Privacy right to personal information - for free?

In the NSW Deputy Ombudsman’s paper referred to below in yesterday’s item about difficult complainants, there was a reference to the fact that government agencies can’t charge when a person exercises rights to access his/her personal information under the NSW Privacy and Personal Information Protection Act (PPIPA).

This came as a surprise to me as Section 14 of the Act says that a person shall be given access “without excessive expense or delay”. Most government agencies charge something around $30, an amount consistent with charges that apply to access to such information under the FOI Act.

However PPIPA was amended in 2004 as a result of the commencement of the NSW Health Records and Information Privacy Act. Amendments to PPIPA included a new section in the Act that, apparently in error, states that an agency may charge a fee for access to “health information” – it should have said “personal information”:

66B Fees
(1) A public sector agency may charge a fee for any of the following matters:
(a) giving an individual a copy of health information
(b) giving an individual an opportunity to inspect and take notes of the health information,
(c) amending health information at the request of an individual,
(d) any other matter prescribed by the regulations.
(2) Any fee charged must not exceed such fee (if any) prescribed by the regulations for the matter concerned.

I’m not sure how long this opening might be there before it’s slammed shut, or whether an agency might argue that section 14 prevails in any event, but its yet another example of the unhappy state of NSW privacy laws. (See Privacy policy patchwork below).

"Difficult" complainants in the spotlight

Deputy NSW Ombudsman, Chris Wheeler presented a paper on “Dealing With “Difficult” Complainants and Applicants” at the Crown Solicitor’s Office Seminar on Issues in Administrative Law on 20 September.

The paper provides an update on an Australia wide Ombudsman project that is looking at better ways to deal with people who can be unreasonable, obsessive, overly demanding or persistent, rude or aggressive. Research and expert input is providing new insights into better ways to deal with this type of conduct. More details are expected by the end of the year.

The paper also includes analysis of privacy and FOI matters that have gone to the NSW Administrative Decisions Tribunal. Over the last three years two applicants were parties involved in 26% of the privacy review decisions in 2004, 60% in 2005, and 35% for this year to date.

One FOI applicant has been the subject of 18 decisions, and of the more than 70 FOI matters in 2005-2006, over 60% concern review applications by a total of 9 applicants. The Appeal Panel has made 13 decisions in this time – 9 involving 3 parties the subject of multiple decisions of the Tribunal.

Coincidentally, the ADT in a decision published recently in University of NSW v Curtin and McGuirk (2006) NSWADT 271, has imposed cost orders on an applicant (Curtin) and another person attending a planning conference with him (McGuirk) because of unacceptable conduct and disruption that forced the President to terminate the conference.

There is obviously a significant cost for the ADT and government agencies generally in dealing with demanding and persistent complainants and applicants. However as the Deputy Ombudsman acknowledged, there is a fine line between misuse of public resources and pursuit of legitimate personal and public interests.

NSW privacy policy patchwork contracted in the name of law and order

This article “Moves to extend privacy law exemption” in The Australian reports that the Premier has announced that the NSW Government is moving to get rid of privacy law provisions that hamper information sharing between government agencies about young offenders.

The NSW Premier Morris Iemma used a friendly question in Parliament on Tuesday on “Cutting red tape to reduce crime” to outline what was intended. The Premier said the changes to facilitate information exchange were necessary in order to assist in the campaign to crack down on anti social behaviour by young people and to steer them away from a life of crime.

The Premier’s contribution to public debate about privacy matters has been pretty limited to date, but these remarks, with their law and order emphasis, were probably inevitable in the current context, 6 months out from the next election.

Privacy NSW website has the details – the Acting Privacy Commissioner has issued a Direction (see What's new 26 September) that has the effect of extending to other parts of the state and a range of government agencies significant exemptions from the privacy principles that were first approved for use in a trial in Sydney suburbs or Waterloo and Redfern.

There’s no clear explanation anywhere about how the laws were preventing cooperation and information sharing. In this case, the Government itself is resorting to “BOTPA” (because of the privacy act) to justify changes in the name of law and order.

Perhaps the Premier doesn’t realise that what has been approved is symptomatic of one of the major problems in NSW privacy legislation – the gaps and holes in the scheme as a result of exemptions from privacy principles provided for functions of government agencies that are contained in provisions in the acts, and in regulations, codes approved by the Attorney General and directions issued by the Privacy Commissioner.

The result is a scheme so complex that few in government agencies know or can explain how privacy law applies to particular aspects of their operations.

To illustrate the point these changes follow the gazettal on 15 September of modifications to privacy legislation (see What's new 19 September) as it applies to some operations of the Department of Corrective Services and the Department of Ageing, Disability and Home Care.

Federal Privacy Commissioner, Karen Curtis in a recent speech (see 18 September) announcing new cooperative arrangements with the Department of Immigration said “privacy should not be difficult to understand or implement”.

The NSW privacy scheme got this dead wrong from day one. Things have got progressively more complex ever since.

Perhaps the NSW Law Reform Commission review will have the answers on completion of its current review.

Electronic snooping makes privacy "old fashioned"

If you are still feeling safe and comfortable, this article from the New York Times reproduced in to-day’s Sydney Morning Herald might give you pause – according to the author, “there are now so many electronic ways to snoop on friends, partners and children, privacy is becoming old fashioned”.

NSW ADT FOI decision: safety first

In Dezfouli v Justice Health (2006) NSWADT 274 the ADT reviewed a decision concerning refusal of access to documents or parts of documents that would identify individuals employed by the agency, and other individuals. The FOI applicant was a patient of the Long Bay Forensic Prison Hospital. He had sought access to his medical file. Some documents had been disclosed, but others withheld on various grounds.

