There has been quite a bit of media and talk back interest in the food hygiene story. I have made some comments in interviews today about the need for more disclosure of information on such an important public health issue as whether those who handle our food comply with the regulatory standards.
If I survive the cutting room, some of this might be aired tonight at 6.30pm on Channel 9's "A Current Affairs".
Just by complete chance, the Canadian province of Prince Edward Island on Monday this week, fell into line with some of the major cities of the world, and announced it will put restaurant inspection records online starting later this year. The decision comes after a two year battle by CBC News, and a successfull appeal to the province's Freedom of Information Commissioner to have the inspection records released.
Today, Blacktown City Council and Prince Edward Island Province.
Tomorrow, all of New South Wales and Australia's other states and territories?
This blog takes an interest in issues associated with Freedom of Information (FOI) and privacy legislation in Australia. Information contained on this site is general in nature and does not constitute legal advice. Follow Peter Timmins on Twitter: @foiguru Follow the open government cause through the Australian Open Government Partnership Network. www.opengovernment.org.au and @opengovau
Wednesday, February 28, 2007
Tuesday, February 27, 2007
Food hygiene breakthrough - lights on in Blacktown
The Blacktown Advocate has published this story "Hygiene Offenders" based on documents released under Freedom of Information by Blacktown City Council, concerning fines imposed for failure to observe health food standards.
The Sydney Morning Herald has been pursuing this issue with City of Sydney Council, without success so far. (Update - here "Finally, food hygiene fines in the open" is the SMH 28 February article following up the Blacktown story).
We have written a number of times about why publication of information about compliance with food standards is an important public health issue. It's common place for such information to be available to members of the public, sometimes through an official ratings system as in the UK (Scores on Doors), and in many states in the US and in Canada.
Perhaps both our major NSW political parties, in full election mode, should be asked whether, if elected, they will take action to ensure that information about food handling and compliance with standards is publicly available on a state wide basis.
In the meantime let's all support restaurants in Blacktown knowing that major breaches of standards are likely to be in the public domain. As for the rest of the restaurants and other businesses that handle our food in NSW - we're still in the dark about their record.
The Sydney Morning Herald has been pursuing this issue with City of Sydney Council, without success so far. (Update - here "Finally, food hygiene fines in the open" is the SMH 28 February article following up the Blacktown story).
We have written a number of times about why publication of information about compliance with food standards is an important public health issue. It's common place for such information to be available to members of the public, sometimes through an official ratings system as in the UK (Scores on Doors), and in many states in the US and in Canada.
Perhaps both our major NSW political parties, in full election mode, should be asked whether, if elected, they will take action to ensure that information about food handling and compliance with standards is publicly available on a state wide basis.
In the meantime let's all support restaurants in Blacktown knowing that major breaches of standards are likely to be in the public domain. As for the rest of the restaurants and other businesses that handle our food in NSW - we're still in the dark about their record.
Guantanamo - justice for some
Regular readers may recall that while I was in Washington DC in January, I blogged several items about the senior Pentagon official Charles Stimson who criticised, and suggested a corporate boycott of US law firms that provided assistance to terrorism suspects held at Guantanamo. Firm names had been released in response to a Freedom of Information application. Stimson also claimed that Guantanamo Bay was the most 'open location' in the world.
I didn't pick up until this week that Stimson has subsequently resigned. As the Pentagon spokesman nicely put it, he wasn't asked to leave by Defense Secretary Robert Gates, but resigned because he had "hampered his ability to be effective in this position".
I didn't pick up until this week that Stimson has subsequently resigned. As the Pentagon spokesman nicely put it, he wasn't asked to leave by Defense Secretary Robert Gates, but resigned because he had "hampered his ability to be effective in this position".
Monday, February 26, 2007
What's this - an FOI user career path?
A couple of notable "people moves" in Freedom of Information land.
I hear that Michael McKinnon, FOI Editor at the Australian and famous for his unsuccessful High Court challenge last year, has left The Australian.
Before all you public servants who deal with FOI matters breathe a sigh of relief, word has it that he has gone to a similar job with Channel 7.
We await news on who will replace him at the Oz, but they aren't short of people who know their way around an FOI knock back.
Paul Whitaker who was appointed Editor of the Australian last week was a vigorous FOI applicant himself back in the days when he was a journalist with Brisbane's Courier Mail. One of his most famous FOI series - on former ALP Federal Minister and Labor Party heavyweight Graham Richardson - was based on a victory in the Queensland Information Commission - (see PDF). Despite objections from Richardson, The Commissioner granted Whitaker access to the prosecution brief for charges against a Richardson associate who pleaded guilty to a charge of procuring prostitutes. Six years later the decision still makes interesting reading about the public interest in access to information that throws light on a minister's "performance" of public functions. Whitaker also had to endure a Queensland Criminal Justice Commission inquiry into the source of leaks that provided material about various law enforcement agencies and their investigation of allegations of corruption concerning Richardson - recounted here by Richard Ackland.
In the UK, Steve Wood whose FOI blog has been invaluable to FOI watchers for the last few years has posted his last, prior to heading off for a job with the Information Commissioner. Its a classic case of poacher turns gatekeeper but sounds like a great appointment all round.
Steve says that the UK Campaign for Freedom of Information will keep the blog going.
I hear that Michael McKinnon, FOI Editor at the Australian and famous for his unsuccessful High Court challenge last year, has left The Australian.
Before all you public servants who deal with FOI matters breathe a sigh of relief, word has it that he has gone to a similar job with Channel 7.
We await news on who will replace him at the Oz, but they aren't short of people who know their way around an FOI knock back.
