NSW: "Secrets State"

Summer holiday blog

The Sydney Morning Herald has again labeled NSW "The Secrets State", giving a bit of summertime coverage to matters raised in the NSW Ombudsman Report released some months ago. Its all pretty true.

However given a separate report detailing how the NSW Police were unenthusiastic about the purchase of a water cannon to keep ruly citizens under control, it should be acknowledged that the one document relevant to a decision by its political masters to spend $750,000 was released in response to a Freedom of Information application - eventually. The document was released in December 2007. The FOI application was lodged in April 2006

You have to wonder though why it took so long, given the statutory deadline of 21 days, and whether disclosure might have been viewed as a good thing by the Police. It might have helped that the then minister, Carl Scully, is long gone from office.

"Secret State" still resonates. As the Herald comments today (Only blanks from this cannon):

"The episode says a lot about the Iemma Government's approach to its task. The announcement of the decision (to purchase the cannon), carefully leaked to favoured media outlets, got the tough-on-crime headlines it was seeking. Presumably then, the government believed the money was well spent. What the police or anyone else may think is irrelevant........ (The cannon) is ....a fitting monument to the collective of image-makers which NSW calls a State Government".

Disclosure can help achieve policy outcomes

Summer holiday blog

Most Australian governments continue to be over cautious about release of information concerning compliance by private sector bodies or government agencies with policies or standards that apply, or should apply, in the provision of goods or services that have public health or safety implications.

So congratulations to the Queensland Government for its plans to disclose compliance notices issued to day care centres that failed to comply with state standards. As the article recounts, recent attempts to access the list of centres under Freedom of Information failed - the business interests of the centres was said to outweigh any public interest in disclosure.

But another brick bat for the NSW Government for a decision to refuse access to the names of schools where the school canteen was found to have failed food hygiene standards.

The NSW Office of State Revenue recently decided to release details about fines imposed by local councils including $900 imposed by Hunters Hill Council on the owner of Cucinetta for placing two non approved pot plants on the pavement.

But no, the NSW Food Authority decided we shouldn't know which school canteens (or restaurant) sold food that led to a gastro outbreak, had mice dropping in pie ovens, cockroaches in sandwiches and dirty nappies changed near food! Geez.

Our regulatory policy buffs should do a bit more research and reading about the positive policy effects of disclosure of information about compliance with the law. They could start with "Full Disclosure: The Perils and Promises of Transparency" by researchers at Harvard University.

Rudd tells ministers actions must be open to public scrutiiny

Summer holiday Blog

The full text, of the Prime Minister's 'Standards of Ministerial Ethics', announced on 6 December, subsequently made it onto his department's website. (I know the PM has been busy and it is summertime, but it sure is taking time to get the new government websites fully up and running).

We mentioned at the time some of the Standard's key provisions. The detail about contact with lobbyists, conflict of interest and post ministerial employment is of particular significance.

What the Standard says about ministerial accountability is worth highlighting as the Rudd Government starts to get on with the job in 2008:

"Ministers must accept accountability for the exercise of the powers and functions of their office - that is, to ensure that their conduct, representations and decisions as Ministers, and the conduct, representations and decisions of those who act as their delegates or on their behalf - are open to public scrutiny and explanation". (1.3(iii)).

"Ministers are required to provide an honest and comprehensive account of their exercise of public office, and of the activities of the agencies within their portfolios, in response to any reasonable and bona fide enquiry by a member of the Parliament or a Parliamentary Committee" (4.4).

"Ministers are expected to conduct all official business on the basis that they may be expected to demonstrate publicly that their actions and decisions in conducting public business were taken with the sole objective of advancing the public interest".(6.1.)

"Advice (about any issue concerning implementation of the Standard) received by the Prime Minister from the Secretary of the Department of the Prime Minister and Cabinet may be made public by the Prime Minister, subject to proper considerations of privacy". (7.4).

We'll be watching in hopeful expectation that a new era of transparency is about to dawn.

Control and spin still in fashion?

Summer holiday blog

I doubt if news that this reported attempt to control media release justifies the gloom (or is that glee) from Andrew Bolt, in the Herald Sun, that it means the Government's commitment to changing the culture of secrecy accounts for little. It's probably (hopefully) transition stuff rather than a reversal of all those 'greater transparency' promises.

Seasons Greetings

Thanks to all our readers for continuing interest in Freedom of Information, privacy and related issues as they impact on us in Australia.
We are moving into summer holiday mode, so postings will be intermittent for the next couple of weeks.

Hope you all have a great holiday break
Cartoon by courtesy of Chris Slane

Sharing personal information, not joy: Christmas in the UK

They're not relaxed and comfortable in the UK about government handling of personal information - first 25million recipients of child care benefit records (including bank account details) went missing, then 3million records of UK 'learner drivers' disappear in Iowa where they had been sent for processing, and now 6500 pension details (this time not including bank account numbers) have disappeared.

Could happen anywhere I suppose. It's just we don't seem to hear much about it here. Que?

National Access Card binned

Due to other distractions, I missed this article in The Australian that says the Government has moved quickly to scrap the National Access Card project. After all the fuss over the last year, its demise was a strangely silent process. Can I hear in the distance the sound of lawyers arguing over cancelled contracts?

Much deserved self congratulation over at the Australian Privacy Foundation.

US Congress passes FOI reforms

The US Senate and House of Representatives have finally passed legislation to strengthen the Freedom of Information Act, after much negotiation to resolve differences in versions passed by each earlier this year. It's not clear yet whether President Bush who had problems with the earlier versions will sign, or whether the Act might come into force automatically as Congress has now adjourned for the year.

Some of the key features of the Openness Promotes Effectiveness in our National (OPEN) Government Act include a standard for disclosure unless harm would result; extension of the law to non proprietary information held by government contractors; creation of a system to enable each applicant to track the status of a request; establishment of an office of the ombudsman to investigate complaints; and a right to costs where an applicant is substantially successful in challenging an agency decision, including where an agency releases documents after a legal challenge has commenced.

The Bill shortens the statutory period for processing to 20 days (the Victorian Government is proposing to extend the deadline there from 30 days to 75 days in some circumstances!!) and provides that a failure to meet the deadline would result in a refund of charges. Independent journalists (including bloggers) are entitled to the already generous (by Australian standards) fee concessions available to media organisations.

Some of the US changes are highly relevant as we ponder next steps (says he hopefully) even though we have been a long way ahead with ombudsman involvement in complaint investigation.

A fuller summary of the changes is at the end of this article posted by All American Patriots.

US transparency reform should be emulated here

You might be reading a fair bit about Senator Barack Obama, but you may not know that he was a prime mover in getting a law through the US Congress in 2006 requiring greater transparency from the Federal Government.

The Federal Funding Accountability and Transparency Act required by January 2008 publication on a single searchable website information about Federal contracts, grants, loans, and direct payments of government money. The database developed by the Office of Management and Budget (OMB), is now up on the web ahead of the specified deadline as USASpending.gov

You can search by agency, state, electoral district or subject. It will be updated in real time, and members of the public can offer comments. Here are some other details.

Senator Obama said

"This site helps us to achieve.....a vision that, in a democracy people ought to know how their government is operating. This isn't Democratic vision or a Republican vision. It's a vision that rejects the idea that government actions should be kept secret".