While there has been a general assumption that it might be difficult to exempt from disclosure names of those in public employment that simply recorded the performance of duties, the circumstances of this case led the Tribunal to conclude that all identifying particulars were exempt.

The Tribunal heard evidence that staff employed feared that disclosure of their surnames would place their safety and well being at risk and upheld the decision to refuse access, generally and to this particular applicant, on the basis of a reasonable expectation of danger to life or safety (Clause 4(1)(c)). Some documents identified staff by their first name only. The Tribunal found that disclosure of any material identifyiing staff who made notes on files about patients was exempt on the basis that disclosure would have a substantial adverse effect on the performance of agency functions (Clause 16(a)(iv)).

Reasons given were that staff would be less likely to accurately record observations; the agency would have difficulty retaining and recruiting staff; and the treatment of the applicant and patients generally would be compromised. The public interest in appropriate treatment of forensic patients outweighed any public interest in full disclosure of the names of staff providing notes.

The Tribunal also found that deletion of the names and identifiers of other inmates included in the applicant's medical file was information concerning their personal affairs and disclosure would be unreasonable (Clause 6).

FOI in the news

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

Sunday Age 17 September: " Children taking on their parents' stresses" - Victorian children are increasingly finding it difficult to divorce themselves from the problems of family breakdown, mortgage and consumer pressures felt by parents. Documents obtained by The Sunday Age reveal that stress has emerged as one of the main concerns for primary-school-aged children.

The Sunday Herald Sun 17 September: "The secret big cat files - Government's own staff believes they exist" Documents released by the Victorian Department of Primary Industries confirms big cats are breeding in eastern Victoria. At least 34 sightings of puma or panther-like cats, along with dozens of mystery stock kills in Gippsland, in the past three years have been reported.

Sydney Morning Herald 18 September: "Drivers slugged $2.5m on two roads" Eastern suburbs drivers are falling victim to two of the fiercest speed traps in Sydney - the Cross City Tunnel and the Eastern Distributor.

The Australian 18 September:
"BHP wants public funds for new desal plant" - BHP Billiton has proposed that commonwealth water grants be used to fund a desalination plant for its planned $7 billion uranium mine expansion at Roxby Downs. The public funding plans were revealed in a joint BHP Billiton and South Australian government study, obtained under Freedom of Information legislation, only a few weeks after the mining company posted Australia's largest corporate profit of $14 billion.
and
"Sniffing suspected in 12 remote deaths"- South Australia's Coroner is investigating the deaths of 12 Aborigines from the state's remote indigenous communities where petrol sniffing was suspected of being involved. All the deaths have occurred since May last year.

The Age 18 September:
"Former defence minister dined with key figure in AWB Iraq scandal" - Details have emerged linking former defence minister Robert Hill to one of the main figures in the AWB Iraq kickbacks scandal.
and
"State's ad push driven by fears of slowing economy" - The Victorian Government ordered a $4.3 million taxpayer-funded advertising campaign to convince the business sector to maintain confidence in the economy, which it privately feared was "showing signs of slowing down.

The Australian 19 September: "Tender breaches embroil minister" - Victorian Human Services Minister Bronwyn Pike is under pressure to explain why her department awarded a $22.5 million HealthSmart contract to iSoft last year despite serious probity breaches.
and
"Ex-special ops cop loses FOI bid" - The former head of an elite Victorian police squad has lost a battle against his ex-employer for the release of sensitive documents on management style.

The Advertiser 20 September:"Release of psychotic man 'ignored reality'" - Releasing a psychotic and aggressive man from state care "simply did not reflect the reality" of his dangerous mental state, and supression of the expert assessment of his condition "made a mockery" of Rann Government claims of transparency, according to No Pokies MLC Nick Xenophon

Sydney Morning Herald 20 September: "Revealed: the toll road free-for-all" - Hundreds of drivers are using the Cross City Tunnel and the Hills M2 motorway free because the private operators have not forced a single toll evader to pay.

Sydney Morning Herald 21 September: "Pubs fume at smoking area rules" - The club and pub lobby has asked the State Government for even softer laws on smoking in the latest push to weaken the effect of the full indoor smoking ban which comes into force next July.

The Australian 22 September: "Boom in birthrate has three fathers" - A red hot economy, Peter Costello's handouts and fears of leaving it too late have combined to produce a baby boom the likes of which has not been seen in Australia for almost 35 years.

Herald Sun 22 September:"On the road to nil - Libs: freeways deal cost taxpayers $2.3b"
The Victorian State Government is sitting on hundreds of documents about the Monash Freeway deal with Transurban and congestion on the West Gate Bridge, but the Treasury has refused an Opposition request for documents.

Sydney Morning Herald 23 September: In his weekly column "What they won't tell you" FOI Editor Matthew Moore in "Who's the offender now" reports on a two year battle to obtain access to internal audit reports of the Department of Corrective Serivicess, and what has been released after intervention by the Ombudsman.

NSW Attorney General speaks up on privacy

NSW Attorney General Bob Debus has appeared before the Parliamentary Budget Estimates Committee to answer questions about his portfolio, some of which concerned privacy issues.

The privacy questions appear at page 25. The Attorney General didn't answer when asked about plans to appoint a privacy commissioner - it's now three and a half years since the last one resigned - but he's very happy with the performance of the Acting Commissioner.

The Government's reference to the NSW Law Reform Commission to review privacy laws, according to the Attorney General, is to "move towards a considerable reconstitution of our ideas of privacy and its protection. The present law exists as a kind of achipelago thoughout society, not as a set of principles that cover the activity of the community in anything like a systematic way".

The Attorney General plans to table in Parliament the statutory review of the Act that was due no later than November 2004 "when some particular matters have been dealt with by the Government".

