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Sunday, April 30, 2006

SMH highlights major FOI findings

Saturday's edition of the Sydney Morning Herald includes this article about the Court of Appeal decision in WorkCover Authority v Law Society. The report highlights the important ramifications of the decision and as for the views of the experts they quote, well......

As stated in the earlier blog the most significant aspects of these decisions are those parts that deal with public interest issues associated with internal working documents after a decision has been taken on a particular matter, and the interpretation of the secrecy provisions in other acts exemption in Clause 12 of Schedule 1.

The Court of Appeal found no error of law in the ADT Appeal Panel decisions, so it needs to be read in conjunction with those decisions. This decision contains the Appeal Panel conclusions regarding legal professional privilege; this second decision deals with the other aspects of the exemption claims - internal working documents, confidentiality, and secrecy provisions in another act.

I'm off to Melbourne for a couple of days but will be keeping an eye on developments. I plan to have more substantial analysis of the Court of Appeal decision posted by the end of the week.

Friday, April 28, 2006

ADT decision: exclusions from definition of personal information

This ADT preliminary decision (PN v Department of Education and Training (2006) NSW ADT 124) includes discussion about what is meant by “information or opinion about an individual’s suitability for appointment or employment as a public sector official”.

Why is this important?

Well, that sort of information is not covered by the NSW Privacy and Personal Information Protection Act.

Doesn’t make much sense but that’s the law so we have had cases like this one dissecting the meaning of this exclusion in order to find out whether the NSW ADT has jurisdiction to consider a matter.

In this case the ADT decided that all of the complaints (about information provided to an insurer and rehabilitation organisation arising from a workers compensation claim) was personal information. Paragraphs 47 and following discuss previous decisions on the exclusion and the ADT's findings in this case.

Now the Tribunal will be able to proceed to consider the substance of the complaint.

Unfortunately we will probably have plenty more of these jurisdictional issues before the NSW Law Reform Commission completes its review of NSW privacy laws. The many exclusions from the definition of personal information (this is one of 11) create unjustified gaps in the law.

The Card: Don't leave home without it

The Federal Government’s announcement about the introduction of an access card (not a national ID card, and not compulsory except for your dealings with the Government on benefits including Medicare) has had a mixed reception. The Federal Privacy Commissioner and others have been quick to ensure that the privacy issues are flagged. The Government’s announcement said that a decision had been made “in principle” so this may still have a long way to run.

There isn’t much emphasis in the announcement on the card’s potential contribution to security and the proposal now seems strongly relating to an unreleased cost benefit survey by KPMG. Today’s Australian Financial Review and the Daily Telegraph report that Adrian McCullaugh of the Information Security Institute Qld University of Technology says that the initial estimate of costs of $1 billion may prove to be well wide of the mark. He suggests we will probably need to double it.

The NSW Premier Morris Iemma says the idea is ok as long as there are adequate privacy protections. Civil liberties groups including the Australian Privacy Foundation and the Australian Council of Civil Liberties are critical.

Will we see the card linked to the provision of state government services?

FOI in the News

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

The Advertiser, 24 April: The Rann Government spent $2 million on advertising in the lead-up to the SA election in March including $49,500 on publishing and recording rights for the Ben Lee song “We’re in this together”.

The Australian, 26 April: Promised Federal Government funding for the proposed private initiative to develop a space port on Christmas Island was withdrawn after the Asia Pacific Space Centre failed to meet every key condition and milestone including its first launch by the end of 2003.

The Age, 28 April: The Victorian Ombudsman’s investigation into a complaint from an Opposition MP has revealed that the Department of Human Services obstructed the release of information concerning ministerial media opportunities. The Age says that the FOI unit took instructions from the Department’s media unit while processing the application.

I know I’m running a risk of being seen as “Crookwell centric” but the Crookwell Gazette has followed up its earlier report about the dire consequences of the Upper Lachlan Shire Council having to deal with FOI applications. In this report the Friends of Crookwell comment that the Council claims are absurd. They also have views about the need for greater openness and transparency in Council operations.

Thursday, April 27, 2006

Major NSW Court of Appeal decision boosts FOI

In the most important court decision in the 17 years since the NSW FOI Act was introduced, the Court of Appeal in WorkCover Authority of NSW v Law Society of NSW (2006) NSWCA 84, has strongly reinforced the importance of the openness and accountability objectives of the FOI Act.

The Court of Appeal rejected arguments that the Administrative Decisions Tribunal Appeal Panel had erred in law in deciding that a consultant’s report prepared by a legal costs expert as part of a legislative review of costs in workers compensation matters, was not an exempt document.

The 45 page decision includes important clarifications about some of the FOI Act exemption provisions: legal professional privilege (does not apply where a lawyer is acting in another capacity); internal working documents (after decisions have been made, public interest arguments for non disclosure of “thinking process” documents cannot be based on formulaic. theoretical propositions developed in an era of closed government but must be supported by facts); and secrecy provisions in other acts (must be read narrowly and in any event do not prevent disclosure under FOI when qualified by a provision which permits disclosure “with other lawful excuse”).

While lawyers will find the legal professional privilege elements of the decision of interest, the more significant aspect are the Court’s views about public interest in the context of internal working documents. The Court says in effect that tick and flick approaches based on what are known as the “Howard factors”, a 1985 Federal Administrative Decisions Tribunal decision in a case initiated by the current Prime Minister, do not represent the proper approach.

WorkCover had relied on 3 of these factors – communications at high levels of government, documents relating to the development of policy, disclosure would not fairly disclose the reasons for a decision subsequently taken – in arguing that it was contrary to the public interest to release the report.