The other co sponsor Senator Tom Coburn, said the Act was "the most important transparency measure passed by Congress since the Freedom of Information Act".

Let's hope those who have the ear of our new Special Minister of State, Senator Faulkner and the new Minister for Finance, Lindsay Tanner, alert them to what could be, if they are serious about improving transparency and accountability in our neck of the woods.

While they're at it, they should also bring to their attention some other handy innovations such as the OMB's ExpectMore.gov which shows information about what Federal Government programs perform well and fall short, and what's being done to improve performance next year. There are hundreds of programs listed where results have not been demonstrated and many where performance has been ineffective.

Minister Tanner's razor gang on our Federal expenditure commitments could take a leaf out of this book, and ensure that we are kept fully informed about Federal Government programs that survive the cut.

Minister out and off the hook following change of government

One result of a change of government, is that those who have lost office no longer need to explain discrepancies in what they had to say when they were calling the tune.

Senator Helen Coonan, former Minister for Communications, won't have to tell us how it was that government advertising for the NetAlert campaign said that a survey had shown that more than half of 11-15 year olds who chatted online were contacted by strangers, when the survey, now released in full, shows that only 14% chatted or messaged "a mixture of people including strangers". The inflated figure emerged from including 'friends of friends' and anyone (even those who parents approved) who they had not met in the physical world, as 'strangers'.

Peter Mares of ABC Radio National's "The National Interest" pursued this issue with Senator Coonan on-air, followed up the request using Freedom of Information, and finally was able to access the survey - conveniently (for Senator Coonan at least), just a few days after the election.

Another FOI case bound for High Court

The High Court of Australia has granted leave to Heather Osland to appeal a Victorian Court of Appeal decision that documents that formed the basis for refusal of her mercy petition, should not be disclosed to her under the Victorian Freedom of Information Act. Osland was jailed for nine years for the murder of her husband, while her son who delivered the blow that killed him, was acquitted.

The Victorian Attorney General claimed legal professional privilege for the documents. The Court of Appeal overruled the Victorian Civil and Administrative Tribunal, finding that the Tribunal had erred in law in deciding that the documents should be released on public interest grounds.

The right to know about climate change

With attention focused on climate change and the talks in Bali, the US House of Representatives Committee on Oversight and Government Reform, has released a report of a 16 month investigation into allegations of political interference with government climate change science. 27,000 documents were handed over by the White House Council on Environmental Quality and the Commerce Department.

The Committee says the evidence leads to one inescapable conclusion:

"The Bush Administration has engaged in a systematic effort to manipulate climate change science and mislead policy makers and the public about the dangers of global warming".

The White House called the findings "rehash and recycled rhetoric".

By by Philip good by

Sorry, didn't mean to frighten you (file photo from the ABC Insiders)

There was much less fanfare (in fact none) associated with the the release of the Federal FOI Annual Report for 2006-7. Understandably, no media release from the former Attorney General this year - a year ago Mr. Ruddock said the previous year's report showed the FOI Act was achieving its intended purpose.

This year, the report is left to speak for itself. Overall applications down 6% on last year; 87% seeking access to personal information; 95% granted in full or part.

A couple of other interesting statistics: requests for documents relating to policy and government decisions down from 4680 to 3879 - hardly testimony that FOI has led to greater participation in government affairs; 1000 of these requests took more than 60 days to process (over 650 took longer than 90 days, but exactly how long we don't know); applications for internal review in only 51% of cases saw the original determination affirmed, suggesting quite a lot of decisions wouldn't stand up to scrutiny.

The report says that figures provided by government agencies showed only 56 applications for review were lodged with the Administrative Decisions Tribunal, but the Tribunal reports 120.

There are real obstacles for any applicant who takes a matter to the Tribunal, wins, and seeks an order for costs. The criteria are tight, and the Tribunal powers are only to make a recommendation to the Attorney General that costs be paid. The Attorney General has a discretion to pay or not pay. A year ago, the Annual Report revealed that a total amount of $606 was paid for applicant's litigation costs. This year $85,821! No explanation in the report but some applicant(s) got lucky.

Agencies also spent an extra $800,000 on solicitor's costs ($2, 827,256).

The total estimate of costs associated with dealing with FOI in Federal Government agencies was around $25million including staff costs of $20million.

Just to put it in perspective - the Annual Report of the Department of Prime Minister and Cabinet showed that the Howard Government spent nearly $285 million on advertising in the year to 30 June. We all have a sense that a lot more was spent after that in the lead up to 24 November.

Victorian AG: FOI sets new bench marks

The Victorian Attorney General tabled in Parliament on 6 December the Annual Report on the operation of the Freedom of Information Act. In a media release, the Attorney General says a record number of requests were received and access granted in 97.4% of cases. "Victoria's FOI system is functioning well" said Mr. Hulls.

My guess is that this requires closer examination. The fine print usually provides further insights, but a week after the media release, the 2006/7 report is yet to be posted on the Department's website. The Age reports one in five internal review applications result in a change in decision and in half the matters that go to the Civil and Administrative Appeals Tribunal, result in a variation of the original decision.

Canadian turtles saved, public servant axed but rewarded

We aren't the only ones with unsatisfactory whistleblower protection legislation, but here's a good news story (sort of) from Vancouver Canada.

The Freedom of Information and Privacy Association and the Campaign for Open Government has given its 2007 Whistleblower Award to Gord McAdams, a former employee of the Ministry of Sustainable Resource Management, who on his last day before retirement after 34 years service, lodged documents in a court proceeding that exposed his then minister as having made an unauthorised exercise of statutory power. It turned the case against the government and
needless to say he was fired on the spot. He eventually reached an out of court settlement which appears to have saved his super.

He also saved a population of painted turtles that would have been wiped out if the minister's approved plan had gone ahead.

In Australia, Federal public servants commit a criminal offence if any fact or document acquired in the course of duty is disclosed without authorisation (Section 70(1) Crimes Act 1914). Allan Kessing, a former officer of the Australian Customs Service, in March 2007, was convicted of an offence for disclosing the contents of documents containing threat assessments and risk analyses of airport security in 2003. Kessing was sentenced to 9 months jail, suspended on entering a good behaviour bond, claims he did not disclose the documents, and intends to appeal.

The recent Independent Audit of Free Speech in Australia identified 335 pieces of legislation which contain secrecy provisions that prevent disclosure of government information. Go figure.

Federal Labor is committed to reform so here's hoping.......

Rudd urged to shake us out of complacency

Let's hope that in 12 months time we might see some better news in the UK press about Australia's human rights record, including Freedom of Information, than this dismal summary by Julian Burnside QC in today's Guardian. The comments by readers at the end of the article won't make any of us feel better either.

And what a contrast with reflections on what UK Labour has managed in this respect from Justice Minister Jack Straw - a government proud of its FOI record (Straw doesn't mention a couple of unsuccessful government attempts to water things down), as well as other accomplishments.

Political influence in FOI decision making

Kelvin Bissett in the Daily Telegraph 5 December - Pollies get say in FOI scrutiny - picked up a couple of points from my review of the NSW FOI Procedures Manual posted here a few weeks ago.

My review in full is here.

Bissett made quite a point about the manual's comment that ministers may need to be consulted prior to the making of a Freedom of Information determination in some instances.