When asked (page 30) about any plans to push privacy NSW functions off to the Ombudsman, the Attorney General reiterated that he has "never been anything but committed to Privacy NSW" and totally and utterly rejected the proposition that Privacy NSW is being run down.

All fair enough but it was a reasonable question given that Mr. Debus, on behalf of the Government introduced legislation in 2004 that passed the Assembly but was subsequently withdrawn when opposition was encounted in the Upper House, to abolish the Privacy Commission and transfer its functions to the Ombudsman.

"Right to Know" - no big deal down under

In some parts of the world 28 September is "Right to Know" day. In Canada this year it's part of "Right to Know" week. In Australia it's..........well, just another work day really.

The FOI Advocates Network is behind the 28 September activities. Its members include civil society and other organisations that are actively involved in promoting the importance of open government principles. Notice the gap in the membership map below? No Australian or New Zealand organisations have felt the need to sign up.

The Canadian Federal Information Commissisoner and provincial colleagues are providing support to the media and other organisations in promoting "Right to Know" week for the first time in Canada this year.

Those responsible for FOI laws in Australia are noticeable only because of their invisibility when it comes to leadership and advocacy for the right to know.

One of the awards to be conferred by the FOI Advocates Network is for the most secretive organisation. A government agency in Bulgaria has won it three years in a row. Will they have heard of our Federal Treasury and its epic (successful) battle to protect four year old documents on bracket creep and the first home owners grant scheme? It might at least qualify for an honourable mention!

Westpac: data safe as a bank?

Westpac is in the hot seat over plans to outsource to a company in India functions previously undertaken in a secure service centre which houses sensitive customer and business data from the 632 Westpac banks across Australia.

NSW Premier Iemma yesterday said that these plans to outsource NSW jobs would be a consideration when the Government comes to renew its banking arrangements with the company.

One of our readers has sent this link to the Finance Sector Union's campaign on the issue.

Westpac is subject to the National Privacy Principles in the Federal Privacy Act, one of which requries it to "reasonably believe" that the overseas recipient of information is subject to a law, binding scheme, or contract that ensures data is handled consistently with Australian privacy principles. This includes the requirement to ensure adequate data security.

Westpac, no doubt are aware of its obligations and can quote chapter and verse of why its confident that none of the proposed arrangements poses a risk to customer data.

However data security problems in India aren't unknown. Last year the Federal Privacy Commissioner announced an investigation into two Australian mobile phone companies' privacy practices following a disclosure on Four Corners about the sale of personal information there - the Commissioner's website doesn't have anything about what, if anything happened as a result of the investigation.

More recently another incident involving an Indian call centre was seen to be a blow to the credibility of the growing Indian service sector.

Then again after recent disclosures about Centrelink and the Australian Tax Office maybe we should be careful about throwing stones.

ADT FOI decision: long lost policy comes to light

What’s “government policy” is always one of those questions that hang in the air – is it what government says or does, does it need to be written down, who needs to endorse it?

The NSW Administrative Decisions Tribunal Act (Section 64) says that in reviewing decisions the ADT must “give effect to any relevant Government policy in force at the time” the decision was made “except to the extent that the policy is contrary to law or the policy produces an unjust decision in the circumstances of the case”.

For this purpose the Act says that Government policy means a policy adopted by the Cabinet, Premier or any other Minister, and in addition the Tribunal may have regard to any other policy applied by the administrator in relation to the matter concerned, subject to the qualifications above.

In Cianfrano v Premier’s Department (2006) NSWADTAP 48 the Appeal Panel considered an appeal from an original decision that the Tribunal had erred in law in failing to give effect to a Government policy concerning the way in which an agency should deal with a matter where “substantial and unreasonable diversion of resources” may be involved.

As it turned out, you couldn’t blame the Tribunal.

The policy involved was contained in a 1991 circular to ministers from the then Premier Nick Greiner.

Apparently no one currenlty working in the Premier’s Department (the agency dealing with this application, but also the agency responsible for the implementation of the FOI Act) knew about the policy. No one told the Crown Solicitor’s Office, who represented the Department before the Tribunal. No one told the Tribunal.

In our blog on the determination in May, we commented that this circular hadn’t been mentioned in the original decision, and wondered if a fifteen year old direction by a government long since departed from office was still “policy” that bound the current government.

Before the Appeal Panel, the FOI applicant raised this failure to give effect to government policy, the Premier’s Department accepted that it was Government policy, and the Appeal Panel found that therefore, an error of law had occurred. The Tribunal was bound by Section 64 to apply the policy. The Appeal Panel has referred the matter back to the Tribunal for a further hearing.

The substantive issue was the failure by the Premier’s Department to negotiate with an applicant for a longer period of time when dealing with an application that would involve substantial and unreasonable diversion of resources before refusing to deal with the application.

Now that this policy has been “discovered” it raises a question about a whole series of earlier ADT decisions on this issue where this 1991 statement of Government policy was not raised or considered.

The broader concern is the apparent lack of corporate memory in the Premier’s Department about what is Government FOI policy. The circular referred to appears to have dropped out of sight pretty quickly as it didn’t get a mention in 1994 in the Procedures Manual that provides guidance to government agencies concerning the administration of the Act. That Manual in any event has now been “under review” since 1999.

The Premier told a Parliamentary Budget Committee recently that an updated version will be published by the end of the year.

No doubt it will clear things up for those who work in this field and comprehensively set out “policy” that must be applied.

ADT FOI decision mobile phone number and hourly charge rate "sensitive"?

Retain Beacon Hill High School Committee v Attorney General’s Department (2006) NSWADT 262 involved a dispute over documents concerning the closure of the school and the proposed sale of the site by the Department of Education and Training.

