FOI x DNA = justice squared

Now here's an FOI story to use anytime you run into any remaining sceptic about the importance of the law.

Roy Brown was in jail in New York for 15 years for a murder he didn't commit. He was released last Thursday, the latest of 192 prisoners released as result of DNA evidence that showed that someone else committed the crime.

According to the Innocence Project, Brown "armed only with a notebook, stamps and a copy of the state's Freedom of Information Law" identified the true perpetrator from a prison cell in Elmira New York. In 2003 he obtained under FOI laws details of all statements made to the Police in connection with the case, some of which had never been seen previously by him or his lawyer. Four of the newly discovered documents caused Brown to suspect the brother of a former boyfriend of the victim, and from there a chain of events led to DNA testing that proved Brown's innocence.

Several Australian universities are part of an Australian Innocence Network - do they or any others out there have Australian stories to match Brown's?

Thanks to the US FOI Advocate blog for the lead

Privacy NSW extends "temporary" exemptions until end of 2007

The Acting NSW Privacy Commissioner has renewed seven Directions that have the effect of exempting some or all public sector agencies from specified provisions of the Privacy and Personal Information Protection Act (What's New 11 January 2007 - the Directions are available at Exemptions).

These Directions, some made initially in July 2000 have regularly been rolled over since, with this latest announcement extending them until the end of this year.

As previously noted here, these exemptions (and others contained in Codes of Practice approved by the Attorney General) add to the complexity of privacy law in NSW. The result is that ascertaining what privacy principles apply to which government agency is difficult even for employees let alone members of the public.

It was probably inevitable that the Directions were extended until the end of 2007, given the fact that the laws are currently under review by the NSW Law Reform Commission.

However the Act (Section 41) requires the Commissioner to only make a Direction where satisfied that the public interest justifies departure from the privacy principles. For most of the Directions, there is nothing on the public record that provides the basis for the Commissioner's determination. One Direction - certain exchanges between public sector agencies - authorises departure from the privacy principles where the conduct is consistent with any agreement (formal or informal) between agencies that was in existence prior to the commencement of the Act on 1 July 2000.

While this might have been justified in 2000 to assist transition to compliance with the law, it's difficult to see why a blanket exemption of this kind, is necessary almost seven years after the Act commenced.

There is no publicly available information about what agreements exist, or why the public interest is served by continuation of the exemption for pre 2000 agreements, until the end of the year.

The NSW Law Reform Commission was asked by the Attorney General to undertake the review in April 2006. Its website nine months later contains no information about the review other than its terms of reference. It is working in conjunction with the Australian Law Reform Commission (now in the consultation phase on its published discussion paper), but more information about progress to date with the NSW review would be welcome.

Media spotlight finds Big Brother Awards

The Australian has now picked up on the Australian Privacy Foundation Big Brother Awards, a subject covered last week in a Dutch publication and mentioned in our blog item here yesterday.

There was also an important article in the Weekend Australian by Elizabeth Wynhausen about the significant and alarming encroachments on privacy in Australia in recent times.

Thanks to the ever watchful folk at PogoWasRight and Chronicles of Dissent for comments on our item yesterday.

Two local council ADT decisions of interest

Two ADT decisions involving local councils were handed down in January, one concerning FOI and the other relating to privacy.

In Hattch v Dubbo City Council (2007) NSWADT 4 the Tribunal found that statements provided by Council employees to Council officer in connection with a complaint by the FOI applicant against them concerning bullying and harassment, were exempt on grounds that disclosure would have a substantial adverse effect on the management of personnel (Clause 16(a)(iii) of Schedule 1 of the Act) - employees would no longer have confidence in the confidentiality of the grievance process if documents of this kind were disclosed. One interesting aspect of this case was that the Council was prepared to permit the applicant to view the file including these statements, but was not prepared to provide copies. The FOIA doesn't make a distinction between the exempt status of copies of documents, and the viewing of originals. The Tribunal didn't seem fussed - presumably it took the view that the Council had a discretion to make access available to the originals while denying access to copies.

WL v Randwick City Council NSWADT (2007) NSWADT 12 involved an application for review under the Privacy and Personal Information Protection Act. WL claimed that the taking of photographs of work being undertaken at his property by a Council inspector, and the forwarding of these photos together with a notice that included his name and address, to proprietors of the strata plan and the strata managers, was a breach of privacy principles.

