Leading Barrister's views on internal working documents and public interest

Whoops - sorry our first post of this item included a link that didn't work. So here goes again.

At our recent 2006 FOI Advanced Workshop, Mark Robinson, Barrister and former Judicial Member of the NSW Administrative Decisions Tribunal, spoke about the internal working document exemption, in particular public interest factors relevant to a decision to deny access. The issue is an important one given the comments by the NSW Court of Appeal in WorkCover Authority v Law Society (2006) NSWCA 84.

A copy of the paper is here.

Mark emphasises that any claim that disclosure of an internal working document would on balance be contrary to the public interest needs to be supported by credible evidence. The Court of Appeal decision leaves open a range of circumstances where it might be appropriate to make such a claim, but removes rigid formulae or theoretical approaches from the equation.

There is yet to be any major published decision by the NSW ADT on this issue since the Court of Appeal case, and no guidance on its application has been issued to date by the Premier's Department.

Bail skippers privacy protected, really?

This report "Bail fiasco" in today's Daily Telegraph reports that more than 4000 people in NSW skip bail each year. The Tele's request under FOI for names of those subject to outstanding warrants hasn't been responded to, and a Police spokesman says that "legal advice" prevented the release of names on privacy grounds. Its not the first time NSW Police have resorted to BOTPA. However as the Acting Privacy Commissioner points out, the NSW Police are not subject to privacy legislation in connection with their core law enforcement functions.

More strikes for anti spam laws

Twin successes for anti spam laws in the last couple of days.

In Perth, an Australian company and the man behind it, were fined a collective total of $A5.5 million for 75 million spam emails sent in a two year period.

Microsoft has also won a court case in Germany against a German spammer who was ordered not to distribute forged email using the hotmail brand or face a fine of $A415.000.

This follows an earlier decision in June in Chicago where a student who, with colleagues used spam emails in 250 false names to elicit personal information subsequently sold, was fined $US10 million.

Its an uphill battle but these sort of penalties send a pretty clear message. I imagine the authorities might be whistling in Dixie before they actually extract the money from the offenders.

On another front, Ontario's Privacy Commissioner has given support to a new approach to create a security layer that could kill off the nastiest forms of spam, and has released a white paper supporting the Seven Laws of Identity. The Commissioner says "The internet is not in the hands of the people. It's in the hands of the fraudsters". This paper poses some solutions.

Medical practitioners concerns about privacy laws

Privacy laws and their impact on the health sector are one of the key areas for attention in the Australian Law Reform Commission Issues Paper on privacy laws. Chapter 8 highlights the overlap, duplication, inconsistencies and gaps that arise, particularly for private sector health providers in NSW and Victoria who are subject to both the Federal Privacy Act and the state health privacy legislation. There are also major problems for those engaged in health research.

In this article in The Australian the President of the Australian Medical Association, identifies some of key concerns of medical practitioners.

In this article "Policing privacy" there is an update on developments in the NSW E-Health pilot project. Privacy concerns apparently led the head of the Hunter Urban Division of General Practice and most of his regional colleagues to not particpate in the Hunter trial.

There will be many voices and views on these issues as the Commission embarks on the consultation phase of its project.

Some universities in serious privacy hot water

The Macquarie University story below revealed an unfortunate error but in terms of privacy, doesn't rate in the big league of data protection problems.

For example the US Privacy Rights Clearing House in its list of significant data security breaches since early 2005 (over 95 million Americans are said to be potentially effected) in cludes quite a list of university incidents that would make the Macquarie issue pale in comparison.

What should have had those responsible for privacy in Australian universities choking on their cornflakes was this report on Research Ethics in July broadcast on the ABC Health Report.

It raised important issues about the conduct of research, the way in which Human Research Ethics committees approve projects, and the balance struck between protecting the public and the interests of their institution.

The case referred to in the transcript is this decision of the Victorian Civil and Administrative Tribunal in WL v La Trobe University (General)(2005) VCAT2592 which turned on whether information held about the applicant in connection with the Australian Longitudinal Study of Health and Relationships was "personal" information for the purposes of the Victorian Information Privacy Act. The Tribunal decided that the information was sufficiently de-identified so that it was not information about a person whose identity could reasonably be ascertained from the information in the record. The complaint about breach of privacy failed.

University mail out hits privacy snag

Ouch! The Australian reports that Macquarie University alumni are up in arms over the fact that 25,000 of them received the full list of their names and email addresses as a result of a technical error in the IT department.

Thinking process documents about media reform too sensitive for public

The Australian Communications and Media Authority denied The Australian access to a report to the Federal Government in June, outlining community opinions on what new media services should feature on spare digital television channels. It claimed the report was exempt as an internal working document, attracted legal professional privilege, included confidential information and might disclose "the commercial or financial affairs of an organisation".

Maybe this sort of defensive attitude from media regulators comes with the territory - it seems they don't like their "thinking process" documents disclosed to the outside world.

As this report from the US says, the Federal Communications Commission ordered its staff to destroy all copies of a draft study that suggested greater concentration of media ownership would hurt local TV news coverage.

Big win for Clover Moore on contract disclosure

In what the Opposition described as a "road to Damascus" conversion, the NSW Government has supported the Freedom of Information (Open Government - Disclosure of Contracts Bill) and the legislation passed through the Legislative Assembly yesterday.

The Bill was introduced on 1 December last year by independent Member for Bligh (and Lord Mayor of Sydney) Clover Moore. Yesterday it re-emerged, Ms Moore accepted some amendments and the Bill passed so quickly that the Opposition (who also supported the legislation) admitted that it had not had time to look at the amendments in detail or to consult any stakeholders affected by them.

The Bill as passed will require agencies to publish on a central government website within 60 days, contracts for more than $5million, and details of other contracts for more than $150.000. Some types of information may be excluded if they come within "commercial in confidence" as defined in the Bill - the contractors financing arrangements, cost structure, profit margins, full base case financial model, intellectual property, matter the disclosure of which would place the contractor at a substantial commercial disadvantage.

There are significant changes to the original Bill. The Member for Bligh obviously thought that concessions were worth making to get the Bill passed. One of these is the exclusion of State Owned Corporations. Ms Moore reluctantly conceded this for the present but expressed her concern and did not receive the public explanation sought as to why they should be excluded.

Another questionable change not noted during debate is the exclusion of contracts entered into by the Department of State and Regional Development that involve the provision of industry support.

Apparently consultations with the Local Government and Shires Association will be held prior to the making of regulations that will apply to the disclosure of local council contracts.

The Bill now goes to the Legislative Council where there may be some amendments but it seems certain to enjoy majority support there.

In a week when the Government has been on the back foot about accountability, and after a year of acknowledgement by the Government that it has been reviewing guidelines concerning disclosure of contracts, this is a surprising but significant and welcome step in the right direction.

NSW Minister falls on sword but public right to know rules

The 'resignation' of the NSW Police Minister, Carl Scully, this week resulted from two incidents in two weeks in misleading Parliament. Misleading Parliament - or being caught misleading Parliament - continues to be seen to be a serious breach of Westminster conventions.

The first incident involved the denial that a report concerning the Police and last year's Cronulla riots, had been received, and the subsequent "explanation" made much of a distinction not made initially between a draft and final report.