The documents the subject of this decision were one document that would reveal the mobile telephone number of an employee and a number of documents that would reveal the hourly rates charged for work undertaken by the Crown Solicitor’s Office. I’m sure these weren’t central to the original request but neither party was giving ground, so the ADT got to decide.

The Tribunal found that “in the context of a large government department where an officer can otherwise be contacted by means of a landline, and the release of the officer’s mobile telephone number is ordinarily limited to those with whom the officer is in a close working relationship or with whom the officer has a personal or private relationship, the officer’s mobile telephone number is information affecting the officer’s personal affairs”. The Tribunal said that there appeared to be no public interest in making the telephone number more broadly available, assumed that the individual would not wish the number to be released, and decided disclosure would be unreasonable.

On the Crown Solicitor’s hourly rate, the Tribunal followed an earlier decision (Neary v State Rail Authority (1999) NSWADT 107) in finding that information of this kind concerned financial affairs and disclosure could reasonably be expected to have an unreasonable effect in that it would reduce the Office’s capacity to compete in providing legal services to the NSW Government.

This was despite the fact that one of the documents had been tabled in Parliament in response to an order of the Legislative Council, and the applicant already had a copy that revealed the hourly rate.

I would have thought that disclosure of this document at least wouldn’t have any effect on the financial affairs of the Crown Solicitor’s Office, let alone an “unreasonable adverse effect”, as the applicant and anyone else who chose to inspect the document tabled in Parliament would have been aware of the content.

A quick Google of “solicitors hourly rates" shows that some law firms aren’t too fussed about disclosure of what they charge and even put it on the web for all to see. Perhaps they see it as a competitive tool.

ADT FOI decisions: ongoing battle.....

Two new decisions involving McGuirk and the University of New South Wales (see earlier blog) are primarily about issues concerning advance deposits. It’s one all here, but……both decisions are being appealed.

In McGuirk v University of NSW (2006) NSWADT 256 the Tribunal decided that the policy statement in the Premiers Department FOI Procedure Manual that “advance deposits will be used only with large scale requests involving significant charges” did not prevent the University seeking an advance deposit where the request was not large and the charges were relatively small. It said this outcome was because in all the circumstances (particularly “the burden placed on the University of the various applications that Mr. McGuirk has made under the FOI Act”) this was a reasonable exercise of the discretion to seek an advance deposit under Section 21 of the Act. The Tribunal also affirmed the decision to refuse access to some documents on grounds of legal professional privilege.

In McGuirk v University of NSW (2006) NSWADT 258 the Tribunal set aside a University decision to impose an advance deposit of $660 and substituted a requirement to pay $270.


In another decision McGuirk v Attorney General’s Department (2006) NSWADT 265 concerning documents relating to the University's legal advice and representation, the Tribunal upheld exemption claims concerning legal professional privilege, rejecting claims that they had been brought into existence for an improper purpose, which if shown, would constitute waiver of privilege.

Wham bam spam

Australia's Spam Act may have done something to halt the flow of the uninvited domestic email, but little to help with the millions of messages coming from overseas. This report today says that international spamming continues unabated, and has taken a'sinister turn' with Russian crime syndicates now in on the act. Australian telecommunications companies have been told to muscle up to repel the spam invasion.

The estimate is that 73 million spam messages hit Australia daily.

And yes, Nigerian spammers, with all those great offers to share a fortune in return for handing over your bank details, are bigger than ever.

Who me? Worried about privacy?

The American Civil Liberties Union has a great video clip on the dangers of the data base. In the US at least, ordering a pizza might be enough to bring up on screen more than you think. Of course things here are different - aren't they?

Thanks to Reg Fowler for the tip.

FOI in the news

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

Daily Telegraph 11 September:

“Ticket to ride? No way” – Sydney Cityrail ticket vending machines were faulty or out of order an average 83 times a day last year, annoying commuters and even leaving them at risk of fare evasion fines. Documents s revealed they are often unusable, including at stations with closed booking offices. and

“$10m in bills waived - Tax, fines unpaid” - Taxes and fines worth $10.49 million have been mysteriously waived after personal intervention by NSW Treasurer Michael Costa and his predecessors over the past three years. Among 276 ``act of grace'' orders - which the Treasurer can arrange without explanation - was a bill owed to taxpayers of nearly $1million. NSW Treasury has refused to release any information that might help The Daily Telegraph readers lodge their application.

Sydney Morning Herald 11 September: “Minister bars hospital questions” – This report, and an editorial all suggest that the NSW Government gazetted a regulation imposing a jail term on health department employees if they disclosed information about reportable incidents in the public health system. The claim is that this was done to avoid disclosure of documents to the Opposition under the FOI Act.

Our reading of the regulation is obviously a bit different from the Opposition and the SMH – it doesn’t in our view support the claim, but we haven’t seen the determination of the FOI application so can’t comment further.

Herald Sun 13 September: “Police files clash - Notes kept from former top cop” -The former head of Victoria's elite special operations group has argued in the Civil and Administrative Tribunal for the release of an anonymous letter and diary note about his management style. The Police claim disclosure to the world would divulge sensitive details on the fight against terror.

The Australian 13 September: “Union challenge on privatisation - Central Queensland University misled staff in its English Language Centre about plans to outsource the centre to a private operator, the academics' union said yesterday. The National Tertiary Education Union said documents it had obtained under freedom of information rules revealed the university decided in March to privatise the centre, contrary to what the university told the union.

Adelaide Advertiser 14 September : “MPs' cars clock up fines "South Australian politicians' taxpayer-funded cars have been detected speeding 34 times over the past two years but the Government has refused to reveal which MPs are responsible.
The Advertiser can reveal the number of speeding offences only after successfully appealing an Administrative and Information Services decision to block the release of any details, which had been requested under Freedom of Information laws.