The Tribunal found that the photographs of the premises did not include personal information as defined in the Act - they did not contain information or opinion about an individual.

The disclosure of the name and address of the owner was not a breach of privacy principles - the information was in the rates record of the Council which the Tribunal found to be a "publicly available publication" and thus not caught by the definition of personal information. In any event the Council had not breached the privacy disclosure principle as Section 12(6) of the Local Government Act justified disclosure in these circumstances, as did the Privacy Commissioner's Direction on the use of information for investigation purposes.

Although I don't disagree with the end result, the reasoning and evidence in this case is thin when compared to the detailed examination of the relationship between the Local Government Act and privacy legislation in NV v Randwick City Council (2005) NSWADT 45.

Gongs of another kind - Privacy Foundation Awards

The Australian Privacy Foundation has announced winners of its 2006 Big Brother Awards.

It was another sorry year for privacy, but perhaps we should take some comfort from the fact that the Foundation decided not to award the Lifetime Menace Award ("for a privacy invader with a long record of profound disregard for privacy") this year.

Australian banks collectively won the Greatest Corporate Invader Award for continuing to send personal information to the SWIFT messaging service in Belgium, even after confirmation that it was being provided to US national security agencies; Federal Justice Minister, Chris Ellison won the Worst Public Agency for Official Award for introducing legislation to counter money laundering and terrorism financing, while rejecting 66 of 96 recommendations in a Privacy Impact Assessment; Federal Minister for Human Services, Joe Hockey (since promoted to Workplace Relations), won the People's Choice Award for what one judge described as a "relentless campaign of disinformation and doublespeak surrounding the Access Card project"; and NSW Department of Health won the Most Invasive Technology Award for the introduction of HealtheLink electronic health record system with only an opt out for patients - the initial trials are with children and the elderly, the least likely to be in a position to object.

On a higher note: the Award for Best Privacy Guardian went to Lex Lasry QC and other Defense lawyers for refusing to submit to stringent personal security clearances by ASIO when representing terrorist suspects, and a Victorian public servant, Brent Carey of the Department of Justice, received an Honourable Mention as a result of a nomination by several public service colleagues for enthusiasm and dedication above and beyond the call of duty, in his role as whole-of-government privacy co-ordinator.

I haven't seen much Australian media coverage but of course it was picked up by the incredible monitors of privacy developments around the world at PogoWasRight as a result of this report in a Dutch technology publication.

FOI pioneer recognised in Australia Day Honours

Congratulations to Jack Waterford for the award of Member of the Order of Australia in the Australia Day Honours announced on Friday. Waterford, Editor and Editor in Chief of the Canberra Times since 1995, was honoured "for service to journalism, particularly as a commentator on national politics, the law, to raising debate on ethical issues and public sector accountability, and to the community in the area of indigenous affairs".

Waterford was a pioneering journalist in the 80's and 90's in using the Federal Freedom of Information Act to obtain previously unavailable information, and has continued to write and speak on FOI and government transparency issues.

NSW ADT to consider release of exempt documents

Three FOI decisions handed down by the NSW ADT during January are not conclusive. In all three cases, the Tribunal has called for submissions and set dates for consideration in the next few weeks concerning whether it should require disclosure of documents found to be exempt under the provisions of the FOI Act.

The NSW Supreme Court late last year (University of NSW v Gerard Michael McGuirk (2006) NSWSC 1362) found that the ADT had a discretion to order the release of an exempt document, reversing previous Tribunal decisions that it had no such powers.

These three cases - one before the Tribunal Appeal Panel - will be the first occasion where consideration of the relevant criteria for such an order is considered. It will be interesting to see how the Tribunal addresses the issue. In a major decision discussing these issues four years ago, Tribunal President Judge O'Connor took a very narrow view of the powers and the circumstances in which they should be exercised (Neary v The Treasurer NSW (2002) NSWADT 261).

It's likely that much will turn on the nature of the documents, and the exemptions claimed. The issue isn't whether the documents satisfy exemptions - its whether there are good reasons why the documents shouldn't be disclosed.

McGuirk v University of NSW (2007) NSWADTAP 1 concerns a memorandum of advice to the Vice Chancellor from an employed solicitor concerning legal proceedings for alleged breaches of the Protected Disclosures Act, and the legal professional privilege exemption.