Bissett said: "The policy will surprise many applicants who believe their FOI requests will be dealt with at arms length of the political process"

I'm afraid FOI applicants who have been labouring under this apprehension haven't picked up on some of the clues that suggest some responses to FOI applications have a significant input from ministers and ministers staff. And it's not just an issue in NSW.

The report on the Independent Audit into the State of Free Speech in Australia included a section in the Freedom of Information chapter about political influence on decision making. It said that while there was nothing untoward in ministers being made aware of FOI applications being processed, the practice of informing them prior to the making of a decision raised the potential for political influence in a direct or indirect way. The Commonwealth Ombudsman in 2005-06 reported that "Complaints to his office concerning applications for access to non-personal documents typically raised concern about the involvement of ministers and their staff in dealing with a particular application". Regular reports on FOI applications are submitted by some agencies to ministers - the Audit had evidence of this happening in Treasury and Defence.

Guidelines on processing applications for Victorian Government agencies issued by the Department of Justice suggest that a brief on any FOI application should be provided to the minister's office 5 days before finalisation.

Quirks in the Federal and Victorian FOI Acts give the minister discretion to decide any FOI application received by a government department. While there is no evidence that this authority is exercised often, if at all, it may provide the justification for bringing FOI matters to the attention of the minister.

In NSW, where the Act gives authority for public servants to decide on access to agency documents, ministers' offices are kept regularly informed about FOI applications on hand and the Premier's Department requires a fortnightly report on FOI work in progress. A NSW Auditor General's Performance Audit report in 2003 expressed concern about possible perceptions of interference in decision making, citing examples in the Ministry of Transport where the then CEO sought to influence determinations, and in the Department of Education and Training where a draft determination was altered following comments from staff of the then minister. These are probably tips of icebergs.

A more significant problem everywhere is that in some agencies public service responsiveness to the government of the day results in a tendency to act in the government's interests by refusing access to potentially controversial or embarrassing documents.

We are still a long way from routine disclosure of information sought by applicants under freedom of information laws.

FOI Editor's investigative journalism rewarded

Congratulations to Matthew Moore FOI Editor of the Sydney Morning Herald and Malcolm Knox who were awarded the 2007 Human Rights Print Media Award for the series of articles Dead Men Working.

The series exposed exploitation of workers who were too afraid of being sacked or sent home to speak about abuses to which they were being subjected.

"The judges felt that the ....Award should go to this series because it exemplified the contribution the print media can make to better awareness and protection of human rights in Australia. In writing these articles the journalists contributed to government action and increase in public demand for, the introduction of reforms to the temporary visa system that would better protect the rights of al people coming to Australia".

The full list of winners is here.

WA privacy and FOI bills "debated" and onto next stage

The Western Australian Information Privacy Bill, and Freedom of Information (Amendment) Bill, which have been sitting on the Notice Paper since March have made progress, both passing the Legislative Assembly, and now await action by the Legislative Council.

The standard of parliamentary debate on any subject varies enormously, but debate on these two bills was, to be polite, "ordinary". The speakers on the Information Privacy Bill (including on occasion the Attorney General who had introduced it) seemed to be scratching around for questions and answers. (The debate is in Legislative Assembly Hansard 27 November. Pages are not numbered. You can find it by reference to time.The debate commenced at 8.34pm and concluded at 10.22pm).

Throughout the almost two hours, no one mentioned the Australian Law Reform Commission inquiry into Australian privacy laws, and the many questions raised in the course of its work since early 2006 about the Federal and other state privacy laws that provide the model for WA. The WA bill will apply to the public and private sector in the handling of health information. The ALRC has pointed out that state laws of this kind overlap the Federal Privacy Act and are one of the causes of complexity and confusion that should be eliminated.

Having waited years for the WA Government to act on an election commitment to introduce privacy laws, it might have been sensible to hold off on this until the ALRC reports in March 2008.

The main point of debate about the Freedom of Information (Amendment) Bill was about the Government's proposal to remove the authority to decide whether a document is exempt from the Information Commissioner and give it to the state Administrative Tribunal. (The debate is in Legislative Assembly Hansard 28 November - in 2 tranches: 3.12pm to 4.03pm and 7.04pm to 7.48pm).

The Opposition took this issue up strongly, pointing out that it ran counter to the views of experts including Rick Snell of the University of Tasmania. The Attorney General said that Snell and others had been consulted about the proposal, but said the critics had wrongly assumed that the state Tribunal would be as legalistic as the Federal Administrative Appeals Tribunal.

I think time will prove the critics right. An Information Commissioner, properly resourced and with statutory clout, has every chance to provide speedy resolution of FOI matters, while the experience everywhere is that tribunals tend to be dominated by lawyers, and prove slow, costly and conservative in the interpretation and application of the law.

It's a stretch to label what transpired in the Assembly after the dinner break (in the 7.04pm - 7.48pm timeslot) as "debate". Those interested in whether WA is getting value for money from its politicians might read this and weep.

What's this - budget papers anyone could understand?

Most people who have ever tried to make much sense of the Federal Budget papers since the introduction of outputs/outcomes budgeting, will agree with the Minister for Finance Lindsay Tanner, that the details provided of what a Federal agency is going to spend our money on, is impenetrable. The Minister, in the course of an interview on Radio National's The National Interest:

"....(I)f you read... the portfolio budget statements... it's very difficult to connect them with the wider budget papers, it's very difficult to connect them with annual reports, and there is all kinds of basic information that a lot of people in the media - the community whatever - are entitled to have, which is just not accessible"

The Minister said he had asked retiring Democrat Senator Andrew Murray, who has a long standing interest in this issue, "to act as a bit of an auditor on these issues for us".

Senator Murray (whose credentials also include a detailed knowledge of Freedom of Information matters) will continue in the Senate until next July. In the course of a debate in the Senate in September, he expressed strong views about the need for greater disclosure of financial management issues, including removal of some discretionary authority of public service chiefs, and greater parliamentary oversight.

How things change, and it's not yet two weeks

"Transparency and accountability" were a leifmotif this week in Canberra. In so many ways, this government is using these issues to make it very clear that we have a new government with a different perspective. It beats walking around with a sign saying "We are not the Howard Government", and it's just as effective.

Special Minister of State, John Faulkner, said the Government would look at getting rid of the Howard Government $10,000 threshold for anonymous political donations.

"It's all about transparency in the political process. If you have a massive increase to the threshold (from $1500 to $10,000 in legislation passed by Parliament last year), the public has no knowledge of those donations at all. They remain secret. Our party has consistently argued that we oppose those increases in the disclosure threshold".

Of course the new Independent Senator Elect Xenophon was right to say that we need to do something more than this with regard to political donations. Xenophon says that political parties that take the available public funding should be subject to restrictions on private donations. And more immediate public disclosure of campaign donations is needed in this day and age. Information is only publicly available following annual returns lodged by political parties. Surely we should expect notification to the Electoral Commission and publication within weeks, particularly donations made during the course of the election campaign.

In the Ministerial Code of Conduct released yesterday, the Prime Minister has set high standards for ministers. (The boffins are obviously struggling at the moment - the Department of Prime Minister and Cabinet website as at the time of posting, hasn't managed to list anything about the Code). However, back to ministerial standards:

"The Australian people are entitled to expect the highest standards of behaviour from their elected representatives in general and ministers in particular".