Sydney Morning Herald 15 September: “Pubs defy smoking crackdown” - Hotels are openly flouting the NSW Government's partial smoking bans, with no prosecutions yet pursued despite more than 400 complaints. Documents obtained under the Freedom of Information Act also show hotel lobby tried to have smoking bans pushed back until 2009 and a one-year "period of grace" allowed before fines were imposed.

The Australian 15 September: “Uni head buckled to bank demands” – Documents disclose correspondence to the University of Sydney from Macquarie Bank seeking to limit the impact of criticism of the Bank’s road projects in a research project undertaken by John Goldberg.

The Australian 16 September: “Baby bonus boosts birthrate in a year” -The Federal Government's $4000 maternity payment has helped to accelerate the nation's birthrate with more than 10,000 extra babies born in the past year. Centrelink data on the number of parents claiming the $4000 baby bonus, reveals that the birthrate is rising at a much faster rate than previously thought.

Daily Telegraph 16 September: “Iemma invites NSW to kick him” – A report on online responses on how citizens rate Premier Morris Iemma reveals more than half of respondents telling him he had done ``nothing'' to fix the state.

Sydney Morning Herald 16 September: In his weekly “What they won’t tell you “ column, FOI Editor Matthew Moore in “Animal crackers” reports on parts of documents on public admissions to Taronga Park Zoo deleted from documents released under the FOI Act. In a related story “Is Taronga an endangered species?” he discusses impending competition between Taronga Park and a new commercial zoo at Sydney’s Darling Harbour.

Ackerman and Devine 'in from the cold'

It should'nt pass unnoticed that the many critics of the Federal Government’s open government credentials, following the High Court decision in McKinnon v Secretary of Treasury, included two of our most conservative commentators, Piers Ackerman and Frank Devine. Their comments were "balanced" of course - including a spray on previous Labor governments and their penchant for secrecy. Some respondents on Ackerman's blog have been searching the records to identify any previous criticism of the Howard Government.

So it's not just the “usual suspects” who have expressed concern about the efforts of the Government to avoid disclosure of information about important issues of public interest and concern.

Piers Ackerman in the Daily Telegraph

“The tragic reality is that a cult of secrecy reigns at every level of government in this nation, from town and shire governments through to the state and federal levels.

This country’s politicians and public servants treat ordinary citizens with contempt and disdain and FOI, and equally repugnant privacy laws, will remain in place because they suit the governing class, just as the judiciary is enamoured with suppression laws that increasingly prevent us from monitoring the administration of justice in suburban courts.

While the media may appear to be the immediate losers and many in the public enjoy seeing the press take a shellacking, the continuing denial of transparency makes the nation the big loser”.

Frank Devine in the Australian said that while the power to issue conclusive certificates

“gives ministers an arbitrary power akin to that enjoyed by the King of Tonga under a more feudal constitution, most of us would probably concede the privilege to ministers if conclusive certificates were not so cynically bogus.

The reality is that governments of both persuasions have fought a guerilla war against FOI for 24 years, emboldened by possession of conclusive certificates as the ultimate deterrent. Their principal tactic is epic foot-dragging, so that, from a newspaper's point of view, information grows stale. Deceitful public relations is a back-up”.

National health IT healthy or not?

This report in the Australian says that the national health IT strategy is in disarray but no sign of panic or problems on the Government's HealthConnect website.

Senator's privacy nightmare a lesson for all

Now here’s a salutary privacy tale.

During debate in the Senate about the Privacy Legislation Amendment Bill (see item below) Senator Hurley (ALP) recounted her experience in applying for personal income insurance in case of disability through her superannuation provider, the Australian Government Employees Superannuation Trust. The full gory details are here.

In short she had to respond to a series of very personal questions, then read the privacy statement that told her that the management of these matters had been outsourced to the Commonwealth Bank, and that the information could be shared by them with a wide range of others. When she then thought that this was more of a privacy risk than her insurance needs warranted, and sought to withdraw the application and recover her information, she was told that it had already been provided to the Bank, but no one was available as a contact there as she attempted to retrieve the information.

Senator Hurley joins others in emphasising the importance of reading privacy statements before you hand over all that personal stuff to others.

Federal Privacy Act amendments address a couple of gaps

The Federal Parliament has passed amendments to the Privacy Act. These amendments extend the definition of personal information to cover genetic material and provide for notification by a medical practitioner to a “genetic relative” of information where necessary to prevent a serious threat to life or health. They also give legislative authority to doctors to access data concerning prescription shopping.

The details of the legislation and some interesting commentary is contained in this Bills Digest prepared by the Parliamentary Library. See [PDF 134KB

The Digest includes information about the Government’s position concerning the 140 recommendations contained in the Australian Law Reform Commission 2003 Report on genetic information (mostly accepted but yet to be acted upon).

There were no amendments made during passage of the Bill. Senator Stott Despoja of the Australian Democrats expressed some reservations about the scope of the prescription shopping proposal, and unsuccessfully sought a broader amendment that would remove the current exemption from the Privacy Act enjoyed by political parties and small business.

The Government has also introduced a bill to enhance information exchange between Federal Government agencies, state and territory authorities, private sector organisations, non government organisations and others in emergency or disaster situations. The Bill is aimed at addressing practical issues that were highlighted during events such as the Asian tsunami in December 2004. The text of the Bill, explanatory memorandum and the second reading speech of 13 September can be accessed here.

The Bill seeks to remove limitations on disclosures between those who may be involved in efforts to locate or identify persons in disaster or emergency situations. It won’t overcome any impediments in laws that apply to state public sector bodies – the government hopes the states will introduce complimentary legislation to achieve this purpose.

