costs far out-strip any possible benefits:

1. ID cards are of doubtful effectiveness in tackling identity fraud, crime and terrorism
2. ID cards would not prevent identification errors being made
3. The cost of a national ID system would be staggering and wasteful
4. There is widespread public opposition to ID cards
5. A national ID card is significantly different to what we have now
6. The ipact on the Australian way of life would be profound

$15 million payment for privacy breaches

It may have just been the Christmas season turn-off but there didn't seem to be much media attention to the announcement at the end of January that the US Federal Trade Commission ordered the consumer data broker ChoicePoint to pay $10 million in civil penalties and $5 million in consumer re-dress to settle charges that its security and record handling procedures violated privacy rights and US laws.

ChoicePoint obtains and sells personal information about consumers.

The penalties arise from disclosures that criminals had accessed ChoicePoint records and in some cases had used them to perpetrate identity fraud.

We haven't seen anything on this scale in Australia to date. But if these things can happen in the US it would be surprising if similar things were not occurring here.

New Privacy Materials

Those involved in managing issues arising under the NSW Privacy and Personal Information Protection Act might find useful new materials recently posted on our website which include key cases decided by the Administrative Decisions Tribunal.

FOI cost orders in the ADT

The NSW Administrative Decisions Tribunal has painted itself into a very small corner in various decisions interpreting its powers conferred by the Administrative Decisions Tribunal Act to award costs in “special circumstances”. One of the problems is that the Act applies to all aspects of ADT jurisdiction. Many of the matters decided by the Tribunal involved private sector parties but in FOI and Privacy cases the respondent is always a government agency. The Tribunal has issued a Practice Note amended in 2005 on the circumstances and matters relevant to a judgement that a cost order be made.

Having taken a very narrow view, some recent decisions have seen an award of costs against an FOI applicant and an award against a government agency. In the latter, for the first time, the Tribunal has said that the way in which the FOI application was handled before the matter came to the ADT was a relevant factor in deciding that “special circumstances” of the case warranted an order for costs against Tweed Shire Council.

Openness in the Sunshine State

There have been many criticisms of aspects of the operation of FOI in Queensland but this article by Michael McKinnon in The Australian, is a comprehensive summary of what he regards as the short comings and a conclusive response to a recent argument by the Premier that the media, not government, needs to be more transparent and accountable.

Is too much FOI ever enough?

A prominent academic Richard Mulgan, Director of the Policy and Governance Program, Asia Pacific School of Economics and Government, at the Australian National University in Canberra has bought into the debate about openness and transparency in government. In an article in the Canberra Times on 7 February 2006, under the headline - "The dangers of too much FOI", Mulgan says that open government advocates fail to understand that an important part of the role of the (senior) public servant is to protect the Minister from political attack and criticism. He says that in order to achieve this objective policy research needs to be undertaken on a confidential basis - "why embark on research that could reveal faults with government policy if there can be no guarantee that the findings can be kept confidential?. The greater the chance that research will be disclosed, the stronger the incentives not to proceed with it, unless its outcome can be guaranteed to be favourable to the government."

Mulgan's article concludes:

"That FOI, along with extended parliamentary scrutiny, has greatly improved the transparency and public accountability of government cannot be denied. But supporters of FOI need to recognise the genuine threats greater openness can bring to the maintenance of a professional, non-partisan public service. As former Public Service Commissioner Andrew Podger, pointed out in his retirement address (PSI July 2005), fewer records are being kept and less research is being conducted. Critics of government secrecy are also the first to deplore any signs of politicisation and excessive responsiveness to the Government of the day among public servants. But to expect career public servants to be frank, fearless and open in evaluating government policy is dangerously naive. There is no surer recipe for breaking the trust between ministers and professional public servants and for politicising the public service. The more open the public service, the more partisan its advice and information will inevitably become."

Mulgan clearly does not attach much weight to the argument that in a democratic society the citizen has a right to know what government knows, and to assess government choices fully informed about the options available and the reasons why government has chosen a particular path.

However, Mulgan's words are sure to be well received by those who continue to resist FOI's open government principles. Some of these critics are in very high places. For example, the Federal Treasurer, Peter Costello, in the High Court defending a case brought by The Australian's Michael McKinnon commented recently that FOI was intended only for the disclosure of personal information.

Disclosure of Government Contracts

A Parliamentary Committee is currently investigating all aspects of the Government's handling of the Cross City Tunnel project. One of the issues in this controversial matter has been information about the contract and what powers were given to the contractors to limit public access to some streets, to the advantage of the Tunnel owners. The Government late last year was forced to table in the Parliament all papers associated with the contract but the whole process was a bit like pulling teeth.

