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Monday, April 30, 2007

FOI delivers: Katrina victims don't receive

This story in yesterday's Washington Post "Most Katrina aid from overseas went unclaimed" is unlikely to provoke much joy, given the continuing misery of those in New Orleans still suffering the effects of the cyclone in September 2005.

The report, based on documents obtained under Freedom of Information by Citizens for Responsibility and Ethics in Washington (CREW), says that most of the $854million offered by governments around the world, went uncollected by the US Government, while red tape also delayed take up and use of the money. Some governments will not be amused by the response to their offer of assistance, or by the publication of the detailed correspondence between them and US authorities.

In the International Relief Matrix Spreadsheet prepared by CREW on the basis of the documents released, Australia's $10million cash contribution to the Red Cross was received and presumably utilised to good effect. But the entry suggests that we mightn't have delivered everything promised: "money accepted 9/5; other assistance delayed - Aussie ministers pulled back to money and emergency management personnel".

Saturday, April 28, 2007

NSW ADT FOI decision on access to investigator's report

The NSW Administrative Decisions Tribunal decision in Howell v Macquarie University (2007) NSWADT95 is the third decision in a complex case about access to documents concerning an investigation of a matter involving the Freedom of Information applicant. It's not finished yet - the Tribunal is yet to consider whether documents found to be exempt should in the circumstances be disclosed.

One interesting aspect of this latest decision is that the Tribunal found that the report of an independent investigator, including statements made by other members of the staff (excluding some personal affairs information) were not exempt from disclosure to the applicant. The University argued for exemption on legal professional privilege, and confidentiality grounds. Although the University's solicitor commissioned the report, the Tribunal was not satisfied it was prepared for the purpose of provision of legal advice. On confidentiality, the Tribunal said that the report had been provided to the University in confidence, but was not satisfied that disclosure to the FOI applicant would prejudice the future provision of reports by consultants. Similarly, statements made to the investigator by members of the staff (including two who objected to disclosure), were also found not to be exempt.

One noticeable inconsistency in recent Tribunal decisions concerns the relevance of disclosure under FOI and whether the identity or interests of a particular applicant are relevant. In this decision the applicant had some special standing because the complaint and investigator's report concerned her. In some other cases the Tribunal has refused access to a person who has a clear personal interest, on the basis that disclosure under the FOI Act is "disclosure to the world", meaning that there are no restrictions on what a particular applicant can do with information released under the Act.

Friday, April 27, 2007

Press freedom report found (see earlier post)

The 2007 Australian Press Freedom Report by the Media Entertainment and Arts Alliance contains a section on Freedom of Information (including an article by Matthew Moore and Michael McKinnon) and another section on problems for the media posed by "privacy". See the full report here.

I think the comments about FOI are spot on, but disagree with the view that privacy rights are the bogey for freedom of the press that some in media circles and this report claim.

The Report covers a range of other important areas of concern about limitations on the media in Australia.

Lets hope the Alliance and other media groups take consistent positive action to push for open government principles and FOI laws that work to extend the public right to know. Federal Secretary, Christopher Warren, in his introduction says "the only way to confront this time of official spin and manipulation is head-on, and the time is now".

Press censorship report hard to find

"The Australian media is more restricted than it was 12 months ago, an annual report in to press freedom has found", and 19 areas in which the media's ability to report freely, apparently includes a limitation on access to information under freedom of information laws.

All this from a report "Freedom of press under attack from all sides, says report" in the Sydney Morning Herald about Official Spin: Censorship and Control of the Australian Press 2007 compiled by the Media Entertainment and Arts Alliance.

But not a mention (according to my Google search) of any of this in any other media outlet to date. Could this be because the Alliance website includes no reference to the Report or where you can access it?

Maybe the Alliance needs a bit of help from the "spinmiesters" who know how to get an issue up and running in the media.

Update: The West Australian picked up this AAP report "Canberra has neutered FOI laws: union". And the Report was posted on the Alliance website sometime today.

Law Reform Commission on legal privilege

Legal professional (or client legal) privilege has proved to be one of the more common exemption claims under Australian Freedom of Information laws, and has featured in a lot of the reported decisions.

A current Australian Law Reform Commission inquiry into privilege focuses primarily on the concept as it applies to Federal investigatory bodies but the Issues Paper recently released gives a comprehensive overview of the concept, and raises some important questions about the extent to which privilege should be abrogated and in what circumstances.

The inquiry was prompted by issues raised in the AWB and HIH Royal Commissions where there were attempts to claim privilege in order to frustrate investigations.

Some of the discussion of privilege in the Issues Paper will be grist for the mill in consideration of the privilege exemption in the FOI context.