Today's Sydney Morning Herald editorial "The fall of a news manager: Carl Scully's legacy" says that the two reports concerning Police management of the riots and the revenge attacks are

"not state secrets to be disclosed only at the Government's convenience; they are important documents which relate to the ability of the police service in the past and in the future to protect public safety. The public has the right to know about such problems. By not ensuring they were completed quickly and put into the public domain, by lying about them, Mr. Scully failed in his duty to the public".

The reports (or in one case the draft) were released this week, a year after the riots, but only because of pressure in Parliament, and clear evidence from the court of public opinion.

It would be interesting to contemplate what might have happened if the reports had been sought under FOI at any time over the last month since they were completed. Almost certainly they would come within the definition of internal working documents, and there are strong precedents (including views expressed by the NSW Court of Appeal in WorkCover) that support the position that while decisions on the underlying issues have not been taken, the presumption is that disclosure would be contrary to the public interest. After decisions have been made, evidence about the harm from disclosure is required to satisfy any claim for non disclosure on public interest grounds.

Will disclosure of these reports hamper the Government in making decisions on the recommendations they contain, or will such action now proceed promptly, unhindered by satisfaction of the public right to know?

The precedent may lead to some rethinking about the sacrosanct nature of thinking process documents, while government is still thinking, where they involve important matters of public concern.

NSW Government moves on E health

The NSW Government has awarded Cerner Corporation a $40million contract to provide an intergrated electronic medical records system for the 8 NSW area health services by 2009. This ABC Online report quotes the Premier saying the new system will reduce hospital errors and cut costs. This project goes back to 2002, and appears to have encountered lots of problems so far.

It's still something of a mystery how the Federal and state initiatives on E health fit together, and privacy continues to be an issue. There have been no public reports about the NSWHealthelink pilot project.

Privacy concerns about SWIFT

Concern continues about the privacy implications of US monitoring of international funds transfers through the SWIFT interbank cooperative. This report "Personal bank deals caught in SWIFT net" in the Australian says the Belgian Privacy Commissioner has found that SWIFT breached Europe's data protection laws and exposed millions of private transactions to US scrutiny. Earlier Swiss and German regulators had come to similar conclusions.

The Australian Privacy Commissioner is still considering requests from the Australian Privacy Foundation to investigate whether Australian financial institutions complied with the Federal Privacy Act in utilising the SWIFT system.

The Australian fights on!

The Australian's FOI Editor, Michael McKinnon in "Secrets and lies" yesterday suggested that the unsuccessful High Court challenge regarding conclusive certificates may not be the final word on the subject. McKinnon said that some, including the Government's lawyers, saw scope in the High Court judgment to justify further action for judicial review by the Federal Court.

The Australian is calling for the establishment of an FOI fighting fund to underwrite such a challenge.

My view is that money and energy would be better spent in establishing a credible, professional representative body to promote and advocate open government principles, and FOI laws that work to achieve those objectives.

NSW Ombudsman finds local councils illegally charge for access to documents

The NSW Ombudsman's Annual Report includes a section on local government 13 local government.pdf

Access to council information is one of the matters covered. The Ombudsman, following an investigation found Leichhardt Council was charging illegal fees for providing information to the public. This was despite a Local Government Act requirement to provide theinformation for free. Other councils were also charging unlawful fees to cover processing and file retrieval costs, or charging unreasonable amounts for photocopying. “Our investigation found many councils with unreasonable photocopying charges and unlawful processing fees. We have put a stop to these charges, and to unnecessary redtape for persons seeking access to council documents,” said Mr Barbour.

NSW Ombudsman speaks truth to power on FOI

The NSW Ombudsman's Annual Report was tabled in Parliament today.

FOI issues come in for strong comment and the Ombudsman's views provide further support for those who voted last week in favour of a Bill calling for an independent review of the Act.

“The significant and disturbing downward trend in the full release of documents under FOI has continued for the ninth year running,” the Ombudsman Bruce Barbour said.

In 1995-96, over 80% of FOI applications resulted in the full release of documents. This figure has steadily declined to only 55% in 2004-05. Over the same period the numbers of applications where only some documents or some parts of documents have been released has tripled (from 12% to 34% of determinations).

“NSW has the lowest rate of full release of documents of all mainland states and the
Commonwealth,” the Ombudsman said. “The rate of full release in NSW is 20% below the average for these other states and the Commonwealth.”

The Ombudsman reiterated that the Act is long overdue for review. “We have been calling for a comprehensive review of the FOI Act for over a decade,” he said. “In the absence of any such review, we will consider conducting our own review of the FOI Act next year."

Over the 17 years since the FOI Act was introduced, amendments have been piecemeal resulting in the Act becoming fragmented, and not in line with current circumstances. For example, since the implementation of the Act, agencies have been moving from paper-based document management systems towards electronic systems. The Act has not made adequate provision for these changes.

“As I have been saying for years, the FOI Act is not effective in keeping agencies
accountable to the public,” said Ombudsman Bruce Barbour.

The Section of the report dealing with FOI matters includes case studies concerning omplaints against the former Department of Infrastructure, Plannning and Natural Resources, NSW Police, Department of Corrective Services, Motor Accident Authority and Department of Primary Industries. The Chapter is here 16 foi.pdf

The Ombudsman also tabled a report on agency compliance in 2004-2005 with annual reporting obligations - 11 of 70 agencies surveyed were substantially inadequate in providing statistics, and 40 of 90 surveyed were seriously deficient or failed altogether to provide an assessment of the impact of FOI on the agency. The Report is here.

The only public voices to suggest things are going well with FOI have been the Premier during a recent Budget Estimates Committee hearing and the one Government speaker in debate in the Legislative Council last week.

Recent NSW FOI ADT decisions

A quick catch up on some recent FOI decisions from the NSW Administrative Decisions Tribunal.

In Ferns v Corrective Services (2006) NSWADTAP 50 the Appeal Panel, after finding an error of law in the Tribunal’s failure to provide adequate reasons for decision, upheld the refusal of access to documents on the grounds of legal professional privilege. The only noteworthy aspect was the finding that an invoice from a firm that undertook covert surveillance of the FOI applicant in connection with Industrial Relations Commission proceedings, attracted the legal professional privilege exemption: it was a communication between a lawyer and a third party engaged to assist in connection with legal proceedings, and if disclosed would reveal the extent of surveillance undertaken.

In Franks v Warringah Council (2006) NSWADTAP 53, the Appeal Panel dismissed the FOI applicant’s appeal against the Tribunal finding to refuse access on the grounds of legal professional privilege.

Coroneo v Woollahra Council 2006 NSWADT 286 also saw claims for legal professional privilege upheld.

YN v Department of Housing (2006) NSWADT 79 and YN v Department of Housing (2006) NSWADTAP 9 involve issues concerning leave to appeal, dismissal on the grounds that the application was frivolous and vexatious, and resulted in a order that the applicant pay the agency's costs because of a failure to appear.

Hutchinson v Roads and Traffic Authority NSW (2006) NSWADT 290 is about whether documents concerning aspects of road construction on the Hume Highway in 1995, were held by the agency. The Tribunal found there were reasonable grounds that some documents existed and that the RTA had not taken all reasonable steps to locate them. It ordered a further search of 405 files to identify whether any are likely to contain relevant documents.