Tasmanian police and pollies understanding

I'm not sure of the background, and why this is an issue that required clarification, but this report in the Australian says the Tasmanian Parliament and the Police have entered into an MOU concerning police powers to seize information held by parliamentarians. Some see this as making life more difficult for the police, others express concern about privacy implications.

The report says all state and territory AGs have agreed to put these type of arrangements in place.

NSW Government supports more disclosure about contracts

The NSW Government has responded to the first report of the Parliamentary inquiry into the Cross City Tunnel.

The tunnel has been a major source of controversy since its opening last year. On openness and transparency issues - a bone of contention - the Government has responded positively to recommendations that more and better information on infrastructure projects be made available including comparisons with the cost of undertaking such projects by the public or private sector. The Government has also agreed to recommendations regarding publication of toll prices proposed by the private sector tenderer and the proposed toll increases.

Generally on disclosure of information of contracts, the Government says the Premier's current guidelines will be updated and replaced shortly and will address the issue of publication of information about subsequent amendments and variations of existing contracts.

While this is all good news, there certainly isn't any hurry to get the revised guidelines in place - there has been talk about this revision for at least 12 months.

No torchlight on Sunshine State

Queensland Premier Peter Beattie, after a campaign that even political opponents called brilliant, is back for a fourth term in office, with hardly a loss of seats in sight.

Beattie's Government has been no fan of FOI, and perhaps not surprisingly his campaign seems to have made no mention of plans for change or reform in this area. The comprehensive Team Beattie website includes a long list of new plans and commitments but typing in "Freedom of Information" or "accountability" on the search engine produces nil results.

The Opposition and the Greens both included FOI reform in their platforms but with the majority the Government enjoys in Parliament their ideas won't get far in the next term.

Crackdown on car owner details

Issues about access to motor registration details have been in the news in South Australia and New Zealand.

In South Australia the Government has announced that it will limit access following a Supreme Court decision that forced Transport SA to provide details of the owners of vehicles parked in a parkiing station that incurred charges for overstaying.

In New Zealand, the motor vehicle registry is a public register with no limitation on the right of access - the Government has announced plans for change following public concern about use of the information for marketing and other purposes.

Things are already tougher on access to the register in most Australian states - see this earlier blog.

Thanks to PogoWasRight for the leads.

FOI in the news

The major media FOI story of the week has been the reporting of the High Court decision in McKinnon v Secretary of the Treasury. Our earlier blogs have highlighted some reports. There have been many others. Papers across Australia reported the decision, and many opinion pieces and editorials commented that it was a major setback to open government.

One of the follow on pieces in yesterday’s Weekend Australian - "NZ says our FOI law arcane" says that having been unsuccessful in a four year battle to obtain information from the Australian Treasury about bracket creep, the newspaper was able to obtain information from New Zealand Treasury on the same topic within 24 hours. This claim might be a bit specious – the requests were different in form – but it sure isn’t a good look when New Zealanders show us up as excessively secretive, technical and profligate in using public money to protect this sort of stuff from public disclosure.

In his weekly Sydney Morning Herald "What they won't tell you" column FOI Editor Matthew Moore in "New ways to say no" says that the comments by Justices Heydon and Callinan in the High Court decision, have breathed new life into tired old notions about the need to protect public service advice from disclosure on public interest grounds.

Media reports based on other FOI applications over the past week also included:

The Advertiser 2 September: “Teacher wanted to bomb office”
A school teacher who wanted to bomb the head office of the South Australian Education Department and gun down teachers at the school where he worked has been counselled over his threats.

Sunday Telegraph 3 September: “Bridges in trouble - Two-thirds `unsatisfactory' - Nearly two-thirds of the road bridges in NSW have failed Roads and Traffic Authority inspections in the past year.

Sunday Mail 3 September: “$120,000 on Foley's US talks” South Australian taxpayers forked out $120,000 for Treasurer Kevin Foley and an entourage of four to travel to the US for high-level defence talks.

Sunday Age 3 September: “It's the Traminators - No ticket? Throw them to the floor, inspector . . . roughly”- Victorian public transport ticket inspectors are being taught how to fight and arrest unruly passengers and put "body holds" on fleeing fare evaders.

The Daily Telegraph 7 September: “All aboard for injury - Commuters dice with danger on a daily basis” - The number of NSW commuters injured getting on and off carriages has risen alarmingly, with a 300 per cent increase in people caught in train doors in just three years.

The Age 8 September: “Government withholds major projects information – countdown to the poll - November 25” - In Victoria the Government has mounted a Supreme Court challenge to stop sensitive documents on its troubled major projects from being released before the state election. The challenge is to a Victorian Civil and Administrative Tribunal decision that the documents were not Cabinet documents or otherwise exempt.

The Melbourne Sun 8 September: “File peeks `private' - Police reject plea from prison whistleblower” - Police have refused to tell a prison whistleblower the names of all police officers who looked at his secret police file because it could invade their privacy. Victoria Police refused to release the details under freedom of information because it related to the "personal affairs'' of the officers.

As usual some links to free content are not available.

Government backs FOI effectiveness study

No, not some sudden backflip by the Howard Government, reeling from widespsread criticism from Australian and international commentators (see this call for reform by Reporters Without Borders) about its FOI performance.

It's the UK Government that is throwing money into a study by the Constitution Unit of the University College London, to ascertain what's happened since the Act came fully into force in January Last year.

More reaction to this week's decision: not only the written word....

In a week where the High Court decision has taken up so much written space (see 2 items below) we are delighted to be able to share with you this wonderful cartoon that appeared in the SMH - reproduced here with the kind permission of the artist, John Shakespeare.