Cianfrano v Attorney General's Department (2007) NSWADT 8 concerns documents relating to the preparation for, and participation in, two earlier FOI applications seeking access to documents from the Premier's Department, found to be exempt on legal professional privilege and business and personal affairs grounds. One important finding in this case was that NSW ADT proceedings were "adversarial" and documents prepared for use in FOI matters before the ADT could attract a privilege claim. This is contrary to a recent decision of the NSW Supreme Court (Ingot Capital Investmanets v Macquarie Equity Markets (2006) NSWSC 530) where it found that proceedings in the Federal Administrative Appeals Tribunal were not adversarial and documents prepared for use in that body were not subject to privilege.

McGuirk v The Cabinet Office (2007) NSWADT 9 concerns documents found to be exempt as Cabinet documents. This case will provide an interesting insight into government thinking about access to information. The documents concern a 1999 Government decision to introduce legislation that would amend other acts to permit the same person to occupy the positions of Ombudsman and Independent Commissioner Against Corruption.

This apparently was at the suggestion of Irene Moss, the then Ombudsman who was appointed ICAC Commissioner. The Government introduced legislation in the Legislative Assembly on 18 November 1999 but it was subsequently withdrawn apparently in the light of opposition in the Legislative Council. The Cabinet Office has satisfied the ADT that the documents attract the Cabinet document exemption but in the upcoming hearing that's not the issue. The question is whether these documents should be disclosed. Will the Cabinet Office be able to demonstrate harm to Government interests from disclosure of documents, now seven years old and concerning a matter that never proceeded? The documents in question include draft versions of the Bill, and communication between public servants about how to give effect to the government's wishes.

January hot FOI month in NSW ADT

Belying January's reputation for little action in the legal fraternity, the NSW ADT has so far this month handed down 7 FOI decisions and one privacy decision. Tribunal members were obviously keen to clean up some long standing matters - one decision (McGuirk v The Cabinet Office (2007) NSWADT 9) related to a matter heard 7 months ago.

Another decision is a clear illustration that the FOI and review processes available in NSW do not provide speedy resolution of requests for documents. There are plenty of examples on the record, but in Kiernan v NSW Police (2007) NSWADT 18, the process "worked" as follows:

• 10 January 2006 - FOI application lodged
• no determination made within required timeframe
• 2 February 2006 - application for internal review lodged
• no determination made within required timeframe
• 27 February 2006 - applicant lodges review application with ADT
• 12 April 2006 - ADT planning meeting - matter remitted to agency for determination
• 6 July 2006 - agency makes internal review determination
• 29 September 2006 - hearing on aspects of the request
• 16 January 2007 - ADT upholds the agency decision.

Judicial Member Pearson made no comment about the handling of the matter or any criticism of the agency.

Yet it is clear that the applicant took action to bring the matter to the Tribunal because of the agency's failure to comply with the legislated time frame for making a determination. The agency still took almost 2 months to make a determination after the Tribunal directed it to do so. This was 7 months after the application was lodged - the statutory timeframe is 21 days.

When provisions in an act that impose a statutory duty are ignored in this way, speedy complaint mechanisms need to be available.

And reviewers need to use whatever muscle they can to ensure agencies get the message and toe the statutory line. No comment in these circumstances doesn't assist the cause.

Asia flavour this week for privacy buffs

Attorney General Philip Ruddock has been in India, and raised concerns about privacy protection for personal information transferred there as a result of outsourcing decisions by Australian companies. Despite assurances from the services sector that self regulation is working, he's asked that Australian officials have a closer look.

Meanwhile in Canberra, the APEC Data Privacy meeting is underway this week with a public seminar followed by officials meetings later in the week. Don't be disappointed if you missed it - there's another one scheduled for Cairns in May.

Critics dominate national access card submissions

The National Access Card website has posted submissions received following release in December of the draft Human Services (Enhanced Service Delivery) Bill.

There are plenty of criticisms, including the decision to float the draft in December and close off the process in January - not exactly the best time of the year in Australia to encourage serious debate.

Issues raised in many submissions indicate that the Government has a long way to go in convincing privacy experts that they have nothing to worry about. Those who have the expertise and the time to examine the detail are pretty clear that the card, as foreshadowed in the draft Bill, is a national ID card in the making, despite Government claims to the contrary.