Thursday, April 26, 2007

To Google or not to Google?

Given other privacy challenges, Google's new "web history" option may not be such a big deal (or am I just getting complacent here) but we won't be able to say that privacy advocates here and elsewhere, didn't warn us of the dangers. The Sydney Morning Herald Mashup also has some interesting comments from concerned (and not so concerned) readers.

Tuesday, April 24, 2007

"Right to privacy" controversial topic in Victoria

Contrarians - those who take an opposite view to most - can sometimes assist our understanding by raising a new and different perspective.

But what to make of "Privacy is the last thing we need" by Mirko Bagaric in The Age on Sunday?

In an opinion piece prompted by the recent HIV incident in Victoria, Dr. Bagaric says the
"right to privacy is the adult equivalent of Santa Claus and unicorns", "is destructive of our wellbeing" and "prevents us obtaining things that really matter, such as safety and security and makes us fear one another". Privacy is "no more than a request for secrecy - refuge of the guilty, paranoid and misguided, none of whom should be heeded in sorting through the moral priorities of the community".
There is a serious issue in getting the balance right when it comes to information about us and disclosure to others. But no one who has thought about the issue suggests there is any absolute right of privacy. Other considerations - including in the HIV case, the well being of others - need to be reflected in our laws, and given appropriate consideration as discussed in this editorial in The Age.

Dr. Bagaric seems prepared to ditch human rights generally - "humans don't need rights to flourish" he says - with little apparent regard for the Universal Declaration of Human Rights and everything that has followed since 1948.

This isn't a contrarian view that will help along the debate about balancing the right to privacy and the circumstances in which others have a right to know.

This isn't the first time Dr. Bagaric has put forward a controversial view. We commented last year on his suggestion that everyone's criminal record should be publicly available.

The Age article says he is "a lawyer and author of Privacy Law in Australia and Human Rights in Victoria (with Peter Faris). This list of articles shows his contrarian approach is not limited to privacy - smacking children also seems to be on his list.

Monday, April 23, 2007

Special MP pleading on FOI in UK goes nowhere but has echos in Australia

An attempt by an Opposition backbencher to amend the UK Freedom of Information Act to exclude the houses of parliament from the scope of the Act, and create a new exemption for communications between members of parliament and public authorities has been derailed and seems unlikely to run again, according to this report in The Guardian.

David MacLean MP claimed that the amendments were necessary to protect constituency correspondence from disclosure under the Act but this didn't wash. As the Campaign for Freedom of Information pointed out in this briefing document such correspondence is already exempt, no specific examples of improper disclosure of such correspondence were cited in parliamentary debate, and the Information Commissioner said that no complaints had been received from constituents or members about inappropriate release.

The Campaign said the main effects of the changes would have been to prevent requests for details of MPs' expenditure from being disclosed and to protect correspondence with public authorities on general policy from disclosure.

In Australia our FOI acts apply to government agencies and specifically exclude houses of parliament. Documents held by a government agency or minister that emanate from members of parliament can be sought under FOI. Whether a document is exempt will turn on content but information about a constituent would not usually be disclosed on personal affairs grounds.

One effect of the acts not applying to parliament is that information about MPs' expenses and allowances isn't usually in the public domain. We have commented previously here about the contrast between Australian practices and those that apply elsewhere. For example, in Scotland simply look up any MP here to find out what expenses and allowances have been paid.

Not surprisingly, neither government nor opposition anywhere in Australia seems to have suggested that FOI should be extended to cover the legislative branch of government.

FOI - the usual suspect

Two NSW Government agencies are in dispute about access to documents. But would you believe this, FOI is said to be preventing the sharing of information between them.

According to a report "Departmental secrecy hampers land-clearing investigation" in the Sydney Morning Herald on Friday, the Department of Environment and Conservation held copies of reports provided by a landholder about land-clearing (relevant to a matter now before the Land and Environment Court), but when the Department of Natural Resources asked for access they were knocked back. A spokesman for the Department of Environment and Conservation said "freedom of information laws did not allow it to pass on the material, even to another NSW government agency".

Maybe the spokesman mispoke. I know FOI isn't flavour of the month in government, but you can't blame it for everything. It doesn't prevent the sharing of information between government agencies. There may be some other justification, but FOI isn't the problem.

Friday, April 20, 2007

FOI doesn't deliver: list of post offices not in the mail

If most of us wanted to get hold of a list of post offices we'd probably look up

But when a Freedom of Information applicant sought a list of Australian Post Office licensees and their addresses, he mightn't have expected to end up in the Federal Court.