The Code spells out requirements for disclosure of interests, and puts limits on post separation employment for ministers. It's still a bit hazy on a couple of issues such as ministerial advisers and whether they answer to parliament.

However the Government is to introduce an online public register listing lobbyists and who they represent, with an update every six months. Registration will be a prerequisite for contact with the Government. Again a query, why shouldn't we expect notification of new clients immediately? And who is a lobbyist for this purpose?

At least it's a start, although a long way short of best practice - here are a few thoughts from Marian Wilkinson earlier in the year.

As mentioned here previously, WA has a register, Victoria has talked about it, and surprise, surprise, NSW thinks it would be "too hard".

Victorian Government loses battle over big dollar project reports

This report in The Age provides a summary of a Victorian Court of Appeal decision that progress reports on major projects, prepared by government agencies to provide the basis for a subsequent report to a Cabinet Committee, are not exempt from disclosure under the Freedom of Information Act. The decision comes two and a half years after the documents were sought by the Deputy Leader of the Opposition.

In Secretary, Department of Infrastructure v Asher (2007) VSCA272, the Court dismissed the agency's appeal from a Civil and Administrative Tribunal decision that the documents did not qualify as Cabinet documents. The documents had not been prepared for submission to Cabinet, and would not disclose any deliberation or decision of Cabinet.

The Court found that even though the information contained in the departmental reports ended up in a submission to the Cabinet Expenditure Review Committee, and the evidence was that the matter was discussed by the Committee, the documents would not disclose any deliberation by ministers in the Cabinet room, or what was decided by them.

Importantly, the decision also gives weight to the objects of the Act and the description in Section 3 of exemptions as those "necessary for the protection of essential public interests".

Justice Buchanan (at 7) commented:

"I can readily understand that it is necessary for the protection of an essential public interest to prevent the disclosure of documents revealing views expressed by members of Cabinet as to a matter and the manner in which Cabinet treats and uses information placed before it. I am unable to see, however, that the disclosure of a document placed before Cabinet, without any indication that Cabinet even read the document, let alone how Cabinet dealt with the document, could jeopardise any public interest".

Today Reserve Bank, tomorrow who knows?

The announcement that the Reserve Bank will release minutes of board meetings, and a statement on its decisions including when there has been no change in interest rates, is another sign of changing times. It comes after a decade of discussion and debate about the issue with the Bank until now firmly against disclosure.

A Freedom of Information request in 2004 resulted in the issue of a conclusive certificate by the former Treasurer to exempt minutes on grounds that disclosure would be contrary to the public interest.

As the Australian Financial Review in an editorial today reminds us

"The changing of the guard in Canberra gives government and statutory agencies some breathing space for some overdue renovations".

Where this might take us who knows?

However the release this week of the United States National Intelligence Estimate on Iran's nuclear intentions and capabilities, is another reminder of scope for a more mature view about the benefits of transparency. The Estimate, based on the views of the US Intelligence community is that Iran abandoned its nuclear program some years ago. Although it acknowledges that Iran may have plans for the future, these findings have put the President on the back foot given his statements about Iran and nuclear weapons over the last few years.

Why was the report released? Here is an extract from the statement issued by the Principal Deputy Director:

"The decision to release unclassified conclusions from any NIE is based upon weighing the importance of the information to open discussions about our national security against the necessity to protect classified information and the sources and methods used to collect intelligence......The decision to release (this Estimate) was made when it was determined that doing so was in the interest of our nation's security. The Intelligence Community is on the record with numerous statements based on our 2005 assessment of Iran. Since our understanding or Iran's capabilities has changed, we thought it was important to release this information to ensure an accurate presentation is available".

Something our own Office of National Assessments (and other agencies) might aspire to.

FOI (and privacy) a responsibility of the Prime Minister

The new Administrative Arrangements Order that sets out responsibilities of federal government departments, and acts administered by ministers, issued after the appointment of the Rudd Government yesterday, lists privacy and freedom of information as matters for the Department of Prime Minister and Cabinet, and Prime Minister as the minister responsible for the Privacy Act and the Freedom of Information Act. (See page 33 of the Order PDF 184 KB )

The detail of how this all works out with the Special Minister of State, Senator Faulkner, remains to be seen. What is clear is that it should ensure a new and different perspective is brought to bear.

Both these functions have since inception been part of the Attorney General's portfolio. There is a chance at least that they will now be seen as matters of public management. FOI in particular has suffered in the Federal (and most state) jurisdictions because it has been primarily seen as a matter of administrative law. Lawyers have a role in all this but policy about how to make government more open and accountable and how to create and implement an FOI Act to achieve this purpose shouldn't be dominated by legal advice or lawyer considerations.

In NSW, this was recognised from the start, with Nick Greiner the then Premier, ensuring responsibility for FOI rested with him and his department. It gave FOI a good start, although legal perspectives almost inevitably soon emerged and assumed prime importance pretty quickly. There has also been a failure of leadership ever since to ensure that FOI acheives its objectives.

I'm sure Senator Faulkner recognises the opportunities and dangers in all this.

Privacy law reform - pushing uphill with a sharp stick

In this article in the Australian Financial Review "Kirby urges net privacy law overhaul", High Court judge Michael Kirby and federal privacy commissioner Karen Curtis have called for an overhaul of laws governing the internet and information technology, warning that the present regulatory framework has been overtaken by the rise of internet powerhouses like Google, Facebook and eBay.

The Australian Law Reform Commission is examining Australia's privacy laws - long out of date and designed before the arrival of these social networking sites.

As everyone has been warned, what goes up on the net is hard to retrieve. Some bright young things, happy to disclose all to their 'friends' may live to regret what a Google search might show when they seek a position in the work force in 10 or 15 years time.

NSW Premier's faith in FOI improvement misplaced

Two months ago, the Independent Member for Sydney, Clover Moore, asked the Premier about poor FOI performance in NSW, the Government's reaction to repeated calls by the Ombudsman for review of the NSW Freedom of Information Act, and what the Government planned to do to increase the release of information.

A month ago, the Premier responded by saying that the head of his department would meet the Ombudsman to discuss concerns about the Act. He continued:

"The recent release of the new FOI Manual is a further step in helping to improve decision making in this area.... The manual ensures that all agencies are fully aware of their obligations and, particularly in relation to exemptions, that they apply the Act".

I'm sure the Premier wouldn't consciously mislead the Parliament, but in making this claim he is way off the mark.

The manual, work on which commenced nine years ago, and which is the first guidance issued by the NSW Government on the interpretation and application of the Act in 13 years, will in many respects add to confusion and uncertainty. Rather than improve decision making, it is likely to have the opposite effect.

Even more disappointing than the lack of clear guidance particularly on key exemptions in the Act, is the Government's failure to provide leadership on the importance of FOI and open government principles. The Premier distributed the manual with a memorandum (M2007-11) to ministers asking them to pass it on to staff and agencies in their portfolios.

That was about it - not a word that positions FOI as an important issue in the broader context of accountability and transparency in the conduct of public functions. Public servants are good at reading between the lines. This will be interpreted as 'wink, wink', nothings changed. Saying nothing about these matters conveys an important message from the highest level of government.

The manual (all 376 pages - see FOI Manual 2007) and my comments (having spent close to 20 years working around these issues) are contained in this review .