The Court says that when considering documents after decisions have been made, there is a need for factual information in order to identify tangible harm that will flow from disclosure in order to satisfy the public interest test.

The judgement gives some legal standing to the scepticism expressed in other NSWADT decisions (and elsewhere including the Queensland Information Commissioner decision in Eccleston and Department of Family Services and Aboriginal and Island Affairs (1993) 1QAR 60) about the “Howard factors.

It will provide some useful support for arguments in the High Court of Australia when it considers on 18 May the case to be put on behalf of The Australian’s FOI Editor, Michael McKinnon when he challenges a Federal Court finding regarding a ministerial certificate issued by the Federal Treasurer. Public interest considerations are a key element in the case.

One intriguing aspect of the Court of Appeal case is that the WorkCover Authority declined to make the documents for which exemptions were claimed available to the judges. As two of them comment, WorkCover created a problem of its own making, in that this made it virtually impossible to satisfy the Court regarding the claim for legal professional privilege

On another tack, there has to be a question about the time, cost, and energy that WorkCover invested in seeking to protect a document now 4 years old and regarding a matter that the ADT and the Court of Appeal found had been concluded some years ago.

Will the eagle eyed NSW Treasurer wrestling with budget problems, be concerned about the use of taxpayers’ funds in all this, particularly as WorkCover have been stuck with an order to pay the Law Society’s costs of the Court of Appeal case.

Wednesday, April 26, 2006

ADT decision upholds Council FOI determination

The ADT in Franks v Warringah Council (2006) NSWADT 124, upheld Council decisions to refuse access to identifying particulars of complainants (who objected to disclosure) on the grounds that this would be unreasonable disclosure of personal affairs information (Clause 6 Schedule 1) and to other documents on the grounds of legal professional privilege (Clause 10 Schedule 1).

No new ground here.

ADT Appeal Panel clarifies jurisdiction concerning Schedule 2 of FOI Act

The ADT Appeal Panel (McGuirk v ICAC (2006) NSWADTAP 17) has decided that the Tribunal has jurisdiction to review a determination by the ICAC to refuse access to a report on the grounds that it concerns the corruption prevention and investigative functions of the Commission.

In the original decision and a previous decision the ADT had concluded that it did not have jurisdiction where an agency refused access to a document relating to a function specified in Schedule 2 of the FOI Act.

The Appeal Panel said that the Tribunal only lacked jurisdiction where all functions of a particular agency were excluded from the operation of the Act by such a reference in Schedule 2.

As only some, not all functions of the ICAC were excluded, the Tribunal was able to consider the matter.

The Appeal Panel also found that even though some functions of the ICAC were excluded from operation of the Act, Section 24 imposed a duty on the agency to make a determination where it was in receipt of a valid FOI application.

The application in this case has been referred back to the ICAC.

Survey reveals preparedness to trade some privacy

A survey in 14 countries (including a small sample of Australians) undertaken on behalf of Unisys says that a majority of people are prepared to trade some privacy for convenience.

I guess the question is exactly what "some privacy" means and what does the "trade" involve?

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

Tuesday, April 25, 2006

Things are crook in Crookwell

Sir Humphrey would be proud of this effort.

The Crookwell Gazette reports the difficulties facing the Upper Lachlan Shire Council in dealing with FOI applications: two applications in January and unless these things stop "its likely to have a direct impact on other large jobs such as the Taralga Sewer Scheme and the Frail Aged Facility". (They're probably dealing with more than two requests but we just could'nt resist this).

This report suggests that some of the councillors have a pretty good understanding of the need for transparency and accountability, as does the apparent applicant, the Gunning Sustainable Development Association.

Council staff might need a refresher on Council obligations under the Local Government Act and the Environmental Planning and Assessment Act (not to mention the FOI Act) to disclose documents relevant to development control matters.

We don't get to see too many local and regional newspapers but if there are any more gems like this one out there we'd love to hear.

FOI and Australia's wheat trade scandal

ABC’s Radio National Law Report today included a segment on FOI and the AWB scandal. The program includes a discussion with the Opposition spokesman on public accountability, Kelvin Thompson, about a series of FOI applications he has made for documents concerning communication between various ministers’ offices and AWB. He hasn’t got anywhere so far. The Department of Foreign Affairs and Trade told him that the application would involve examination of over 100 files and over 7000 folios and would be a substantial and unreasonable diversion of resources. As Thompson points out, all such documents have probably been catalogued and provided to the Cole Royal Commission so its hard to see why so much effort would now be required to respond. He is having another go, and applications to other ministers' offices are still to be dealt with.

The program also includes an interview with Rick Snell of the University of Tasmania who comments that one of the reasons why FOI applications of this kind chew up resources is that an agency looks at every line on every page trying to identify material that would justify an exemption claim - the exact opposite of what should be a general presumption in favour of disclosure.

One can only imagine the search for exemptions that would have been underway in the event of FOI applications for documents relevant to AWB’s trade with Iraq before all of this started to spill into the public domain. The Volker inquiry and the Cole Royal Commission have put the issues (or most of them) into the public domain. The usual suspects in the Federal FOI Act – damage to international relations, Cabinet documents, internal working documents, business affairs documents – would no doubt get a good workout. Only one of these exemptions (internal working documents) includes a public interest test. Its a fair guess that a lot of what has emerged as a result of the inquiries would never have seen the light of day.

Monday, April 24, 2006

Victorian privacy materials

The Victorian Privacy Commissioner's website has useful, up to date material on a wide range of privacy issues. Posted on 18 April is a copy of the latest edition of Privacy Aware (which includes a summary and comment on the NSW ADT case about the use of an official camera to take non work related photographs, the subject of an earlier blog on 15 March) and on 20 April a new Information Sheet on who is covered by Victoria's Information Privacy Act. The list makes interesting reading when compared with the scope of the NSW Privacy and Personal Information Protection Act - ministers and state owned corporations are not covered in NSW and the Police Service is exempt in respect of its policing functions.