Paul Whitaker who was appointed Editor of the Australian last week was a vigorous FOI applicant himself back in the days when he was a journalist with Brisbane's Courier Mail. One of his most famous FOI series - on former ALP Federal Minister and Labor Party heavyweight Graham Richardson - was based on a victory in the Queensland Information Commission - (see PDF). Despite objections from Richardson, The Commissioner granted Whitaker access to the prosecution brief for charges against a Richardson associate who pleaded guilty to a charge of procuring prostitutes. Six years later the decision still makes interesting reading about the public interest in access to information that throws light on a minister's "performance" of public functions. Whitaker also had to endure a Queensland Criminal Justice Commission inquiry into the source of leaks that provided material about various law enforcement agencies and their investigation of allegations of corruption concerning Richardson - recounted here by Richard Ackland.
In the UK, Steve Wood whose FOI blog has been invaluable to FOI watchers for the last few years has posted his last, prior to heading off for a job with the Information Commissioner. Its a classic case of poacher turns gatekeeper but sounds like a great appointment all round.
Steve says that the UK Campaign for Freedom of Information will keep the blog going.
As we said last year "Let the sun shine in"
Media interest in, and support for better FOI laws is evidenced in the US through active participation in advocacy and public education about open government principles.One of the flagship initiatives is Sunshine Week led by the American Society of Newspaper Editors. This year it's from 11-17 March and includes activities, and a lot of media stories about Freedom of Information and associated issues.
This year's honorary chairs are Ben Bradlee of Washington Post fame, Tom Brokaw the former anchor of NBC nightly news, and Judy Woodruff who you see regularly on the NewsHour with Jim Lehrer (5 p.m. SBS TV).
Support from these media heavyweights and a year round organisational effort, means that Sushine Week and the principles it supports, get noticed right across the media chain.
The Week is funded by a grant from the Knight Foundation (started by the founders of what is now the Knight Ridder group of newspapers). The Foundation itself was funded by money left by members of the Knight family for initiatives to "seed and inspire great journalism everywhere, and to build strong communities in the cities and towns" where it ran newspapers.
Two legacies left by members of the Knight family totalled over $600million.
Any takers here?
I've previously lamented the fact that the Australian media to date (the Australian Press Council and other umbrella groups in particular) haven't recognised the value of combined effort to get open government on the agenda in this country.
Friday, February 23, 2007
Task force warns: be careful with what goes on access card
Plenty of media coverage in the last few days about the latest discussion paper issued by the Federal Government's Consumer and Privacy Task Force concerning the inclusion of voluntary and medical emergency information on the consumer-control area of the proposed Access Card.
The paper includes plenty of cautionary notes about what could happen if certain information is included, but at this stage it's seeking comment about storage and related issues, before final decisions are taken.
The paper includes plenty of cautionary notes about what could happen if certain information is included, but at this stage it's seeking comment about storage and related issues, before final decisions are taken.
Wednesday, February 21, 2007
Privacy overboard
Not only did Sydney put on a party for the Queen Mary 2 and Queen Elizabeth 2 on the Harbour yesterday, but the city suffered new year's eve like traffic chaos, and then someone left in the street a list of 1500 passengers, complete with passport details, date of birth and when they would be leaving the ship.
They may have been in Hong Kong by the time they heard about it and I can imagine the complexity of trying to work out which country's privacy law was breached when a UK based ship loses personal information in Sydney about passengers from all over the world.
Apart from any tut tutting from privacy commissioners, the court of public opinion won't think much of Cunard as a result.
They may have been in Hong Kong by the time they heard about it and I can imagine the complexity of trying to work out which country's privacy law was breached when a UK based ship loses personal information in Sydney about passengers from all over the world.
Apart from any tut tutting from privacy commissioners, the court of public opinion won't think much of Cunard as a result.
Small dose of FOI humble pie
In my post "Government contracts nothings straight forward" on Thursday 15 February, I was dead wrong when I said that the new contract disclosure law in NSW didn't provide for non disclosure of a contract or other information if disclosure would cause a document to be exempt under the FOI Act.
In fact buried away in a new section 15A(9)(d) - it pays to read the fine print - there is such a provision. So an agency can delete the information in any commercial in confidence provision in a contract, and not disclose any other required information if it could rely on any of the many exemptions in the Freedom of Information Act.
My earlier comment that this is likely to provide a significant out for some government agencies from the disclosure requirement still stands, but I assume, contrary to my observation at the time, that this is no surprise to the Act's proponents in Parliament.
In fact buried away in a new section 15A(9)(d) - it pays to read the fine print - there is such a provision. So an agency can delete the information in any commercial in confidence provision in a contract, and not disclose any other required information if it could rely on any of the many exemptions in the Freedom of Information Act.
My earlier comment that this is likely to provide a significant out for some government agencies from the disclosure requirement still stands, but I assume, contrary to my observation at the time, that this is no surprise to the Act's proponents in Parliament.
Monday, February 19, 2007
Spin and the public right to know
An address in early February by the Secretary of the Federal Treasury, Ken Henry, titled "Political Awareness", received some publicity at the time, and is the subject today of an opinion piece "Only mushrooms grow in the dark" in the Australian Financial Review by Economics Editor Allan Mitchell - no link available.
Henry's speech, to an international project managers symposium in Canberra, was about the challenge for the public service in advising ministers, who in the modern world and its 24 hour news cycle, have a low appetite for risk. He offers some useful suggestions including the need for politicians to understand the importance of conditioning public expectations during the development of policy and final decision making.
Allan Mitchell picks up on this point today to suggest that while "conditioning expectations sounds manipulative...it need not be. In fact it need only involve taking the public more into the Government's confidence". Mitchell says that there are many ways of engaging and educating the public. Yet "the preference is that as much as possible should be done "not in front of the children", as Richard Crossman, the British minister and diarist put it".