The Australian Privacy Foundation and others suggest that the piece-meal approach reflected in the draft's failure to address a range of important issues, means that there is serious doubt about the Government's interest in ascertaining public views, and what is to be gained from engaging in further consultative processes.

Search for gold in 10 year old Cabinet documents

I'm back and resuming normal coverage after our series of summer blogs, mostly written from Washington DC.

Rick Snell's column in last Thursday's Sydney Morning Herald "Open-and-shut case of Tasmanian devilry", recounted his experience in seeking access to Tasmanian Cabinet documents that are now 10 years old. We mentioned this important break through in an earlier blog at the time Rick overcame attempts to claim the documents were exempt.

It doesn't appear to be widely known that the NSW FOI Act includes a similar provision to that contained in the Tasmanian Act - in NSW a document created after 1 July 1990, cannot 10 years later attract the Cabinet document exemption, although such a document could still be claimed exempt on other grounds.

There has been nothing on the public record to indicate that anyone has sought access to documents that would reveal NSW Cabinet processes for the period 1 July 1990 to January 1997, none of which can now be claimed to be exempt under the Cabinet document exemption in Clause 1 Schedule 1 of the Act - see Acts In Force - Freedom of Information.

As Rick Snell points out, these types of documents should be of interest at least to those involved in the study of government decision making. And of course the 1995-1996 documents would cover the first couple of years of the Carr Labor Government's term, making them of some potential contemporary relevance.

FOI Manual "at the printers"

Summer blog

I'm still in the USA (until the week end) but understand that my office has had a phone call from the Premier's Department following my post on the failure to produce an updated version of the FOI Procedures Manual by the end of 2006, to say that the Manual is with the printers.

This is welcome news - keep those printing presses rolling.

Mr. Stimson regrets, but claim about openness at Guantanamo remains

Summer blog

Charles Stimson the Deputy Assistant Secretary for Detainee Affairs, in a letter to to-day's Washington Post has apologised to lawyers representing detainees at Guantanamo, but his letter makes no retraction of his claim that Guantanamo is "the most open location in the world".

Lawyers for detainees however, aren't off the hook yet: Attorney General Gonzales told Associated Press yesterday that their numerous challenges have delayed trials for their clients. This wasn't intended "as criticism of defense attorneys doing their jobs" but was was a statement of reality.

FOI and the Conga Line

Summer blog

My summer reading included "Jonestown" by Chris Masters - what a story, and a slight professional connection - many of the letters sent by Alan Jones to ministers and quoted in the book, were accessed under Freedom of Information.

My reading didn't extend to Conga Line of Suckholes: Mark Latham's Book of Quotations, MUP, 2006, but thanks to an alert reader, I bring to you the following (p 67.)

On July 4, 1967, in the White House, President Lyndon Johnson signed a measure called the Freedom of Information Act. At the signing ceremony he declared, 'Freedom of information is so vital that only the national security, not the desire of public officials or private citizens, should determine when it must be restricted.' No sooner had Johnson spoken than a reporter asked if he could obtain a copy of the original draft of these remarks. It was the first request made in the first full radiant flush of the new freedoms guaranteed by the act. Johnson turned him down cold. (As quoted in Alvin Toffler, Powershift, 1996.)

No rest for Sydney Morning Herald FOI column

Summer blog

It was good to see that Rick Snell of the University of Tasmania, and Australia's leading academic authority on FOI, has slipped into FOI Editor Matthew Moore's seat at the Sydney Morning Herald, while Moore takes a break.

Rick's column last Thursday, about the contrast between Australia and New Zealand in many important areas associated with access to government information, particularly Cabinet documents, is a welcome reminder that we have a lot to learn about openness and transparency from this neighbour, and of course from elsewhere around the world.