Perhaps the NSW Law Reform Commission which has now been asked to examine the adequacy of NSW laws (see earlier blog ) will enlighten us on any special reasons for these NSW exemptions.

The Victorian Privacy Commissioner, not limited on jurisdictional issues regarding the Police has an investigation under way into Police disclosures of information which is the subject of a story in today's Herald Sun.

Sunday, April 23, 2006

ADT privacy decision: no breach where another act requires disclosure

The ADT (NZ v Health Care Complaints Commission (2006) NSWADT 111) found no breach of privacy principles when the Commission, acting in response to a letter from NZ, informed the nurse complained about (NZ's sister) , that NZ had made a complaint about her. The Tribunal was satisfied that the Health Care Complaints Act required the Commission to inform the person concerned after a complaint had been recieved even though NZ had indicated that the information was provided on a confidential basis and the Commission decided not to investigate.

Perhaps as a result of this case the decision indicates that the Commission has changed its procedures to ensure that a person providing information fully understands the disclosure requirements before acting on a complaint.

The ADT may be coming to know NZ well as there were 7 cases involving a party identified in this way in the ADT last year!

FOI in the news

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

The Australian 17 April – documents reveal that the NSW Government has spent $385,442 since 2003 on its trial of a digital TV channel “Channel NSW”. It seems not many viewers tune in to live traffic reports, weather forecasts and announcements from some government entities.

The Opposition points out that this trial is in stark contrast with the fact that the Premier seems to the only government leader anywhere in Australia who doesn’t have a website providing access to media releases and speeches. Most NSW ministers are in the same boat.

Although the Federal Government has its own weaknesses when it comes to transparency, the Prime Minister has set a high standard on his website which contains a very public record of everything he says about anything.

If you like I had never heard of Channel NSW you will find details here.

Daily Telegraph 19 April – Collapse of the Safe House Program in many Sydney suburbs.

Courier Mail 20 April – Plans for civilianisation of key Police operational jobs.

Daily Telegraph 20 April – Crime rife on University campuses (the headline writer seems to have got a little carried away here). The report had information about security incidents at Macquarie, Sydney and UNSW universities.

Tony Stephens in the Weekend edition of the Sydney Morning Herald (“Enemies in the corridors of power”) has a look at the history of the Herald’s relationship with government over its 175 year history. The article includes reference to the 1971 clash with the NSW government over Philip Arantz who blew the whistle about public deception over the Police clean up rate on major crime. (In our view Arantz should be regarded as the Godfather of FOI and protected disclosure legislation in this state). Stephens comments that the most serious clashes with government these days now centre on the law, in the areas of FOI, court suppression orders and extension of Police powers to access journalists records.

As always some links 'disappear' quickly from the free content.

PM's comments about national ID card took others in government by surprise

It’s not clear exactly what is going on behind the scenes regarding the Federal Government’s thinking about a national ID card. This article in the Age on 21 April, says that ministers and departments were taken by surprise by the Prime Minister’s public supportive comments, and that there are lots of reservations, on privacy and cost grounds. There is also scepticism about what, if any contribution a national ID card would make to national security.

ID cards are a hot topic in many countries as illustrated by these reports over the last few days from the UK, Canada and the Philippines.

Thanks to pogowasright for the lead

Friday, April 21, 2006

Landmark privacy decision in abortion case

The Victorian Court of Appeal has ruled that the medical records of a woman who underwent a late term abortion in a public hospital must be provided to the Medical Practitioners Board in connection with its investigation into the conduct of the doctor in undertaking the procedure.

The case has dragged on for three years, received wide press coverage and has been highly controversial. The matter was brought to the attention of the Board by (former National Party and now Liberal Party) Senator Julian McGuaran, and was seen by some as part of an anti abortion campaign.

The Court of Appeal had to consider the privacy issues associated with confidential records relating to the treatment of the woman in a public hospital, and the claim by the hospital that it did not need to comply with an order to provide the records on the grounds of a public interest immunity claim. The Court rejected this argument confirming that public interest immunity to refuse to provide documents only applies where documents are governmental in character and disclosure would have an adverse effect on the proper functioning of the executive arm of government. It cites with approval two NSW decisions including a NSW Court of Criminal Appeal decision where it was held that public interest immunity did not apply to sexual assault counselling records of a patient at a public hospital.

The decision illustrates the qualified nature of a right to privacy. While the Court was of the view that the hospital’s argument regarding public interest immunity was ill conceived, the discussion includes reference to the need to balance privacy rights with other considerations including the conduct of the investigatory functions of the Board.

The decision includes [paragraphs 44 and 45] comment about the possible exemption claims that could apply if the documents were sought from the Board under FOI - there seems little doubt that the documents, in the absence of consent of the person concerned, would be exempt.

Another interesting aspect of the decision is the consideration of the application in this case of international human rights treaties and conventions.

The Hospital apparently is still considering the possibility of an appeal to the High Court

Thursday, April 20, 2006

FOI delivers but not without a battle

Now, this wasn't too difficult was it?

After a long and losing legal battle over an FOI application by Associated Press, the Pentagon has released the names of 558 detainees at Guantanamo Bay by posting the list on its website.

The sun continues to shine, and the earth continues to turn on its axis!

Defamation laws and claims of privacy

The Australian's Legal Affairs Editor Chris Merritt, takes issue with ABC's Media Watch summary of the likely impact of changes in defamation laws on claims for breach of privacy in the light of the new situation in most states that truth alone is a defence against an action for defamation.