If the Premier sees the manual as the only required step forward in NSW he is way out of line with the new Federal Government and Labor colleagues in Queensland, Victoria and Western Australia, where significant change is in the air.

Further information on Victorian FOI amendments

The Victorian Freedom of Information Amendment Bill and the Second Reading Speech of the Attorney General still don't provide the detail of what the government proposes in terms of proactive disclosure of government information on the web. The Bill (Clause 4) would require the Attorney General to issue standards about information to be published, so we will have to wait and see what is required. It hardly sounds like a breakthrough however when the Explanatory Memorandum says that examples of the kind of information that a standard may require an agency to publish include a description of its structure and functions, the services it provides, when it's open for business and what legislation is relevant to its operations.

Let's hope the Attorney General in developing the standards is a bit more far sighted and pushes the envelope further than whoever dreamed up these unremarkable examples.

Another aspect of the amendments is that the FOI Act exemption relating to personal privacy will see the term 'information concerning personal affairs' replaced with 'personal information', the same term used in privacy legislation.

I'm all for consistency of this kind but one potential problem is that the definition of personal information is broad enough to cover any information about a public servant, minister or other public office holder. It should be made clear that information about the conduct of public functions isn't personal information for FOI purposes.

Victoria isn't following the example of Western Australia where the FOI Act (schedule 1 clause 3) exempts personal information subject to a number of exceptions including where disclosure would reveal information about an officer of an agency and things done in the course of performing official functions.

Another amendment (clause 20) would enable an agency or a minister to apply to the Victorian Civil and Administrative Tribunal for an order declaring a person to be a vexatious applicant. The Attorney General's consent to the application is required. The Tribunal will have power to declare someone vexatious where satisfied that over a period of time the person has made repeated FOI requests or applications which abuse the rights of access. Where an order is issued conditions can be imposed on the making of further FOI applications.

Thanks to a Victorian reader for the links.

Great new bold move on the FOI front

In suggesting yesterday that Kevin Rudd would need some input on culture change and FOI reform from some source uncluttered by past 'closed government' experience, I couldn't have thought of anyone better than Senator John Faulkner, the new Special Minister of State and Cabinet Secretary.

At the Prime Minister-Elect's media conference today he announced that Senator Faulkner would have responsibility, among others, for the integrity functions within government, particularly freedom of information reforms.

Senator Faulkner has spent years on Senate Estimates committees listening to explanations about why even the Senate couldn't be given details about the performance of government functions. He knows the public service well, and the tricks of the trade.

This appointment will give some real meaning to the Government's commitment to change. Congratulations.

Era over with changing of the guard

Honesty, decency, openness and transparency are concepts that are getting a strong run in the discussion about departure of the Howard government and the arrival of Kevin Rudd.

Ross Gittins in "A vote for honesty and decency" in today's Sydney Morning Herald"

I believe standards of honesty and decency fell under Howard. They were hardly very high under his Labor predecessors, but they declined further under a man who, to all outward appearance, radiated respectability. He was a tricky man, leaving you with a certain impression but then later protesting that you had failed to read his lawyerly words carefully enough.

How many times were we misled? There were the non-core promises, the children overboard, the Tampa (which, for all Howard's ministers knew, may have been carrying terrorists), the weapons of mass destruction and the probably illegal invasion of Iraq, the AWB scandal (which no minister had any knowledge of) and the promise to keep interest rates at record lows.

Howard was never told and so was never responsible. The buck always stopped elsewhere. As to decency, we had the brutal treatment of asylum seekers, the trampling of the legal rights of David Hicks and others, the shameful treatment of Dr Mohamed Haneef.

The Howard Government ruled by fear and behind-the-scenes bullying of bureaucrats, journalists, business economists and business people. It raised the abuse of incumbency to new heights, especially taxpayer-funded market research and political advertising.

Alan Mitchell in "All eyes on public scrutiny" (no link available) in today's Australian Financial Review:

..it is good to have washed away the stench of the AWB scandal, the Immigration Department's thuggish incompetence, and all the rest of the Howard government's tackiness. Kevin Rudd and his government brimming with enthusiasm for open, decent and accountable government.

Labor is committed to implementing law reform commission's 1996 recommendations to strengthen the federal FOI law. It also promises to protect whistleblowers and "drive a culture shift across the bureaucracy to promote a pro-disclosure culture".

It is that last promise that will be the most difficult and most important. And it is Rudd who'll have to do the driving. Only when he has shown repeatedly his commitment to openness, despite the short-term political costs, will ministers and public servants start to change their behaviour in ways that increase the life exptency of his government.

It is difficult but surely not impossible".

I would just add that in order to get there the new PM should be taking advice, not just from the secretaries of the Department of Prime Minister and Cabinet and the Treasury, and from those in the Attorney General's Department who have a tendency to see these issues through a legal prism. A broader perspective, uncluttered by involvement in the closed government Howard era, will be necessary if this sort of change agenda is to be achieved.

Rudd serious about encouraging a culture of disclosure

This is starting to sound serious.

There's Kerry O'Brien on the ABC 7.30 Report, chatting away with the Prime Minister-Elect about a range of issues including the need to review standards for accountability, when out of the blue Kevin Rudd takes the conversation in the direction of Freedom of Information reform:

KEVIN RUDD: ...I'm determined that we can actually do better with some decency in the standards of government.

I also know, it's very easy to say those things before an election, then you become a government and you think well it's all a bit difficult now. But let me just give you one core example. I'm determined to do something about freedom of information. This is notoriously seen as something that executive governments don't like because it causes information to go out which might be embarrassing. I'd like to, by contrast, encourage a culture of disclosure within government departments.

I'm determined that we can actually do better with some decency in the standards of government.

I also know, it's very easy to say those things before an election, then you become a government and you think well it's all a bit difficult now. But let me just give you one core example. I'm determined to do something about freedom of information. This is notoriously seen as something that executive governments don't like because it causes information to go out which might be embarrassing. I'd like to, by contrast, encourage a culture of disclosure within government departments.

KERRY O'BRIEN: That of course can turn around very quickly to bite you and others have made promises like that and then recanted when they've seen how much potential it has to hurt.

KEVIN RUDD: I understand that but a lot of the bite is in the shock value of a leaked document which every newspaper editor salivates for and not to mention people who present programs like yours.

KERRY O'BRIEN: We'll take what we can get but there's been pretty slim pickings in recent decades, not just years.

KEVIN RUDD: I'm not being unrealistic about this but if there is information in government departments which is not critical to the decision making process, then ..

KERRY O'BRIEN: Then it gets down to people's definitions of what's critical to the process.

KEVIN RUDD: That's true but that parameter has been written very narrowly in recent times and I just think there is a body of information in the political domain which can be put out there into the public.

Wisdom from international conference in NZ

As the Rudd Government starts to get feet under the desk, an important meeting of information commissioners and other interested in the issue of access to government information gets under way in New Zealand. There are about 180 attendees and the program promises to provide some valuable insights into thinking about how to make freedom of information laws more effective.

Some papers and abstracts are available on the program page (including a paper by Megan Carter, an Australian FOI consultant"FOI with Bite: Recipes for Openness see here). The Day three discussion 'Policy advice and politically sensitive requests', is of particular relevance given some of the recent controversy over this type of information in Australia. The Commonwealth Ombudsman ('Design of effective oversight bodies') and Deputy Victorian Ombudsman ('Investigations into systemic FOI problems') also spoke on Day three.

