Partial sunshine solution for medicos

The Australian Competition Tribunal yesterday ordered drug companies to disclose every six months on the website of Medicines Australia, the peak drug company body, the full details of the 'hospitality' they shower on health professionals.

The Tribunal said there was a significant detriment associated with the unrestricted development of non arms-length relationships between pharmaceutical companies and health care professionals.

The order stopped short of requiring publication of the names of recipients, something urged by some of the experts. Now that would be sunshine treatment.

Ex public service boss flags FOI shortcomings

Andrew Podger knows a bit about public management. He was a distinguished public servant for 37 years, including stints as Secretary of the Federal Department of Health and Public Service Commissioner. Now as President of the Institute of Public Administration Australia, he continues to take a close interest in what's going on within the government system.

Here's an extract from an interview on ABC 7.30 Report about an article by Podger in the latest edition of the AJPA Journal:

KERRY O'BRIEN: You've also expressed concern at what sounds like a deliberate sabotaging of at least the spirit of freedom of information principles by public servants, destroying diaries, making fewer file notes, minimising the paper trail of decision making. You've said, quote, "The trail that is left is often now just a skeleton without any sign of the flesh and bones of the real process and even the skeleton is only visible to those with a need to know." That's a less than healthy development, isn't it?

ANDREW PODGER: I use that as an illustration of the way this pressure to be responsive has led to public servants reducing the power of their views on due process. That they've backed off on due process. The FOI act has, in its beginning of it, has a series of requirements to interpret this act as widely as you can to give access as much as you possibly can to the public, to information that's held in the public service.

KERRY O'BRIEN: Is that now being interpreted much more narrowly?

ANDREW PODGER: Exactly, that there is a much more pervasive view that there should be not release of documents unless it can be demonstrated it really is in the public interest, whereas the Act requires you to release it unless it can be demonstrated that it's not in the public interest to release it.

KERRY O'BRIEN: When you talk about fewer file notes being made, when you talk about diaries being destroyed, one wonders to what extent this will limit the accuracy with which history can be told in the future of these times.

ANDREW PODGER: I wonder that myself from time to time, Kerry. I think it's interesting that in so many scandals or major issues over the last few years, the failure to have proper record keeping keeps on being mentioned, whether it be by the Auditor General, or by the Palmer report, or whoever, keep on saying we've got a problem about record keeping. My fear is that the problem with record keeping will continue while there is this concern within the place of not giving access and not keeping the records for fear that this might be politically difficult.

KERRY O'BRIEN: You say, quote, "There must be strong suspicion that partisan interests are often the main consideration in frustrating FOI requests rather than the public interest."

ANDREW PODGER: Indeed.

There is more of interest in the interview about the duty of public servants to act in the public interest, and how the infamous 'children overboard' incident a few years ago exhibited a failure by politicians and public servants to follow due process.

NSW relaxed and comfortable about surveillance

Surveillance - or the use of surveillance devices - is a hot topic in most places. The UK Information Commissioner warned last year of the danger that Britain was heading towards a "surveillance society". Similar concerns have been raised in the US, most recently in this report by the American Civil Liberties Union.

In NSW however, the Government appears to be much more relaxed.

Eleven years ago it gave the NSW Law Reform Commission a reference on this issue. The Commission released an issues paper in 1997 and undertook further research before releasing an interim report in 2001. The then Attorney General, asked for further work to be done, and a final report was made available to the Attorney General in 2005.

There the report sat in the 'in tray' until last week when the new Attorney General tabled it in Parliament, and then said the recommendations in the final report were rejected. The full text of the news release said that issues concerning surveillance in the workplace had already been the subject of specific legislation, and surveillance for law enforcement purposes was being looked at on a national basis.

And the result of nine years work by the Commission, thanks but no thanks.

No special body to manage Access Card

There will be no separate government agency to administer the Access Card program. The Federal Government has rejected recommendations that an independent authority be responsible.