Mitchell concludes:
"Managing expectations" by promoting public discussion of issues prior to decision making is a good thing. So is acceptance of the principle of accountability and the public's right to know, as expressed in our Freedom of Information laws, about the basis for decisions taken in its name.
Henry's speech, to an international project managers symposium in Canberra, was about the challenge for the public service in advising ministers, who in the modern world and its 24 hour news cycle, have a low appetite for risk. He offers some useful suggestions including the need for politicians to understand the importance of conditioning public expectations during the development of policy and final decision making.
Allan Mitchell picks up on this point today to suggest that while "conditioning expectations sounds manipulative...it need not be. In fact it need only involve taking the public more into the Government's confidence". Mitchell says that there are many ways of engaging and educating the public. Yet "the preference is that as much as possible should be done "not in front of the children", as Richard Crossman, the British minister and diarist put it".
Mitchell concludes:
"Secrecy is seen by ministers as the easiest answer to the problems of risk and asymmetrical rewards. But secrecy also facilitates undesirable behaviour, erodes the public's trust and makes it harder for ministers to defend good decisions when they go wrong".Henry made no mention in his address of the Treasury's vigorous efforts, culminating in a successful High Court decision last year in the McKinnon case, to refuse access to documents four years after they had formed part of the decision making process, on public interest grounds including that disclosure would jeopardise candor and effect keeping of proper records.
"Managing expectations" by promoting public discussion of issues prior to decision making is a good thing. So is acceptance of the principle of accountability and the public's right to know, as expressed in our Freedom of Information laws, about the basis for decisions taken in its name.
Sunday, February 18, 2007
NSW political leaders outshine Kings of Comedy
The NSW election campaign is off and running with the leaders debate on ABC's Lateline on Friday and the launch of the Australian Labor Party campaign today by Premier Morris Iemma (be warned - the short video seems impossible to avoid).
Someone at Channel 9 has a sense of humour - the Channel ran The Kings of Comedy with the late Peter Cook and Dudley Moore in competition to Lateline but it couldn't match the "funny men" in the debate. All up Better Homes and Gardens on Channel 7 won the timeslot.
Not a squeak so far from the leaders about transparency and accountability, freedom of information or privacy protection.
We'll keep an eye on what emerges in the run up to the election on 24 March.
Someone at Channel 9 has a sense of humour - the Channel ran The Kings of Comedy with the late Peter Cook and Dudley Moore in competition to Lateline but it couldn't match the "funny men" in the debate. All up Better Homes and Gardens on Channel 7 won the timeslot.
Not a squeak so far from the leaders about transparency and accountability, freedom of information or privacy protection.
We'll keep an eye on what emerges in the run up to the election on 24 March.
Friday, February 16, 2007
FOI delivers: Iraq invasion plan 'delusional'
We are trying to break the habit of posting media reports based on documents released under Freedom of Information but this is a really important one.
The National Security Archive (NSA) at George Washington University, has, two years after lodging an FOI application, obtained a slide show about plans to invade Iraq prepared by the top military brass in 2002, a year before the invasion and used to brief the White House and Donald Rumsfeld. The "plan" envisaged 5,000 US troops would remain by December 2006.
The rest as they say is history.....
Under the current Australian Government, material about our thinking on these issues in 2002 is likely to be available in 2032!
The National Security Archive (NSA) at George Washington University, has, two years after lodging an FOI application, obtained a slide show about plans to invade Iraq prepared by the top military brass in 2002, a year before the invasion and used to brief the White House and Donald Rumsfeld. The "plan" envisaged 5,000 US troops would remain by December 2006.
The rest as they say is history.....
Under the current Australian Government, material about our thinking on these issues in 2002 is likely to be available in 2032!
Thursday, February 15, 2007
Government contract disclosures - nothings straightforward
The Age report yesterday "Brumby wins battle to keep EastLink costs secret"concerned a Victorian Court of Appeal decision in a long running saga over access under Freedom of Information to information about the $2.5billion EastLink road project. The Court of Appeal found an error of law in the decision of the Civil and Administrative Tribunal, and has now referred the matter back for a finding on whether the documents were prepared for submission to Cabinet.
The battle has really been over access to the "public sector comparator", the report that compares the cost of the project as a public private sector partnership, with the cost if the project was publicly funded. The Government is digging in, claiming to be defending the principle concerning disclosure of Cabinet documents, but it sounds a little hollow given commitments in the lead up to last year's Victorian election to be more open about public private partnerships.
While the Victorian Government continues to resist disclosure of this comparator, the NSW Government will be required to reveal "the components and quantum" for any public sector comparator used for a privately financed project with an estimated value of more than $150,000, as a result of the commencement on 1 January of the NSW Freedom of Information Amendment (Open Government—Disclosure of Contracts) Act 2006 No 115
Publication of the comparator is just a small part of broader pro active disclosure requirements contained in the amendment act. The NSW Government's guidance on the new requirements for disclosure of contracts and associated information is contained in this memorandum issued by the Premier to all ministers last month.
The mandatory requirements apply to any "agency" as defined in the NSW FOI Act, except State Owned Corporations, local councils, and in respect of any contract providing industry support entered into by the Department of State and Regional Development.
The law also provides for exclusion of "commercial in confidence" provisions of a contract: the contractor's financing arrangements, cost structure or profit margins, full base case financial model, intellectual property, and any matter the disclosure of which "would place the contractor at a substantial disadvantage in relation to others......whether at present or in the future".
This all seemed to be pretty straightforward when the amending act passed Parliament in a flurry late last year, but the Premier's Memorandum has surprisingly muddied the water.
For example, with no legislative support that I can find, it says that in addition to the exclusion of commercial in confidence provisions, contracts or other details do not need to be disclosed if information would be exempt if it were the subject of an application under the FOI Act. (updated - I was wrong in saying there was no legislative basis for this claim - see Small dose of FOI humble pie . It is in the amending Act, but the points below about the weaknesses that result are still, in my view valid).