Privacy and data security guidance

At a time when data security standards are a hot topic, those involved in managing privacy might be interested in this thorough and well researched paper on the requirement for reasonable security for personal information by Nigel Waters. Nigel, from Pacific Privacy Consulting is also Principal Researcher, interpreting Privacy Principles Project, Cyberspace Law and Policy Centre, University of New South Wales. PDF

The paper formed the basis for his presentation at a symposium in Sydney in May this year. It draws on developments in Australia and elsewhere and is a valuable resource.

FOI reaction: dismay in all quarters except government

Extensive coverage of the High Court decision (see item below) in the media today includes these editorials in The Australian, Sydney Morning Herald, Herald Sun and Daily Telegraph, and analysis by Matthew Moore in the Sydney Morning Herald and Matthew Ricketson in The Age.

Last night's 7.30 Report on ABC Television includes comment by the Treasurer Peter Costello to the effect that just about every past Treasurer has issued conclusive certificates, and that after about 50 had been issued, the Australian Government Solicitor's Office stopped counting. As we mentioned yesterday there is no reporting requirement for the issue of conclusive certificates by Federal ministers, so no one anywhere seems to be keeping track.

After yesterday's decision, numbers will be on the rise.

Treasurer Costello also said that the documents sought were "drafts or internal working documents" and the FOI Act properly rendered them exempt. He failed to mention that Parliament didn't exempt draft documents and only provides for the exemption of documents containing advice and opinion where disclosure would be contrary to the public interest.

In any event there weren't many drafts among the documents sought. Here is a copy conclusive certificate of two of the certificates and the schedule of the large number of documents involved - only one is described as a draft.

One point missed in most of the commentary so far is that even if there had been a finding that the Treasurer did not have reasonable grounds to issue a conclusive certificate, the documents themselves could have remained secret. The Federal FOI Act (Section 58A) says that after such a finding, a minister may decide to not revoke the certificate and must simply inform Parliament of this within 5 sitting days. That would be the end of the matter.

We agree with all the commentators who suggest that the only answer to these gaping holes in FOI legislation is for reform, but I'm afraid this will only happen if there is a strong, concerted campaign to force government to adopt and fully implement open government principles.

High Court low point for FOI

The High Court decision in McKinnon v Secretary of the Treasury is a major disappointment for open government advocates. On the other hand it will be welcomed by a government whose commitment to openness and transparency has been tarnished by its track record over the last 11 years.

In essence the decision highlights well known deficiencies in the Federal FOI Act. However the 3-2 majority verdict is sure to provide comfort and ammunition for those in government (and their legal advisers) who look for opportunities to frustrate the “public right to know”.

Ten years ago the Australian Law Reform Commission in a comprehensive report called for reform of the Federal FOI Act. That report has never been acted upon. Those reforms and many other proposals for enhancing transparency and accountability have never passed first base with the present government.

One of the report’s recommendations was that a minister should not be able to conclusively certify that it was contrary to the public interest to disclose an internal working document. While the report accepted that government at the highest level should be able to make judgements of a conclusive kind where matters of national security were involved, giving ministers such powers over “thinking process” documents was inconsistent with the objectives of FOI legislation.

This power and how it is exercised was the central matter before the High Court.

The majority found no error of law in earlier decisions in the matter. That is, on review of a decision to issue such a certificate, the Administrative Appeals Tribunal is limited to examination of whether reasonable grounds existed for such a conclusion.

The documents sought in this case are now over 4 years old. They would reveal information about “bracket creep” – the extent to which inflation has added to government coffers as wage increases put Australians in higher tax brackets – and information about fraud in the first two years of the operation of the ‘First Home Owners’ grant scheme, particularly its use by high wealth individuals.

The Treasurer certified that 39 of 40 documents about bracket creep were exempt, and all the 47 documents held on the grant scheme were exempt, in whole or in part.

Estimates are that New Limited (with contributions from other media organisations) may have spent $1million on this challenge and that the Government may have spent $1.5million. The High Court ordered costs against News Limited.

The Court said that the proper interpretation of the Act prevented the Administrative Appeals Tribunal from undertaking any independent assessment of the merits of the claims in the certificate. The only issue to consider was whether the decision to issue the certificate was a decision open to a reasonable person.

The majority decided that the requirement was to consider all relevant factors. However after reviewing what had been done, they concluded that it was open to reason on the basis of the claims put forward in the Treasurer’s certificate, that disclosure would be contrary to the public interest.

Justices Callinan and Heydon, in a joint decision (and in support of a separate decision by Justice Hayne) considered the grounds in the certificate and said that it was not unreasonable to contend that the following claims were relevant to a judgment that disclosure was contrary to the public interest: that disclosure would jeopardise candour and affect keeping of proper records; that the documents were tentative in that they were concerned with matters not settled and recommendations not adopted; that “documents prepared for possible responses to questions in Parliament should remain confidential because their exposure would threaten the Westminster system of government”. They were not impressed with arguments that suggested it would be contrary to the public interest to disclose documents simply because of "ongoing sensitivity", because the public would not be able to understand the context or technical jargon, or that the information might be misrepresented or abbrievated".

Chief Justice Gleeson and Justice Kirby, in the minority concluded that an error of law had occurred, and would have granted the appeal.

Some of the views expressed by those in the majority, are in stark contrast with comments made by the NSW Court of Appeal in a separate recent case, WorkCover Authority v Law Society of NSW (2006) NSWCA 84. The Court of Appeal was required to consider the appropriate test in determining whether disclosure of internal working documents was, on balance, contrary to the public interest.

The Court emphasised the importance of the objects of the Act, (the High Court majority said that even though the limitation on the review powers of the Tribunal were apparently contrary to the objects of the Federal Act, the express words used in the Act to describe the Tribunal’s powers had to be taken at face value), and rejected formulaic, theoretical propositions about the public interest and non disclosure test developed in the pre FOI era of closed government. The NSW Court of Appeal is of the view that simply because a document is a draft does not dictate that it is contrary to the public interest to disclose it.