Dunn v Energy Australia (2006) NSWADT 288 and Schubert v Department of Environment and Conservation (2006) NSWADT 296 both involve issues concerning access to details of a complaint. While there are some differences in the circumstances, the two cases involved very different results.

The former was a case where Dunn had written to the agency complaining about the conduct of a neighbour employed by the agency while driving an agency vehicle. The Tribunal upheld the agency decision to provide documents concerning the complaint and investigation to the person complained about, despite Dunn’s objections.

In Schubert, the FOI applicant, an employee of the agency sought access to documents concerning a complaint made about her. The Tribunal found the documents exempt on personal affairs and confidentiality grounds.

Cui v Leichhardt Council (2006) NSWADT 298 the Tribunal upheld a decision to refuse access to plans of the Balmain Police Station as it existed in 1989. The Tribunal found the documents exempt on the grounds that disclosure would endanger the security of the building, and surprisingly on the grounds that they would have an unreasonable adverse effect on the business affairs of the NSW Police.

In Sawires v NSW Police (2006) NSWADT 302 the Tribunal upheld a decision to refuse access to information concerning the FOI applicant on the grounds that disclosure could be expected to prejudice an ongoing investigation, and or would enable texistencence or identity of a confidential source to be ascertained.

Victorian Privacy Commissioner flags big privacy issues

Its annual report time again.

The Victorian Privacy Commissioner is the first off the block. The report prepared by the Commissioner, Paul Chadwick prior to his departure after 5 years in office, includes some salutary comments about privacy, described by Chadwick as the "quietest of our freedoms". For this reason he says "Ministers, Parliament, bureaucrats and media - all of whom have influence in the way the community is governed - need to listen for privacy with care".

The comments in the Commissioner's overview (page 3) about three major privacy challenges - the proposed Commonwealth Access Card, cameras that watch and "think" and genetic information - should alert all of us to the need to follow these issues closely.

No privacy for this invite to a fling

I'm not sure if any E-Security awareness devices would have helped this hapless emailer who has become an overnight celebrity in New Zealand (and elsewhere), but the incident serves as a reminder that you can't expect all recipients to treat your emails confidentially.

Federal Government initiative on E-Security

The Federal Minister for Communications, Information Technology and the Arts, Senator Coonan launched the Government's StaySmartOnline website today as part of National E-Security Awareness Week.

Queensland award for FOI Editor

The Australian's FOI Editor Michael McKinnnon received a special Press Freedom Award at the 2006 Queensland Media Awards on Saturday in recognition of his High Court challenge to the Federal Government's efforts to withhold information on tax bracket creep and the First Home Buyers scheme. The media release of the list of winners is here.

NSW Opposition onto FOI reform

This Sydney Morning Herald report provides details of the NSW Opposition's policy for FOI reform if elected to office in March next year. As Matthew Moore comments here, we hear these sentiments from politicians while in opposition but the track record in government has been inevitably disappointing. The changes sound like sensible steps in the right direction. There is plenty of time for the Government to match and beat the Opposition on this front, but as we reported last week the only Government speaker in parliamentary debate about the review bill said that everything on the FOI front is going swimmingly. Hmmm.....

Our FOI in the news undergoes some changes

The weekly "FOI in the News" items we have been posting for the last 7 months are proving to be too time consuming and we've decided to take a different approach from here on. My researcher has spat the dummy.

We will continue to keep an eye on media reports concerning FOI but won't be attempting to record every article around the country based on disclosure of information in response to FOI applications.

NSW Upper House passes FOI review bill

The NSW Legislative Council yesterday passed (24 votes to 17) the Freedom of Information Amendment (Improving Public Access to Information) Bill as introduced by the Greens' Lee Rhiannon.

The Bill, if passed by the Legislative Assembly, would require an independent review of the NSW FOI Act.

Debate was in two stages and is available here and here.

The Opposition, and others from the cross benches supported the Bill and speakers recounted some of their own FOI experiences and those of community groups and activists. The Public Forum (see item below) also gets a mention.

The NSW Police performance in handling FOI came in for strong criticism, with details released of a previously unpublished Ombudsman report on delays and resource problems.

The only speaker for the Government Amanda Fazio, said that the FOI Act was under constant review, was working satisfactorily, and again suggested that the publication of an updated FOI manual for practitioners by the end of the year, would solve any problems with the administration of the Act.

The Government has the numbers in the Legislative Assembly to determine the fate of the Bill but its on the back foot at the moment over this week's handling of a report on the Police and last year's Cronulla riots. Perhaps there will be recognition that the whole issue of access to information should be looked at more closely.

NSW FOI: plenty of room for improvement

The Public Forum at NSW Parliament House on 11 October about FOI and why it isn't working attracted about 100 people. There were many there who have had unsatisfactory FOI experiences, several of which were picked up in this report in the Sydney Morning Herald.

My speaking notes are attached. Other speakers were Wendy Bacon and Dr. Ann Smith of Save Barrington Tops Group.

In essence while the NSW FOI Act isn't the worst or the worst administered in the land, the case for review is very strong and reform is long overdue. The Greens have introduced a Bill into the Legislative Council that would require independent review of the Act. In my view a good act is essential, but insufficient to achieve open government objectives. Leadership, support and resources are among the other essential ingredients.

In 2006, a government committed to extending as far as possible the rights of the public to access government information (the objects set out in the FOI Act in 1988) would start with a commitment to proactive disclosure of a wide range of information concerning the conduct of public functions, and position FOI as the last resort mechanism for access to information not otherwise available.

Access to government information continues to be an important accountability issue but in this day and age, access to such information to enable use and reuse to promote social and economic advancement, should also be recognised in our right to information law.

I made a couple of references to what is happening overseas:

• while we talk (for over a year) about greater disclosure requirements for government contracts, the US is embarking on developing an online data base to enable all government contracts, grants and loans to be searched by electorate, recipient, spending program and agency;
  
• while we rediscover the importance of performance indicators, and emphasise these will be included in a plan for NSW to be released by the Premier before the end of the year, the US Office of Management and Budget has online information about government spending programs and provides an ongoing assessment of those that are effective, ineffective, or where results have not been demonstrated;
• the UK Office of Public Sector Information responsible for compliance with the EU Directive on Use and Reuse of Government Information.;
  
• the Canadian Government mandatory online reporting requirements for travel and hospitality expenses, contracts and grants, and a link here to the details for all government agencies.
  

NSW Court of Appeal finds government agency not liable for privacy breach by employee

The NSW Court of Appeal has found that an agency is not responsible or liable for breach of the use and disclosure principles in the Privacy and Personal Information Protection Act where an employee utilises information for unauthorised purposes not related to agency functions.

In Department of Education and Training v MT (2006) NSWCA 270, Chief Justice Spigelman said that the scheme of the Act did not suggest that Parliament intended to impose liability for use or disclosure except where an agency was acting for public purposes. “…It was not in my opinion Parliament’s intention to expose every ….agency to a form of absolute liability for the unauthorised conduct of its employees or agents”.