Could this mean that an agency could refuse access to a contract or related document prepared for submission to Cabinet (Victorian deja vu); or under a whole range of other broad and general exemptions available in the FOI Act? What about simply including a confidentiality clause and then claiming the document exempt on grounds that disclosure could found an action for breach of confidence?
My guess is that the proponent of the legislation, the Independent Member for Bligh (and Lord Mayor of Sydney), Clover Moore would be somewhat surprised to learn that her proactive contract disclosure requirements aren't just subject to deletion of commercial in confidence provisions, but in the hands of some agencies out there could potentially be watered down significantly.
This concern is in additon to some scepticism about how the website for publication of NSW contract information will work, particularly its searchability and capacity to present the required information. The website in its current form is geared to providing information to tenderers. Those interested in government accountability have a different set of requirements.
Oh for something relatively simple like this Government Wide Reporting site of the Treasury Board of Canada.
The battle has really been over access to the "public sector comparator", the report that compares the cost of the project as a public private sector partnership, with the cost if the project was publicly funded. The Government is digging in, claiming to be defending the principle concerning disclosure of Cabinet documents, but it sounds a little hollow given commitments in the lead up to last year's Victorian election to be more open about public private partnerships.
While the Victorian Government continues to resist disclosure of this comparator, the NSW Government will be required to reveal "the components and quantum" for any public sector comparator used for a privately financed project with an estimated value of more than $150,000, as a result of the commencement on 1 January of the NSW Freedom of Information Amendment (Open Government—Disclosure of Contracts) Act 2006 No 115
Publication of the comparator is just a small part of broader pro active disclosure requirements contained in the amendment act. The NSW Government's guidance on the new requirements for disclosure of contracts and associated information is contained in this memorandum issued by the Premier to all ministers last month.
The mandatory requirements apply to any "agency" as defined in the NSW FOI Act, except State Owned Corporations, local councils, and in respect of any contract providing industry support entered into by the Department of State and Regional Development.
The law also provides for exclusion of "commercial in confidence" provisions of a contract: the contractor's financing arrangements, cost structure or profit margins, full base case financial model, intellectual property, and any matter the disclosure of which "would place the contractor at a substantial disadvantage in relation to others......whether at present or in the future".
This all seemed to be pretty straightforward when the amending act passed Parliament in a flurry late last year, but the Premier's Memorandum has surprisingly muddied the water.
For example, with no legislative support that I can find, it says that in addition to the exclusion of commercial in confidence provisions, contracts or other details do not need to be disclosed if information would be exempt if it were the subject of an application under the FOI Act. (updated - I was wrong in saying there was no legislative basis for this claim - see Small dose of FOI humble pie . It is in the amending Act, but the points below about the weaknesses that result are still, in my view valid).
Could this mean that an agency could refuse access to a contract or related document prepared for submission to Cabinet (Victorian deja vu); or under a whole range of other broad and general exemptions available in the FOI Act? What about simply including a confidentiality clause and then claiming the document exempt on grounds that disclosure could found an action for breach of confidence?
My guess is that the proponent of the legislation, the Independent Member for Bligh (and Lord Mayor of Sydney), Clover Moore would be somewhat surprised to learn that her proactive contract disclosure requirements aren't just subject to deletion of commercial in confidence provisions, but in the hands of some agencies out there could potentially be watered down significantly.
This concern is in additon to some scepticism about how the website for publication of NSW contract information will work, particularly its searchability and capacity to present the required information. The website in its current form is geared to providing information to tenderers. Those interested in government accountability have a different set of requirements.
Oh for something relatively simple like this Government Wide Reporting site of the Treasury Board of Canada.
Tuesday, February 13, 2007
NZ privacy pay out for police
According to this report "Police lose landmark job privacy case", New Zealand Police have had an award of $12,500 in damages made against them in the Human Rights Review Tribunal for a breach of privacy.
The Police had passed on information about the plaintiff to an employer in the course of a requested background check that he had been charged with indecent assault in 1992. However, he had been discharged by the trial judge and his name had been suppressed from the record. The Tribunal found a breach of the privacy principle requiring information released to be accurate, current, complete and relevant. The applicant had authorised the vetting, but did not think the failed court case would be mentioned.
It turns out that NZ Police keep a little known informal file of "notings", as opposed to criminal convictions, recorded on the National Intelligence Database. The Human Rights proceedings director said the case was the first of its kind regarding the Police database. Apparently individuals can ask for copies of their file notings but some information, for example that which identifies informants, could be withheld.
The decision in the case hasn't yet appeared in the published decisions of the Human Rights Review Tribunal.
Does anyone know about Australian Police "noting" practices? For reasons that have never been adequately explained NSW Police are not subject to NSW privacy legislation except in respect of their administrative and educative functions.
Thanks for PogoWasRight.org and stuff.co.nz for the leads
The Police had passed on information about the plaintiff to an employer in the course of a requested background check that he had been charged with indecent assault in 1992. However, he had been discharged by the trial judge and his name had been suppressed from the record. The Tribunal found a breach of the privacy principle requiring information released to be accurate, current, complete and relevant. The applicant had authorised the vetting, but did not think the failed court case would be mentioned.
It turns out that NZ Police keep a little known informal file of "notings", as opposed to criminal convictions, recorded on the National Intelligence Database. The Human Rights proceedings director said the case was the first of its kind regarding the Police database. Apparently individuals can ask for copies of their file notings but some information, for example that which identifies informants, could be withheld.
The decision in the case hasn't yet appeared in the published decisions of the Human Rights Review Tribunal.
Does anyone know about Australian Police "noting" practices? For reasons that have never been adequately explained NSW Police are not subject to NSW privacy legislation except in respect of their administrative and educative functions.