Alan Johnston not only ended up in court but ended up with nothing. Justice Greenwood of the Federal Court found in Australian Postal Corporation v Alan Johnston (2007) FCA386, that the list had been brought into existence for the substantial and operative purpose of Australia Post carrying on commercial activities. Documents received or brought into existence by Australia Post for the purpose of carrying on activities on a commercial basis in competition with others is excluded from the operation of the Act by Section 7 and Schedule 2 of the Federal FOIA.

The Federal Court decision overturned an Administrative Appeals Tribunal decision that the list excluding the names and telephone numbers of the licensees, were not excluded from the Act because they related, as well, to the "reserved", that is the monopoly functions, of the post office, the delivery of the mail. Documents concerning reserved functions do not relate to Australia Post's commercial activities.

The AAT and the Federal Court both accepted evidence from Australia Post that the list was maintained for a number of purposes and functions, including the reimbursement of fees and commissions, the supply of products; and the communication of changes of products and services with particular licensees.

No one seems to have suggested in either hearing that Australia Post would need to have such a list primarily for administrative purposes of keeping track of who out there were part of the postal network.

It's another example of how FOI has become a legal minefield, with fine legal points being argued just because they can, hang the time and expense of seeking, in this case successfully, to prove a point.

No sign of any recognition of the spirit and intent of FOI legislation, or of the need to demonstrate any harm would flow from disclosure of the document. As the Tribunal noted in its decision the list of offices and addresses would be nothing more than a list available in the white pages, albeit in a more convenient form.

At least Australia Post had the good grace not to seek an order that Mr. Johnston pay its costs in the Federal Court.

Thursday, April 19, 2007

More troubles with 'that' card

The Minister for Human Services now responsible for the National Access Card, Senator Ellison, says that a photograph, signature and personal number, will be retained as key elements of the proposed Access Card, according to this report in The Australian. This won't be any solace to those who see the potential for the card to become a national identity card.

And what to make of comments by Greg Taylor of Electronic Frontiers Australia who says "Biometric errors too high", raising questions about the efficiency gains from the project if there is a high error rate in biometric photographs.

Victorian HIV/privacy saga continues

In further developments in the Victorian HIV saga (see "Privacy preoccupation in Victorian Health Department endangers lives), it now turns out that the Police only came to know about the extent of the problem that a number of HIV positive men were apparently under notice for possibly seeking to infect others when the Department of Health handed over records "by mistake" (see the transcript of this ABC Radio AM program), and then tried to get them back. The Department's version is that the Police grabbed the files without authorisation.

This article by Gary Hughes "Policing HIV" in The Australian summarises developments in Victoria and in another case in South Australia which has come to light.

Wednesday, April 18, 2007

Appeal of groundbreaking privacy decision

No surprise either that the Australian Broadcasting Corporation is to appeal the finding that a cause of action for breach of privacy (and on other grounds) warranted damages of $234,000 to a rape victim who was identified in radio broadcasts, in breach of the Judicial Proceedings Reports Act (see our post of 4 April).

Regulating lobbyists "too hard" in NSW

No surprise that the NSW Premier, according to this article in today's Sydney Morning Herald, sees no need for a register of lobbyists. (See our post "WA register of lobbyists a step in the right direction" 16 April).

The reason?
"A spokesman for the Premier, Morris Iemma, said he did not believe in a register because it was hard to ensure legislation covered all organisations or individuals".
This is remarkably similar to the reason for opposing such a register given by Bruce Hawker, the Managing Director of Hawker Britton, the lobbying firm that apparently has the game tied up in NSW.

"Mr Hawker said yesterday that the West Australian system was flawed because it did not define certain people as lobbyists. The general secretary of the Labor Party or a union secretary would not have to declare their lobbying interests, and neither would "in-house lobbyists" for companies, he said".

A government committed to transparency in the conduct of public functions would therefore seek to do better than the WA system. There are plenty of precedents from Canada and elsewhere that show the way.

A government not interested might simply say its all too hard. And apparently it's not too hard for the Premier's ALP Federal colleague Kevin Rudd who was reported in The Age in January as saying that Labor plans to crackdown on lobbyists if elected later this year. He made it sound as if a register was just a start!

By the way, as mentioned in the Sydney Morning Herald article NSW Parliament requires lobbyists to register before they can be given a pass to roam the corridors. The register is here - Hawker Britton apparently has no need for such things.

And finally, the "Guidelines for Managing Lobbyists" referred to by the Premier as being "sufficient" are in this Memorandum (M2006-01) issued last year. They only apply to contact with lobbyists prior to the making of a decision under an act of Parliament or regulation. They don't address issues concerning other contacts with lobbyists about aspects of government policy or decision making. Among the suggestions is that ministers, ministerial staff and public officials who are lobbied should "consider keeping records of meetings and, if necessary, having another person attend the meeting as a witness or to take notes" (emphasis added). This is weaker even than guidance provided by State Records NSW about the obligation to keep full and accurate records including those concerning meetings in the course of the conduct of government business.