Where such conduct occurred, the Act provided for criminal charges under Section 62.

The case involved a school teacher, who as coach of a local soccer team accessed the school records of a member of the team, and subsequently used and disclosed this information in dealing with a complaint to the soccer club concerning discrimination.

The Court of Appeal overturned the decision of the Appeal Panel of the Administrative decisions Tribunal that there had been a breach of use and disclosure principles. It did not disturb the finding that the Department had breached the Act in failing to protect information through reasonable security safeguards (Section 12(c)).

The decision reverses previous findings in this and other cases before the ADT, that an agency is liable for authorised or unauthorised actions by employees that result in contravention of the use and disclosure principles in the Act.

The decision leaves open the possibility that a person could seek and be awarded compensation where a breach of the security safeguards principle is proven and can illustrate loss or damage as a result. However no claim could be made against an agency for loss or damage resulting from use or disclosure by an employee for purposes that are not related to the employee's official functions. It means that the agency concerned is not subject to any sanction, in these circumstances. The only potential penalty applies to the employee who could be charged with a criminal offence for intentional misuse or disclosure of personal information under Section 62 of the Act.

There have been no indications that anyone has been charged under Section 62 since the Act commenced 6 years ago.

Another issue for the NSW Law Reform Commission in its current review of NSW privacy laws is whether the Court of Appeal decision amounts to good public policy.

NSW Crown Solicitor claims "government crisis" over disclosure

Was it something in the air, the alignment of the planets, or perhaps a full moon that prompted the NSW Crown Solicitor Ian Knight, in his speech to the Lawyers Conference, to open fire on the High Court, Parliament and the media? While it wasn’t of the same earth shaking significance, it was the same day (12 September) that the Pope, speaking in Regensburg, quoted a 14th century Byzantine emperor as saying Islam was evil and irrational and had been spread by the sword. Oh dear.

Knight’s speech needs to be read in full to appreciate the enormity of the “crisis” facing the NSW Government, and the urgent task for government lawyers to defend the Executive and the rule of law.

Perhaps you didn’t know before this that both are under attack: some court decisions have got it wrong when it comes to understanding government, the NSW Legislative Council doesn’t understand its proper role, the administration of justice requires a broad and accommodating approach to legal professional privilege.

The speech is full of alarm and concern about the Legislative Council exercising powers to require documents to be produced, distorting our system of government, and the Government’s ability to govern; and the media, driven by a “lust” for government information, and perpetrating the “myth” that it acts in the public interest.

Things are so bad on this front that the very fabric of society may be imperilled: “…no one really knows whether a free press can, by the way it chooses to report, so damage democratic institutions as to put them at risk”.

I’ll leave it to others to put Knight on track about Parliament consisting of two houses, each with a role to play in passing laws, holding government to account by scrutinising its actions, and contributing to policy debate and ideas; and the media, (Matthew Moore has made a start already) can explain the importance of a free press, and the contribution it makes to public debate on matters of community significance.

However a couple of things need to be said about Knight’s comments concerning record keeping, legal professional privilege, and the public interest.

Knight says that the requirement to produce documents to the Legislative Council may be leading to “a distortion in the State’s written records. It would be a concern if historians looking back discern from 1998 (the date of the High Court decision referred to) a dip in the making of records”.

This seems to be a wink and nod suggestion to his audience that we all know what’s going on these days – things aren’t being recorded that should be recorded, and it’s all the fault of the Legislative Council, and the High Court, both of whom should know better.

The NSW State Records Act requires every agency chief executive to ensure that full and accurate records are maintained in the course of carrying out public functions. Guidance is provided in a standard issued under the Act, stipulating that records should be created and retained concerning advice, meetings and conversations in the course of official functions. Here is the short version - Recordkeeping Reminders

Knight and others in government should be concerned with any failure to record important steps in government decision making as required by the State Records Act. He and his public service colleagues have a duty to insist on full compliance.

On legal professional privilege, Knight sees problems in some recent decisions, including a Federal Court judgment that led to AWB being forced to release a draft PR statement to the Royal Commission, and dismisses critics of an unsuccessful attempt before the NSW Administrative Decisions Tribunal to claim an exemption on the grounds of privilege under the FOI Act for some routine documents held in his office relevant to a conveyancing transaction.

Knight says media critics of the Attorney General’s Department over this latter matter misunderstand the nature of legal professional privilege – they should appreciate that communications made in particular circumstances need to be protected, even if documents don’t contain sensitive information.

Knight shows the lawyer’s preoccupation with technical legal issues that are a bane to the proper administration of FOI laws. He suggests that lawyers and their clients should manage communications carefully to ensure privilege is protected. Knight seems to miss the point that legal professional privilege is for the client, not the legal adviser to assert. In any event, government agencies have a discretion to release any document, even one that technically could be subject to a privilege claim.

At the risk of giving the Crown Solicitor new grounds for apoplexy, someone should refer him to the NSW Ombudsman’s Fact sheet 12 on Legal Advice - t0IVL1UD.PD , and the Ombudsman’s views about circumstances in which a government agency should consider the release of advice to members of the public.

Perhaps time didn’t permit Knight to add a few cautionary words about legal professional privilege. For example, don’t claim privilege unless you can demonstrate that a lawyer-client relationship exists. NSW WorkCover Authority spent a large amount of public money going all the way to the NSW Court of Appeal to argue unsuccessfully that a report from a cost consultant was subject to legal professional privilege.

A quick glance at the annual reports of the NSW Ombudsman would also alert him to some other claims for privilege that would not stand up to scrutiny. Best of all was the one a few years ago when an agency claimed that a lawyer’s business card attracted legal professional privilege. The agency had been emboldened to make the claim by advice from their lawyers (not the Crown Solicitor’s Office in this case) to this effect.

Knight correctly tells us that the Executive “must and is best placed to act in the public interest” but shows not the slightest glimmer of recognition of the oft perceived problem that government is seen to act to protect and promote its own interests, rather than those of the broader community. The NSW Court of Appeal in the WorkCover case referred to above has made it clear that broad, theoretical claims about reasons to refuse access to documents on public interest grounds of the kind put forward in that case should be rejected in the absence of clear, credible evidence.

It will be interesting to see what others make of his controversial views, and his advocacy for an association to be formed to “comment and educate in an authoritative, non personal manner” in the defence of all three arms of government and the rule of law.

The Crown Solicitor sent a strong message to lawyers throughout the public service about their dealings with Parliament, the media and the public. “Tone at the top” as set by public service leaders has a pervasive effect.

Perhaps the Premier or the Attorney General might have some thoughts about the message sent on 12 September.

FOI in the news

Some media reports based on FOI applications over the last week include:

Sunday Telegraph 8 October: "The water wasters - Wealthy Woollahra the worst offender" - Almost five people a day are being fined for breaching water restrictions, with the residents of Woollahra the worst offenders. Documents obtained from Sydney Water show that three years after mandatory restrictions came into force, residents are continuing to use sprinklers, water their lawns and hose their driveways.Figures obtained under Freedom Of Information show random patrols caught almost 2000 residents breaching the restrictions, despite the prospect of a $220 fine.