Professor Alasdair Roberts of Syracuse University, in the US is regarded as one of the leading authorities on the subject. On the eve of the conference Roberts commented that while 70 countries now have FOI laws, few if any, have their laws working successfully: "the adoption of a law is one thing but making it work is another, these laws are complicated devices and need a lot of care and attention to work properly". Roberts said that privatisation has moved many organisations that continue to conduct public functions, outside the scope of FOI law.

Roberts says that we need better research of how well FOI works in practice, who uses FOI, and what they do with the information when they get it. The full text of Roberts paper at the conference is available on the Day two program page.

Another event to coincide with the conference is the publication of a new book by Nicola White "Free and Frank" about FOI in New Zealand. NZ is often held up as an example of a system where FOI works much more effectively than in Australia. However in this article in the New Zealand Herald, White comments that a high degree of cynicism marks the relationship between those who make, and those who deal with, documents that may have political impact. "Those making requests felt it was being abused in terms of information that was not being released, for which there was no effective sanction. Those in government saw manipulation by the Opposition bogging them down with fishing expeditions". In a comment in last week's Australian news that the (then) federal government had won a legal battle to avoid disclosure of policy options regarding WorkChoices, White said such a legal fight would be unnecessary in New Zealand where Cabinet documents were available as a matter of course after decisions were made.

White suggests that steps should be taken to avoid a weekly contest about what should and shouldn't be released and the resulting cynicism. More explicit rules are needed about what must or may not be released.

There should be plenty of food for thought for Australian governments from these comments and other observations made during the rest of the week in Wellington.

New PM needs to set 'tone at the top'

While Prime Minister elect Rudd is involved this week in discussions with the Secretary of the Prime Minister's Department about how to move forward with the agenda, he should have a word with Dr. Shergold about how the new government is committed to greater transparency.

He should tell Dr. Shergold to stop pursuing fanciful arguments about the need for secrecy in government of the kind advanced by him in McKinnon and Secretary Department of Prime Minister and Cabinet (2007) AATA1969 . In that case a number of claims by Dr. Shergold that documents concerning government deliberations should not be disclosed on public interest grounds were rejected by the Deputy President of the Tribunal - that disclosure would reveal deliberations of senior public servants, would mean that proper records would not be created, and that frank and candid advice would not be offered.

He might also ensure that Dr. Ken Henry, Secretary of the Treasury, who is on the public record as saying that FOI is the cause of advice not being always committed to paper, is made aware of the views of the Deputy President of the Administrative Decisions Tribunal that public servants have a duty to record advice to ministers. Dr. Henry told the Canberra Times in January 2006, that FOI requests which he judged were "motivated by desire to either embarrass the Government and Treasurer or the Department" meant that communication on sensitive policy issues was likely to be verbal rather than committed to paper.

The next few weeks and months will be crucial to any new government attempt to get the public service sorted about the importance of openness and transparency.

Message for Howard: it's more than the economy stupid!

What a difference a day makes.

The Federal election yesterday in which the Labor Party has swept to power means that what John Howard had to say about anything has been rendered irrelevant with immediate effect.

So it doesn't matter that he failed to make any positive commitment during the campaign to greater transparency and accountability in government, or to freedom of information reform. Howard's party has not only lost government, but Howard himself almost certainly has lost his seat in Parliament.

It doesn't matter either that Peter Costello had 'form' as the minister prepared to argue that freedom of information laws were primarily designed to enable individuals to gain access to information about themselves. Or that he got that wrong, because FOI is essentially about public rights to access information about government's conduct of public functions.

Costello today has announced he won't be a candidate for leader of his party in opposition. He is now effectively a lame duck, as he has plans to pursue a career in commerce at the end of his three year term.

What does matter is that Kevin Rudd and the Labor Party have made commitments to improve Freedom of Information laws, introduce whistleblower protections that work, and ensure executive government is accountable to the Parliament and the public.

The PM elect has emphasised that he plans to govern for all of us. These commitments need to be acted upon promptly.

Still skinny on the details of Victorian FOI reforms

Here is the Victorian Premier's media release regarding the Freedom of Information reforms. The Bill for changes to the Act has not yet appeared (hope this doesn't foretell the new 'open government era'). The key issue will be just how much plans to provide "easier, cheaper access to a lot more information" on the web, actually achieve this result. The proposed changes to the FOI Act are welcome, but minor in the scheme of things. Abolishing certificates that render cabinet documents exempt and eliminating application fees (but not processing charges) are things that could be emulated elsewhere.

As for extending the time for dealing with a request to a maximum of 75 days FOI, the government is taking 'horse and buggy' baggage into the internet era.

Improved accountability: Rudd commits, PM silent

The transcript of Kevin Rudd's Q and A following his National Press Club address is here, courtesy of Margot Kingston's webdiary. The commitments include an undertaking for a minister to hold a general press conference following each Cabinet meeting, improved accountability and review processes in the Senate, FOI reform, and ensuring ministerial staff are held to account for any involvement in executive responsibilities such as the allocation of government grants.

Accountability issues don't appear to have had a mention in the Prime Minister's Press Club address today. Or, more's the pity, to have been raised by journalists in questions afterwards. Whatever happened to the follow up to the Prime Minister's comment early in the campaign (23 October to be precise) that more would be said about Freedom of Information "later in the campaign"?

With a day to go, this one looks as if it has slipped under the bar.

Rudd says secrecy days are over!

Well the proof of the pudding will only be seen if the ALP is elected on Saturday but Mr. Rudd is leaving a trail of positive intentions that will be hard to renege on, including this commitment to the National Press Club today: "I'll end secrecy: Rudd". He must have made these comments in response to questions as the half hour speech (available on the video link here) doesn't address these issues.

Victoria to scrap FOI fee and conclusive certificates but...

The Herald Sun reports that the Victorian Government has announced details of reforms to Freedom of Information legislation including the abolition of an application fee and withdrawal of powers to issue conclusive certificates (which may have never been used). But it will be a couple of steps forward and a big retrograde move if, as reported government departments are to be given an extra 30 days to process applications.

Victoria already has the longest Australian statutory time frame for dealing with FOI applications - 45 days. NSW is at the other end of the spectrum - 21 days plus 14 days in specified circumstances.

Where is the efficiency dividend for FOI applicants from the millions that have been spent on government IT if an agency in Victoria has 75 days to respond to an application?

FOI knock back for WorkChoices documents has campaign hares running

A decision yesterday by the Federal Administrative Appeals Tribunal upholding a government decision to refuse access to documents concerning WorkChoices, has received widespread publicity, including this article in The Age.

The case brought by Michael McKinnon, FOI Editor for Channel 7, was another attempt to test the issue of review rights once a conclusive certificate about a document has been issued under the Federal FOI Act.

The application for these documents was made two and a half years ago!

The decision has become a hot potato for the government today with the suggestion that it is seeking to hide plans for further changes to industrial relations laws, if elected on Saturday. The Prime Minister says no more workplace changes are planned. Adding to the intrigue was the fact that the publicly released Tribunal decision was edited, presumably to avoid disclosure of the information found to be exempt.

The decision hasn't yet been posted on the web, but I am wading through the 78 pages and will offer a comment soon.