"Sufficient" as far as the Premier is concerned?

NZ battle over BDM's

It's battle stations in New Zealand according to this report on, with the media, civil liberties activists, private investigators and genealogists all crying foul following the introduction of a Bill into Parliament that would impose restrictions for the first time on access to births, deaths and marriage records. The changes would bring New Zealand into line with access provisions common in Australia, but some over there take the view that freedom of the press, and other rights are at stake.

The Government has justified the changes because of the need to address identity fraud but the editor of the Dominion Post says:
"People are born, they marry or enter a civil union. They divorce, they die. Why should this be taken out of the public view".
It's a rather quaint view that this type of information should be available to anyone as a matter of routine.

Tuesday, April 17, 2007

Your doctor may be outsourcing your files

Its no surprise, or even a new development, that Australia's privacy laws are weak and impose very few restrictions that would prevent the outsourcing by medical practitioners and hospitals that send medical files to be typed up in India, Pakistan and the Philippines. Or if the laws do apply and are circumvented, what, if any rights an affected person might have, if they come to know about the matter?

It's another issue on the Australian Law Reform Commission agenda but in the meantime ........

WA Lobbyists Register a step in the right direction

It's hardly earth shattering as a transparency initiative but it is an Australian first. Western Australia now has its official Register of Lobbyists up and on line. The Register currently contains 31 entries. Lobbyists must disclose their clients, update client information quarterly and comply with a code of practice. The code prohibits a minister or public servant from contact with a lobbyist unless registered.

A far cry from a truly transparent system that would ensure public knowledge of what goes on in the corridors of power, but at least one small step - for West Australians at least.

According to today's Australian Financial Review (no link available), the famous or infamous Messrs Burke and Grills whose names do not appear, will not be allowed to register.

Victoria is in the process of establishing a register. No sign of action in Canberra, or the other states.

NSW ADT FOI decision highlights agency shortcomings

We all know that the standards for administration of Freedom of Information responsibilities vary considerably. Matthew Moore and his "What they won't tell you" column in the Sydney Morning Herald has provided plenty of evidence over the last 12 months that standards in some agencies, state and Federal leave a lot to be desired.

The detail of how the agency dealt with the application, in this decision P v Greater Western Area Health Service (2007) NSWADT 87 by the NSW Administrative Decisions Tribunal, reveals that the Greater Western Area Health Service needs to lift its game considerably.

Acting Deputy President Handley substantially overturned the agency decision to refuse access to documents sought by the applicant. In the course of his decision (paragraphs 25 and following) he noted that the application had not been dealt with in accordance with the Act's requirements, that parts of documents released before the matter came to the ADT had only been made available after intervention of the Ombudsman, some documents to be released were missing from those provided to the applicant, FOI application fees were mislaid, and promised phone calls were not returned.

The Health Service didn't do itself any favours by arguing before the Tribunal that it "believes it has need to "draw a line in the sand" in relation to the quantity of time, energy, and resources that it commits to providing information that is not relevant to the business it is endeavouring to carry out and the fundamental services it provides to the community".

Sounds like it's news to them that since 1989, members of the public have a legally enforceable right of access to documents held by an agency. It's called the NSW Freedom of Information Act.

"P" unfortunately had to wait for over a year to get hold of documents, but showed that tenacity as well as patience is necessary when pursuing this right with this Health Service.

Monday, April 16, 2007

Two FOI stories on Iraq with different outcomes

When the Daily Telegraph sought access to documents under the Freedom of Information Act, about compensation payments made to Iraqi civilians as a result of accidents or negligence by Australian forces, it received some details about payments totaling $260,000. But the documents were heavily censored.

The story as reported widely in News Limited publications around the country, was about a lack of transparency. Labor Defence spokesman, Joel Fitzgibbon, said "there should be more transparency. The taxpayers are entitled to know who they are paying, how much they are paying and what they are paying for".

However this week when the New York Times and other papers reported on documents released to the American Civil Liberties Union under the US Freedom of Information Act about the thousands of claims submitted by Iraqi and Afghan civilians for compensation, it described the documents as providing "unusually detailed accounts of how bystanders to the conflicts have become targets of American forces grappling to identify who is friend, who is foe".

Neither FOI application resulted in disclosure of the identity of claimants, and all we have from the Daily Telegraph is the summary of claims, but it looks like the amount of information released in the US was significantly more detailed than that released in Australia.

The ACLU is contesting a decision to deny access to some documents. Maybe the Daily Telegraph should consider doing the same.