The NSW Ombudsman has been critical for some years of the use of confidentiality provisios by government agencies to refuse access to contract documents sought under the FOI Act.

The independent member for Bligh (and Sydney Lord Mayor) Clover Moore, has been a critic of excessive government secrecy. In 2003 she unsuccessfully introduced into the NSW Parliament a Bill requiring public disclosure of government contracts.

Just prior to the end of the 2005 Parliamentary sittings she re-introduced a new version of the Bill - (Open Government - Disclosure of Contracts) - and with Parliament due to resume at the end of February it will be interesting to see the Government's response.

The Bill would give legal force to Guidelines issues by the Premier some years ago requiring information about contracts exceeding $150,000 to be posted on the web within 90 days. The Bill also includes a new but tightly defined commercial in confidence exemption to apply only to details of a contractors finance arrangements, cost structure or profit margins, intellectual property or information which if disclosed would place the contractor at a substantial commercial disadvantage.

Moore's Second Reading speech on 15 December includes a summary of the Bill.

The NSW Auditor General in a report to Parliament late last year (see Compliance Review of Agency Disclosure of Information on Government Contracts with the Private Sector) drew attention to the inadequacy of the Premier's Guidelines. The Auditor General reviewed the policy and practices of 20 agencies to verify compliance with the Premier's Memorandum. Only 4 fully complied. Seven were not disclosing information about the awarding of contracts, while another 5 partially complied. The 4 state owned corporations reviewed had all chosen not adopt the Memorandum Guidelines.

In the light of the public controversy about the Tunnel the Government might find it difficult to vote against Moore's Bill, although the Premier's Department comment on the Auditor General's Report doesn't give rise to optimism:

"In an endeavour to enhance the overall probity and transparency of NSW Government procurement processes, Premier's Department would be happy to reiterate its policy to all government agencies and to encourage SOCs to adopt these disclosure guidelines."

Pro active disclosure needed

Two articles in the Sydney Morning Herald in the one week raised some interesting issues about openness and transparency in the NSW Government. Anne Davies the NSW Political Correspondent on 30 January, wrote about the Guidelines being developed within the Government on lobbying to implement recommendations flowing from the Independent Commission Against Corruption and the Orange Grove affair. In the article she recounts trying to find existing documents concerning conduct in public office:

“Search the web and you will find an extensive code applying to NSW public servants, but not a ministerial code of conduct. A call to the premier’s department also failed to unearth it. Finally we tracked down a copy in the parliamentary library. It was adopted in 1995 and is based on a 1993 code developed by then premier John Fahey”

Davies elsewhere in the article says that she was able to find the code of conduct for members of parliament on the parliamentary website “with a bit of searching”.

It says a lot that documents of this kind either aren’t on any government website or if they do exist they take even an expert researcher like the state political correspondent for a major daily newspaper quite a lot of searching to find.

Government agencies should be required to proactively disclose specified types of documents on their websites. There is also a need for well organised, easily accessible government websites which are consistent in layout and design.

Have you ever tried to find even media releases issued by NSW Government ministers?

The other story that took our interest were reports about the dangerous level of dioxin in fish in Sydney Harbour leading to the announcement in December of a ban on commercial fishing. The Herald on 3 February said “that Government agencies confronted by a serious and urgent public health issue….sat on their hands for years after the years after the dangerous extent of the problem was exposed”. An article on 2 February said that the government was aware 4 years ago that dioxin levels were likely to exceed international safety standards and that fishing should be banned”.

In many countries that Australia would compare itself with, governments by law are required to disclose information when there is reason to believe that a danger to public health exists. Have a look at the link on this article to access some of the US, Canadian and UK legal requirements often referred to as “Right to Know laws”.

How come we don’t have a right to know of dangers to our health!

Political donations and transparency

The Australian Electoral Commission last week published the list of donors to the major political parties. The Australian Financial Review commented in an editorial that the Commission’s data matching processes had yawning gaps through which anyone wanting to keep their identity private can walk with ease. It referred to the use of meaninglessly named trusts, organisations masquerading as individual donors; and donors taking advantage of the state structure of parties to spread goodwill unseen. There is no continuous reporting requirement so what is disclosed is only on an annual basis, long after the event.

While all this is a problem in itself, its about to get even easier to hide behind the law. A Commonwealth Government Bill currently half way through the Parliamentary process for example, will raise the threshold for identifying a party donation from $1,500 to $10,000.