The draft legislation released for comment proposes the establishment of an Access Card Ombudsman, for complaints, and independent review by the Administrative Appeals Tribunal.

Who's looking for a job now?

Oops.

Inadvertent publication on the web of the customer relationship management database, even if it is up to seven years old, isn't a good look, particularly when it includes a reference to one client as a "retard" and another as a "lazy good for nothing". Then, there's the issue of compliance with obligations under the Privacy Act regarding security safeguards and disclosure.

Low key launch for NSW LRC privacy paper

Without any fanfare (not even a media release), the NSW Law Reform Commission has released its Consultation Paper on "a statutory cause of action for privacy". The Paper provides a broad canvas of the issues, case law developments, the situation in other similar countries and puts forward a tentative view that we should join the ranks of those who should act to fill this current significant gap in our legal framework.

The Commission makes two proposals: that if a statute is to create a cause of action, the approach should be to identify in the legislation the objects and purposes it seeks to achieve, and incorporate a non-exhaustive list of the types of invasion that fall within it. It also suggests that the range of remedies include but not be limited to, damages (other than exemplary damages).

The Paper lists 20 questions and seeks responses during a consultation period to run until September.

While the Commission acknowledges the difficulty in defining 'privacy', it lists a range of considerations relevant to capturing the essential elements of any statutory cause of action, including whether there was a 'reasonable expectation of privacy in relation to the conduct or information, and whether in all the circumstances the invasion of privacy could be considered 'offensive to a reasonable person'. It also flags a range of possible justifications for action or conduct, including public interest considerations that could justify an invasion (to some degree) of privacy.

The NSW Paper is relevant to the Australian Law Reform Commission review of privacy laws, and should lead to a lively and vigorous discussion of whether we need a defined cause of action, and how it should be framed.

Draft Access Card Bill hits the deck

On the last day of this session of Federal Parliament the Government quietly released to the media the draft Access Card Bill. It says it has beefed up privacy provisions, but the police and intelligence services will have access to the database without the need for a warrant.

Other concerns are sure to emerge during the the two month consultation period.

It's probably going to be quiet time on this initiative through the election period.

Dark memories of black lists

The news that a secret black list of "excludable persons" will be maintained by the NSW Police during the APEC meeting in September, produced justifiable criticism from civil liberties and other groups.

Another loud voice, heard from retirement, was that of the executive member of the NSW Privacy Committee through the seventies, the highly respected Bill Orme.

His letter in yesterday's Sydney Morning Herald reminded readers of the investigation of the unfair consequences flowing from secret black lists maintained at that time, including names of doctors and nurses who had been the subject of complaints. It turned out there were 7000 names on the list but 6000 were quickly removed when the list came to light. A whole range of other public and private black lists were revealed during the Committee's investigation.

This experience shows secret lists of this kind are capable of abuse, particularly where there is no oversight, or need to tell people their names are included.

The secret APEC list to be maintained by the NSW Police, is another reminder that NSW privacy law does not apply to the Police except in respect of their administrative and educative functions, an exclusion not seen as appropriate in other Australian privacy laws.

No consequence from FOI slip up

If a Freedom of Information officer inadvertently discloses some information about legal advice received, would this constitute waiver of legal professional privilege in respect of the documents that contain the legal advice? The officer concerned said he meant to "mask" this part of the document, but was under pressure and failed to do so.

The Administrative Appeals Tribunal ruled that it constituted waiver of privilege, but in a recent judgment (Commissioner of Taxation v Devereaux Holdings Pty. Ltd. (2007) FCA 821) the Federal Court overturned that decision, on the basis of an error of law: the Tribunal had failed to consider the question whether the conduct was inconsistent with the confidential nature of the advice. If it had done so, according to Justice Gyles, the answer would have had to have been no.

This case clearly mattered a lot to the parties concerned. Both sides had heavyweight legal representation. The Australian Taxation Office team consisted of not one but two Senior Counsel and another barrister in support.And the FOI applicant,having won in the Tribunal, ended up on the wrong side of a cost order in the Federal Court.