I know that Rick isn't suggesting that New Zealand is an FOI paradise: FOI laws and the way they are implemented will always be to some degree a battleground, in NZ and elsewhere. An article in "Open Government" (Volume 2, No. 1 2006) by a New Zealand academic, Steven Price of Victoria University, based on quantitative data and research conducted with public servants and FOI applicants concluded that the law worked reasonably well and that most requests were granted in full. However Price, in comments that reflect the similar experience of users of FOI in Australia, also found areas of concern (OIA is shorthand for the Official Information Act, NZ's FOI law):

About one OIA request in eight breached the 20 working day statutory deadline, without providing an extension. Most often, when information was withheld, the responses provided little evidence that the law was being followed properly. Bland assertions of “confidentiality”, “commercial sensitivity”, and “privacy” abounded. In more than a quarter of cases, responses did not refer to the requester’s right to complain to the Ombudsmen. In almost three-quarters of cases, officials and Ministers failed to explicitly balance public interest considerations, and when they did, they rarely provided more than lip service. It is possible that behind these glib responses lay a careful, but unexpressed, consideration of the statutory grounds for withholding, but it is difficult to have confidence about that.

Many agencies seemed to wrongly regard policy advice as constituting a class of
documents that need not ever be released, and certainly not until the Minister has
seen them. Whole documents were refused when deletions could have been made or summaries provided. Charges seem to have been employed on occasion to frighten
people off. The various guidelines on the OIA seem to have been frequently flouted.

Twenty years after the passage of the OIA, agencies have little excuse for these sorts
of mistakes. Taken together, they seriously compromise the OIA’s ability to fulfil its constitutional role of promoting accountability and participation.

Notwithstanding, NZ shows the way as Rick's direct links to Cabinet documents released as a matter of routine clearly demonstrate.

Guantanamo "probably the most transparent and open location in the world"

Summer blog

Well, so says the Deputy Assistant Secretary of Defense for Detainee Affairs, Charles Stimson.

Stimson was interviewed last Thursday by a Washington radio station that provides programming primarily for Federal public servants, but his comments suggesting that US companies boycott law firms that are providing assistance to Guantanamo detainees has become a national news story. It also has the Pentagon and the White House on the front foot today seeking to distance themselves from his comments. They "do not represent the views of the Department or the thinking of its leadership" a Pentagon spokesman said yesterday.

The story has an FOI background: a conservative radio talk show host had obtained access under FOI to the names of law firms that had provided representation for detainees. Stimson brought the names to a broader audience saying that he found it "shocking that lawyers at many of the nations top law firms were involved, and that corporations should "make those law firms choose between representing terrorists or representing reputable firms". Stimson suggested that while some firms might be providing services pro bono "others are receiving monies from who knows where and I'd be curious to have them explain that".

The response has been strong and pointed: the American Judicature Society said that it was a "blatant attempt to intimidate lawyers and their firms who are rendering important public service in upholding the rule of law and our democratic ideals". The Washington Post editorialised (12 January) that what was shocking "though perhaps not surprising - that this is the person the Administration has chosen to oversee detainee policy at Guantanamo". The New York Times editorial (13 January - under the heading "Round up the usual lawyers") said "the interview was a greatest-hits remix of Bush Administration nonsense about Guantanamo", and that his threats were "appalling".

While some firms may have received payments from families of detainees, the consensus is that the vast majority are providing services free of charge. One firm that received payment has donated all of it to charities connected with victims of the September 11 attack.

By the way, the comment about transparency and openness apparently was based on the fact that more than 2000 journalists have visited Guantanamo since it opened 5 years ago. The Washington Post today says journalists however 'are not allowed to talk to detainees on those visits, their photos are censored, and their access to the base has at times been cut off".

All those in Australia who have expressed concern about Guantanamo, and particularly the Australian David Hicks, might be interested to know that Stimson in the interview, according to The Washington Post, discounted international outrage over the detention centre as "small little protests around the world" that were "drummed up by Amnesty International' and inflated in importance by liberal news outlets.

Another year, another deadline passes for NSW FOI Manual

Summer blog

From this distance it looks as if the NSW Government has failed to deliver on its one and only FOI commitment: to produce by the end of 2006 an updated FOI Procedure Manual to assist those involved in managing FOI responsibilities to carry out their duties.

There is no sign so far, of any circular or memorandum from the Premier's Department about the new manual and the current version published in 1994 is still what's available on its website.

I know it's only the 11 January, but this has been talked about within Government since 1999 and the Premier made much of this initiative during debate last year about the need for more fundamental FOI reform.

The current manual is deficient in many respects. In addition to not providing guidance on the Act, as amended over the last 12 years, it is incomplete in outlining government policy, and fails to pick up on any of the Court and (in excess of 250) Administrative Decisions Tribunal rulings on the interpretation of the Act.