Thursday, April 12, 2007

National access card iPod in disguise

If you didn't know the Federal Government plans to give you an iPod, this opinion piece in the Age says it's because it comes under another name (National Access Card) and with some significant strings attached (in terms of your privacy).

BHP Billiton beached in California

With the California Lands Commission voting against the BHP Billiton offshore gas terminal, and the Coastal Commission likely to reject the proposal, it's not clear whether this will deter Representative Waxman Chairman of the US Government Oversight Committee, from trying to find out what really went on between the company, the White House and the Environmental Protection Agency that led to the Agency's change of mind in support of the project (see our earlier post "BHP Billiton in US hot water" on 5 April).

Difficult to get it right about difficult FOI applicants

A very alert and well informed reader has drawn my attention to the fact that South Australia already has a provision in its Freedom of Information Act that bears some similarity to grounds proposed in Western Australian legislation for dealing with difficult applicants (see our post "WA FOI Amendment and "difficult" applicants" 10 April).

The South Australian provision (Section 18(2a)) reads "An agency may refuse to deal with an application if, in the opinion of the agency, the application is part of a pattern of conduct that amounts to an abuse of the right of access or is made for a purpose other than to obtain access to information."

I don't know the extent to which this has been applied in practice but the 2004 -2005 Annual Report of the SA Ombudsman ( pages 13 and 14) includes the following observations:
"This is an interesting section because the starting point is that applicants do not have to provide any reason whatsoever for making an application under the Act. They do not have to justify their request in any way, because they are exercising a legally enforceable, statutory right to be given access (provided for under section 12), which is unrelated to the merits of the application.
However, by introducing the concepts of ‘unreasonableness’ and abuse of this right, together with ‘ulterior purpose’ (sometimes referred to by agencies as ‘vexatiousness’, although it is important to appreciate that this is not the word used) where an agency provides some evidence in support of section 18(1) or 18(2a), applicants would do well to justify their application(s). In legal terms, this is sometimes referred to as an applicant bearing the ’persuasive burden’. This proved a major difficulty for the applicants in the 12 matters.
Because the Act provides such a clear right to access, it is not something to be lightly taken away. Consequently it may not be easy to sustain an argument that an application is part of a pattern of conduct that amounts to an abuse of the right of access, and it is likely to be even more difficult to show an ulterior purpose (because this will probably be mere speculation on the agency’s part). That is, you may argue that because the applicant has not disclosed his or her purpose, that this purpose is ‘ulterior’. For example an applicant is unlikely to admit that he or she is trying to tie up the agency’s resources, even though it may feel like this from your end! Alternatively, while you may assert that the expressed purpose is not the real one, this may be difficult to prove".
The Ombudsman goes on to discuss a particular instance when a husband and wife made 12 FOI applications to an agency relating to the same subject. In that case, the fact that substantially the same documents had previously been provided justified a conclusion that dealing with the application would constitute an abuse of the right of access.

Thanks again to our alert reader for the leads.

NSW Freedom of Information Manual still at printers?

As Matthew Moore, FOI Editor of the Sydney Morning Herald recounts today a battle with the Department of Corrective Services over a public interest rebate on fees, he also reminds us that officials in NSW are still using a manual that is 13 years old in making decisions required under the Freedom of Information Act - the Premier's commitment in August last year to have this fixed by the end of 2006, notwithstanding.

Meanwhile, the US Department of Justice has just published online its annual updated guidance on the Freedom of Information Act. While there are many legitimate criticisms of administration of the FOI Act there, in this area they leave our central agency guardians of similar legislation, for dead.

Wednesday, April 11, 2007

Thomas Jefferson still a voice for free speech

The Thomas Jefferson Center for the Protection of Free Expression has announced its 2007 Jefferson Muzzle Awards, citing some of the more egregious or ridiculous affronts to free expression over the past year. The Center is dedicated to upholding the First Amendment to the US Constitution: Congress shall make no law......abridging the freedom of speech, or of the press".

The 16 recipients are listed here and the details of why they were selected here, with not the slightest hint of political correctness. There are some real humdingers that are worth a look.

Three awards relevant to our interests are:

The Bush Administration "for its unprecedented efforts of discouraging, changing and sometimes censoring the reports and studies of government scientists in order to make them more supportive of political policies". There is plenty of chapter and verse provided to support this award.

The US Department of Defense "for launching and sustaining a program, ostensibly aimed at counter-terrorists, that gathered and stored extensive information about lawful anti-war demonstrators and other citizen groups that posed no national security threat". The basis of this award are documents obtained by the American Civil Liberties Union under the Freedom of Information Act.