The power of government information

The case for access to government information is usually put in terms of transparency, accountability and the public right to know, and their importance in a democratic society.

In the "information age" however, there is another argument - that government holds much valuable information that could and should be used to promote economic, social and community advancement.

The UK Cabinet Office Minister, Hillary Armstrong, has released a report that outlines the potential power of information to create opportunities to empower individuals and communities to create solutions to problems by facilitating greater access to information.

The news release provides a summary of the background and the report ‘Power of Information’ by Tom Steinberg of mySociety and Ed Mayo of the National Consumer Council, provides detail of how government, in this new era, needs to start to "learn how to support citizens' own ways of making, finding, and re-using information online".

In Australia, the Australian Government Information Office, and the Minister Garry Nairn, have had plenty to say about e-government, and plans for better delivery and co-ordination of government services, but it's hard to find any reference in their materials to the broader societal issues, and benefits from the use and re-use of government information, raised in the UK report.

Privacy comes cheap

Sweden - with 241 years of freedom of information law under its belt - is discovering that it is one thing to allow anyone to know how much each of them earns, owes, has saved, or paid in tax, but another to post all this on a free website set up last November.

Before restrictions imposed last week 2million searches were made!

The new regime hardly sounds too privacy intensive - a $A2.50 fee will get you 10 searches but those being inquired about are also to be emailed the details of the person doing the prying.

Another FOI High Court challenge?

The Osland case may be destined for the High Court, as her lawyers will seek leave to appeal the Victorian Court of Appeal decision that resulted in refusal of a Freedom of Information request for access to advice that formed the basis of the Attorney General's decision to deny her application for a pardon.

As mentioned in our earlier post, the law, and some conservative judicial views about the nature of "public interest" will be significant hurdles to overcome.

Two upcoming conferences of interest

"Public Affairs in the Power Capital" in Canberra on 25 July will feature former NSW Premier Bob Carr on "The status of freedom of information and its implications for democracy", and among others, Carr's former Press Secretary and now Managing Director of the lobbying firm Hawker Britton, Bruce Hawker, on "Putty in the middle? FOI clampdowns and the public service". There are plenty of other public affairs/media types on the program.

The "5th International Conference of Information Commissioners" in Wellington NZ 26-29 November, includes a three day program open to all comers, with already a strong line up of international experts on information access issues.

Open slather on information about the oldies

If grandma or grandpa were ever of the slightest interest to the FBI, "Get Grandpa's FBI File" will certainly help you add a few details to the family tree.

There is much agonising in Australia about whether a dead person's personal information is subject to privacy laws (it is in NSW law that applies to the public sector for up to 30 years); you might be able to get a deceased's birth, death or marriage certificate if you can jump through the hoops; and the occasional Freedom of Information application for information about a dead person may or may not produce some results, depending on who applies and what the documents contain.

But there's certainly nothing like this service: type in the details, including where the oldies might have been in an antiwar protest, pro communist rally, or smuggling booze, and the website will generate an automatic letter to the FBI. Proof of death is required - but you don't have to worry if the person was born 110 years ago.

The FBI is happy to provide whatever they have free of charge for the first 100 pages.

Not a bad service.

Water wary, states vary

Access to information about high water use by public and private sector organisations seems to vary from one state to another.

Brisbane City Council released information about the big users, and those that had successfully reduced usage in this report at the weekend in the Courier Mail. Things have improved there in the last 12 months as at that stage it took a year and a Freedom of Information battle to get the details. This time around it sounds much more straight forward.

In South Australia, The Advertiser had success in February with an FOI application and accessed information, including names of the big private water users in that state.

In Victoria, the Government released details of overall usage by the top 200. Big government users were named but names of private businesses were not disclosed. Victoria plans to publish a full list later this year.

However NSW takes the prize. As reported in the Daily Telegraph last year, the Government declined to release the names of any non residential water users.