The NSW Ombudsman reported in 2005 that work on a revised version started in 1999 when his Office provided a first draft.

The Government last year stared down critics of Act and the way in which it was implemented (including the Ombudsman who repeated calls made over a 10 year period for a review of the Act) and said that all that was required was an updated version of the FOI Manual.

Here's what the Premier told a Parliamentary Budget Estimates Committee on 28 August 2006:

"..the administration continues to review the operation of the Act on an ongoing basis. Following that, along with consultation with the Ombudsman, the Government has published additional guidance for agencies in relation to Cabinet confidentiality. The Government has also been working with the Ombudsman to update the manual for freedom of information practitioners. That manual will be available at the end of this year. It will be finalised by the end of this year and will be up to date".

In fact, he repeated this three times in answer to questions about the need for a review of the Act - see the transcript here on pages 13 and 14.

Amanda Fazio MLC, the only Government speaker during debate in the Legislative Council on a Bill that would require an independent review of the Act, was obviously reading from the same script when she said on 19 October 2006:

"To ensure that applications continue to be dealt with by all agencies in an appropriate and consistent manner the Government has recently been working closely with the Ombudsman to prepare a comprehensive freedom of information practitioners manual. The manual will provide comprehensive guidance to agencies on their freedom of information obligations. It will be up to date with the latest court judgments and tribunal rulings. It will also set out whole-of-government policies for the handling of freedom of information requests. The manual is on track to be published by the end of this year. It reaffirms the Government's commitment to openness and transparency. So on that basis the Government cannot support the bill and will not support the bill".

So it looks like another "business as usual" year for FOI in NSW, or can we expect new promises, commitments (even an updated manual?) in the run up to the March election?

Database danger

Summer blog

This wasn't particularly about privacy, but I'm giving myself a bit of license at the moment, and the following points up the importance of the proper management of any database that contains personal information.

This report appeared in Saturday's Washington Post:

'The Army said it will apologise to the families of about 275 officers killed or wounded in action who were mistakenly sent letters urging them to return to active duty.

The letters were sent a few days after Christmas to more than 5100 Army officers who had recently left the service. Included were letters to about 75 officers killed and about 200 wounded"

National Access Card - some jitters in Government circles?

Summer blog.

Surprise, surprise - this report in the (Brisbane) Courier Mail says there are signs of concern in Canberra (already?) about the potential cost blow out for the National Access Card Project.

No one with any experience of major government IT project would have expected costs to stay within the initial $1.1billion estimate.

The report says a Queensland Government backbencher is concerned that the project is a Trojan horse for a national ID card and is off to the UK to have a close look at their National ID Card project. Everything I see suggests this is continuing to encounter major problems and strong criticism. While travel always broadens the mind, let's hope he's read the Australian Privacy Foundation's materials on the card project before he goes to all that trouble.

Thanks to PogoWasRight for the links

Privacy concerns regarding information sharing with US

Summer blog

I notice that The Australian has reported that Qantas routinely passes passenger information to the US authorities for those traveling from Australia to the US. This won't surprise anyone who has read the fine print on their e-ticket, although its news that, according to The Australian the shared information includes meal preference - you need to keep a watch out for those vegetarians and vegans!

There has been quite a fuss in the UK however, as reports indicate that information provided about passengers arriving in the US from there includes not just names but credit card and other details including email addresses. This report suggests that the US may be in a position to examine the history of credit card purchases. I don't imagine this, if true, is a unique requirement for the UK.

No one has clarified to date what happens with all this information, including what US agencies have access, and what security safeguards apply. There is certainly no evident privacy notice or pamphlet when you line up for the customs service on arrival at a US airport.

A new issue has arisen this week in the light of US plans to require 10 finger prints for arriving passengers, so that data can be matched against an FBI data base. At present arriving passengers in the US provide a one finger print and a retina scan.

This UK report says that the new requirements will apply also to passengers arriving from Australia.

One thing that isn't clear from what I have seen is what information Australian authorities share with the US - for example does the FBI already hold the complete database of finger prints now consolidated in Australia in the Federal Government's Crimtrack system?

Are our privacy regulators keeping an eye on all this?

Thanks to PogoWasRight for some links.