US Representative Peter King (Republican New York) "for calling upon the Justice Department to seek criminal sanctions against a newspaper and its staff for disclosing publicly the existence and extent of covert, warrantless surveillance by the National Security Administration". This award partly relates to criticism of the New York Times for publicising the fact that the SWIFT international banking cooperative messaging service was providing information to US authorities.

NSW ADT FOI decisions on interpretation of applications

Two recent Freedom of Information decisions of the NSW Administrative Decisions Tribunal involve consideration of what is expected of an agency in interpreting an application and undertaking a search for documents.

In Retain Beacon Hilll High School Committee v Department of Education and Training (No.2) (2007) NSWADT 76, the Tribunal agreed that a "fair reading" of the application justified the Department's interpretation that the applicant had requested access to documents related to the proposed sale or transfer of the High School - terms mentioned on five occasions in the application. The Tribunal said that it was satisfied that there was no ambiguity in the wording that would require steps to clarify the application. The applicant argued unsuccessfully that all documents associated with the closure of the school had been requested.

The Tribunal was also satisfied that a reasonable search for all relevant documents had been undertaken despite the fact that evidence from the applicant indicated that some documents had been overlooked. Minor discrepancies - in this case a failure to locate all documents - did not mean that the steps taken by the Department were not sufficient in the circumstances.

In Cheney v Sydney West Area Health Service (2007) NSWADT 75 the Tribunal was satisfied on the evidence provided by the agency that it did not hold DNA test results relating to the applicant, and upheld the determination to refuse access to information concerning an alleged victim of sexual assault on the grounds that disclosure of information concerning personal affairs would be unreasonable. While the applicant knew the name of the third party, the Tribunal said that an exemption on personal affairs grounds still applied as disclosure under the FOI Act was "disclosure to the world".

Tuesday, April 10, 2007

Victorian privacy case "threat" to press freedom?

ABC Television's Media Watch on Monday night had a segment about the Victorian decision to award damages to a rape victim named in ABC radio broadcasts, and ran strongly on the theme that this is likely to amount to a major new constraint on media reporting. The decision was the subject of our post on 4 April "Victorian Court awards damages for breach of privacy".

To talk all this up as a major threat to freedom of the press, is quite frankly, ridiculous. The ABC, and the two reporters involved clearly stuffed this up. Publication was a breach of the Judicial Proceedings Reports Act. There was no public interest in publication. The Court was satisfied that the plaintiff suffered real harm and that the law justified a payment of damages.

To now roll on as one of the lawyers interviewed on Media Watch did to say that this decision
"raises the potential that if you go to the football, or you go to the races and the media shows a photograph of a footballer or a horse and you're in the background, potentially you could have an action for breach of privacy"
is a very long reach indeed, and not justified on the basis of Judge Hampel's decision.

The NSW Law Reform Commission Discussion Paper on a statutory cause of action for privacy (promised for March) can't come soon enough.

Media Watch also included a segment about a Today Tonight story of a former Centrelink worker who appeared on the program to tell the world about Shapelle Corby's medical condition and dealings with Centrelink before her arrest and conviction on drug charges in Bali.

One telling observation from Gail Hambly, General Counsel of Fairfax Media, was "...I don't think we need a privacy law in Australia".

Really? Existing privacy laws (terribly deficient in many respects) provide a few protections regarding the handling of personal information. They need improvement, not repeal.

Ms. Hambly did go on to concede that if there is to be a right to sue it would be better if it was contained in a statute rather than left in the hands of courts to develop over time.

WA FOI Amendment and "difficult" applicants

I commented in an item below (Is too much FOI ever enough?) that Queensland was the only state with a provision in its Freedom of Information Act concerning vexatious applicants.

While this is true, the Freedom of Information Amendment Bill currently before the Western Australian Parliament contains broader powers to deal with applicants an agency might consider "difficult". The Amendment Act includes a new provision that will permit an agency to refuse to deal with an application in the following circumstances:
  • where the application is substantially in the same terms as one already made by this applicant;
  • where it is "frivolous or trivial" in nature;
  • where the application "is made in order to harass the agency";
  • where the application "amounts to an abuse of the right of access created by this Act".
The Minister's Second Reading Speech didn't provide any background on what led to the last two provisions or what they are intended to cover, particularly what would be considered an abuse of the right of access.

If passed by Parliament, these will break new ground in Australian FOI legislation. It remains to be seen how an agency might show that an application is "made in order to harass".

Monday, April 09, 2007

Privacy preoccupation in Victorian Health Department endangers lives

It's hard to know exactly what happened in the case of the Victorian Department of Health's refusal to provide the Police with information about a HIV positive man who experts regarded as a danger to the community. He has now been charged with over 100 offences of attempting to infect 16 others. The Police were denied access to information last year and some offences have apparently occurred since then.