As we commented at the time, this type of information should be routinely published rather than left to FOI applications that may or may not succeed.

The Federal Government's National Water Initiative talks about a consistent national framework for measuring water usage and reporting. It's clear there is plenty of scope for movement in this direction, given the current variation in disclosure practices.

Disclosing details about water usage/wastage/reduction is one way of achieving an outcome on every government's books at the moment - one step towards conserving an important national asset.

Some policy makers need to add the "transparency tool" to the policy tool box.

Federal case notes highlight privacy pitfalls

The Federal Privacy Commissioner has published case notes on seven attempts to mediate complaints. All concern issues arising under the Federal Privacy Act. Some raise some important points, but it is also clear that different results might have emerged if these issues were examined under state or territory laws.

For example this medical practitioner resisted the provision of a copy of medical records sought by the individual concerned (B v Surgeon (2007) PrivCmrA2). How widespread is this issue in the health sector?

A Federal government agency was found to have breached privacy principles by routinely asking job applicants whether they had ever suffered from a work related injury or illness, Own Motion Investigation v Australian Government Agency (2007) PrivCmrA4. My guess is they're not the only organisation who might have been asking this sort of question.

For some of the potential privacy pitfalls when information available on a public register of a Federal government body, is then posted on another organisation's website, see Own Motion Investigation v Bankruptcy Trustee Firm (2007) PrivCmrA5.

And the Commissioner found in E v Retail Organisation (2007) PrivCmrA7, that a retail company who replaced a faulty computer, but then resold the computer without erasing personal information from the hard drive as promised, was "deemed" to have collected the personal information, and breached privacy obligations by selling the computer with hard drive intact to someone else.

Low ranking for internet privacy practices

Privacy International has rated internet service companies on the basis of privacy practices and concludes that the "privacy standard of the key internet players is appalling, with some companies demonstrating either willful or a mindless disregard of their customers".

Google came last - the list of specific privacy failures are listed here in the report "A race to the bottom" - and is now involved in a nasty exchange with Privacy International, alleging a pro Microsoft bias in the report, to which PI provides a comprehensive response.

New appointee for free speech audit

I have been asked to join Irene Moss (see our earlier blog) as Deputy Chair of the independent review of the state of free speech in Australia, commissioned by the major media organisations that make up Australia's Right to Know coalition. One of its major priorities is to look at issues associated with access to government information, and limitations on the public right to be informed.

This news and other developments including some new members that broaden the reach of the coalition to cover just about all media around the country, is mentioned in this article in today's Australian - but I'm not, as reported here Deputy Chair of the coalition. My involvement will be with the independent review of laws, policies and practices that impede freedom of speech.

It should be an interesting and challenging couple of months.

South Australian Police lose the file and the plot

While the Victorian Police have their heads up after grabbing Mr. Mokbel in Greece, their South Australian colleagues have their heads down after a major theft of crime investigation files from an unattended police vehicle. The files ended up with a 'bikie gang' and apparently included the names and contact details of dozens of police and police informants.

It's touched off a major fuss about the handling of information by the Police with calls for an independent inquiry about how all this came to pass.

Tony Soprano where are you?

As we have commented previously, its a great mystery how few data thefts come to light in Australia. Does it mean they don't occur often, or just that we never get to hear much about them?

In the US, data about more than 155million people has been lost or hacked since January 2005 according to the Privacy Rights Clearinghouse.

Maybe something to do with the absence here (but not in many US states) of a statutory obligation to inform people about data security breaches that affect their personal information.

Unfortunately the informers might have more to worry about than a loss of privacy.

A quality research paper on FOI

Dr. Gareth Griffith of the NSW Parliamentary Library Research Service, has written a briefing paper on "Freedom of Information - Issues and Recent Developments in NSW".

It's an excellent summary of developments since a similar paper prepared by the Research Service in 2000.