Busy time for FOI decisions - after 24 November

There may be quite a backlog of Freedom of Information applications to be decided after the election on 24 November.........

The Age ("PM-Brethren letters held until after poll") reports on a 14 month attempt to obtain correspondence between the Prime Minister and the Exclusive Brethren since 2003.

An FOI request for correspondence in 2005 by Greens leader, Bob Brown, turned up nothing, even though three documents have now been identified - the PM's spokeswoman said that Senator Brown had "had not named the correct members of the Brethren who wrote the correspondence". Give us a break!

The most recent delay for this later application by The Age, that has extended the date for release of documents until 13 December, appears to be because of the need to allow third parties, presumably the Brethren and individuals named in the letters to seek review of the decision to release some documents. Third parties under the Act have a right to review if they object to disclosure of personal or business affairs information on the grounds that what is to be disclosed is exempt.

Two FOI applications - same old story....

Two media reports over the last week illustrate the highly defensive attitude within federal government agencies when Freedom of Information requests seek access to documents that contain information that could give rise to some controversy. If any confirmation was needed, they show the Federal FOI Act, and the way it is administered, is not achieving the objective of facilitating scrutiny of government.

In "Can we get back to you on that (after the election)?" in The Age, Peter Mares, the host of ABC Radio National's 'The National Interest', recounts an attempt to obtain access to research undertaken that provided the basis for the Federal Government's NetAlert program. Mares wanted more information about a Government claim that "over half of 11- 15 year olds surveyed who chat online are contacted by strangers". This information was included in a four page summary of the survey. What Mares was after was the research itself - information that went to the heart of the justification for a government decision to spend $22million on the program.

Mares asked the minister herself during an interview whether the report would be released, then tried to follow up with the minister's office and relevant government agencies, only to get the run around. In response to an FOI application, he has now been told that the deadline for a response has been extended to 60 days (5 days after the election), and that his request for a reduction in fees on public interest grounds has been rejected because he can't guarantee that the information will be brought to the attention of the public. As Mares points out, it's a bit hard to meet this criteria when he hasn't seen the document.

In "And now for page after page of fatuous excuses" in the Sydney Morning Herald, Matthew Moore details a decision to refuse access to assessments of the outcomes of 28 of the 80 shared responsibility agreements entered into by the Federal Government and indigenous communities in which both sides must fulfill agreed obligations. The 12 page determination includes detail of the many exemptions relied on to justify the decision to refuse access which Moore summarises succinctly as "fatuous nonsense". He acknowledge that there might be good grounds to exempt some parts of some documents but to refuse access to every line of every report "defies credibility".

Noise getting louder - pollies listening?

Not a peep out of our political leaders so far on how they will do something to improve ministerial accountability and transparency in government.

However more voices have been heard calling for change. In "Culture of secrecy serves itself, not us", Spencer Zifcak of La Trobe University and Victor Perton, former education spokesman for the Victorian Liberal Party, echo two former Prime Ministers in pointing out that our accountability systems are way behind comparable countries; that a culture of openness needs to permeate FOI administration; and the conclusive certificates should be abolished.

Major parties fail grades on privacy

The Australian Privacy Foundation has published the results of its election challenge - a series of questions put to the parties on privacy issues. The Major Parties Fail the Privacy Test

The Coalition scored 1.5 out of 10, with Labor not far behind 4.5 out of 10. The Greens and Democrats did well.

The big negative for both the major parties was their support for "grossly privacy intrusive counter terrorism measures".

"Harmful" unclassified information??

Two memoranda issued to ministers by the NSW Premier Morris Iemma, indirectly raise access to information issues.

Premier's Memorandum (M2007-13) 'Release of NSW Government Security Sensitive Information to Third Parties' alerts ministers and the public service to the dangers of inappropriate release of information relating to critical infrastructure or counter terrorism arrangements. Fair enough. It provides some guidance about the need to classify this type of information. However it goes on to say that unclassified information may also be considered security sensitive in a number of circumstances including where "through unauthorised or inappropriate disclosure or misuse it may cause harm to a government department.....".

But what constitutes "harm" to a government agency? No further guidance is offered. While danger to security is one thing, "harm" is another broader concept. In the minds of some, it's open to very broad interpretation and could cover a whole range of circumstances where disclosure might simply be inconvenient or even embarrassing.

On another tack, is access to government information an element of government service delivery? It would be nice to think that every NSW government agency sees things this way.

If so Premier's Memorandum (M2007-18) 'Customer Satisfaction State Plan Commitment - S8' should mean that it becomes a top priority for chief executives to give some thought to public satisfaction with arrangements for access to government information, including the need for compliance with best practice standards in managing Freedom of Information applications as well.

Privacy and the right to know

David Salter in The Australian writes about the media and its failings, particularly what he regards as the self interest behind the Australia's Right to Know initiative. While the coalition can speak for itself, he's a bit wide of the mark in asserting that it has been "conspicuously silent on a balancing right to privacy".

The Independent Audit Report State of free speech in Australia (Chapter 9) discusses privacy and defamation. It states that in some circumstances the right to know must yield to the right to privacy. Where the line should be drawn is an issue of current public debate, spurred by the Australian Law Reform Commission review of Australia's privacy laws.

$50,000 to find out how taxpayers money spent

The Canberra Times has a couple of interesting articles about the production of 'Cheat sheets' that provide an electorate by electorate picture of government spending. The documents were prepared by the public service before the election was called but are now being used for a variety of political purposes during the course of the campaign. They are available, courtesy of the minister, to government backbenchers running for re-election and no doubt pretty handy for those involved.

But a request to obtain them under Freedom of Information, surprise surprise, has been met by a request by four departments for $50,000. This is simply the public service applying the rules, according to Joe Hockey Minister for Employment and Industrial Relations:

"ministers are entirely removed from the Freedom of Information process and are not responsible for departments' decisions".

In this editorial the Canberra Times acknowledges that those involved in the work associated with the production of this type of material may not have broken any law, but on the eve of an election, no one should have been in any doubt that it would be used for political purposes. They are apparently being used, with other information, in targeted direct mail designed to bring to selected voters spending initiatives that could be of particular interests to them.

Cost and other barriers will mean that the 'cheat sheets' aren't publicly available or even available to non government candidates, until after the election.

The public right to know...... losers again!

Media management on the campaign trail

Michael Gawenda is a former Editor in Chief of The Age and former Washington correspondent for The Age and the Sydney Morning Herald. In "The last road trip" he reports on travelling with the leaders during the election campaign and the steps taken by them to avoid detailed questioning and real contact with the voters. Gawenda says that the controlled campaigning has led the main political journalists to give up travelling with the Prime Minister. The Prime Minister complained last week that the media heavyweights weren't 'out there on the job' following his every move. As another experienced and highly respected journalist Michelle Grattan commented, there is no point. It's not much different on the Rudd campaign trail.

Gawenda contrasts the cosseting of the leaders here with the US, where the candidates for the Democratic and Republican Presidential nominations "will have talked to tens of thousands, perhaps hundreds of thousands, of Americans at rallies and public meetings...... They will have been tested in a dozen debates with their rivals for nomination. They will have stood on the back of flat-back trucks, megaphone in hand, and talked to anyone willing to listen".

All this is before the real campaign starts. Then it's more of the same including three debates organised by an independent body set up for this purpose.