What's a Cabinet document?

The NSW Cabinet Office has issued guidelines regarding aspects of the Cabinet document exemption (Clause 1 Schedule 1) of the NSW FOI Act. The guidelines address what constitutes a document “prepared for submission to Cabinet” and some of the circumstances in which a claim can be made for exemption on the grounds that disclosure would reveal information “concerning any deliberation or decision of Cabinet”. Guidance offered on the latter point is complex and contentious. The argument that a document prepared before Cabinet consideration of an issue would, if disclosed after the event, reveal a deliberation of the Cabinet is open to question and although supported by the Crown Solicitor is not the view taken in some ADT (and Queensland Information Commission) decisions.

The guidelines indicate a serious attempt to get some consistency in matters where the Cabinet exemption is being argued before the Administrative Decisions Tribunal - all state government agencies are to “ensure that they also retain the Crown Solicitor to act” whenever a Cabinet document claim is being challenged.

The guidance also refers to circumstances in which the Cabinet Office will issue a certificate under Section 22 of the Ombudsman Act that a document is a Cabinet document and therefore not subject to disclosure to the Ombudsman where a formal investigation under that Act is underway.

I can’t recall the last formal guidance offered by the Premier’s Department or the Cabinet Office on the interpretation of the FOI Act. As the Ombudsman’s last Annual Report (Chapter 10 page 127) noted, that office has been in dialogue with Premier’s since 1999 on updating the FOI Procedures Manual (last published in 1994) and hopelessly out of date in many respects. The Annual Report said that it had been agreed that the Cabinet Office would take responsibility for the update to be completed by the end of 2005 – another deadline that came and went.

Is this circular is a sign of things still to come?

Thanks to yesterday's item in the Stay in Touch column in the Sydney Morning Herald for this lead.

Meanwhile over at the ICAC they have uncovered who leaked draft Cabinet documents but couldn't reach a conclusion about the effects or corrupt conduct.

Wednesday, April 19, 2006

New Matilda article on privacy as a human rights issue

My contribution on privacy as an element in the broad campaign for an Australian human rights bill appears in the 19 April edition of New Matilda. I'm afraid the free content won't tell you much and subscribers can read the lot.

Its a familiar refrain about the mess our privacy laws are in but I guess we won't see much change until the Australian and NSW Law Reform Commissions report (2008).

Comments and brickbats always welcome.

NSW privacy laws: new review before last review completed

Well those waiting expectantly for the long overdue statutory review of the NSW Privacy and Personal Information Protection Act (required to be tabled in Parliament by November 2004) can now relax (or tear their hair out) and wait for a report by the NSW Law Reform Commission.

The Attorney General has written to the Commission setting out terms of reference for an inquiry into whether existing laws provide an effective framework for the protection of privacy. Presumably the Attorney General’s Department will have the results of its work on the topic since early 2004 at the ready.

It should take about 2 seconds for the Commission to consider two specific questions raised by the Attorney General: the desirability of privacy protection principles being uniform across Australia and the desirability of a consistent legislative approach to privacy in the Privacy and Personal Information Protection Act 1998, the Health Records and Information Privacy Protection Act 2002, the State Records Act 1998, the Freedom of Information Act 1989 and the Local Government Act 1993.

The answers to these questions are simply yes, and yes!

There will be great deliberation about another question: the desirability of introducing a statutory tort of privacy in New South Wales.

The Commission has been instructed to liaise with the Australian Law Reform Commission which is reviewing the Privacy Act 1988 (Cth) as well as other relevant Commonwealth, State and Territory agencies.

Don’t hold your breath.

If you were wondering why you hadn’t heard about this development last week its because its pretty hard to find. The letter from the Attorney General is on the Law Reform Commission website. It doesn’t rate a mention so far on the What’s new pages of the Government's Lawlink or Privacy NSW websites and we can’t locate any media release from the Attorney General.

Conviction of Australian spammer makes world news

Maybe the Australian Communications and Media Authority referred to in the previous post, has been pre-occupied with other things - its successful prosecution of a WA spammer who sent 56 million unsolicited email messages under Australia's Spam Act has made news around the world.

Telephone data remains unproteced from business misuse

Did you know that the Integrated Public Number Database which contains the personal contact information for every Australian who has any type of telephone connection - listed or unlisted, business or personal, fixed line or mobile - is available to companies who want to ensure they have correct information on their databases? According to this report in Australian IT the Australian Communications and Media Authority is still to introduce standards to restrict business use two and a half years after it first raised concerns about misuse of the data.

The Authority had plans to have standards in place by 2004 but now is about to release another discussion paper on the issue. Maybe they will get this sorted before the Australian Law Reform Commission report on Australia's privacy laws (due in 2008)!

New disclosure requirements mooted for local councils but why stop there?

The Daily Telegraph (18 April) has a long report on corporate credit card use by 10 Sydney councils based on credit card statements obtained under the FOI Act. The version of the story available on the paper’s website does not contain the full details which appeared in print.

The Telegraph has followed up today with another report which revisits the issue, and links the disclosures with proposals by some councils for rate increases. The article includes comments by the NSW Minister for Local Government that all councils will now be required to disclose credit card spending (and reimbursements for personal spending) each year in a way that ensures such spending is “clear and identifiable” to the public.

The Minister’s comments sound like a knee jerk reaction – councils (and others including the Ombudsman) have for years been encouraging the Government to update the information access regime that applies to local councils, but successive ministers for local government have shown no interest.

