Federal access card - cost blowouts and none of your business

Its not a good look – the Senate Estimates Committee has been told that the first two contracts awarded in connection with the development of the Federal Government’s health and welfare smartcard were delivered late and over budget. And the business case for the whole project (part of a contract let to KPMG on an hourly charge rate that eventually cost $1.94 million) will not be released because the Government says its now redundant. Neither will it release the Privacy Impact Assessment that cost $160,000 – one of the consultants who prepared the assessment thinks it, like any other, should be publicly released.

What’s that – whatever happened to the trial of a new smart version of the medicare card in Tasmania? Well now that you ask, its been abandoned but the lessons, we are assured, will be picked up in the smartcard project.

RFID privacy concerns hot up

Radio frequency ID – the use of radio microchips to track product (and people) - is a hot topic at present. The US Department of Homeland Security has issued a draft report citing few benefits and significant privacy impacts from use of the technology to track people. The Canadian Federal Privacy Commissioner in her just released Annual Report expresses serious concern that the technology is rapidly expanding corporations’ ability to spy on shopping habits, track items in homes and allow the government to monitor the movement of immigrants.

Some voices suggest that privacy friendly RFID is within our capabilities. Former Federal Privacy Commissioner Malcolm Crompton (now with Information Integrity Solutions) says in “The Revolution of RFID Challenges and Options for Action: a consumer perspective” that consumer backlash against the technology already evident in Europe represents a failure to adequately manage risk and communication with the public.

Another one for the Australian Law Reform Commission?

FOI forces UK to explain legality of Iraq intervention

In the UK there have been many FOI applications seeking access to the legal advice available to the government prior to the decision to commit forces to Iraq. The Government’s public position at the time was that the war was legal but the leak of a draft document indicated that the Attorney General had serious reservations.

The Independent newspaper took the Government on about the decision to refuse access.

The Information Commissioner last week issued an enforcement notice requiring the Attorney General’s Department to provide additional information, but stopped short of ordering disclosure of particular documents. The Commissioner said that

“As the Government chose to outline an unequivocal legal position, on such a critical issue at such a critical time, the balance of the public interest calls for disclosure of the recorded information which lay behind those views. By this means the public can better understand the background and rational behind that published statement and the extent to which reliance upon those final conclusions was in fact justified”.

It has now been disclosed that UK service chiefs and others said that a clear statement that involvement in Iraq was legal was required before they could support the intervention, and that there was strong pressure exerted to convince the Attorney General to issue his positive statement.

Prime Minister Howard in Parliament on 18 March 2003 quoted the British Attorney General’s views and his own legal advice that the intervention in Iraq was legal, but that advice was not tabled and has not been disclosed.

We probably only have 27 more years until the Australian records are open to public access.

The Weekend Australian Financial Review had a long and detailed article about Australian decision making leading up to the decision to commit troops to Iraq, almost entirely based on overseas sources. The essay on which the article is based -"Going to war: penetrating the veil on Iraq" is downloadable from this page. As the author Garry Woodard says

"In Australia Prime Minister John Howard runs a tight ship, aided by a more compliant party, parliament, public service and press".

FOI in the news

Media reports based on FOI applications/issues over the last week included:

The Age 19 May: “How to stop MPs lying” – an opinion piece by former Federal and Victorian MP and minister, Race Mathews urges a wide range of initiatives to address public distrust of political leaders including defending and extending FOI legislation and strengthening watchdogs on public probity, transparency and accountability.

The Daily Telegraph 19 May: “Roads doomed by late trains” – reports on the long delays in building a rail link to Sydney’s north west. The report says that an FOI request revealed that only two documents were located, both claimed to be exempt.

The Australian 20 May: “Drug research program fails to raise funds” – documents released by the Federal Industry Department reveal that a $150 million government program to boost the pharmaceutical industry has been underspent by 50%, and delivered a net return of $0.3 million. At the time the program was introduced three years ago the minister responsible predicted it would lead to a $500 million increase in investment.

In an editorial on 20 May (scan down to "Rann's secret mission")the Australian referred to the fuss in South Australia over the Premier’s unannounced overseas visit – referred to publicly only in a one liner in the Government Gazette.

The Courier Mail 22 May: “Prisoners to lose phone sex tapes” – the Queensland Police Minister says the Government will close a loophole whereby prisoners seek to access the Corrective Services recording of their own telephone-sex calls which are then sold or bartered in prison. The Minister said that currently if the sex partner agreed for the content to be released, the Department had no choice but to release it.

The Age 23 May: “Hundreds die before surgery” – 1500 people on the elective surgery waiting lists in Victoria died in the past 3 years before their number came up.

The Age also carried a story about expenditure on travel and entertainment by Victorian public servants.

ABC Television 7.30 Report 23 May: “Allegations may re-open case into youth detention centre” - the ABC Investigative Unit reported on a series of incidents 18 years ago in a Youth Detention Centre in Queensland concerning allegations of rape and evidence that a report into the incident was shredded.

The Telegraph 23 May: “FOI: Freedom for governments to keep us ignorant” – reports that the NSW Greens plan to propose significant reforms to FOI legislation including an independent Public Information Access Commission. (No link available).

Journalist scoops the pool - FOI unmasks MPs expenses

Well, not Australia but it did happen in Scotland.

The Scottish Journalist of the Year and Political Journalist of the Year has been awarded to the Sunday Herald’s Political Editor Paul Hutcheon, recognising his lengthy investigation into the use of taxis by members of the Scottish Parliament. His reports were based on FOI requests for expense reimbursements by individual members of the Scottish Parliament.