Dr. Griffith notes the persistent calls for review of the legislation and for an overhaul of administrative arrangements to make the Act more effective. He says it "is clear from the case law that attempts to gain access to more sensitive or contentious information held by government agencies are vigorously contested".

Dr. Griffith says we shouldn't be surprised at this, and quotes then Leader of the Opposition and subsequently Premier for 10 years, Bob Carr during debate on the FOI Bill in 1988. FOI legislation "will give a false impression of openness which will be dispelled through the bitter experience of applicants seeking to utilize the legislation......The Bill is littered with clauses and schedules that even the most inept bureaucrat will be able to use to secrete embarrassing material from public gaze".

The paper hails recent legislation requiring publication of information concerning government contracts as a significant positive step. "Many would argue this should be seen as a first step in an area of the law that is in need of comprehensive re-appraisal".

In addition to summarising important legislative changes, and significant court and tribunal decisions on the interpretation of the Act, Dr. Griffith highlights some of the important policy challenges that have yet to receive much attention in NSW:

• like other "second phase" FOI legislative regimes around the world, should the Act be extended to include the Parliament itself?
• the failure of the Government for nearly 20 years to undertake a review of secrecy provisions in other acts. Dr. Griffith reminds us of another Bob Carr 1988 comment: "(The secrecy exemption in) in schedule 1 will exempt any documents which are the subject of secrecy provisions in any Act. The habitual insertion of secrecy provisions to circumvent this legislation will make freedom of information almost a sham";
• the strong arguments put for the establishment of a FOI or Information Commissioner to act as a monitor of, and advocate for FOI (a model proposed by a wide range of experts including the Australian Law Reform Commission, the NSW Ombudsman, the Public Interest Advocacy Centre, the Opposition, the Greens, among others). Dr. Griffith comments "the general case on behalf of an FOI Commissioner or some equivalent is obvious enough. Without some person or body with broad powers to operate in a supervisory, advocatory and advisory role, the FOI cause lacks both administrative focus and a strong voice. The case is a reasonable one".
  
• a whole range of issues arising from recent case law - is there a presumption in the Act in favour of disclosure; does the Administrative Decisions Tribunal have a override discretion to order access to exempt documents; what constitutes a cabinet document and does the ADT discretion cover such documents; is the possibility that a document may mislead the public relevant in considering the public interest in disclosure; what constitutes substantial and unreasonable diversion of resources; can the ADT examine the adequacy of search for documents; does legal professional privilege apply to documents prepared for use in ADT proceedings; when will an FOI applicant be ordered to pay costs in the ADT?

The briefing paper represents a major work of valuable research. As regular readers would know, the Premier's only commitment to improving FOI, was an undertaking last year to publish by the end of 2006 an up to date manual for those in government agencies responsible for administering the Act. This is still to be realised.

Dr. Griffith's paper partly fills the gap.

Access card - "gentle death" on the cards?

The sub editor at The Australian who came up with the "Access card on the backburner" headline yesterday (see item below) may have known something, or was more prescient than most (at least me).

Today's reports, including "Access card bill stalled" in AustralianIT are that Cabinet yesterday decided not to proceed with much talked about plans to introduce legislation this month, but instead will release an exposure draft for extended consultation.

Australian Democrats Senator Stott Despoja may be on the money with this comment: "While not shutting the door on it, this may mean a gentle death for the proposal before the election".

As pointed out in today's Australian Financial Review, how would you like to be one of those organisations who have either tendered or planned to tender for the project: they have had to prove they could carry "hundreds of millions of dollars in liability to tender for work, only to be told all bets were off"?

Further delay for Access card

The Federal Access Card project may not be "on the backburner", as suggested in this headline in The AustralianIT but it's another significant delay as registration plans to sign up all 16 million of us have been put back to late next year.

Knowing I'm on the street where you live....

A new feature - Google Maps Street View - now available to see what's happening in parts of San Fransisco, New York, Los Vegas, Miami and Denver, has sparked a lively debate about privacy.
Google plans to roll out the feature to selected regions around the world.