While pro active disclosure of credit card expenditure for local councils would be a good thing, why stop there? How about pro active disclosure of ministerial and senior public servant credit card expenditure and travel and hospitality costs for starters?

Monday, April 17, 2006

FOI in the news

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

Sydney Morning Herald 14 April: “Immigration Department’s image abysmal, say staff”. While no one will be surprised given developments of the last couple of years, the Herald story that staff regarded the Department as a basket case was based on the results of an employee survey undertaken in December 2005, and posted on the Department’s website on 13 April. The Herald had applied for the documents in February but had been refused on the grounds that the documents had not at that stage been collated.

The Sunday Telegraph 16 April: the NSW Department of Education is spending close to $1 million on PR staff.

ABC Online 14 April: ACT Opposition seeking access to an efficiency review of public service functions and staffing which the Chief Minister says is a confidential Cabinet document.

The Australian 15 April: “Irwin puts bite on croc hunt” says that the Federal Government has put aside plans for legalised croc hunts in the Northern Territory after intervention by Steve Irwin.

The Mercury (Hobart) 17 April: “Big drop in speed snaps” reports a major drop in the number of speed-camera infringements between July 2005 and January 2006 following a decision by the Police Commissioner to drop the requirement for speed camera operators to book 2.7 motorists an hour.

As always some items have already disappeared from the free content of some sites.

SMH gets inside dope on Ombudsman Report

From today's Sydney Morning Herald "Stay in Touch" column. The SMH presumably has a copy of the Ombudsman's Report as it was the complainant. No sign of the Report on the Ombudsman's website.

"Sartorworld - aka the Department of Planning - is "unreasonable" (x4), "wrong" (x4) and "mistaken" (x2), according to the NSW Ombudsman, which found the secretive taxpayer-funded fiefdom wasn't meeting its freedom-of-information obligations.

We asked for details about plans for East Darling Harbour in 2004, and the department said all its documents were probably secret cabinet ones, but for a $405 advance fee it would say so for sure.

It asked us to pay it for the three hours it would take to list the documents we couldn't see (forgetting it already had a list), and pay for secret discussions with secret third parties about the secret documents it was going to keep secret.

Transparent democracy, NSW-style, where inflated charges, obscure exemptions and claiming cabinet-in-confidence for documents which go nowhere near cabinet is what your taxes fund. And what of the NSW Ombudsman's calls over the past decade for an independent review of FOI, repeated in this instance? Sorry, can't hear you".

Thursday, April 13, 2006

ADT decision: released documents - once they're gone, they're gone

This interim decision (Retain Beacon Hill High School Committee Inc. v Landcom (2006) NSWADT 108) confirms that once a document is released under FOI, there isn't much the agency or the ADT can do to get it back.

Landcom, having processed 5575 pages of documents in the course of processing the application [para.10] released in error 2 documents which it mistakenly thought were covered by an agreement reached during an ADT planning conference to disclose certain documents.

The Tribunal decided it had no powers under the Administrative Decisions Tribunal or FOI Acts to require the return of the documents.

It also denied an application for an order which would preserve the confidentiality of the proposed purchase price of the school site which had been revealed in the two documents inadvertently released. The Tribunal said that this information was in the public domain as it had been revealed in a press release by Dr. Chesterfield-Evans MLC in January this year and in a subsequent article in the Daily Telegraph.

Not too many FOI co-ordinators would be throwing stones about this one - 5000 odd pages (the ADT is still to decide the status of some documents) and 2 slip through the net!

FOI ADT decision: diversion of resources

One interesting issue of general application from the ADT decision in Challita v Department of Education and Training (2006) NSWADT 109 were the Tribunal’s comments concerning what constitutes substantial and unreasonable diversion of resources for the purposes of Section 25(1)(a1) of the FOI Act.

The Tribunal said [para. 30] that an “agency’s resources” were those resources reasonably required to deal with an FOI application, consistent with attendance to other priorities. It did not mean the whole of the resources of a large department of agency or resources the agency might be able to obtain or would have if it filled established positions. It was satisfied that an estimate of 140 hours work to process an application would constitute substantial diversion of the limited resources available for dealing with FOI applications.

The decision largely upheld the Department’s determination except in respect of two documents about test results and the correlation of an IQ score for a child seeking a position in a selective high school.

Canada cleaning up its Act

You can’t beat a scandal to get the reform juices flowing.

No, nothing to do with the Australian Wheat Board and events here in Australia.

The recently elected Canadian Government this week introduced the Federal Accountability Act and Action Plan. The Action Plan commits the Government to a wide range of reforms concerning political donations, limiting post politics lobbying by ministers, government appointments, protection for whistleblowers, stronger auditing and accountability requirements, and last but not least proposals to strengthen access to information legislation.

This follows the tabling of the second and final report by Justice Gomery into corruption at high levels in the former Chretien Government concerning sponsorship programs and advertising activities. The report showed corrupt political donations and diversion of government funds, failures of internal control systems, systematic disregard for compliance with financial regulations and other legislation including the Access to Information (FOI) Act and attempts to manage the detail of a government program from the Prime Minister's Office. $50 million is still said to be missing.

On FOI the Government has moved to extend the scope of the Act to all government entities and has tabled an issues paper on further major reforms to be considered by a Parliamentary Committee. The paper discusses a wide range of issues canvassed by the Information Commissioner as vital to the modernisation and effective working of the Act.

The proposals include tightening exemptions, a provision for release of any document if in the public interest, and a broadening of requirements regarding record keeping to include an offence if an officer failed to create a record of specified important events.

Further grist for any Australian government showing the slightest interest in reform and best practice.