The Parliament provided Hutcheon with details of taxi expenses for the leader of the Scottish Conservative Party, David McLetchie, but deleted the taxi destinations from the documents released. Hutcheon took this issue to the Information Commissioner who overruled the Parliamentary Department and decided that in the circumstances disclosure of this information was not unreasonable.

It took 4 months work to publish the first story, which revealed McLetchie’s claims for reimbursement for travel to football matches, frequent visits to the home of a former female staffer and to his legal practice, and 4 months of follow up stories before McLetchie resigned last December.

A couple of interesting issues: the Scottish Parliament is an agency covered by FOI legislation in contrast to all Australian legislatures, so we never hear much about expenditure from the Parliamentary account including that of non government members; and the Scottish Parliament now publishes on the web detailed information about all expense claims for all members of Parliament.

If you go to this site, click on SPICe briefing – MSPs’ Allowances and Expenditure 2004-05 and pick any member at random you will see that all expenses are listed. In some cases this discloses that members are paying mortgage interest out of their accommodation allowance, and of course a whole range of other expenses. There is no suggestion any of this is underhand. They are all still MSPs despite the disclosures. Details include staff travel and expenses as well.

What a contrast to local practice. The Federal Government publishes details of Parliamentary travel every 6 months (but its not on the web), and the NSW Government has recently released travel details for ministers in response to an FOI application by the Opposition, but its not rushing to make this a routine or comprehensive disclosure.

Another example from elsewhere that FOI reform is long overdue and that full proactive disclosure isn’t the end of the world.

Thanks to Steve Wood’s UK FOI blog for the lead on the Journalist of the Year story.

So who's concerned about privacy?

Today Tonight “fooled” 20 of 30 people stopped in the street into providing their full name, date of birth, contact number, home address, mothers maiden name, marital status, nationality, occupation, citizenship status and which bank they used.

The journalist involved gave a private detective his business card and after one week the investigator returned with a complete record of education, employment history, home address, details of wife and children, where he banked and the doctor he used.

Public education everywhere is lagging a long way behind the real threats to privacy.

This Australian example follows a Guardian article in the UK that pieced together the personal profile of a person based on a discarded airline boarding ticket that included only the person’s name and frequent flyer number.

In Canada the Alberta Privacy Commissioner is investigating businesses for breach of privacy for including full credit card numbers on receipts, which when discarded would give an identity fraudster a pretty good start. This appears to be a common practice in Australia. You might want to keep an eye on your receipts and have a word to the merchant when you see this has happened.

And The (Adelaide) Advertiser reports today – “Women fear website puts them in danger” – that a website, wait for it, www.boonghunter.com enables anyone to ascertain personal details about you just be knowing the street you live in. Telstra’s online directory division Sensus says it is “appalled” by the website and the Australian Communications and Media Authority and the Federal Privacy Commissioner are both said to be investigating.

Not good news for those who say we have nothing to be concerned about when it comes to privacy and things like the proposed database that will support the Government’s access card. Apart from women in Adelaide, who cares?

Well maybe this pessism is a bit premature - the Government has appointed Professsor Allan Fels as Chairman of a Consumer and Privacy Advisory Committee to keep an eye on the development of the access card

Thanks to Pogowasright for the lead on the Today Tonight story and to David Fraser's Canadian Privacy blog for the lead on the on the others.

Committee recommends full disclosure of contracts

The NSW Parliament’s Committee of Inquiry into the Cross City Tunnel has released the report on the second phase of its terms of reference.

Transparency and disclosure issues get a good run (see 4.72).

The Committee was told that the NSW Chamber of Commerce supports full disclosure of contracts and that this has been a requirement for some time for all Victorian Government contracts over $100,000. The Deputy Secretary of the Victorian Department of Treasury and Finance said that full disclosure was “not initially popular with the private sector but that attitudes changed over time….some of those that opposed such transparency of information are now supporting it. They are saying that for good debate and outcomes that information must be there. They have probably realised that historically they have been too sensitive about what they think is commercial-in-confidence”.

I’m not sure what apoplexy all this might cause in the private sector in NSW where consultation with business interests during the course of processing FOI applications has often given rise to the perception that the time of day is commercial in confidence. Public sector decision makers have often been persuaded by these views.

So its interesting to see Committee recommendation 8, that after a contract has been concluded documents to be publicly released for any Public Private Partnership or Privately Financed Project should include:

• the full contract and any material variations
• a contract summary (verified for accuracy by the Auditor General)
• details of the public interest evaluation conducted prior to the decision to enter into the PPP or PFP
• a summary of the Public Sector Comparator and the comparison between it
and the successful project (verified for accuracy by the Auditor General)
• the base case financial model
• the Public Sector Comparator.

That, notwithstanding the above paragraph, an independent body, such as the Auditor General, be authorised to assess the question of whether elements of any of the above documents be considered commercial in confidence, on the request of the parties to the contract.

That the NSW Government take proactive steps to ensure that the public are made aware that these documents are publicly available.

The Government has until November to respond to the Committee’s recommendations. The report says the Treasury is working on revised guidelines.

Meanwhile the Freedom of Information Amendment (Disclosure of Contracts) Bill introduced by Independent Member for Bligh, Clover Moore, (and the same Bill sponsored by Upper House Member Arthur Chesterfield-Evans) sits on the Notice Paper but no debate so far. The Bill relates more broadly to contracts and is not limited to PPPs.

FOI ADT Appeal Panel decision: a long drawn out defence battle, but why?

You have to be an “FOI wonk” to work your way through the discussion of legal professional privilege in this NSWADT Appeal Panel decision in yet another Flemington Markets sale case – Attorney General’s Department v Cianfrano (2006) NSWADTAP26 – but keep reading if you’re interested in the lengths some go to seek to protect innocuous documents from disclosure.