Thanks for PogoWasRight.org and stuff.co.nz for the leads
Monday, February 12, 2007
Media battle over FOI fee reduction, even in US
We may have overstated how simple and straightforward the US Federal Freedom of Information law is when it comes to fee waiver or reduction for applications by news gatherers - see our item below on 8 February "Media shouldn't cop this lying down".
Harry Hammit the respected US expert, in a comment towards the end of Rick Snell's post about the Peatling/Sydney Morning Herald Administrative Decisions Tribunal, points out that there are a range of issues that still crop up about the interpretation and application of the waiver provisions. One of the current ones concerns fee reduction or waiver for independent news gatherers, including bloggers.
Another is that individual agency policy varies significantly. For example the CIA has proposed a new rule on processing fees that has attracted strong criticism from, among others, the National Security Archive, a not for profit foreign policy research institute at George Washington University (see "CIA proposed rule on FOIA fees would burden requesters and the agency"). The Archive has twice previously taken the CIA to court over fee processing issues.
The US statement about fee waiver or reduction for those who bring to public attention information about the workings of government is still crystal clear and suitably broad compared to the convoluted test here, as now interpreted by the Administrative Decisions Tribunal.
Harry Hammit the respected US expert, in a comment towards the end of Rick Snell's post about the Peatling/Sydney Morning Herald Administrative Decisions Tribunal, points out that there are a range of issues that still crop up about the interpretation and application of the waiver provisions. One of the current ones concerns fee reduction or waiver for independent news gatherers, including bloggers.
Another is that individual agency policy varies significantly. For example the CIA has proposed a new rule on processing fees that has attracted strong criticism from, among others, the National Security Archive, a not for profit foreign policy research institute at George Washington University (see "CIA proposed rule on FOIA fees would burden requesters and the agency"). The Archive has twice previously taken the CIA to court over fee processing issues.
The US statement about fee waiver or reduction for those who bring to public attention information about the workings of government is still crystal clear and suitably broad compared to the convoluted test here, as now interpreted by the Administrative Decisions Tribunal.
Melbourne public meeting on Access Card
Well, as we were saying......
If you're in Melbourne or can be there on 22 February you might be interested in this public meeting about the Federal Government's National card proposal, organised by the Victorian Council for Civil Liberties. Details:
Date: Thursday 22 February 2007
Time: 5.30 – 7.00 pm
Place: 45 Downstairs 45 Flinders Lane Melbourne
Chair: Julian Burnside QC, President, Liberty Victoria
Speakers: Robin Banks, CEO, Public Interest Advocacy Centre
Tim Warner, Access Card No Way
Tanya Plibersek, Opposition Spokesperson for Human Services
The Federal Government has been invited to send a speaker but at the
time of this notice has not accepted the invitation.
www.libertyvictoria.org.au
Phone: (03) 9670 6422
Fax: (03) 9670 6433
info@libertyvictoria.org.au
GPO BOX 3161
MELBOURNE VICTORIA 3001
Thanks to Anna Johnston, the 'No ID Card' campaign director for the Australian Privacy Foundation for the alert on this.
In a letter published in to-day's Australian Financial Review "When is an ID card not an ID card", Anna says that it would be quite simple for the Government to ensure that the access card is not used as an all purpose identity card: simply "take the photo, signature and unique ID number off the face of the card, store that information only in the card's chip, and strictly limit access to the chip to only those people who provide Medicare, Centrelink and veterans' benefits. Then the card would serve its alleged purpose of service delivery, but be rendered useless to anyone else as a form of ID".
If you're in Melbourne or can be there on 22 February you might be interested in this public meeting about the Federal Government's National card proposal, organised by the Victorian Council for Civil Liberties. Details:
Date: Thursday 22 February 2007
Time: 5.30 – 7.00 pm
Place: 45 Downstairs 45 Flinders Lane Melbourne
Chair: Julian Burnside QC, President, Liberty Victoria
Speakers: Robin Banks, CEO, Public Interest Advocacy Centre
Tim Warner, Access Card No Way
Tanya Plibersek, Opposition Spokesperson for Human Services
The Federal Government has been invited to send a speaker but at the
time of this notice has not accepted the invitation.
www.libertyvictoria.org.au
Phone: (03) 9670 6422
Fax: (03) 9670 6433
info@libertyvictoria.org.au
GPO BOX 3161
MELBOURNE VICTORIA 3001
Thanks to Anna Johnston, the 'No ID Card' campaign director for the Australian Privacy Foundation for the alert on this.
In a letter published in to-day's Australian Financial Review "When is an ID card not an ID card", Anna says that it would be quite simple for the Government to ensure that the access card is not used as an all purpose identity card: simply "take the photo, signature and unique ID number off the face of the card, store that information only in the card's chip, and strictly limit access to the chip to only those people who provide Medicare, Centrelink and veterans' benefits. Then the card would serve its alleged purpose of service delivery, but be rendered useless to anyone else as a form of ID".
Friday, February 09, 2007
National Access Card privacy concerns
There are just a few signs that concern about the Federal Government's National Access Card is on the rise.
There was plenty of comment in response to Peter Lalor's blog in The Australian on Wednesday. That paper's editorial on Thursday says the real concern is the database that will be created, and who will have access. Meanwhile Bill Gates was telling an IT security conference in San Francisco that looking forward, data security is the major challenge in providing technology that will protect identity, privacy and personal information.
Thursday's Daily Telegraph has the "helpful" comment from Attorney General Ruddock, that of course no guarantees can be given that a future government wont pass new legislation to change the card concept in some significant way. Australian Federal Police Commissioner Mick Keelty chimed in that the "not an ID card" card is essential if we are to combat identity fraud.
The Australian Medical Association, the Australian Privacy Foundation (see What does the Government have to hide?) and others continue to express real concern about what we have seen from the Government so far.