Big tick for pro active disclosure by UK local councils

Pro active wide dissemination of information should be seen as the norm for public sector organisations. While there need to be sensible limitations, state and local government agencies should see the web as the primary means of publication of information of interest or importance to the public and the sectors that they serve. The current publication requirements in FOI laws are limited and antiquated but there is nothing to prevent agencies going much further than the requirements of the law. Most government websites contain some useful and important information but each organisation should be incorporating pro active disclosure into their thinking about how to meet public needs for information.

This article about what local councils in the UK have achieved - including reductions in cost - is confirmation of the benefits of this approach.

New defamation laws and rights to privacy

ABC’s Media Watch program this week included a discussion “Truth, defamation and privacy” about the implications that may arise from the commencement of uniform defamation laws across the country. The focus was the effect of the change (in NSW and some other jurisdictions) to the truth defence which no longer requires consideration whether publication was in the public interest.

The consensus seems to be that the media (and others) will be less constrained, but that this will give rise to claims regarding breach of privacy, particularly from celebrities. So far Australian courts have largely rejected claims for damages on the grounds of breach of privacy saying that the law does not recognise such a common law right.

These issues were also discussed on today’s Media Report on Radio National.

Uniform (or nearly uniform) defamation laws have been in effect since 1 January 2006. There are other important changes to the law in the NSW Defamation Act. This summary from MinterEllison highlights key points.

Defamation seems to be an issue in local councils particularly concerns regarding what is said in public meetings, and what might be included in submissions, complaints and objections received. The new provisions as they relate to defences should be of particular interest. Apart from truth, defences regarding contextual truth, publication of public documents, and “reports of proceedings in public of a local government body” should all be of interest to the local government sector.

The full text of the Defamation Act 2005 is available in the InForce data base at this site.

Wednesday, April 12, 2006

Federal Privacy Commissioner: laws overdue for reform

The Age has a profile piece on the Federal Privacy Commissioner Karen Curtis. It confirms that she along with the rest of us thinks Australian privacy laws are a mess. While believing that the laws are ripe for reform, and with the Australian Law Reform Commission not due to report back until 2008, Ms. Curtis "remains a pragmatist. Parliament decides the regime and that's the regime I administer".

ADT decision: no privacy breach when acting on third party information

An ADT decision (OA v Department of Housing(No.2) (2006) NSWADT 94 addresses several issues not previously determined in a case decided last year. The issues concern the handling of information from third parties which led to an investigation about whether a tenant of the Department had been dishonest and attempted to defraud.

The Tribunal confirmed that unsolicited information from a third party is not subject to the collection principles; and that in the circumstances of this case it was appropriate that the matters raised were brought to the attention of the person complained about. The Tribunal rejected arguments that the data quality principle in Section 16 of the NSW Privacy and Personal Information Protection Act required the Department to ensure the information was accurate before it was used in this way.

Victorian Privacy Commissioner finds fault with taxi camera surveillance

The compliance regime written into most Australian privacy laws is “complaint” based. That is if a person becomes aware of a breach of privacy, there are then avenues of complaint. This leads to the perception within organisations that the lack of complaints probably means there are no privacy problems.

While privacy commissioners might be interested in undertaking spot audits and reviews, resources are limited and activities of this kind are rare.

What can show up when an audit is undertaken is illustrated in this report by the Victorian Privacy Commissioner on surveillance cameras in taxis. Even though no complaints had been received the Commissioner found that the Victorian Taxi and Tow Truck Directorate and the Department of Infrastructure who were responsible had neglected to establish safeguards for the handling of downloaded images from cameras in taxis. Even where some systems were in place they had significant weaknesses.

While the primary purpose for the installation of cameras was security, downloaded images had been accessed for a wide range of other purposes; proper records of access were not maintained; and there was not sufficient oversight to guard against misuse and to detect it swiftly when it did occur.

In Victoria responsibility for the system rested with the Directorate which was subject to the Information Privacy Act. Who knows what happens in other jurisdictions?

In NSW the Department of Transport has published guidelines which seem to be a significant improvement over what the Privacy Commissioner found in Victoria) but the Department doesn’t seem to be responsible for handling camera images. That seems to rest with each taxi network. The networks aren’t subject to the NSW Privacy and Personal Information Protection Act but may be subject to the private sector provisions of the Federal Privacy Act.

Does anyone audit taxi camera surveillance? Should we be concerned about what will happen to the images from those silently rolling cameras while we are in the back seat?

Monday, April 10, 2006

How about this - personal responsibility for making FOI work

India is taking FOI compliance seriously. Its Right to Information Act which came into effect in October last year requires each agency to designate a Public Information Officer who carries some personal responsibility for compliance. Section 20 of the Act provides that where, in the course of deciding a complaint or appeal the Information Commission finds that a PIO has failed to provide access (without reasonable cause) or "malafidely" denied a request, knowingly gave incorrect or misleading information, destroyed information, or obstructed furnishing information, a penalty of 250 rupees (about $A7.70) per day may be imposed with a cap of 25,000 rupees.

The search goes on to find the answer to making FOI work in practice to achieve its objectives: what price the Indian solution to this vexed question?

New report highlights need for review of privacy laws

Yet another report, this time from the Productivity Commission, points out the overlap and lack of consistency in Australia’s privacy laws. The Report of the Task Force on Reducing the Regulatory Burdens on Business – Rethinking Regulation contains 178 recommendations. The Federal Government announced a response to about half the recommendations last Friday with a comprehensive response to follow in July.

One of the yet to be addressed recommendations is the call for a comprehensive review of privacy laws. The report (pages 53 and following) says that submissions received from business identified “the pervasive nature of privacy requirements as an important contributor to the cumulative regulatory burden it faces”. The specific issues raised included national consistency, consistency with other Australian Government legislation; consistency between Government and business privacy requirements and sharing data.