Congress and the White House prepare for battle over access to information

Summer Blog

There is quite a buzz in Washington as the new Congress gets underway, with Democrats in the driving seat in both houses.

The Sydney Morning Herald report "Congress set to give Bush a hammering" gives some of the flavour of looming differences between Congress and the White House over Iraq, global warming and a range of other issues.

The top priority for Democrats was to get moving on ethics and corruption issues and a bill passed the House of Representatives within hours that imposes new limits on dealings with lobbyists. The lunch trade is about to take a nose dive as members of Congress and their staff are no longer permitted to accept any gift including a free meal from a lobbyist or an organisation that employs one.

The right to access information by members of Congress is likely to be a hot topic. Today's Washington Post reports that the resignation of White House Counsel Harriet Miers, is linked to plans to "muscle up" for a sustained struggle over access to documents as Congress prepares to investigate various aspects of government activity. Likely areas include abuse of detainees, whether a blind eye was turned to profiteering by politically connected contractors in Iraq, the response to Hurricane Katrina, and whether senior officials complied with the law in ordering heightened domestic surveillance.

The Bush White House has in the past dug in its heels in refusing access to some documents sought by Congressional committees including a refusal in December to provide a copy of a memorandum authorising the CIA to create secret detention centres overseas and another detailing interrogation methods the CIA could use. The reason given for the latter will sound familiar to Australian readers, particularly NSW Crown Solicitor Ian Knight - the memo constituted "confidential legal advice".

Contrasting FOI results either side of the Pacific

Summer Blog

The last few posts on this site have come from Washington DC where I am spending a couple of weeks.

This morning's column by Sydney Morning Herald FOI Editor Matthew Moore "So far, we've waited 550 days without peeking" is about the lack of response from the Department of Defence to a request for documents about the US treatment of prisoners. I have also had the opportunity to read today's front page story in the Washington Post that the American Civil Liberties Union has obtained 200 more documents to add to the 100,000 already obtained about the treatment of prisoners at Guantanamo Bay during a long drawn out FOI court battle.

You can read the details of the documents released at the ACLU website. The site includes a search engine and "David Hicks" produces three documents, all of which seem to be representations (not from the Australian Government) concerning his continued detention and planned trial by military commission.

There is quite a contrast between the nil return for the Herald in Australia so far, and the voluminous documentation obtained in the US. Perhaps the lesson is that as the ACLU has demonstrated, time, effort and expense is required to place these issues before an independent review body or the courts, and only then can we expect controversial documents to be released. We'll have FOI laws that work when that sort of measure isn't required and documents that should be released are disclosed at first instance.

UK FOI survey reveals snakes, jaguar and 2000 ostriches

Summer Blog (well it's still the silly season downunder)

Next time you travel to the UK, beware.

The Big Cats in Britain Research Group sought under FOI information from over 400 local authorities about details of licensed exotic animals.

The responses revealed there are 2,000 licensed ostriches, 500 monkeys, 250 poisonous snakes and 150 big cats including six lions, some leopards and one jaguar. Somewhere out there you might also find a grey wolf, 12 crocodiles, 20 venomous snakes, as well as various monkeys and bears.

Keep in mind these are the licensed animals - no one knows what are in the unlicensed category.

Former US President no friend of FOI

Summer Blog

The death of former US President Gerald Ford (1974-1976), has prompted surprisingly positive reflections on his brief period in office, perhaps reflecting the fact that he helped right the ship after the Watergate scandal led to Nixon's resignation. There is no question Ford was decent and honest - values that have struck quite a chord of nostalgia in the US in 2007.

Another aspect of his presidency was that he (like Nixon before him) was also caught up in an ongoing battle with Congress over the exercise of power. Ford vetoed 66 bills passed by Congress in his 25 months in office, a rate that constitutes a record.

One of his vetoes involved rejection of significant amendments to the US FOI Act in 1974, acting on the advice of then key advisers, Dick Cheney and Donald Rumsfeld. Their appetite for openness hasn't changed much in the interim. As Vice President, Cheney has been resisting attempts to obtain documents about discussions with oil and engergy companies, and is seen as the dark force behind much of the Bush policy agenda.

Congress felt strongly enough about the changes in 1974 to override Ford's veto with a combined two thirds vote of both houses of Congress.