The original Tribunal decision upheld the agency determination that 84 documents sought attracted legal professional privilege but ruled that 5 were not exempt. The 5 documents were communications between the Crown Solicitor’s Office and third parties. The Tribunal said that these were merely documents of an administrative nature and did not qualify for privilege.

The Attorney General’s Department (perhaps nominally - the Appeal Panel case only concerned 4 of these documents held by the Crown Solicitor’s Office) appealed the decision on the basis that the Tribunal had erred in law in finding that the documents did not attract privilege.

The Appeal Panel found that the rejection of the claim because they were administrative records was wrong in law. However it decided that the Tribunal had not erred: communications between a lawyer and third parties who were not acting as agents for the client were not covered by privilege in any event. Interestingly the Appeal Panel indicated that some of the other documents found exempt by the Tribunal might not have been exempt on these grounds but as Mr. Cianfrano had not cross appealled this issue was not before the Panel.

There have been several cases about legal professional privilege recently providing useful guidance about “litigation privilege” and “advice privilege”, the alternative limbs of a privilege claim. These include the decision to reject a privilege claim where no lawyer-client relationship was established (NSW Court of Appeal in WorkCover Authority v Law Society of NSW (2006) NSWCA 84); and a finding that a PR statement drafted in the course of preparation for an appearance before a Royal Commission did not attract privilege (Federal Court of Australia in AWB Limited v Terrence Cole (2006) FCA571).

The Appeal Panel decision in Cianfrano includes a finding that the reference to legal professional privilege in the FOIA means common law privilege not client legal privilege as defined in the Evidence Act when "advice privilege" is under consideration. To that extent it is useful but can hardly be the reason why the AG’s/Crown Solicitor’s Office brought the appeal as both parties proceeded with the case on this basis.

You have to ask just why it was thought necessary to take this matter to the highest level of the ADT – I’m just hoping they don’t feel the need to take it to the Court of Appeal.

It is remarkable that somewhere in the bureaucracy decisions were made to refuse access, refuse access on internal review, argue unsuccessfully before the Tribunal and then argue unsuccessfully before the Appeal Panel that these documents were exempt: the documents consisted of two land title search requests forms; a letter and a Section 149 Planning Certificate from Strathfield Council, and a letter to Sydney Water requesting property information including a drainage diagram.

You can see why President O’Connor in the original ADT decision referred to these documents as administrative records.

What important interests were at stake here are hard to identify.

Expense wasn’t spared either – external counsel argued the case before the Appeal Panel.

Clarification of an important legal principle, preoccupation with precedent, or a publicly funded lark by lawyers with little consideration of the spirit and intent of the Act or the costs and benefits of the exercise?

I’ll leave it to you to draw your own conclusions.

FOI: the law that governments flout

Today’s editorial in the Sydney Morning Herald “The law that governments flout”, says that Australia’s Freedom of Information Act is in urgent need of repair. In again noting the importance of the current McKinnon High Court case the editorial says:

“the fact that (McKinnon) has been fighting to see the documents for almost 4 years highlights one of the many failures of the Act namely its inability to have such applications dealt with promptly. To delay resolving requests for months or years is one way the aims of the Act are routinely subverted by bureaucrats serving political masters determined to avoid complying with the spirit of the legislation. When documents are released, it is often long after decisions are made and too late to inform public opinion at the critical time”.

This failure is not limited to the Federal Government. Long delays occur before contentious FOI matters are resolved in the NSW ADT. Even when decisions are made some government agencies continue to challenge to the Appeal Panel on minor points, again delaying disclosure.

The State Political reporter for the Herald Anne Davies has a column today “Grand plans need dollars and details” about the NSW Government's failure to publish an infrastructure plan. She quotes senior NSW Treasury executive Kerry Schott’s answer to a question about this at a Committee for the Economic Development of Australia lunch: “We don’t put it out because it would raise expectations and it doesn’t give the Government the opportunity to change their mind”.

Davies comments that there "was a gasp at this candour" and continues:

“Fear of being held accountable to a plan is one of the reasons the Carr-Iemma Government seems to be allergic to long term planning”.

If anyone sought the plan under FOI, there would no doubt be close consideration of the internal working document exemption. In the light of Ms Schott's public comment, it would be interesting to see how "raising expectations", and the government not having the opportunity to change its mind translated into public interest considerations against disclosure.

FOI in the news

In addition to media coverage of the High Court FOI challenge already posted over the last week, other recent media reports based on FOI applications include:

The Sunday Age 14 May: “Ugly crime plagues the casino” – a 2002 report into crime at Crown Casino in Melbourne showed that a serious incident is committed in the precinct every six hours: 4239 crimes were reported over a 3 year period including 4 rapes, 19 other sex offences, 75 drug related incidents, 22 robberies and 417 assaults.

The Age 15 May: “Police defend drink-driving leeway” – documents reveal that the Victorian Police apply a 20% tolerance test in administering blood alcohol tests.

The Herald Sun 15 May: “Secrets of the grave” – the Victorian Police denied access to a request for the criminal record of William Watkins, a notorious rapist and murderer shot by the Police earlier this year. Acting Supt Lisa McMeeken said in the letter of determination: "As I am unable to ascertain from Mr Watkins his views on the release of such personal information, or gain his consent for the disclosure of the information, I have therefore determined that the release of any criminal history would be an unreasonable disclosure." The family and others (see this opinion piece in the Adelaide Advertiser) were outraged by the decision. The Age reported this one liner from the President of People Against Lenient Sentencing: "Give me a shovel and I'll dig Watkins up and ask him myself”.

In a story the next day The Age reported that the Premier and the Police had indicated there was nothing to hide but disclosure should await the completion of a coronial inquiry into the death of the two sisters allegedly murdered by Watkins before he was killed.