Recommendation is for a comprehensive, independent public review of privacy laws with particular focus on business compliance costs.

The Federal Attorney General announced in February 2006 that he had referred Australia’s privacy laws to the Australian Law Reform Commission for review and report by March 2008

Sunday, April 09, 2006

Victorian FOI "anti terror" exemption

The Age reports that the Victorian Government introduced a new anti terror bill in Parliament last week which includes a new FOI exemption and would create an offence punishable by up to 10 years jail for disclosure of information that would facilitate a terrorist act.

NSW included amendments in it's FOI Act in early 2005 to provide a new anti terror exemption in Clause 4 of Schedule 1 of the Act.

FOI in the news

FOI based media reports over the last week include: an article in The Australian “Costly travels of our cricket-tragic PM” about the Prime Minister’s travel expenses; a Daily Telegraph report on 7 April containing further information about the clean up of toxic waste in Sydney; and another about the high revenue generation capacity of a parking meter in Parramatta which has netted the Council $33,590 per month over four months (compared to $22,000 for the average hotel gaming machine); a Sydney Morning Herald report on 6 April that 5500 vehicles were caught speeding in the “deserted Cross City Tunnel” during the first 6 months of operation;

The Australian had an article on 6 April about 12000 outstanding complaints of child abuse and neglect still to be assessed by Queensland’s Department of Child Safety
In Victoria The Age reported on 7 April about Federal ministerial briefings released but primarily that it had been refused access to documents concerning the BHP Billiton affiliate Tigris Petroleum now under examination in connection with the breach of sanctions in Iraq; and BRW Magazine on 6 April had an article about documents released by the Victorian Department of Justice concerning allegations by former prisoners of abuse and mistreatment by GSL (Australia) which owns and operates the Port Phillip Prison.

ABC NewsOnline reported on 8 April that the South Australian Opposition Treasury spokesman (presumably recovered from dealing with trolley loads of documents released to him just after the election) plans to use FOI to get to the detail of reports of a significant cost blow out in a planned extension of Adelaide’s tram system.

As usual I'm afraid we can't give you links to all these articles as they disappear from free content quickly.

Draft NSW guidelines on new contract disclosures

An earlier blog referred to comments made by Professor David Richmond regarding draft NSW Treasury guidelines on the disclosure of government contracts.

These draft guidelines are referred to in his report “Review of future provision of motorways in NSW”. The report is on the Premier’s Department website (go to Infrastructure).

The report (Section 6.6) addresses disclosure issues and Appendix 14 reproduces the draft Treasury guidelines. The guidelines seem to be an amended version of guidelines issued by the former Premier in 2000 in Premier’s Memorandum 2000-11. There are some additional requirements for disclosures for all government contracts – in addition to price, future changes including bonuses or penalties are to be disclosed and a summary is to be provided of the information used in any financial model regarding price, tolls and other usage charges.

However the full base case financial model when used is listed as a new item regarded as ‘commercial in confidence’ and not to be disclosed in any contracts.

The current status of the draft or the extent to which there has been consultation on it isn’t clear – we couldn’t find any reference to it on the Treasury website.

What’s on the table so far would seem to fall well short of expectations for a fresh start in the direction of more pro active mandatory disclosure requirements, following the clear failure of existing guidelines.

Thursday, April 06, 2006

Investigative reporter wins FOI award

The (US) Investigative Reporters and Editors have announced the winners of their 2005 awards for investigative journalism. The FOI award went to the state political reporter for the Small Newspaper Group in Illinois, Scott Reeder for a series of reports, “The Hidden Cost of Tenure”, which reviewed accountability for teacher performance in the public education system. Reeder found that poor performance had not been addressed satisfactorily.

Reeder spent 6 months on the story which involved 1500 FOI applications to 900 entities (local school boards for the most part). It took 2 months to police the processing of the applications.

The series has had a strong reaction in Illinois and has led to the introduction of a bill into state congress designed to require greater accountability for poor teacher performance.

In a final editorial he makes some suggestions: it shouldn’t take a reporter 6 months to get information about systemic issues such as teacher performance. It should be collected by the state and offered to the public as an accountability report card each year.

While there is room for disagreement about answers to the challenges of improving educations systems, there should only be one standard regarding openness and accountability for performance: the public has a right to know how money is spent and what it achieved as a result.

It would be interesting if the Reeder series was duplicated here and to see what comparisons might emerge.

On the FOI front, according to the judge's notes Reeder had a 100% success rate in his FOI applications but this isn't the impression given by the content of the articles.

Privacy left off the prescription

Anna Johnston, Chair of the Australian Privacy Foundation in an opinion piece in today’s Sydney Morning Herald lists the problems the Government has so far failed to address in connection with its Healthelink electronic health record pilot.

Wednesday, April 05, 2006

NSW Government contracts: spin or full disclosure?

The NSW Parliamentary inquiry into the Cross City Tunnel is continuing. Professor David Richmond who heads the Premier’s infrastructure office, told the Committee on Monday that his December report on “Review of Future Provision of Motorways in NSW” had never recommended that all documents relating to public-private partnerships be disclosed.

Today’s Sydney Morning Herald editorial “Let the public see the full deal” acknowleges some ambiguity in the report and questions exactly what the Premier committed the Government to in terms of contract disclosures when he accepted Professor Richmond’s recommendations. The editorial says that while “some confidentiality may be justified before a deal is struck”, after the event, the public has a right to know what it’s government has agreed to, including profit calculations.
“The practical consequences of keeping the public in the dark can be seen in the policy and planning mess that is the Cross City Tunnel, where the operator’s interests were allowed to override the public interest in a deal devised in secret. It is time the Iemma Government and its acolytes leant that lesson, and worked for all the people or NSW to further the cause of open government”.
Our earlier blogs have commented on the Freedom of Information Amendment (Open Government – Disclosure of Contracts) Bill tabled by the Independent Member for Bligh last December but still to be debated in Parliament.