The NSW FOI Act contains more restricted powers to issue conclusive certificates. The Premier only has the powers, and they do not extend to the issuing of a certificate regarding the internal working document exemption. Few certificates have been issued in the 17 years since the Act commenced. Federally, any minister can issue a certificate. There is no reporting requirement so no information is available on the number of certificates issued.

Will the Federal Treasury (and others) be breaking out the champagne in the light of this decision? Most likely.

Having successfully argued in 1985 against disclosure of budget documents to John Howard MP, in a case that laid down what came to be known as “Howard factors” for non disclosure of internal working documents), they have now again successfully supported the Howard Government’s efforts to put some significant barriers between the public and Treasury thinking process documents, even those as in this case that are 4 years old.

Treasury Secretary Dr. Ken Henry should be very pleased. He told the Canberra Times in March (according to this report in the Australian) that if the High Court decided against the Government, the only answer would be for Treasury officials to not record important steps in decision making in order to protect such documents from those who in his view, sought access in order to embarrass the Government. The best way to deal with these sort of applicants would be to be able to issue conclusive certificates.

The High Court decision has now left open to Dr. Henry and others who share his views (the Treasurer Peter Costello is on the public record as saying that FOI is primarily about getting access to information about an individual’s own affairs, and release of documents containing advice will inhibit provision of frank advice in future), to avoid the prying eyes of those who seek to know what the Government knows about important matters concerning the development of policy. All that is required will be to simply arrange for the issue of a conclusive certificate by a minister citing vague and general grounds about why disclosure would be contrary to the public interest, confident in the expectation that there will never be independent testing of those claims.

Foreign Minister Downer told an audience last week (see the link to the Australian above) that his party is proud of the fact that it runs an open government and that it had introduced FOI legislation in 1982.

Many would suggest its been downhill ever since, with FOI languishing without appropriate leadership, enforcement and resources, and as demonstrated in this case, some fairly conservative views in the Federal Courts about open government.

Breaking News: High Court decision goes against The Australian

MICHAEL McKINNON v SECRETARY, DEPARTMENT OF TREASURY
No error of law was made by the Administrative Appeals Tribunal in rejecting Mr McKinnon’s claim that he is entitled to receive certain Treasury documents under the Freedom of Information Act, the High Court of Australia held today. McKinnon v Secretary Department of Treasury

We will have a full comment here later in the day.

National access card "lighter"?

The Australian reports today that there has been some cutting back already on plans for the Federal National Access Card in the light of submissions received by the Privacy and Consumer Task Force.

As mentioned here last week, revelations about data security breaches in Centrelink and the Australian Tax Office haven't done much for consumer confidence in government claims that "nothing is more important to us than your privacy".

Ins and outs of the public interest

Chris Wheeler, Deputy NSW Ombudsman, has a detailed and well researched paper "The Public Interest:We know its important, but do we know what it means" in the latest edition of the Australian Institute of Administrative Law Forum.

It's not limited to public interest as used in the FOI context, and provides a broad overview of where it fits in the Australian legal framework. I commend it to you.

FOI in the news

Media reports based on FOI applications this week include:

The Adelaide Advertiser 27 August: “MPS' cars have been caught by speed and red light cameras - but all the details remain a state secret". The Advertiser reports that it was knocked back in its attempts to obtain information about traffic violation tickets issued to MPs, but the letter from the relevant department simply stated that the department did not hold the details.

Newspapers in Melbourne and Sydney both obtained details of mobile phone expenditure by local councillors:
Sunday Age August 27: Hang-up call on mobile-crazy councillors” - Councillors across Melbourne are spending up to $10,000 a year of council money on their mobile phones, but the State Government is resisting calls for a probe.
The Daily Telegraph August 28:“Councillors' big mobile costs” – NSW local councillors on mobile phones are running up bills for their ratepayers of up to $1100 a month.

The Australian August 28: “Greens bar preferences for Labor” - documents that reveal clearing of vegetation could have an influence on preferences in next week's Queensland State election.

The Age August 28: “Medical precinct's bridge centrepiece - Push to link public and private hospitals in east” - A major medical precinct for Melbourne's fast-growing eastern suburbs, costing about $700 million, would include a bridge linking Box Hill Hospital with Epworth's private facility.

Daily Telegraph August 29: “End to school violence - New laws allow troublemakers to be kicked out - The Iemma Government will legislate to give itself the power to remove violent students from school when they put the safety of other children or teachers at risk.

Australian Financial Review 29 August :” Lennon defends former deputy” - New allegations of inappropriate ministerial conduct by former deputy premier Bryan Green are being investigated by Tasmania’s auditor-general.

Herald Sun August 31: “FUEL FARCE - We pay so MPs get free petrol but their bills stay a secret” – Victorian MPs and their families have pumped more than $500,000 of free petrol into their taxpayer-funded cars -- but their bills are being kept secret. The Bracks Government is hiding behind privacy laws, claiming it is not allowed to reveal individual MPs' bills.

(Last week we commented that authorities in Sydney and Brisbane seemed confused about the relationship between FOI laws and privacy legislation. Now this has extended to Victoria. In all three jurisdictions FOI laws are not affected by privacy legislation. "BOTPA" - because of the privacy act - strikes again).

Sydney Morning Herald September 2: In his weekly column “What they won't tell you" FOI Editor Matthew Moore in "Its their ABC" - reports on a Federal Court decision on the interpretation of the Australian Broadcasting Corporation's exemption from FOI "in relation to broadcasting functions". The Court ruled that this extended to all documents that had a direct or indirect connection with broadcasting, including complaints about bias in ABC coverage of events in the middle east in 2000-2002. For our earlier comment on this development see here.

As usual some free links are not available.