The Age 9 October: "What US says about Hicks is OK by Canberra" - The Howard Government relied on speaking notes provided by US Defence Secretary Donald Rumsfeld's office to deny claims that David Hicks was moved into solitary confinement seven months ago.And it did not send an Australian official to check his condition for three months.Hicks, 31, was moved into what his lawyers describe as solitary confinement and what the Australian and US governments call a single-occupancy cell in March, a day after an Australian official visited him at the Guantanamo Bay prison camp in Cuba.

Herald Sun 9 October: "Council pair in lap of luxury" - The Mayor of Wodonga and her chief executive officer have spent almost a quarter of a million dollars on overseas trips, dining, entertainment and conferences over three years.

Herald Sun 10 October: "Ocean views to woo TAC" - A new $90 million building with ocean views is the latest incentive to woo TAC workers to Geelong. Victorian Premier Steve Bracks yesterday revealed the site for the controversial relocation of the Transport Accident Commission -- just 200m from the picturesque Corio Bay.

Herald Sun 10 October: "Drivers face pay or pray" - Commuters using crime-riddled station car parks would have to pay if they wanted security for their cars, under a plan considered by the Victoiran Government. The ``pay or pray'' scheme for station parkers would split station parks into patrolled areas for those who can pay and free parks with no security for battlers.

Herald Sun 10 October:"Dark side of politics" - One of the consequences of politics in the modern media age has been the increasing irrelevance of the Victorian state Parliament, both as a forum for debate and an institution of scrutiny. During the past four years, Labor's overwhelming majority has made the task of scrutiny even tougher.

The Sydney Morning Herald 11 October: "US inquiry into jail abuse a cover-up :Hicks lawyer" - A US Defence Department investigation that found David Hicks suffered no abuse while in US custody was the "biggest cover-up of all time", his US military lawyer says. Major Michael Mori, who has represented Mr Hicks since 2003, said last year's Navy Criminal Investigative Service investigation was a whitewash, and that his own "minimal investigations" had confirmed his client had been physically abused.

The Daily Telegraph 11 October: "Cash lost at sea - Taxpayers have paid almost $4000 a day to rent replacement vessels for Sydney Ferries over the past year. As ferries sank and crashed into wharves and engines failed to start, the state had to fork out $1.43 million.

The Australian 11 October: "Territory chief slow to act on abuse" - Northern Territory Chief Minister Clare Martin knew about young girls being "prostituted for petrol'' in central Australia 18 months before she ordered an inquiry into violence and child abuse in remote Aboriginal communities.

The Canberra Times 14 October: "When hospitals kill" - Twice this month a coroner has blamed lapses in medical care for the deaths of patients in Canberra's biggest public hospital and the ACT region's major trauma centre. Two other deaths at Canberra Hospital are the subject of continuing legal actions.

The Sydney Morning Herald October 14: n his weekly column "What they wont tell you" FOI comments on a recent speech by the NSW Crown Solicitor that is critical of the NSW Parliament and the media for seeking and publishing government information.

Privacy Commissioner almost poops on SWIFT's party

With delegates to the SWIFT Sibos Conference in Sydney packing up and moving out of town today, they almost got through the whole week without anyone mentioning the "P" word - privacy that is.

The Conference website provides lots of detail about the important discussions of the week, but uncertainty about the legality of provision of data to the US didn't appear to rate a mention.

To-day's Australian Financial Review (Pg. 8, no link available), says that the Federal Privacy Commissioner has said that her Office does not have authority to investigate SWIFT.

"However we are now considering the issues as far as they apply to Australian financial institutions, and if appropriate, we may conduct inquiries or investigation,"

The Australian Privacy Foundation is reported to be calling for a fast track investigation, saying it is unlikely all of the 11 Australian banks and 88 financial institutions have complied with the Privacy Act, particularly the prerequisite to inform customers about ususal recipients of information.

They could face the same problem concerning the outsourcing of data to service providers overseas, with India still the main focus of concern.

The Australian Law Reform Commission discussion paper released earlier this week includes a chapter on cross border transfers of personal information. PDF It includes the following information about India.

"India is currently the largest host of outsourced data processing in the world. Some estimates claim that India hosts 44% of the global market of outsourced software and "back office" services.

Currently no data privacy protection legislation is in place in India. Outsourcing countries, like the United States and Australia, rely on contractual obligations and the internal measures taken by Indian companies. Given the extent to which India is used as an outsourcing destination, data protection has become a political issue in the region. The adoption of model legislation based on the EU Directive has been proposed in the past; however the Indian Government has given some indication that it may adopt a model closer to the United States Safe Harbor principles, as a simpler regulatory solution."

The US Safe Harbor scheme has recently been found to not satisfy EU standards and a major crisis concerning the US requirement for the provision of airline passenger details by European airlines has only just been averted by a temporary agreement that has privacy regulators in Europe "choking on their baguettes".

India is apparently about to get some help from the US on data security. There is no touch of irony in the report, that fails to mention that the Privacy Rights Clearinghouse currently estimates that 93,764, 445 US records containing sensitive personal information have been involved in security breaches since February 2005.

Thanks to PogoWasRight for some of these leads

Federal Labor moves on FOI conclusive certificates

Federal Shadow Attorney General, Nicola Roxon, introduced her Freedom of Information Amendment (Abolition of Conclusive Certificates) Bill into Parliament this week. Details of the Bill and her speech are here.

Apart from seeking to abolish ministerial powers to issue certificates under the FOI Act, the Bill would amend the objects to emphasise a pro disclosure bias, and would make it clear that embarrassment is not a factor in weighing public interest considerations.

Given Government majorities in both Houses of Parliament, unfortunately this Bill is going nowhere, but if it gets a second reading we might get to hear from the Government why these changes aren't a good idea.

The Australian Law Reform Commission in 1995 recommended changes to the objects, and removal of powers to issue a conclusive certificate for internal working documents.

ACT health organisation fails to check the recycling bin

This report in the Canberra Times says the annual report of the ACT Community and Health Services Commission reveals that an unnamed organisation dumped 28 medical files at a recycling centre. I would have thought that naming the organisation involved would have been a useful strategy, to promote compliance. The report doesn't say whether those involved were contacted about this breach of data security - let's hope so.

Thanks to PogoWasRight for the lead.

Centrelink staff come knocking

This article in the Age reports that the Federal Government has introduced legislation that would allow Centrelink staff (after approval by a magistrate) to raid homes of those suspected of fraud. It reports concerns that conferring such powers on public servants, in addition to police, is an unnecessary extension of powers, and potential invasion of privacy

Workshop for State Government agencies

Last Introductory FOI workshop for State Government for the year will be on 8 November. Check out all the details under training in the side column.

Reminder of FOI Forum this Wednesday

A reminder that a public forum on FOI in NSW will be held at Parliament House this Wednesday 11 October from 1-2pm. The forum will be chaired by Greens MP Lee Rhiannon and speakers are Wendy Bacon, Investigative Journalist, Ann Smith of Save Barrington Tops Group and yours truly.

The forum will discuss why FOI isn't working. Ms. Rhiannon introduced a Bill in Parliament last week that if passed would require a comprehensive and independent review of the Act.

All are welcome and admission is free. See you in the Jubilee Room Parliament House Macquarie Street Sydney next Wednesday. Doors open at 12.45.