The Sydney Morning Herald 15 May: “Harbour development to increase city’s traffic woes” – documents reveal expected traffic increases in the area approved for development at East Darling Harbour.

The Age and The Sydney Morning Herald 16 May: “ US took Downer to task over China” – the US sought a “please explain” when Foreign Minister Downer said Australia would not automatically defend Taiwan in the event of an attack. The Age newspaper was refused access to some documents on the grounds that disclosure would damage Australia’s international relations and divulge information communicated in confidence by a foreign government.

The Sydney Morning Herald 18 May – “Transport shambles” – an independent report on light rail says that reliance on buses as the main transport strategy for the city will lead to further congestion.

FOI High Court case: high noon passes

The High Court heard submissions yesterday in the McKinnon v Treasury FOI case and will hand down its decision in due course. The Sydney Morning Herald report of the hearing “Bracket creep details belong to the public, say judges” seized on positive comments by three judges who the Herald claims “expressed disbelief” that the documents had been refused on public interest grounds.

The Australian – whose FOI editor Michael McKinnon is the plaintiff in the case - reported “Judge queries secrecy on public documents” more soberly, including in its report that several judges questioned the quality of the evidence put forward on its behalf.

Federal Treasurer Peter Costello, when asked about the case this morning on ABC radio said that the matter rested with the judges but seemed to suggest that what had been sought were draft documents which may contain incorrect information. He explained that such documents would confuse members of the public. However this seems to miss the point that what was requested – outlined in this article earlier in the week – included reports and evaluations that provided the basis for government decisions. This didn’t quite rank with his comment earlier this year that the main object of FOI was to enable people to access information about themselves, but it was up in the same sort of territory.

ADT FOI decision: Harbour Bridge photos could facilitate terrorist attack

The ADT in Hutchinson v Roads and Traffic Authority (2006) NSWADT 147 has made its first decision concerning the application of the anti terrorism exemption in Clause 4A Schedule 1 of the NSW FOI Act - the exemption added to the Act in May 2004.

The applicant sought access to documents relating to "structural rust and/or lack of proper painting maintenance on the Sydney Harbour Bridge". Some documents and photographs were disclosed by the RTA but access was refused to 53 photographs on the basis that there was a reasonable expectation that disclosure could facilitate the commission of a terrorist act.

Some evidence was given in closed session, and parts of the decision have been suppressed so its difficult for anyone else to make judgements. The Tribunal accepted that even though anyone can photograph the bridge and books and photographs about it are widely available, these photographs showed parts of the bridge not normally accessible. Deputy President Hennessy appears to have been convinced by the RTA that the exemption applied generally in that "any increase to the number of images of the structure of the bridge over and above those currently available to members of the public" could facilitate the commission of a terrorist act, or as she put it, it was not irrational, absurd or ridiculous to expect that this could occur.

In a separate decision Kerr v Roads and Traffic Authority (2006) NSWADT 147 the Tribunal upheld the RTA's refusal of access to documents concerning a bus lane monitoring project, on the grounds that the documents were Cabinet documents covered by Clause 1 Schedule 1 of the Act. The RTA had originally claimed 74 documents exempt but 50 of the documents had been disclosed to the applicant (a Sydney Morning Herald journalist) after consultation with the Cabinet Office. The Tribunal found the 24 documents in dispute satisfied the exemption.

ADT privacy applications lack substance

For the record, the ADT has dismissed two separate privacy review cases involving the same applicant both on grounds that the application is misconceived and lacking in substance. The cases NZ v NSW Police (2006) NSWADT 142 and NZ v Randwick City Council (2006) NSWADT 141 add to the already long list of applications by NZ and the ADT website indicates that an appeal has been lodged in the NSW Police matter.

High noon for FOI in High Court

All eyes on the High Court of Australia as it hears today the case brought by The Australian concerning the Federal Treasurer's attempt to refuse access to documents concerning the impact of bracket creep and the first home buyers scheme. This article in yesterday's Sydney Morning Herald provides the background.

The Herald sees the case as a defining moment for FOI in Australia.

Privacy and Private Kovco

What can you say about this latest debacle concerning the late Private Kovco?

Taking work related information offsite is full of potential dangers, but is necessary in some circumstances. However leaving a disc behind in the Qantas lounge, well …..

The incident points up another quirky inconsistency in Australia’s privacy laws: personal information about a person dead for up to 30 years is personal information for the purposes of the NSW Privacy and Personal Information Protection Act. A disclosure of this kind could leave a NSW Government agency exposed to action for a breach of privacy principles. However the Federal Privacy Act that applies to the Defence Department does not extend to personal information about a deceased person. Neither does Victoria’s Information Privacy Act.

Another one for the Australian Law Reform Commission and its examination of privacy laws.

Victorian Privacy Commissioner's helpful hints on smartcards

The Victorian Privacy Commissioner has published on 14 May a checklist of questions every citizen should ask and every government should answer regarding a smartcard.

Good on him!

ADT FOI decision includes detailed examination of diversion of resources issues

In another FOI decision concerning the applicant’s requests for documents about the sale of the Sydney Markets, the ADT in Cianfrano v Premier’s Department (2006) NSWADT 137 has provided the most detailed analysis to date of the interpretation of the “substantial and unreasonable diversion of agency resources” grounds for refusing access.

The Tribunal accepted the estimate provided by a consultant employed by the Premier’s Department that the work involved would require 229 hours to read, schedule, consult third parties and undertake associated administrative tasks concerning the 11,400 relevant documents.

The ADT upheld the Department's determination to refuse access on these grounds.

In previous cases where this issue has been considered the Tribunal has not spelled out detailed criteria for the assessment of “substantial” diversion and has not attached much weight to the term “unreasonable”. This decision (paragraph 62) provides a list of relevant factors to be taken into account in judging substantial diversion, including the importance of the documents to the applicant; and (in paragraph 48) says that regard must be given to the public significance of the matters the subject of the request.