The promised Senate Inquiry is the next step.
There was plenty of comment in response to Peter Lalor's blog in The Australian on Wednesday. That paper's editorial on Thursday says the real concern is the database that will be created, and who will have access. Meanwhile Bill Gates was telling an IT security conference in San Francisco that looking forward, data security is the major challenge in providing technology that will protect identity, privacy and personal information.
Thursday's Daily Telegraph has the "helpful" comment from Attorney General Ruddock, that of course no guarantees can be given that a future government wont pass new legislation to change the card concept in some significant way. Australian Federal Police Commissioner Mick Keelty chimed in that the "not an ID card" card is essential if we are to combat identity fraud.
The Australian Medical Association, the Australian Privacy Foundation (see What does the Government have to hide?) and others continue to express real concern about what we have seen from the Government so far.
The promised Senate Inquiry is the next step.
Thursday, February 08, 2007
FOI officer- courage in the face of adversity
The series of articles in Thursday's Sydney Morning Herald about Macquarie University, were based on 2500 pages of documents released under the Freedom of Information Act. The Herald has posted some of the documents on the website - they make fascinating reading.
The documents reveal a major internal dispute between the University and the former Vice Chancellor and that some public servants still stand firm on what is right and proper.
Like the University's records manager Lachlan Morgan who stood up and took action when he found 125 boxes of records being removed at the direction of the former Vice Chancellor to her new office. Morgan said the boxes would contain University records and should not be loaded and taken away. And the current Vice Chancellor's Executive Officer who backed him up. Both then stuck to their guns in heated face to face discussions with the former Vice Chancellor.
We need public servants like this who call it as they see it and are prepared to speak truth to power.
Disclaimer - I know Lachlan Morgan and have done some work with Macquarie University but was not involved in this matter.
The documents reveal a major internal dispute between the University and the former Vice Chancellor and that some public servants still stand firm on what is right and proper.
Like the University's records manager Lachlan Morgan who stood up and took action when he found 125 boxes of records being removed at the direction of the former Vice Chancellor to her new office. Morgan said the boxes would contain University records and should not be loaded and taken away. And the current Vice Chancellor's Executive Officer who backed him up. Both then stuck to their guns in heated face to face discussions with the former Vice Chancellor.
We need public servants like this who call it as they see it and are prepared to speak truth to power.
Disclaimer - I know Lachlan Morgan and have done some work with Macquarie University but was not involved in this matter.
Media shouldn't cop this lying down
The Federal Administrative Appeals Tribunal decision rejecting the Sydney Morning Herald's request for a public interest rebate on charges for a Freedom of Information application for documents about the Government's Welfare to Work policy, is another serious set back for FOI,and media use of the Act in particular.
In effect, Deputy President Walker found that an application for documents made by a profitable newspaper in the course of conducting its newspaper publishing business, failed to satisfy the requirements for a public interest rebate contained in the the FOI Act, and spelled out in government policy. That is, it couldn’t demonstrate financial hardship, and even though it showed that there was a public interest in making the documents available, this was outweighed by the fact that the making of the application was part of its day to day conduct of business.
Matthew Moore and Rick Snell have both provided comment and analysis of the decision.
In my view, there is a strong case for special consideration of access requests by the media and others acting to advance public knowledge about government's conduct of public functions.
The media in Australia either wears the current law and policy in this and other respects, for example last year’s High Court decision in the McKinnon case, (Matthew Moore's column in to-day's Sydney Morning Herald provides a brief summary of the problems) or decides to make a serious and concerted effort to do something about our law and the way it is applied.
In November News, the Australian Press Council said the publication of five articles about FOI after McKinnon was the first step towards reform of FOI law and practice in Australia. Nothing seems to have happened since.
We said at the time that the Council, in conjunction with like minded partners, needs to dip into its pocket to fund and develop a national advocacy group to promote open government principles, and FOI laws that work as a means of achieving them.
This decision would have the media jumping up and down elsewhere, particularly in the US.
Interestingly, the basis for the current Federal law and policy on charges had its genesis in US practice at the time. As Deputy President President Walker notes, a 1978 Senate Committee report prior to the introduction of the FOI Act in Australia, said the Committee believed "that there should be explicit provision, as in the United States, for reduction or waiver by agencies or ministers when the provision of information can be considered as primarily benefiting the general public rather than being for the benefit or gain of the individual applicant".
Yet, from this worthy starting point, we have now “progressed” to a situation where an applicant must demonstrate financial hardship, why disclosure is in the public interest (its not in the public interest if the information is out of date), and ensure that this is not outweighed by countervailing factors, such as routine use of the FOI Act in the course of carrying on a publishing business.
How does this compare with US Federal Government policy on fee waivers for the media in 2007?
That's it - all pretty straight forward really. The public interest in this context is promoting public understanding of what goes on in government.Financial hardship is not relevant.If you primarily plan to make a dollar by flogging the information,or utilising it for commercial purposes,you don't get the waiver of additional charges. No need for tortuous decision making of the kind set out in the 25 pages of Deputy President Walker's decision.
The US model made sense to the Senate Committee in 1978. It still makes sense today.
The Australian media, collectively, and others interested in this issue should be alerting the Federal Government to the distance we have now put between practice here and the way things work there.
By the way, agencies subject to the NSW FOI Act shouldn't assume that the Federal decision provides the basis for taking the same narrow view about public interest rebates when dealing with requests from the media. The NSW Charges Order and the Guidelines in the NSW Premier's FOI Manual involve different considerations.
In effect, Deputy President Walker found that an application for documents made by a profitable newspaper in the course of conducting its newspaper publishing business, failed to satisfy the requirements for a public interest rebate contained in the the FOI Act, and spelled out in government policy. That is, it couldn’t demonstrate financial hardship, and even though it showed that there was a public interest in making the documents available, this was outweighed by the fact that the making of the application was part of its day to day conduct of business.