Australian Law Reform Commission asks: is privacy passe?

The Australian Law Reform Commission Issues Paper "Review of Privacy" has been released for discussion and comment. Its 616 pages will take a little time to absorb. Issues Paper 31, Review of Privacy.

In its media statement the Commission says that it is seeking input - it poses 142 specific questions - on how Australians value privacy, privacy concerns and possible responses. A major issue is to reduce complexity - some organisations have to comply with up to 6 layers of privacy regulation - and develop national consistency.

Canada's kitchens open for scrutiny but not ours

Sydney (smuggly) probably sees itself a bit higher up the list of world class cities than Canada's Halifax but this report about the latter's plans to improve access to information about restaurant hygiene shows Sydney is a long way behind in this area.

Matthew Moore of the Sydney Morning Herald has been unsuccessfully pursuing this information about Sydney restaurants under FOI. For our comment see here.

The Nova Scotian Minister, and the Mayor of Halifax, both agree that the present system - free access to the most recent hygiene inspection reports for any three restaurants, then access in accordance with the FOI Act - means that Halifax falls short of international good practice.

They are now looking how to improve the system to provide more information on a routine basis. When an attempt was made to charge a newspaper $400 for an edited version of all reports, all charges were reversed when the paper challenged.

According to the Chronicle Herald "

Halifax Mayor Peter Kelly said he "absolutely" believes the public should have easier access to restaurants’ inspection records.

"The public has the right to know about conditions in restaurants," said Mr. Kelly, who had a career managing several restaurants and a catering company before he got into politics.

"I see no reason why this information should not be available to the public because it keeps everybody accountable and everybody informed."

Mr. Kelly said he supports a food-safety system that would post inspection results on a government website. Cities such as Toronto and Vancouver already post inspection results on the Internet.

"If I owned a restaurant and I was aware this information may become public, I would do my darnedest to make sure that we adhere to all public health standards and would ensure that staff knew process and procedures and do anything I could in my ability to make sure that we have one of the best reputations and best records," Mr. Kelly said.

"It’s quite clear and expectant that the public wants to know these things and they have every right to know."

Some restaurants in Halifax aren't waiting for government to act, and now voluntarily display a copy of the latest report at their entrance.

Meanwhile in Sydney (and as far as we are aware other Austalian towns and cities) public access to this type of information is yet another FOI battlefield.

SWIFT in Sydney but privacy not on the agenda

If you’re in Sydney this week, watch out for hordes of banking types – over 6000 are expected from around the world to attend the 6th Annual SWIFT SIBOS Conference, described as the” world’s premier financial services event”.

SWIFT, the Belgian based interbank transfer co-operative, has been much in the news over the last few months following revelations that US authorities had accessed its data as part of ongoing terrorism investigations, potentially in breach of privacy laws of Belgium, and other countries including Australia that utilise the system.

In his conference message, SWIFT CEO Leonard Schrank says that since June its been a challenge “to deal with the consequences of the unfortunate disclosures in the media” but reiterates that “everything we did was legal, limited, targeted, protected, audited and overseen”, and compulsory to boot.

Others haven’t yet reached the same conclusion. According to this report of comments to an EU Parliamentary committee by the European Data Protection Supervisor, “serious questions have arisen on the routine sharing of financial data by SWIFT with a complete ‘mirror system’ in the US, allowing access through a ‘black box’ arrangement. These questions need further analysis and reflection on compatibility with European data protection law and on different issues of responsibility”. The European Central Bank is also under examination for its failure to alert authorities to the arrangements.

Several other privacy commissioners are examining whether there may have been a breach of other national privacy laws.

We mentioned some time ago that the Australian Privacy Foundation has written to the Federal Privacy Commissioner asking for an investigation, but so far there has been no public response.

A quick look at the agenda for the Sydney Conference indicates that this issue won’t be discussed in formal sessions, but may be a hot topic in the corridors and at coffee time. The program says there will be a daily poll published "covering the hot topics and issues of the day", but it will only be available to conference participants. Love to be a fly on the wall.

The agenda includes a session on what India can do for the international banking and finance industry, timely given the publicity over the last week concerning allegations of widespread data theft by Channel 4. The UK Information Commissioner has since initiated an inquiry into security for British data held by Indian call centres.

NSW Fair Trading Minister, Diane Beamer has reacted to the Channel 4 program by calling on the Federal Government to take steps to force the banks to step up security to ensure customer details do not fall into the hands of criminals.

The SWIFT session on India’s role in the delivery of financial services could turn out to be a highlight of the Sydney program.

Thanks to PogoWasRight for some leads here.

FOI in the news

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

Herald Sun October 2: "Tenix to have edge on rivals" - Speed camera company Tenix will be given an edge over bidding rivals when the government contract is retendered next year. Financial details of the current $461 million contract, known only to Tenix, will be held back.

The Australian 5 June: "Nuts to public interest when it comes to squirrelling secrets" - This piece ranges over accountability weaknesses in government and says there are times when freedom of information seems to apply only when it suits mandarins and ministers.

The Age October 5: "Medical errors led to 29 deaths, hospitals say - Many mistakes still unreported" - A patient given the wrong dose of a sedative was among 29 people who died because of errors in hospitals that were reported to authorities last financial year.

Herald Sun October 5: "Brumby rejects surplus claim" - Victoria's true surplus is almost $4 billion, the state's chief financial watchdog says, contradicting Treasurer John Brumby's earlier declaration of an $850 million surplus.

The Age October 6: "Apology over FoI request - Countdown to the poll" - The Victorian Ombudsman has ordered one of Premier Steve Bracks' departments to apologise to a senior Liberal MP for obstructing a freedom-of-information request by claiming it did not have the documents he was after.

The Courier-Mail October 6: "Millions 'lost' - Budget blowouts on public works projects in southeast Queensland have become so common, politicians brag when one is completed on time and on budget. Information about cost blow outs is limited as documents concerning projects have often been refused under FOI and the Queensland Auditor General does not have powers to conduct performance audits.

Sydney Morning Herald 7 October:
"Now it's our part-time police force - Thin Blue Line" - Nearly 2000 NSW police officers have second jobs, using their spare time to work as international couriers, teachers and even masseurs. But despite the widespread moonlighting, a Herald investigation has also revealed a culture of police hoarding their holidays, with a blow-out in unused leave of nearly 4 million hours - worth nearly $123 million - left on the books last year alone.

"Educator denies standards are sliding" - This report about national literacy and numeracy standards says the Federal Department of Education refused a request for access to current data on the basis that it did not exist - the most recent figures are more than 2 years old.

In his weekly column "What they wont tell you" FOI Editor Matthew Moore writes in "Canadians do it better" about recent comments by the Canadian Information Commissioner on essentials for making FOI work.

See our blog on the same subject.

Privacy concerns hot up about international outsourcing

To-day's Daily Telegraph "Criminal threat sending ID overseas" says that 91% of Australians believe their personal information should only be stored overseas with their express permission. The article follows other reports in the last week that Qantas and St. George Bank are in the process of moving jobs off shore. It refers to a (UK)Channel 4 TV program aired overnight that alleges that British bank customer details in India sell for as little as $12.