The editorial noted that while the Government has been keen to move ahead with this type of change, it HAS NOT acted on most of the recommendations made by the Australian Electoral Commission since 1993 on better data matching, timeliness in reporting, and wider definition to include activities such as dinners, equipment loans and free advertising in the donations which need to be disclosed.

In another reminder about the opaque nature of this process, just go to the link on this page to the AEC and try to find the list of donors! We battled our way through – you need to use the side bars “summary” or “analysis” to get what you want.

However if this is too exhausting you can buy a CD containing imaged copies of the returns for $37 GST inclusive.

No paper trail if possilbe

Writing in The Australian Financial Review on 3 February about the mess concerning AWB and secret payments to Iraq, Laura Tingle recounted the following as indicative of what appears to have become a pattern in Australian Government:

"In the early days of the Howard government, a bureaucrat sent his department's weighty cabinet submission to a senior cabinet minister, outlining options for budget cuts in Peter Costello's first budget.

He was rather stunned when it promptly ricocheted back to him accompanied by a phone call from the minister's office saying it would not formally receive the submission until some controversial options had been removed from it. It was an early exercise in the trade of paper-trail deniability under the current government: if there isn't a stamp on a document saying it has been received in a minister's office, its existence as an option that the government has considered can be unctuously denied in parliament - and everywhere else".

Concern about counter measures being taken to frustrate the open government principles were raised in July last year by the retiring Public Service Commissioner and former Secretary of Health, Andrew Podger. As reported in The Canberra Times Podger told a farewell function that "some senior public servants are too concerned to please and serve partisian government interests by failing to keep proper notes, destroying diaries and ratcheting up security classification of documents".

High Court to hear FOI Case

The High Court has granted The Australian the right to appeal a Federal Court decision regarding the validity of a conclusive certificate issued by the Treasurer which prevented access to documents on income tax and the first home buyers scheme. The FOI request was made three years ago by The Austalian's FOI editor Michael McKinnon. The issue to be argued in the High Court is about the public interest grounds on which the certificate is based.

The Commonwealth FOI regime provides more scope than any other FOI Act in Australia for the issuance of a certificate which is conclusive evidence that a document is an exempt document. However the certificate must be based on a claim that the public interest requires that the document not be disclosed. In the Commonwealth, ministers and departmental heads have authority to issue a certificate.

Under the NSW Act only the Premier has authority to issue a certificate and then only in respect of three of the twenty six exemption provisions in the Act.

There has been strong media support, including some financial assistance, for The Australian's challenge.

The global nature of privacy issues

Most privacy issues that crop up in Australia are not unique. David Fraser a Canadian privacy lawyer has an outstanding blog which not only brings to attention important develoments in Canada and North America but also highlights developments elsewhere of broad significance. If you want to keep up with developments his blog site is a must.

"Temporary" exemptions from the PPIPA extended

Meanwhile, Privacy NSW has announced the extension until December 2006 of seven "temporary" Directions which exempt some government agencies from compliance with aspects of the Privacy legislation. These versions of some Directions include an explanation about why they are in the public interest but others are simply renewed without any public justification. The Privacy Commissioner's powers to issue directions is contained in section 41 of the Privacy and Personal Information Protection Act. They were always intended to be "temporary" where required by public interest considerations, pending either legislative changes or the approval of a code of conduct by the Attorney General.

Just why almost 6 years after the Act commenced a "temporary" direction (Some Information Transfers Between Public Sector Agencies) is still necessary to provide an exemption from the Act where government agencies had in place agreements prior to June 2000, has never been explained or justified.

Despite comments last year by the NSW ADT that one of these Directions - on the use of information for investigative purposes - was ambiguous and that it has been interpreted in several ways - there has been no change to the text.

NSW Review overtaken?

Where the announced review leaves the long awaited review of the NSW Privacy and Personal Information and Protection Act, who knows? That review scheduled to be tabled in Parliament in November 2004 has still not appeared. All the signs have been that the Act has so many deficiencies that this has been in the too hard basket for the last 18 months. The NSW Government general interest in privacy protection issues, in particular the failure to appoint a Privacy Commissioner, led the Australian Privacy Foundation to award it a 'Big Brother Award' as a menace to privacy.

Ruddock announces ALRC Review of Privacy Legislation

Commonwealth Attorney General Phillip Ruddock has announced a comprehensive review of Australia's privacy laws to be undertaken by the Australian Law Reform Commission. The proposed review follows reviews last year by the Federal Privacy Commissioner and a Senate Committee which both called for a more comprehensive examination of the issue. Those hoping for any quick changes to the complex, overlapping and inadequate privacy laws currently in place will be disappointed that the review is not scheduled to be completed until March 2008!