Matthew Moore and Rick Snell have both provided comment and analysis of the decision.
In my view, there is a strong case for special consideration of access requests by the media and others acting to advance public knowledge about government's conduct of public functions.
The media in Australia either wears the current law and policy in this and other respects, for example last year’s High Court decision in the McKinnon case, (Matthew Moore's column in to-day's Sydney Morning Herald provides a brief summary of the problems) or decides to make a serious and concerted effort to do something about our law and the way it is applied.
In November News, the Australian Press Council said the publication of five articles about FOI after McKinnon was the first step towards reform of FOI law and practice in Australia. Nothing seems to have happened since.
We said at the time that the Council, in conjunction with like minded partners, needs to dip into its pocket to fund and develop a national advocacy group to promote open government principles, and FOI laws that work as a means of achieving them.
This decision would have the media jumping up and down elsewhere, particularly in the US.
Interestingly, the basis for the current Federal law and policy on charges had its genesis in US practice at the time. As Deputy President President Walker notes, a 1978 Senate Committee report prior to the introduction of the FOI Act in Australia, said the Committee believed "that there should be explicit provision, as in the United States, for reduction or waiver by agencies or ministers when the provision of information can be considered as primarily benefiting the general public rather than being for the benefit or gain of the individual applicant".
Yet, from this worthy starting point, we have now “progressed” to a situation where an applicant must demonstrate financial hardship, why disclosure is in the public interest (its not in the public interest if the information is out of date), and ensure that this is not outweighed by countervailing factors, such as routine use of the FOI Act in the course of carrying on a publishing business.
How does this compare with US Federal Government policy on fee waivers for the media in 2007?
- there is no fee for the making of an application, for time taken in locating and retrieving documents, and for 100 pages of photocopying, where the request is from "any person actively gathering news for an entity that is organized and operates to publish or broadcast news to the public".
- there is provision to waive or reduce other charges for example for any time involved in making a determination on an application, where the disclosure of requested information "is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government, and the disclosure is not primarily in the commercial interest of the requester". If a news media requester satisfies the public interest standard, the public interest will be the interest primarily served by disclosure.
That's it - all pretty straight forward really. The public interest in this context is promoting public understanding of what goes on in government.Financial hardship is not relevant.If you primarily plan to make a dollar by flogging the information,or utilising it for commercial purposes,you don't get the waiver of additional charges. No need for tortuous decision making of the kind set out in the 25 pages of Deputy President Walker's decision.
The US model made sense to the Senate Committee in 1978. It still makes sense today.
The Australian media, collectively, and others interested in this issue should be alerting the Federal Government to the distance we have now put between practice here and the way things work there.
By the way, agencies subject to the NSW FOI Act shouldn't assume that the Federal decision provides the basis for taking the same narrow view about public interest rebates when dealing with requests from the media. The NSW Charges Order and the Guidelines in the NSW Premier's FOI Manual involve different considerations.
Wednesday, February 07, 2007
National Access Card privacy issues given new nod
The Federal Minister for Human Services' media release about the National Access Card legislation introduced today (see item below) has a couple of new twists - the Consumer and Privacy Task Force has been asked to undertake a Privacy Impact Assessment "before issues around privacy are resolved in subsequent legislation", and the Bill is to be referred to a 5 week Senate inquiry. New Smartcard Legislation Introduced.
The Privacy Impact Assessment completed before the project was publicly launched has never been released, despite assurances given by the former minister Joe Hockey.
I'm sure that's not the plan for the new assessment, but interestingly the media release makes no mention of public disclosure.
The Privacy Impact Assessment completed before the project was publicly launched has never been released, despite assurances given by the former minister Joe Hockey.
I'm sure that's not the plan for the new assessment, but interestingly the media release makes no mention of public disclosure.
FOI delivers - how Federal MPs spent $40million on stuff for your mail box
If you have been on receiving end of leaflets and letters from your Federal Member of Parliament, you are not alone.
This report "How MPs rack up the bills to turn over a new leaflet" in today's The Age provides information about who has spent what from the communications allowance - $125,000 per year. Some MPs spent it almost to the penny, while others clearly know the annual allowance is cumulative and have been saving their dollars and cents for this election year.
The report is based on information released to Channel 7 following an FOI application.
But can anyone explain why an FOI application is necessary and why this sort of information isn't posted on a government or parliamentary website as a matter of routine?
This report "How MPs rack up the bills to turn over a new leaflet" in today's The Age provides information about who has spent what from the communications allowance - $125,000 per year. Some MPs spent it almost to the penny, while others clearly know the annual allowance is cumulative and have been saving their dollars and cents for this election year.
The report is based on information released to Channel 7 following an FOI application.
But can anyone explain why an FOI application is necessary and why this sort of information isn't posted on a government or parliamentary website as a matter of routine?
FOI Workshops for 2007
We will be holding our first FOI workshops for 2007 in early March.
Introductory workshop for State Government agencies will be held on 7 March and Introductory workshop for Local Government (includes S12 and LGA) will be held on 14 March.
Please see our web site for further details.
Introductory workshop for State Government agencies will be held on 7 March and Introductory workshop for Local Government (includes S12 and LGA) will be held on 14 March.
Please see our web site for further details.
National Access Card in Parliament today
The National Access Card is back in the news and on the move. The Government plans to introduce legislation today, but apparently faced some strong questioning from several of its own MPs in the party room yesterday (the Australian: Coalition MPs attack proposed ID card).
According to a report in today's Australian Financial Review, the Prime Minister muddied the water at the meeting when he cited combating terrorism as a key reason why the community would accept the card. This despite the fact that the Government has spent months explaining that the card was an access not an ID card.