India's National Association of Software and Service Companies has asked for the details of the allegations and supporting documentation, claiming that sting operations such as the one conducted by Channel 4 have goaded people into committing crimes that otherwise may not have been committed.

Indian service companies have been struggling to respond to allegations about lax privacy security practices (see our earlier blog). The National Association announced in May plans for a new self regulatory body to raise security and safety standards across the IT industry.

It's hard to judge whose standards work to safeguard data, but the call for more disclosure when data is to be transferred offshore seems reasonable.

The Federal Privacy Act limitation that applies to private sector organisations passing personal information outside Australia is not particularly onerous - a "reasonable belief " that the data will be subject to substantially similar principles that it would receive if it remained in Australia.

Strangely, the Federal Privacy Act provisions relating to public sector agencies contains no specific limitations on cross border data flows, and the NSW Privacy and Personal Information Protection Act limitation on NSW Government agencies has not commenced (6 years after the Act itself came into force) because the Privacy Commissioner is still to issue a code of practice relating to such transfers. Who knows what goes in these areas?

The Victorian Privacy Information Act has a substantially similar provision as the Commonwealth's private sector requirement, and the Privacy Commissioner there has published useful guidelines for Victorian Government agencies - Model Terms for Transborder Data Flows of Personal Information

The Australian Law Reform Commission is scheduled to publish on Monday an issues paper in connection with its review of privacy laws - it will be interesting to see what it has to say on this and other current privacy concerns.

Thanks to PogoWasRight for the lead on the Indian IT industry.

Victorian Parliamentary Committee calls for more contract disclosure

The Victorian Parliamentary Public Accounts and Estimates Committee has issued its report on Private Investment in Public Infrastructure. The report highlights a number of concerns including the fact that

"the biggest barrier to determining the benefits or otherwise of Public Private Sector Partnerships has been the lack of public information about these projects, although marginal improvements have been made".

See the full Report here

The Committee's twenty recommendations include publication of all contracts on the web, subject to any information the private sector partner can demonstrate deserves confidentiality, and the inclusion of information about comparisons of project costs for public and private sector financing.

It made big news in The Age under the heading "Secret deals with private sector under fire".

Similar recommendations were made by the NSW Parliamentary Committee on the Cross City Tunnel and accepted in principle by the Government.

Public lunch hour forum on FOI in NSW

A public forum on FOI in NSW will be held at Parliament House next Wednesday 11 October from 1-2pm. The forum will be chaired by Greens MP Lee Rhiannon and speakers are Wendy Bacon, Investigative Journalist, Ann Smith of Save Barrington Tops Group and yours truly.

The forum will discuss why FOI isn't working. Ms. Rhiannon introduced a Bill in Parliament last week that if passed would require a comprehensive and independent review of the Act.

All are welcome and admission is free. See you in the Jubilee Room Parliament House Macquarie Street Sydney next Wednesday. Doors open at 12.45.

FOI reform - promises, promises

Federal Opposition Leader Kim Beazley in the Annual Don Dunstan oration in Adelaide this week, outlined Labor’s plans for public service reform, including some specific commitments on Freedom of Information.

Beazley commited Labor to openness and transparency. He said Labor would abolish conclusive certificates that give ministers and the Head of the Prime Minister’s Department powers to certify the exempt status of documents and ensure that government information is made available unless its release would cause public harm or hinder national or personal security.

The speech included plenty of other commitments including limitations on ministers taking private sector jobs on leaving politics, and overturning the Government’s $10,000 ceiling for undisclosed contributions to political parties.

Let’s hope they can hold the line should they get up in the election next year.

Tasmanian Government commitment to contract disclosure

Buried away in the Tasmanian Premier's State of the State address (see Premier's Address) to Parliament on 26 September were some major new commitments to greater openness and accountability. They included proposed reforms in presentation of budget and financial information, separate budgets for the Ombudsman and the Auditor General and limitations on the use of confidentiality provisions in government contracts.

A new policy has been foreshadowed that will prevent confidentiality requirements being included in procurement and other contracts with third parties subject to an exemption where a committee, comprising the secretaries of the departments of Justice, Premier and Cabinet and Treasury and Finance, decides such a provision is necessary in the public interest. The Government tenders website will disclose any contracts which contain confidentiality clauses, and any time limit set for confidentiality.

Copies of all procurement and other contracts with a value of over $2million, subject to any confidentiality provision, will be made available for public scrutiny.

As usual the devil will be in the detail, but this is a step in the right direction.

It follows changes introduced in South Australia last year that amended the FOI Act so that the business affairs exemption no longer applies to information contained in contracts. The confidential information exemption cannot be used in relation to information in a contract unless the confidentiality clause was approved by a minister before it is executed.

Confidentiality clauses in contracts are still a major brake on access in other jurisdictions. The NSW Government has been saying for 12 months that Treasury is working on new guidelines regarding disclosure of government contracts, but the Auditor General has found that "guidelines" are often not reflected in agency practice in any event.

The NSW ADT recently found that inclusion of a confidentiality clause is sufficient to justify refusal of access to any information in a contract, apparently disregarding issues such as the nature of the information, and any public interest in disclosure.

Some glimmers on Right to Know Day

International Right to Know Day on 28 September, didn’t pass completely unnoticed in Australia.

On the day, NSW Green’s MLC Lee Rhiannon, introduced the Freedom of Information Amendment (Improving Public Access to Information) Bill. The Bill, if passed would require a comprehensive independent review of the NSW Act. No such review has taken place in the 17 years since the Act was introduced despite many calls over the years from the NSW Ombudsman and others. The Second Reading Speech is here. Debate on the Bill was adjourned - there were no other speakers.

Towards the end of her remarks she mentioned the fact that 28 September was International Right to Know Day. Hansard records the Deputy Opposition Whip, National’s MLC Rick Colless interjecting “Who said that? You made it up”, and the Minister for Justice, Tony Kelly saying “League of Rights Day”. Right to Know day obviously had a low profile amongst our parliamentarians.

Matthew Moore’s column in the Sydney Morning Herald last Saturday highlighted the fact that a wide range of developed and developing countries had NGOs that continued to press for FOI laws that work, while in Australia, those that lobbied for FOI in the first place seem to have packed it in soon after the Commonwealth FOI Act came into operation during the 1980s.

Cecelia Burgman of the Commonwealth Human Rights Initiative included a comment about International Right to Know Day in a piece about the recent High Court FOI decision in “High Court Chipps back right to know” in Online Opinion. Burgman said that we should all be lobbying our MPs about “Right to Know” prompting quite a few comments from readers, including this gem from Leigh posted last Friday:

“Of course Australians did nothing to mark Right to Know Day. We Australians must be the most complacent people on earth. We are almost completely disconnected from the political process only showing interest when a government decision hits us in the pocket…”.

The Tasmanian Times included a little item about Right to Know Day and Rick Snell of the University of Tasmania was busy with a couple of presentations.

The Hobart Mercury ran a long general article about FOI - "Freedom from cover ups" by Wayne Crawford in the Talking Point section, on 30 September.

All in all muted acknowledgement of Right to Know Day in Australia but lots of events in different parts of the world.