The Australian Federal Privacy Commission says that it will have a look at the issue.

On the other hand Google says if you can see it from the street all the world is entitled to see it as well.

No privacy problem in reporting the smoking chef

Matthew Moore in last Thursday's Sydney Morning Herald traced the long and arduous NSW Freedom of Information battle to bring attention to the public health problems in our restaurants, but in a delicious irony, the handling of personal information submitted to a council by a contracted food inspector in Victoria, prompted a claim of breach of privacy.

This case note (28 May 2007) by the Victorian Privacy Commissioner reveals the inspector told the council about the chef and the manager smoking in the restaurant in contravention of the law. When the restaurant was brought before the court for unrelated food hygiene breaches, his letter was part of the proceedings. The inspector (unsuccessfully) claimed that the council had failed to tell him how it proposed to use the information and that its use in these proceedings was contrary to privacy principles. The Privacy Commissioner and the Victorian Civil and Administrative Tribunal both found in favour of the council.

"Buried in the labyrinth" by Margaret Simons

In the latest edition of the Griffith Review, freelance journalist Margaret Simons writes about her experience as a concerned citizen who sought information in order to understand a government decision that impacted on her neighbourhood. Her efforts included an unsuccessful Freedom of Information application for documents about the checks done before a convicted paedophile was released and housed in a Melbourne suburb, next to a house in which two children lived, and at the point where school children gathered each day to walk to school. This was after Mr. Jones had been removed following clear evidence of a stuff up in the system.

The Victorian Civil and Administrative Tribunal upheld the decision to refuse access. In this decision and another recent decision to refuse access to documents about the establishment of an independent police corruption watchdog, there are clear signs of a gulf between Victorian (and Federal) versus NSW and Queensland thinking about public interest matters.

In the Victorian decisions, the public interest was relevant either in the context of an exemption claim or in considering the Tribunal's override discretion to grant access to an otherwise exempt document. Both give weight to grounds for refusing access on public interest grounds that have been the subject of great scepticism in the NSW Administrative Decisions Tribunal and the Court of Appeal and aren't relevant in Queensland.

In Victoria the Tribunal took into account matters such as whether disclosure would reveal deliberations at the highest levels of government; the likelihood that disclosure would lead to unnecessary confusion and debate; the impact of disclosure on the frankness and candour of officers in offering advice in future; and the importance of the integrity of the decision making process.

These type of considerations (which come from a 1985 decision involving the present Prime Minister when he was Shadow Treasurer and known as the 'Howard factors'), either do not apply in NSW because the FOI Act says they are not relevant (confusion and debate) or, have been rejected in the absence of credible evidence, on grounds that they are broad, theoretical and reflect thinking in the pre FOI era. See this earlier link to the NSW Court of Appeal decision in the WorkCover case.

The Howard factors appear to be alive and well in Victoria (and some Federal circles) but not in NSW, or Queensland - where this FOI guidance( FOI Concepts: Public interest balancing tests - Ver 1.0) from the Information Commissioner lists these considerations as not relevant.

Meanwhile Margaret Simons is left to ponder just what people in the Victorian system were thinking when they plonked Mr. Jones right in the middle of the neighbourhood.

Thanks to an alert reader, Melissa Dryden for the lead on the Margaret Simons' article.

FOI wheelie bin

Former Queensland minister Merri Rose (successively Emergency Services, Tourism and Racing and Fair Trading minister between 1998-2004), was convicted of "demanding a benefit with threats" yesterday. She was sentenced to 18 months jail (3 months minimum) for attempting to blackmail the Premier into giving her a government job after she lost her ministry.

The Courier Mail says that an earlier attempt to obtain Freedom of Information access to information about another incident involving the misuse of her official car, had been thwarted after the Premier "wheeled all documentation about Rose's car use into Cabinet, rendering them undiscoverable". As we commented recently, Queensland is almost on its own in having an FOI Cabinet exemption that covers this sort of practice.