The ADT did not stipulate a limit for the hours involved but noted that the Premier’s Department annual report cites 40 hours processing time at the top end of the scale. It would be incorrect however to simply base a judgement on the time involved, as other factors set out in the decision also need to be taken into account.

The Tribunal said that in considering resource issues it was appropriate to take into account time involved in identifying, collecting, scheduling, assessing and copying relevant documents and any consultation with third parities where required.

The ADT was critical of the Premier’s Department’s original determination and its failure to give any reasons in support of the claim of unreasonable diversion of resources. The Tribunal said this was a breach of the Department’s own guidelines. The FOI Procedure Manual page 79 states that more is required than “just telling an applicant that his or her application is too broad. Where an agency uses these grounds to refuse to deal with an application, the reason needs to be documented and justified”.

There is no mention in the decision of another possibly relevant policy - this 1991 memorandum to ministers from the then Premier requires an agency to not refuse to deal with an application on diversion of resource grounds before seeking “to negotiate with the applicant for a longer period of time within which it may comply with the request”. The memorandum says “this would enable the agency to spread the work involved in processing and assessing the application and the relevant documents over time, allowing the agency to conduct its normal operations without unreasonable interference from the demands of the FOI request. The agency and the applicant may agree to the application being dealt with in several stages, thereby "staggering" the time for compliance with parts of the request”.

The Premier’s Department website says that some policies set out in memoranda and circulars need to be treated with caution as they may have been superseded. I’m not aware of any subsequent policy guidance on the subject but there is an interesting question whether an administrative policy of this kind of a former government applies to its successor or successors. In any event there is nothing in the FOI Act that allows additional time for processing large requests so much would depend on whether the applicant agreed and didn’t pursue review rights on the basis of a deemed refusal. There is probably a fair bit of wriggle room here.

The Tribunal commented on what constitutes an “agency’s resources”, concluding that this means the diversion of those “resources reasonably required to deal with an application with attendance to other priorities”. This did not mean that an agency could avoid its FOI obligations by not assigning sufficient staff. It rejected the Department’s submission that the only resources it had to demonstrate would be diverted were its one FOI officer and the four staff in the substantive area that held the documents. There seems to be a message here that each agency needs to have reasonable resources available to deal with the FOI applications received, including large ones. The Tribunal commented:

“Given its role in the affairs of the State.....the Premier’s Department can be expected to have substantial bodies of documents that involve important areas of government activity. An agency of this kind should not be given…..the degree of liberality in relying on (diversion of resources arguments) that might be appropriate to a very small statutory body with a small staff compliment, and consequently a very limited capacity to deal with FOI requests of scale”.

If you read the decision you will see some references to Timmins v National Media Liaison Service (1986) 9ALN196. The Tribunal said that this decision recently cited in the ACT as being correct in law in the Territory, was not relevant in interpreting the NSW Act. I agree and was surprised to find that this minor personal victory 20 years ago was still correct law, at least in the ACT.

Over zealous concern about confidentiality

Today’s Sydney Morning Herald story “Top secret – the taxpayer – funded games that are none of our business” highlights an amendment to the FOI Act that was passed by Parliament in June last year to provide a special exemption for information held by the NSW statutory authority, the World Masters Games Organising Committee.

Our Open and Shut Newsletter included the following comment at the time:

"…..no one has explained why it is necessary to provide that any document prepared by or received by the Organising Committee that contains matter that the IMGA regards as confidential should be exempt from the FOI Act. The exemption means that the IMGA like the International Olympic Committee in the years leading up to the Olympic Games in 2000 has an uncontested right to assert that matter is confidential and that will render a document held by a government agency exempt under Clause 22A. There is no public interest or other test.

According to its website the IMGA is a non profit corporation subject to the laws of Switzerland but based in Denmark. Switzerland, the home of secret bank accounts and the International Olympics Committee may be starting to emerge into the modern world of increased transparency. The IMGA is probably a fine body doing great things. However why an exemption to the FOIA should empower them to virtually decide the exempt status of a document held by a NSW Government agency is difficult to understand. The Organising Committee will also have all the other exemptions available. The existing confidentiality and business affairs exemptions would seem likely to cover any information that deserves protection. Those exemptions require something more than simply an assertion that information from the IMGA is “confidential”.

....NSW has chosen to create a government agency to organise the Games. It should be subject to the same accountability requirements as any other government agency".

FOI in the news

Media reports based on FOI released documents over the last week include:

The Sydney Morning Herald 6 May: “Dear Diary, as usual I just met friends, colleagues and constituents, love M” – the Premier’s Office refused access to the Premier’s Draft Diary on the grounds that it was not a “minister’s document” as it did not relate to the affairs of an agency or government department. The Herald said the explanation in the determination was that “the bulk of entries…..relate either to the Premier’s personal affairs, his duties as a member of Parliament, and his duties a member of a political party and the leader of the party”.

The (Brisbane) Sunday Mail 7 May: “Anger at drug use poll delay” – a survey into illegal drug use conducted in 2005 was exempt from disclosure until included in a Crime and Misconduct Commission report to be published later in the year.

The Australian 8 May: “Wind farm only one parrot threat” provides details of a Defence Department report that reviewed a draft orange-bellied parrot plan and its implications for land and water managed by the Department.

The Daily Telegraph 8 May: “Health risks from prawns kept secret” reported that medical experts advised the Government that regular consumption of prawns would poses an increased risk of severe illness, and that the Government had consistently denied the suggestion.