Perhaps next year something completely different in this neck of the woods.

NSW access neither online or offline

In this article "Iemma's state of the artless online" in today's Sydney Morning Herald, State Political Reporter Anne Davies tells us that a written request to the Premier in May for copies of media releases issued in the last 12 months, received this response in July from the then head of the Cabinet Office, Roger Wilkins:

"The Premier's media releases are provided to media outlets and as such I am unfortunately unable to fulfil your request on this occasion".

We commented in one of the first posts on this blog in February that the NSW Premier must be one of the last political leaders to show an interest in the web. He doesn't have a website that provides access to public statements, speeches and media releases. What a contrast with the Prime Minister whose every public utterance is faithfully recorded here.

Spin doctors are sold on the need for "control," so the idea of recording what political leaders say for all to see runs counter to those instincts.

Davies broader point was that the NSW Government generally is a laggard in terms of proactive disclosure of information to meet public needs, and in opening up ways to transact on the web.

Elsewhere proactive disclosure is a requirement in countries like the UK, the US and Canada when risks to public health are involved. The UK FOI scheme requires proactive publication of documents in the public interest and the Office of the Information Commissioner has just announced a new initiative to review and enhance this disclosure regime. Press release

In Canada all Federal agencies are required to publish on the net information about travel and hospitality expenses, contracts over $C10,000, position reclassifications, and grants.

Australian FOI laws have very limited proactive disclosure requirements. Their emphasis on "application and response" mechanisms, give FOI in this country a very horse and buggy feel.

FOI: some Canadian tips of universal value

In having a closer look at Canada in the context of "Right to Know" day (more of that later) I came across a speech by the Canadian Information Commissioner on "Transparency, the risk of setbacks: the case of Canada" to a recent conference in Mexico.

John Reid, the current Commissioner is approaching the end of an eight year stint as the Federal Information Commissioner. He was a member of Parliament between 1965 and 1984, and held parliamentary and ministerial positions in government.

In other words he has lots of relevant experience in addressing this topic. A couple of excerpts:

"...one reality has been driven home to me over and over again. That is, a strong freedom of information law is essential, but insufficient in itself, to the task of changing an entrenched bureaucratic culture of secrecy. As well, there must be tangible, clear leadership from the elected and non elected heads of government in support of openness".

The infrastructure on which a healthy open government regime rests includes "adequate resources; careful training; professionalism in the creation, retention, use, and disclosure of records; and readiness of senior officials to stay out of disclosure decisions so that the processing of access requests becomes a routine embedded process within government. Weakness in any of these areas will undermine even the strongest of freedom of information laws".

"Do not become complacent just because a freedom of information law is on the books. Passage and adoption of an open government law guarantees nothing. It is but a first step; media vigilance, citizen pressure, academic attention, judicial support - all the forces which achieve the passage of access laws must remain organized, and fiercely determined to push back the inevitable "secrecy creep" that will emerge".

Reid has some other sage advice regarding training and professionalism for access administrators, and says that it should be an offence for a government employee to fail to create records with the intent to deny right of access to information.

The Secretary of the Australian Treasury, Ken Henry, is on record as saying that the prospect that advice documents could be subsequently made available for public scrutiny would be sufficient reason to ensure no records were kept.

Don't look for a job exchange arrangement in Canada Ken, at least while John Reid is in office.

Submissions to Access Card Task Force available

The Access Card Consumer and Privacy Task Force received over 100 submissions in response to its discussion paper. A large number of submissions and information about Task Force consultations with interested groups, are now available here.

FOI in the news

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

Daily Telegraph September 25 :" Parking fine issued every 48 seconds - Revenue-raising madness: motorists fume over greedy councils" - Motorists across NSW are hit with a parking fine every 48 seconds. Councils levied fines totalling $116 million, up $22 million on last year. Sydney City Council continues to be the state's biggest issuer of parking fines with its revenue was valued at $32.01 million. In follow up story on 26 September, "Safety is second to revenue - councils count cash" - the Telegraph said that an analysis of the 1,125,613 infringement notices issued show that half were for the harmless act of staying too long - offences endangering lives are weakly enforced.

ABC News 25 September: "School closures files dispute reaches court" - The ACT Opposition has commenced legal action in an attempt to force the Territory Government to release documents relating to school closures.

Daily Telegraph September 26: "Our kindergarten cops - Half of police in the job for less than five years " - Almost half of NSW Police's frontline troops have less than five years experience, prompting concerns the community is being patrolled by a force of juniors. On latest projections that figure could blow out to almost 60 per cent by next January when the State Government fulfils its promise of adding 750 police.

Daily Telegraph September 27: "Red faces over FOI document" - Education chiefs have been forced into an embarrassing backflip over their failure to provide a legitimately-requested document under Freedom of Information laws. Director-General Andrew Cappie-Wood has admitted that a document relating to controversial school closures should have been made available when it was sought three years ago. The departmental paper was requested in October 2003 by a group trying to save Beacon Hill High School.

The Sydney Morning Herald September 28: "Costello defends sect's tax breaks" - The fundamentalist Christian sect, the Exclusive Brethren, is essentially no different to mainstream churches and is therefore entitled to the same tax exemptions and other breaks, the Treasurer, Peter Costello, says. Amid growing criticism of the movement's activities and alleged political influence, Mr Costello said the Exclusive Brethren was "just a religion that is not as well-known" as the Catholic and Uniting Churches, and the Church of Scientology.

The Age September 29: "Greens try to overhaul state FOI regulations - State poll countdown" - The Victorian Government would be required to have the state's Ombudsman sign off on cabinet documents it felt were too sensitive to release, under a plan by the Victorian Greens to overhaul freedom of information laws.

Weekend Australian September 30: "Judge lays down law to rich neighbour" - The arrival of new money in Brisbane's most exclusive enclave has led to a costly legal squabble between neighbours, pitting one of Queensland's wealthiest women, Maxine Horne, against Federal Court judge Berna Collier. At stake are property values, multi-million-dollar views, sun on the backyard pool and polite society harmony.

The Sydney Morning Herald September 30: In his weekly column "What they won't tell you" FOI Editor Matthew Moore in "In the land where nobody cares" writes about international "Right to Know" day (see our earlier blog on this topic) and the absence of any Australian ongoing advocacy group fighting for effective FOI laws.

Sunday Telegraph October 1: - Three stories apparently based on documents released to Opposition MPs:
"Watch on air toxins axed" - The NSW Government stopped monitoring cancer-causing air pollutants, known as air toxics, two years ago because of budget cuts, confidential government papers reveal. The Government scrapped its Sydney air toxics monitoring program in 2004, expressly against advice from officials in its own Department of the Environment and the Federal Government.

"Motorway plan sparks new debate" - A NSW government investigation into the F6 Corridor, a strip of land between Sutherland and Sydney Airport set aside for a new motorway, railway line or busway, has come to light. The report will reignite debate over the State Government's on-again, off-again F6 Motorway proposal in the lead-up to the election next March.

"Labor's selective school security" - Millins of dollars are being spent upgrading school security in Labor electorates while children attending schools in Coalition-held seats are missing out. 44 of the 58 schools granted funds to build security fencing have been in seats held by Labor MPs.

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