The new Minister for Human Services, Senator Campbell on ABC's "AM" this morning said that some further changes had been made following consultation with Professor Fels, the Chairman of the Consumer and Privacy Task Force. The inclusion of a date of birth on the face of the card will now be optional.
The Government in introducing the legislation will no doubt seek to answer the many queries and criticisms made in submissions on the draft bill.
According to a report in today's Australian Financial Review, the Prime Minister muddied the water at the meeting when he cited combating terrorism as a key reason why the community would accept the card. This despite the fact that the Government has spent months explaining that the card was an access not an ID card.
The new Minister for Human Services, Senator Campbell on ABC's "AM" this morning said that some further changes had been made following consultation with Professor Fels, the Chairman of the Consumer and Privacy Task Force. The inclusion of a date of birth on the face of the card will now be optional.
The Government in introducing the legislation will no doubt seek to answer the many queries and criticisms made in submissions on the draft bill.
Sunday, February 04, 2007
Happy birthday to us
This blog "celebrated" its first birthday on 3 February. We have posted 450 items and had over 14,000 hits since we started.
Thanks for the interest and input. It's been a steep learning curve, but mostly fun, and hopefully worthwhile in raising awareness of open government and privacy issues as they impact on us in this part of the world.
Thanks for the interest and input. It's been a steep learning curve, but mostly fun, and hopefully worthwhile in raising awareness of open government and privacy issues as they impact on us in this part of the world.
Amazing scenes: UK minister says government legal advice should be publicly available
There is nothing as dear to a government lawyer's heart (some do have one) as legal professional privilege.
Its been one of the most common exemption issues that have cropped up in external review of Freedom of Information applications in all Australian jurisdictions.
Once the criteria for privilege has been established, that's the end of the section for any attempt to gain access, as FOI legislation usually requires no other test.
In an interesting development in the UK, The Guardian reports that the constitutional affairs minister has broken ranks with other ministers by questioning why legal advice from the first law officer should not be publicly available:
We mentioned here some weeks ago that NSW Deputy Ombudsman Chris Wheeler in an article in the Australian Institute of Administrative Law Forum (still not available on line) has questioned why legal advice in government should be treated any differently than other advice when issues about public access arise.
The Australian Law Reform Commission is currently reviewing the whole concept of legal professional privilege as a result of issues arising from the AWB Royal Commission. The terms of reference however don't expressly cover the fundamental issue now raised in the UK.
That UK development however will be grist for the mill here in a number of areas, including in the NSW Administrative Decisions Tribunal, where it is about to look at a couple of cases concerning why documents that attract the privilege exemption in the NSW FOI Act should not be disclosed.
And what will NSW Crown Solicitor Ian Knight make of this shock horror development!
Its been one of the most common exemption issues that have cropped up in external review of Freedom of Information applications in all Australian jurisdictions.
Once the criteria for privilege has been established, that's the end of the section for any attempt to gain access, as FOI legislation usually requires no other test.
In an interesting development in the UK, The Guardian reports that the constitutional affairs minister has broken ranks with other ministers by questioning why legal advice from the first law officer should not be publicly available:
"It is a contradiction in terms to have an accountable office-holder who is not able to publish to those whom he is accountable the advice he has given. It is not enough for government ministers to say we are advised that it is lawful. Backbenchers, let alone the wider public, want to see for themselves what the arguments are".There has been much controversy in the UK about legal advice the government received about the war in Iraq, and recently about the Attorney General's role in stopping the Serious Fraud Office investigation into alleged slush fund payments by a UK firm to Saudi officials. Minister Harman's comments suggest one option for improving public trust in an office in the UK that has statutory independence, as the Government's principal legal advisor, but also has a seat at the Cabinet table.
We mentioned here some weeks ago that NSW Deputy Ombudsman Chris Wheeler in an article in the Australian Institute of Administrative Law Forum (still not available on line) has questioned why legal advice in government should be treated any differently than other advice when issues about public access arise.
The Australian Law Reform Commission is currently reviewing the whole concept of legal professional privilege as a result of issues arising from the AWB Royal Commission. The terms of reference however don't expressly cover the fundamental issue now raised in the UK.
That UK development however will be grist for the mill here in a number of areas, including in the NSW Administrative Decisions Tribunal, where it is about to look at a couple of cases concerning why documents that attract the privilege exemption in the NSW FOI Act should not be disclosed.
And what will NSW Crown Solicitor Ian Knight make of this shock horror development!
Privacy questions for major health fund
Saturday's Sydney Morning Herald ("Health fund leaking patient medical files") reported that HCF, one of Australia's largest health funds, has provided McKesson Asia Pacific with details of 370 members with some history of mental illness, and that McKesson has used this information to seek to directly sell them services.
Both HCF and McKesson claim no breach of privacy legislation is involved although the report says the information was handed over without consent.
HCF's privacy policy statement includes the following:
When these sort of stories make the news ,we're left wondering just how many instances of this type of conduct occur every day but just below the public awareness water line.
Australia is not the only place with health privacy concerns.
Both HCF and McKesson claim no breach of privacy legislation is involved although the report says the information was handed over without consent.
HCF's privacy policy statement includes the following:
"At HCF we recognise the trust you place in us when you provide personal information. We will not use, sell, rent, share or disclose any information about you to any third parties, other than Government agencies or those who are contracted to us to keep the information confidential, such as medical professionals, re-insurers, research companies and mail houses".It's not clear how much wriggle room HCF have here to claim justification for disclosure to McKesson, but the Sydney Morning Herald report says both the Federal and NSW Privacy Commission are asking questions.
When these sort of stories make the news ,we're left wondering just how many instances of this type of conduct occur every day but just below the public awareness water line.
Australia is not the only place with health privacy concerns.
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