The Daily Telegraph and Sydney Morning Herald 11 May: both papers reported details of NSW Government ministers’ travel expenses for the last 12 months, drawing on documents released to the Opposition.

The Australian 14 May: “Department knew of Alvarez condition” – reveals that an email showed that a senior officer in the Department of Immigration knew that wrongfully deported woman Vivian Alvarez was suffering spasms at the time of her deportation and that the Philippines Embassy felt she was unfit to fly.

news.com.au 14 May: “Patients stuck on trolleys” – the number of patients in Victoria waiting for more than 12 hours on a trolley before being admitted to wards is nearly three times as many as when the Government came to power in 1999.

As usual, some links have already disappeared from the free content.

Parliamentary Committee reports on consultations with NSW Ombudsman

The NSW Parliamentary Committee on the Ombudsman and the Police Integrity Commission has published its report on its most recent hearings concerning the operations of the Ombudsman’s Office. There isn’t much here about FOI – simply justification for the Deputy Ombudsman’s involvement on the basis that this ensures access to senior agency officials during the investigation and resolution of complaints; and the continuing optimism by the Ombudsman that the (1994) Premier’s Department FOI Procedure Manual will be updated by the end of the year – I think this was meant to be 2005 but it still is yet to appear.

The major issue in the report is that the Committee plans further hearings into the Ombudsman’s statement that important activities are constrained by the 3.5% budget cut last year and the unfunded increases in salaries.

On a broader note the Ombudsman’s Office has told the Committee of its deep concern about Police record keeping practices and the operation and capability of the COPS database, the main system for tracking incidents and investigations.

As personal information held by the Police Service in connection with the conduct of its core functions is not subject to the NSW Privacy and Personal Information Protection Act, it’s a bit of a worry.

The Committee was also told that the Independent Commission Against Corruption failed to pass on to the Ombudsman 600 complaints received about Police conduct, sure now to produce a spike in the Ombudsman’s police complaint register.

ADT FOI decision: Monty Python where are you?

There couldn’t be a more straightforward request: “I want copies of 14 policy documents listed in your Summary of Affairs”.

Or could there?

This ADT decision - Miriani v NSW Police (No.2) (2006) NSWADT 134 – recounts a two year dispute between the applicant and the agency following a request for access to documents about specific policies, guidelines and standard operating procedures listed as available for public inspection.

The headnote on the ADT decision is simply “Jurisdiction” and the primary matter before the Tribunal was whether it had jurisdiction to consider an application for review by the applicant. It followed the agency’s request for $210 (subsequently reduced to $161.10) as an “advance deposit”; claims that parts of some of the documents were exempt (including clearly incorrect attempts to claim internal working document and legal professional privilege – two exemptions excluded from application to policy documents by Section 15(2) of the FOI Act – and surprisingly a claim that some information in the documents was personal); and an attempt to impose conditions on access (no copies but an opportunity to view the documents at Police Headquarters – “pen, pencil and notepad may be used”).

The complexity partly arose from the fact that the applicant had sought access by lodging an FOI application under Section 17 (Part 3 of the Act), despite the fact that policy documents (in theory at least) are available under Part 2 without the need for a formal FOI application.

The ADT concluded that where a formal application under Part 3 is received it must be dealt with in accordance with the provisions of the Act; refusal grounds are those specified in Section 25 (but things could be going around in a circle here as one of the grounds for refusal is that documents are otherwise available for public inspection); on the other hand if a request is made under Part 2 it should be dealt with in accordance with procedures for informal access and Premier’s FOI Manual and Ombudsman Guidelines – complaints can be made to the Ombudsman but not to the ADT; if a document made available under Part 2 has some matter deleted, it is open to the applicant to lodge an application under Part 3 – the agency would then have to make a determination and the matter could be brought to the ADT.

In this case the ADT has referred the matter back to the Police to make a determination. Who knows, two years after he asked Mr. Miriani may finally get to see the policy documents he asked for - and as for the Police Service, not a rapped knuckle in sight.

The episode illustrates that even with the very limited pro active disclosure requirements in the NSW Act that the Police (and I expect other agencies) may not have readily available for public inspection a full and complete version of policy documents with any properly exempt matter deleted. While clearly some aspects of Police policy, guidelines and plans should not be publicly available because they could compromise operations, there shouldn’t need to be a scramble to get these things sorted out only when a member of the public asks for a copy.

The Act should require policy documents to be listed and available on the web – this would preclude some of the silliness about charges for documents that arose in this case and ensure they are available to members of the public free of charge.

As we have blogged previously, in the google age a more far reaching approach should be taken to pro active disclosure of government information – simply requiring that policy documents be listed in the summary of affairs published twice a year in the Government Gazette is strictly horse and buggy stuff.

Major fallout over secret collection of phone call data in US

USA Today reports that the US National Security Agency has been secretly collecting phone call records of tens of millions of Americans, using data provided by AT&T, Verizon and BellSouth.

There’s no mention of whether phone call records held by these companies relating to calls in countries other than the US have been collected.

Verizon and AT&T are global companies with significant business interests in Australia – both companies are listed as service providers on the website of the Federal Government’s Information Management Office.

The issue is a big one in the US and there is now talk of Congressional inquiries and civil damage suits as reported in this article in The New York Times. (Thanks to TruthOut for the lead).

While it hasn’t been much of an issue to date in Australia, the capacity of the US Government to access personal information from outside the US by compelling disclosure by US companies under the Patriot Act has been a hot topic in Canada since 2004.

British Columbia and Nova Scotia provinces are in the process of introducing legislation to require information about Canadians to be held in Canada, seeking to avoid the reach of the Patriot Act. (Thanks to David Fraser's Canadian Privacy Blog for the lead).