Some press reports claim the Department refused the Police access to information about him and complaints received on "privacy" grounds; others, that the Department argued in court against an order to produce documents to the Police, on the basis of "public interest immunity". Both sound far fetched.

As the President of the Australian Medical Association said, there are limits on the right to privacy when people are engaging in dangerous or criminal behaviour.

Those involved in Victoria still seem to have a fair bit to explain in this case. The Minister - under pressure over this and other issues - has promised a review of information sharing between the Police and health authorities.

Is too much FOI ever enough?

We have noted previously that Australia's Ombudsmen are collectively working on what they perceive as the problem posed by querulants - those apparently never satisfied, who complain and complain, and then complain again about the way their complaint(s) were handled.

Freedom of Information is sometimes seen as a means of pursuing matters of this kind.

Its not just an issue of local interest here. Thanks to Martin Rosenbaum for drawing attention to the FOI applicant in the UK who made 90 applications to the BBC in a 6 month period, and has had a recent batch of applications declared vexatious by the Information Commissioner; and the couple in Texas who have made 2200 applications for documents to their local school board. The Board unsuccessfully sued the couple in an attempt to head off what it regarded as harassment, the court finding that the legislation imposed no limit on seeking access to government information. They probably aren't finished yet.

Any Australian experiences to top these?

The only Australian FOI legislation that includes a specific provision about this issue is the Queensland Act which gives the Information Commissioner power to declare an applicant vexatious.

Thursday, April 05, 2007

FOI delivers: BHP Billiton in US hot water

BHP Billiton probably isn't used to this sort of treatment in Australia.

This California blog has the story.

First of all, a Freedom of Information application in the US unearthed a chain of documents that reveal White House pressure on the Environmental Protection Agency to exempt the company from aspects of environmental laws in going ahead with a $700million investment in an offshore Liquefied Natural Gas port in California.

Now the influential Chairman of the powerful House Oversight and Government Reform Committee, California Democrat Henry Waxman, (who is also a prominent voice for FOI reform) has written to the company's Managing Director seeking copies of all documents concerning its dealings with the White House or EPA head office in Washington.

Waxman isn’t satisfied either with the EPA’s response to the Committee’s request for documents and has asked for urgent reconsideration of a decision to withhold some documents.

This report recounts the efforts by the Prime Minister and the Minister for Industry to get this proposal through all of the hoops in the US, and a recent article about the commencement of the investigation appeared in The Age.

Who knows what might show up as the Committee continues its investigation?

Wednesday, April 04, 2007

Victorian Court awards damages for breach of privacy

While the Australian and NSW Law Reform Commissions are still considering the creation of a right to sue for breach of privacy, a judge of the Victorian County Court yesterday decided that such a right exists at common law and awarded $234,000 to a rape victim after the ABC had revealed her name on air. See The Australian "Rape payout creates privacy law".

The text of the decision by Judge Hampel in Doe v Australian Broadcasting Corporation & Ors (2007) VCC281, is available here. An important element in the case is that the publication of the victim's name was prohibited by the Judicial Proceedings Reports Act. The two journalists involved had both pleaded guilty to an offence under the Act. The judge did not accept that their ignorance of the law, and the lack of training provided by the ABC, were relevant in deciding that in addition, the rape victim also had a civil claim for damages.

After considering comments made in other cases about a possible right of action, Judge Hampel found that in this case, the right to privacy and the right to confidentiality of personal information were intertwined. The discussion of the privacy issue is in paragraph 146 and following. She concluded (163):
"The wrong that was done here was the publication of personal information, in circumstances where there was no public interest in publishing it, and where there was a prohibition on its publication. In publishing the information, the defendants failed to exercise the care which could be reasonably required of them to protect the plaintiff’s privacy and comply with the prohibition on publication imposed by s.4(1A). This, coupled with the absence of public interest, the clearly private nature of the information, and the prohibition on publication, all point to the publication being unjustified. In my view, a formulation of unjustified, rather than wilful, in these circumstances provides a fair balance between freedom of speech and the protection of privacy. For the reasons I have already canvassed when considering breach of confidence, the information is personal or confidential information which the plaintiff had a reasonable expectation would remain private, and clearly private. Its disclosure was plainly something which an individual was entitled to decide for herself.

I find therefore the defendants breached the plaintiff’s privacy by the unjustified publication of personal information, and are liable in damages as a result".

Canada clears SWIFT of privacy breaches

The Canadian Information and Privacy Commissioner has published her report on the investigation of the handling of personal information concerning Canadians by the Belgian based SWIFT interbank messaging cooperative, particularly the revelation last year that such information is routinely passed to US intelligence agencies.