Voting isn't compulsory in the US and that explains some of the difference between campaigning there and in Australia. But as Gawenda comments, American political campaigns are "decidedly old-fashioned and messy"; on the other hand no where else, at least not in any country that has pretensions of being a democracy, is there the level of media management of campaigns that we see in Australia.

There is a PhD in this for someone.

Annabel Crabb tells us what those who weren't with the PM on Tuesday last week missed:

"A brief exposure to the PM at 9.30am, when he visited an empty bus shelter in Bennelong to discuss federal funding for security cameras in his electorate.

Then a numbing three-hour wait in a holding pen at the Epping Club while Mr Howard nipped off and did his own thing, followed by a press conference in which he complained about the lack of attention he was getting, then an hour of watching him be kissed by Liberal ladies in ostrich hats at a Melbourne Cup lunch".

Exciting stuff indeed.

Access to information and accountability issues still running

If you are interested in keeping up with news and commentary arising from the Independent Audit Report on Freedom of Speech, a regular 'Google News' search or this site will give you most of the published articles.

In "Grand Viziers of the message" Jack Waterford in the Canberra Times commented that based on Kevin Rudd's Queensland experience, little change in the tight, highly controlled media management practices of the Federal Government are likely in the event of Labor success in the election. "Rudd, in short, will be giving us more of the same if with a slightly different flavour. The obsession about controlling information as well as the fantasy that by doing so one can control events, is a bipartisan problem getting steadily worse".

The "Great legal debate" between Attorney General Philip Ruddock and Shadow Attorney General, Senator Ludwig, included a commitment by the Attorney General to look at the report: "I have the utmost respect for Irene Moss. She is a personal friend who I know does a professional job". Senator Ludwig said Labor would act on Freedom of Information reform in its first term if elected. Richard Ackland's summary "Two arthritic wombats having a head butt" included this comment: "(I)t's not just the media which are being choked. The culture of concealment, as Ludwig called it, has constricted the air pipes of democratic accountability and allowed a lot of behind-the-scenes official nastiness".

Today former Prime Ministers Whitlam and Fraser lend their voices to calls for increased accountability and reform, noting that Freedom of Information laws have been undermined by conservative interpretation and application within government and by the courts and tribunals.

NSW Deputy Ombudsman tells home truths to lawyers

In a speech "FOI - the Need for Review" (CWS.pdf ) to government lawyers last week, Deputy NSW Ombudsman Chris Wheeler highlighted areas of concern about Freedom of Information:

• how the Act is being implemented by agencies
• the need for a review of the Act, including the need to address the conflict of interests inherent in FOI legislation and some options for dealing with repeat applications, and
• the Ombudman's experience in dealing with lawyers acting for agencies in relation to FOI.

The NSW rate of refusal of access compares unfavourably with other jurisdictions and apparently there has been a large increase in agency requests for additional payment of charges prior to processing applications.

Given recent commitments by the Queensland and Victorian governments to review FOI, major amendments proposed in WA, and the federal government decision to (again, 11 years after receiving 106 recommendations for change that have not been acted upon) refer FOI to the Australian Law Reform Commission, the Ombudsman has raised (again) with the Premier the need for review in NSW. No formal review has been undertaken since the Act commenced in 1989.

The Deputy Ombudsman comments on the tendency of lawyers advising government agencies to pay scant regard to the objects of the Act, and to slip into 'deny and defend' mode to justify refusal of access decisions based on a literal interpretation of exemption provisions.

Wide news coverage of Free Speech Audit.

There is further extensive coverage in the media today of the Audit Report on Free Speech. (See blog below). A google news search lists 56 articles.

The Australian includes "Flow of information blocked by government secrecy", "Shield law to protect journalists a sham", (Chris Merritt), "Judiciary must lift its act on gags", (Nicola Berkovic) and "Bureaucrats use word of mouth to avoid paper trail trap", (Paul Maley).

Matthew Ricketson in "Seen but going unheard" in The Age, identifies four central themes in the report - inadequate or inconsistent provision of information about the running of governments and courts; government secrecy about politically sensitive information; punitive targeting of whistleblowers and hypocritical approaches to leaks; and the use of public relations 'spin' at all levels of government and in the private sector. Ricketson says an equally important issue, not addressed in the report is the adequacy of accountability mechanisms for the news media and the secrecy surrounding some of its own practices.

Matthew Moore in "Over the first hurdle, now for the hard bit", suggests that the media organisations who advocate change, need to sign up for the long haul, put their hands in their pockets to provide ongoing funding, and bring others with an interest in these issues into the tent.

Independent Audit report released today

Regular readers will know that I have been involved for the last few months in an independent audit of free speech issues commissioned by Australia's Right to Know, a coalition of the major media organisations. The audit report was completed on 31 October and released today by the coalition. Here is the ABC News report and another from The Australian. I expect there will be plenty more in the next 24 hours.

The report identifies laws and practices that impact on freedom of speech, particularly the media, access to government information, and the public right to know.

Freedom of Information laws are not completely 'broke' as some claim, but are failing to hold government to account in the conduct of public functions. The problem won't be fixed by tinkering, as an enduring culture of secrecy remains in some areas of government, perhaps encouraged by secrecy provisions contained in 335 federal, state and territory laws. That's before you start counting other laws that restrict or limit access to information.

The report also analyses attempts by government to manage media relations through 'spin', whistleblower protection, shield laws for journalists, restrictions on information about the enforcement of anti terrorism laws, privacy and defamation, and the high incidence of suppression orders issued by the courts.

It isn't a pretty picture. Here is the full report (316 pages). State of free speech in Australia

Open government a risky business in Russia

Just to keep our own FOI problems in perspective......

In "The Defender of a Lesser-Known Guarantee in Russia" the New York Times last week told a story of Ivan Pavlov of the Institute for Information Freedom Development, who is trying to hold the Government to a constitutional right to non secret information.

Pavlov was bashed and hospitalised recently, apparently as a result of this work which includes trying to convince government agencies that information in their possession - manufacturing and sanitary standards, court records, licenses, fire codes, public tenders, administrative decrees, agency phone directories - should be publicly available. It's hardly revolutionary, but still a battle there.

Pavlov says that the main problem in Russia (apart from getting bashed for his trouble), in the 'new era' after the end of Soviet policies of secrecy is that information is withheld by government insiders who want to sell it, not give it away for free.

Thanks to Charles Davis of FOIA blog for the lead.

More information needed on ALP Information Policy

Analysis of the ALP's Information Policy Statement, yesterday by Matthew Moore in the Sydney Morning Herald, and today by Rick Snell in The Australian, concludes that not enough detail has been provided about the proposed changes and how they will work - the timeframe for action, what recommendations from the 1995 Australian Law Reform Commission Report will be implemented, steps to ensure the independence and clout of the Information Commissioner, etc. etc.

While Federal Labor sees merit in the Information Commissioner model, Labor in government in Western Australia has legislation before the Parliament that would remove their Commissioner's powers to undertake merits review of decisions to refuse access.

Then there is the question of resources.

The Prime Minister has foreshadowed a statement during the campaign of the Government's FOI reform plans.

The Attorney General and the Shadow Attorney General debate the legal issues on Tuesday at 9am at NSW State Parliament, so some of you may want to put aside the form guide for the Melbourne Cup for an hour or so and hear what they have to say.

Only three weeks to go folks........