When the issue was first raised by the British Columbian Information and Privacy Commissioner the South Australian Government (at that time all SA IT functions were outsourced to the US company EDS) issued a statement that they were satisfied that the BC report carried no implications for SA data - I can't find this on the web.

I haven't seen any other public reference to this issue by Australian governments or heard a peep out of Australian privacy commissioners.

Just a "Canadian" concern?

Nifty Nev not into FOI

There has been some publicity this week about a new book “The Wran Era” edited by Troy Bramston about the 10 year NSW Labor Government between 1976 and 1986 led by Neville Wran.

I haven’t read the book but while the Wran Government achieved much and Wran was a highly successful leader, the period won’t be remembered for progress on transparency in government.

Wran introduced many far reaching, positive governmental changes based on reports in 1977 (Directions for Change) and 1982 (Unfinished Agenda) on the state of the NSW public service by the late Professor Peter Wilenski.

Both reports recommended freedom of information legislation - the 1982 report concluded that the NSW Government was a “bastion of secrecy”, an issue that could only be addressed by legislation.

The Government introduced an FOI Bill into Parliament in 1983 but it lapsed and reform languished until the election of the Liberal Greiner Government in 1988.

Wran had obviously decided the issue wasn’t a high priority and he certainly would have encountered strong opposition from the senior ranks of the public service at the time. Some stories suggest that the Bill went into the bottom drawer of the then Secretary of the Premier’s Department, Gerry Gleeson, never to emerge. Perhaps the briefing note to the Premier was something along the lines of the advice to the minister on this topic in the BBC “Yes Minister” series: “Minister, you can have openness or government but you can’t have both”.

I can personally recall the reaction of some senior NSW public servants in 1988 after the Greiner Government was elected and following its announcement that it would proceed with FOI legislation. After I was engaged prior to the passage of the legislation to assist the Premier’s Department with implementation, a senior officer in another department summed up the prevailing attitude for me: “Don’t waste your time mate, it’ll never happen here”. He then produced a file of ageing newspaper clippings to confirm his belief that politicians promises of open government had always faltered at the last hurdle.

As they say, the rest is history.

National access card tenders about to roll

In yesterday's blog about Federal budget developments I mentioned it wasn't clear what next steps were contemplated regarding the national access card. This report in today's Australian gives some details including the fact that a major tender is to be advertised in the next few days.

Meanwhile Frank Abagnale, the real life fraudster depicted in Steven Spielberg's movie "Catch Me If You Can" and now a consultant on fraud and identity theft, has told the BBC that identity cards will be easily cloned . He gives the planned UK card "six months before someone replicates it perfectly."

Thanks to Pogowasright for the lead

Federal budget: access card and privacy related developments

With so much media space required to retail the Federal Government’s budget spending spree, there appears to have been little room for other issues such as the national access card and privacy related matters.

Details about the card – now labelled the Health and Social Services Access Card – are contained in a media release and other information in the Better Service initiatives in the Human Services portfolio budget. The cost is now estimated to be $1.09 billion.

There are no references anywhere in these materials about the card’s potential to assist in combating terrorism. Its now clearly being positioned as an efficiency measure.

There also isn't much about next steps or what we can expect from the project over the next 12 months.

The Daily Telegraph gives the card aspect of the budget a run here.

In the Attorney General’s portfolio the Government has announced $6.5 million over 4 years in additional funding for the Federal Privacy Commission to enable it to respond to calls from business and industry for greater assistance in meeting obligations under the Privacy Act, to improve its complaint handling practices and to respond to Government requests for high level policy advice.

The Privacy Commissioner’s press release claims that additional funding will amount to $8.1 million over 4 years.

Other relevant issues in the budget include additional funding of $6.8 million for the Administrative Appeals Tribunal, $28.3 million to roll out a national document verification service.

In the Attorney General’s Security Environment update there is a reference to a new pilot program to examine measures for improving the accuracy of personal information held on existing government databases by identifying inaccurate records and false identities – “in depth consultation is now occurring with Commonwealth and state agencies on the associated legal, privacy and technical issues”.

NSW Local Councils' sustainability

The Local Government Inquiry commissioned by the LGSA has issued its final report “Are Councils Sustainable?”. Its 346 pages are a big read but those interested in transparency and related issues will find chapter 8 (Development Planning Controls) and chapter 10 (Council Governance and Management) of interest.

The Budget and transparency

As you struggle with the media onslaught over the next few days about the details of the Federal budget and the goodies the Government is handing out, its worth noting comments in an editorial in today’s Australian Financial Review: if the Government was a publicly listed company on the Australian Stock Exchange it would be in risk of civil or criminal action for its failure to observe the continuous disclosure requirement to fully inform the public of information that might affect the value of its shares.

"……..an increase of about a third in any company’s forecast operating surplus would have to be disclosed. But when the Commonwealth enjoys such surging revenue that pundits expect the 2006 budget surplus announced today to be as much as $6 billion higher than the $11.5 billion forecast in the mid year outlook, no comparable clarifying statement emanates from its chief financial officer, Treasurer Peter Costello…..

Along with the AWB wheat scandal this illustrates the gulf between the standards of governance our elected representatives impose on business and those they are prepared to uphold themselves….

…….on budget day the Treasurer reveals a splendid surplus and some compensatory “tax cuts” – largely the belated return of “bracket creep” – and claims all the credit. It is no way to run the government finances of one of the world’s most successful economies".

Federal and Victorian privacy case notes

The Federal Privacy Commissioner has published five new case notes. All involve complaints regarding private sector bodies subject to the National Privacy Principles in the Federal Privacy Act.

Nothing too surprising but the note on J v Utility Company and Industry Group (2006) PRIVCMRA9 illustrates one of the weaknesses in the law: the Commissioner found the disclosure complained of was inconsistent with the law but the complaint file was closed “as the complainant was seeking a remedy that was not within the Commissioner’s powers to pursue”.