It turns out that the SWIFT database is located in Belgium and the US, and the information provided was in response to "subpoenas" issued by the US Department of Treasury. The Commissioner found that SWIFT was required by US law to provide requested information in connection with anti-terrorism investigations. She found no breach of Canada's privacy law, but notes that other regulators have concluded that SWIFT breached relevant laws concerning the handling of information about their nationals.

The Commissioner commented that SWIFT is subject to Canadian privacy legislation in the communication of personal information to and from banks in that country, and that to facilitate greater transparency about the handling of such information, requests of this kind should be sought direct from Canadian authorities.

When this issue was raised last year, the Australian Privacy Foundation (Australians' banking records get a SWIFT kick - straight to the USA) asked the Federal Privacy Commissioner to investigate whether Australian banks complied with their obligations under the Privacy Act in participating in SWIFT. The Foundation gave a 2006 Big Brother Award for "Greatest Corporate Invader" of privacy to the Australian banks collectively.

The Federal Privacy Commissioner's website contains no reference to the issue.

As the Canadian Commissioner found, Canadian laws regarding tracking financial transactions permit provision of information to US authorities. Australian laws do likewise.

Tuesday, April 03, 2007

FOI job offer

I don't imagine there are too many people out there with FOI training and experience sitting around waiting for a job to be offered by an employment agency.

If you fit the bill however Hudson has this offer for an FOI officer for 3 to 6 months in an unspecified large government organisation located in Sydney, that's currently faced with "a number of urgent FOI requests".

Good luck.

New Victorian Privacy Commissioner, NSW still waiting

Congratulations to Helen Versey, formerly Deputy Privacy Commissioner in Victoria, who has been appointed Commissioner to succeed Paul Chadwick whose 5 year term ended in July last year. See media release 13 March 2007

Following the swearing in of the new NSW Cabinet yesterday, will the new Attorney General John Hatzistergos, act to appoint someone to the NSW equivalent position which has not been filled by a permanent appointment since the resignation of the Commissioner 4 years ago?

The current Acting Privacy Commissioner John Dickie, was first appointed in September 2003, and is still there.

As the Australian Privacy Foundation commented in February, N.S.W. has been asleep at the wheel on privacy for years.

Registration details for national access card, failed to register


The Sydney and Brisbane consultations referred to in the item posted below on Sunday, were cancelled due to a "lack of interest", according to this report in the Australian.

Lack of interest or lack of adequate notice? The Australian Privacy Foundation says there was limited advance information about the dates (we only became aware of all this last Friday and we spend a fair bit of time trying to keep up with developments) but the Task Force counters by saying over 160 interested organisations or individuals were contacted (not us).

The new Minister for Human Services, Senator Ellison, has said that the legislation to introduce the card will be tabled in Parliament on 12 June and that two months will be allowed for debate before final consideration by the Senate.

Sunday, April 01, 2007

National Access Card discussion on registration process

The National Access Card Consumer and Privacy Task Force, has issued a discussion paper on the registration process, seeks public submissions and plans a round of consultation meetings.

The process of registering over 16 million Australians, verifying their identity, taking a biometric photograph, and taking the details required for the register (and this is a shifting set of requirements), is daunting just to read about, let alone to contemplate what would be involved in the management and implementation of such a project between 2008 and 2010. As the paper indicates, once we're all clear on what the Government plans to do, the project will require the issue of 30,000 cards every workday over this 2 year period.

Then as the Task Force points out, there are lots of questions still to be answered and problems to be solved - who will pay for all the identity documents required to be produced to the government for registration purposes, how will the homeless and other disadvantaged groups respond, will prisoners have their photographs taken in jail, how will we deal with those who live in remote locations, or overseas, or for religious or cultural reasons have a problem with full facial photos? That's for starters.

The Director of a similar project in Austria was in Australia recently and was reported to have said that they had dispensed with the idea of including a photograph on the card there because it would have added 5 years to the time frame.

Submissions are invited by 16 April.

Any parties interested in attending any of the following public consultations on the Registration Process are asked to register via email to at least three working days prior.

Locations will be advised to registered participants nearer to the date.

Sydney 10.00am – 4.00pm Monday 2 April 2007
Brisbane 10.00am – 4.00pm Tuesday 3 April 2007
Hobart 11.30am – 2.30pm Tuesday 10 April 2007
Melbourne 9.00am – 3.00pm Wednesday 11 April 2007
Canberra 10.00am – 3.00pm Friday 13 April 2007
Adelaide 2.00pm – 4.30m Monday 16 April 2007
Perth 2.00pm – 4.30pm Tuesday 17April 2007
Darwin 2.30pm – 5.00pm Wednesday 18 April 2007