Professor Richmond in his testimony referred to “NSW Treasury’s draft guideline on public release of information on tenders and contracts with the private sector”. Something new in the wind?

Experience shows however that “guidelines” don’t necessarily work as the Auditor General demonstrated last year when he showed that only 4 of 20 government agencies complied with the Premier’s guideline regarding disclosure of specified contract information on the web.

E-health records: opt out if really concerned about privacy

The debate about the NSW Government’s electronic health record pilot projects continues. The Sydney Morning Herald reports that one of the two trials has been delayed indefinitely, and that the Department of Health has indicated that the best option for a person who does not want to share sensitive information with all members of their treating team is to opt out of the scheme as the system does not permit free text such as doctor’s notes to be selectively kept private.

An earlier blog reported on the unsuccessful disallowance motion in the Legislative Council of a regulation to permit the pilots to proceed. While the former Privacy Commissioner, Chris Puplick was mentioned in debate as being against the regulation, there was no mention of the views of the current Acting Commissioner. However according to The Sydney Morning Herald he has “raised concerns about aspects of the trial” and has sought advice from the Crown Solicitor on the issue of “informed consent”.

The article says advice is expected in the next few weeks.

This seems a little late as the Hunter Pilot commenced on 27 March. The Minister for Health's assurances during Parliamentary debate that the pilot conforms to the highest standards to protect privacy sound a little lame in the light of these new revelations.

These issues are not unique to NSW or Australia. Let's hope those involved have time to keep up with developments elsewhere. For example 26 groups in the US have joined forces to mount a campaign for better privacy protections in the development of electronic health records. As we speak they are planning a press conference in Washington on 5 April on the subject. Thanks to David Fraser's Canadian Privacy blog for the lead on this development.

Hanging up on telemarketers

The Federal Government has announced planned legislation to establish a free national ‘do-not-call’ register to commence in about 12 months time. Individuals and small business will be able to register and a call to a registered number by telemarketers will constitute an offence with fines up to $220000.

The Minister for Communications announcement refers to “public interest” exemptions for charity groups and people undertaking social research. The Government’s discussion paper on the topic last year included a longer list of possible exemptions including registered political parties. Some press reports today refer to an exemption for “political lobbyists” whatever that might mean. Another large hole is likely to be the exemption for calls from any organisation with which an individual has an “existing business relationship”.

The Federal Privacy Commissioner in its submission (see 2005) recommended against exemptions for categories of callers and suggested that an individual should have the right to opt out of these type of calls as well.

The new initiative is welcome and there should be lessons to learn from overseas experience, summarised in this note by Caslon Analytics.

As always, the devil will be in the detail.

Monday, April 03, 2006

National identity card: privacy worries not yet overcome

The Federal Treasurer Peter Costello last week spoke in favour of a national ID card while the Prime Minister said that he believed the debate about the card still had some way to go. An editorial in today's Sydney Morning Herald said that the "Government's task in its efforts to provide more effective surveillance of potential wrongdoers will be alay legitimate concerns about an erosion of a citizen's right to privacy"

Sunday, April 02, 2006

ISP provider security found wanting

Friday's Australian IT section has a report that a customer of Sydney internet provider Astratel discovered that he could view billing information and call records for other customers by simply listing the customer's phone number in an online query form. Astratel told Australian IT that it had been experiencing difficulty with security locks - "the conversation was then terminated without explanation".

NT newsletter published

The Northern Territory Information Commissioner, responsible for FOI and privacy issues in the Territory, has published the first edition of "In Fact" a newsletter designed to keep NT FOI and privacy practitioners informed of developments.

FOI in the news

Media reports over the last week based on documents released under FOI included The Daily Telegraph reports on 30 and 31 March about dioxin levels in Sydney Harbour. The 30 March report revealed that a ministerial briefing note last December had alerted the Government to the fact that RiverCats had churned poisonous sediments in the Parramatta River. The latter said that the NSW Food Authority had advised the Government that fishermen had been exposed to unacceptable levels of dioxin and should be regarded as a special risk category.

The Sydney Morning Herald on 2 April has an article "Department accused of dishonesty over report" which on the basis of documents released under FOI says that the Department of Education removed a key part of a recommendation regarding a mentoring program for teachers before posting the report on its website.

The Australian on 29 March had a detailed story about internal differences between members of the Australian Research Council about decisions concerning the allocation of $274 million in academic research grants.

It followed up on 30 March with an article about the content of a still secret consultant’s report on the funding adequacy and efficiency of the ABC. The article was based on a draft executive summary of the KPMG Report which the Government had refused to release claiming it to be a confidential budget document.

Our favourite of the week however was a report in Adelaide's The Advertiser on 30 March that days after the SA election, thousands of pages of documents on ministerial travel expenses and the operations of top level government boards and committees were released to the Upper House Opposition Leader Rob Lucas. Lucas said that the applications for documents had been made last November and the long delay in responses made a mockery of the Premier's promise of open and accountable government.

A Government spokeswoman said that 170 applications had been lodged on the same day, some responses had been provided before the election, and all had been dealt with by departmental officers, with the Government having nothing to do with the timing of responses or the material contained in them.

We'd like to give you the links to all the above stories but many Australian media webpages do not provide free access to reports after a couple of days. Sorry about that.