End of section I’m afraid.

The Victorian Privacy Commissioner has also published a case note on 28 April concerning disclosure of information to a person about the outcome of a complaint. The Commissioner concluded that disclosure of information about the investigation of a particular individual complained about was not a breach of privacy principles as any reasonable person would expect such information to be disclosed. However disclosure of information about a broader investigation that had been undertaken provided more personal information than was necessary for this purpose.

Privacy principles symposium

The Cyberspace Law and Policy Centre UNSW has organised a Symposium “Interpreting Privacy Principles: Chaos or Consistency?” for the morning of 17 May. The program includes discussion of the meaning of “personal information”, the interpretation of the security principle and best practice and accountability for privacy commissioners.

Speakers will include some of the overseas participants in the Asia Pacific Privacy Authorities forum to be held in Sydney that week. The Symposium will be held in the city. The NSW FOI and Privacy Practitioners Network meeting at 2pm on that day at Parliament House in Macquarie Street is also part of the forum.

Heavy weather for the national access card even before details announced

The Federal Government says that funding for, and details of, the proposed national access (not an ID) card will be announced in tonight’s Budget statement.

However its not a good look that one of the main architects of the scheme has resigned on the eve of the announcement on matters of principle concerning the way in which the project is to be managed, and the Government’s failure to heed his advice to establish an independent oversight board.

The Australian Financial Review was first with this story on its front page yesterday, and the story receives wide press coverage today.

The Australian Privacy Foundation says that the whole project needs to be put on hold in order to sort out the major preliminary questions

Psst...changes to First State Super: maybe not a secret

One of the NSW state superannuation schemes, First State Super (FSS), from 1 May has become a private corporation apparently with the intention that contributors can remain in the scheme after they leave the public service. FSS is also open to others who wish to join.

This article “Psst…here’s a little super secret” is a pitch about the benefits of the new arrangements.

We couldn’t help noticing however that the legislation that brought about the changes in the structure of the scheme also included an amendment to the NSW FOI Act which appears to reflect the fact that from 1 May FSS is no longer subject to FOI. The First State Superannuation Legislation Amendment (Conversion) Act included Schedule 3 a provision that removed from Schedule 2 of the FOI Act documents concerning the investment functions of FSS. The debate in both the Legislative Assembly and Legislative Council on the Bill only lasted a few minutes. There were no references to this aspect of the legislation. You can access the details here.

We assume that the reason for amending Schedule 2 is that FSS in its new guise is no longer an agency for the purposes of the FOI Act.

Does it matter? Those 400,000 public employees who belong to the scheme are probably in a better position to judge.

ADT decision on property valuations

The ADT in Retain Beacon Hill High School Committee v Department of Commerce (2006) NSW ADT 129 considered the status of documents concerning the valuation of a school property and associated documents relevant to preparation for sale by the Department of Education to Landcom. The Tribunal found two documents which did not contain valuation details were not exempt, found others exempt under Clause 7 (Business Affairs) and Clause 15 (Financial and Property Interests) and referred a number of documents back to the agency to reconsider in the light of the possibility that the information they contained had already been disclosed in a development application lodged with a local council.

This decision deals with substantive aspects of the application following an earlier decision regarding documents inadvertently released by the Department.

There isn’t much law in the decision but the Tribunal seems to have given very limited consideration to the public interest balancing test involved in Clause 15.

The decision records that some documents had been released in the original determination, others released on internal review and two additional batches of documents released prior to the ADT decision.

It seems to be a common practice in decisions that end up in the ADT that documents dribble out in this fashion. Perhaps the incentives in the FOI scheme to make the right decision early in the piece are just not strong enough.

FOI in the news

Media reports based on FOI applications over the last week include:

The Daily Telegraph, 4 May: “Good at Spending Your Cash on Themselves” which reports that $400,000 has been spent on decorating and refurbishing NSW Ministers’ offices. The report was based on invoices submitted to the Premier’s Department. The Telegraph and the Opposition particularly liked the $1,452 spent on an ironing board for the Premier.

In a similar vein the West Australian on 29 April reported that the Government has spent $38,300 (hardly the “spree” claimed) on gifts for visiting overseas VIP’s. While the King and Queen of Sweden were recipients of over a $1,000 worth of paintings and books, visiting British Parliamentary delegates and others received gold-plated lapel pins, badges and cufflinks worth between $1.97 and $10.68.

The Australian, 29 April: “Split over ‘fatal flaws’ in road plan” about Federal/Queensland Government differences regarding the planning of the Ipswich Motorway.

The Australian, 4 May: “Court has secrecy in spotlight” about the forthcoming High Court challenge to Treasurer Costello’s ministerial certificates and the new approach to openness reflected in the NSW Court of Appeal decision in Workcover Authority v Law Society.

Australian Financial Review, 5 May: “Petroulias in tax paper chase” about a former taxation office executive charged with fraud and corruption is seeking access to documents regarding ATO policy on aggressive tax planning.

The Courier Mail, 5 May: “King of spin still in building” about the Chairman of the Australian Press Council’s comments about Queensland cover-ups, suppression of information and deliberately misleading ‘spin’.

As usual some of the links have disappeared quickly from the free content.

National access card "mother of all IT projects"

This headline in yesterday's Australian "Smartcard headed for a fall" might prove to be unduly pessimistic but the article itself correctly cites some of the major challenges that face the Federal Government in giving effect to its commitment to proceed with a national access (not ID) card. The article says this is the "mother of all IT projects" and that history shows us that projects of this kind are never achieved on time and within budget. Perhaps prophetically The Australian also reported on a KPMG report that showed that project execution was a major weakness in government IT management.