Privacy Commissioner finds no fault in first newspaper investigation

The Federal Privacy Commissioner has released case notes of four recent finalised complaints. One, U v Newspaper Publisher (2007) PrivCmrA23 appears to be the first published of a complaint against a newspaper investigated by the Commissioner. Most media organisations are committed to codes of practice and complaints are investigated by industry bodies.

Under the Privacy Act an act or practice of a media organisation in the course of journalism is exempt if the organisation is publicly committed to comply with industry standards. Apparently this unnamed newspaper had made no such commitment. However on investigation the Privacy Commissioner was satisfied that the publication was an accurate account of opinion about the complainant and did not involve any breach of privacy principles.

NSW ADT requires Forests to disclose unit pricing

The NSW Administrative Decisions Tribunal has found in favour of an applicant who sought access under Freedom of Information to documents that contain the unit price of pulp supplied by Forests NSW from two regional forest areas in NSW.

In Watt v Forests NSW (2007) NSWADT197, the Tribunal decided that the information, now three years old, would not disclose information that had a commercial value, but in any event any value would not be destroyed or diminished by disclosure; would not disclose information concerning Forests NSW business affairs that would have an unreasonable adverse effect, or prejudice the future supply of information; and disclosure would not found an action for breach of confidence.

On this last point the Tribunal said (paragraphs 147-148) that public authorities subject to the FOI Act could not in effect render a document exempt simply by including a provision in a contract that information would not be disclosed and specifically disagreed with the decision in Fomiatti v University of Western Sydney. We commented at the time that the latter decision didn't seem consistent with FOI law.

The Tribunal went on to say that in any event there was a strong public interest in favour of disclosure, as it would contribute to debate on an issue of significant public interest

"the socio -economic and ecological value of these publicly owned forests and whether the existing operations provide an adequate return to the community from the use of a public resource. An uninformed public cannot usefully participate in that debate".

The decision appears to represent something of a national breakthrough in access to information of this kind. See this earlier post concerning the Tasmanian Ombudsman, and a decision there not to require price information to be disclosed.

Federal Attorney General on Freedom of Information laws

Federal Attorney General, Phillip Ruddock, has dismissed criticisms by Geoffrey Robertson QC of the state of free speech in Australia, and his call for some statutory protection of rights. According to the article, the Attorney General also said that Australia's freedom of information laws ensured all appropriate material is available to the public.

As University of Tasmania academic Rick Snell points out in a recently published article "Information Flows - the real art of information management and freedom of information" the critics of the FOI laws include some independent heavy hitters (page 61):

"A series of key institutional players - the Australian Law Reform Commission, the Commonwealth Ombudsman, the Auditor General and a Senate Committee - have all carefully pinpointed problems in access processing and variable compliance to the FOI Act over a ten year period".

The Australian Law Reform Commission Report referred to was completed in December 1995. The Federal Government has never formally responded to its 106 recommendations although the Attorney General makes it clear the Government is satisfied with the status quo.

Be aware of ID fraud risks

The Federal Attorney General also yesterday launched National Identity Fraud Awareness Week to increase awareness of identity theft.

The release says nothing about the Government's views regarding the introduction of a requirement to notify personal data security breaches which is seen to be an important element in seeking to limit identity fraud. The Federal Privacy Commissioner favours such a move, and Senator Stott Despoja has a Bill on this issue before the Senate.

Doctors' incompetence and your right to know

The ABC television program presented by Four Corners on Monday night, First Do No Harm brought to attention a long running saga at Canberra Hospital concerning the competence of the former head of the neurology department, and what has happened to another doctor at the hospital who acted to bring the issue to the attention of the authorities. It also showed some of the tragic results of failed surgical procedures.

The program also raised prominently the public right to know about the skills and experience of those in medical practice who are involved in high stakes surgery of this kind. Other medical practitioners knew to steer people clear of this particular surgeon, and the then Minister for Health was prompted to call for a full investigation when he learned a member of the hospital board was going to Sydney rather than risk treatment at Canberra Hospital.

The doctor concerned has since retired, but satisfactory arrangements for return to work by the doctor who acted in the patients interests, remain unresolved.

There are some big issues here. Hopefully the medical profession and others will keep this issue in the limelight.

Coincidentally in the US last week, a Federal judge in Washington ruled that records of claims made by doctors on the Federal Medicare program, (presumably without the patients' names and details) must be disclosed to a consumer publication which sought them under the Freedom of Information Act. The Justice Department opposed release on the grounds that it could invade doctors privacy by making their income public. The judge said those concerns were minimal and outweighed by the public interest in disclosure. For good measure the judge said the information should be made available without charge, rejecting the $20,000 fee Medicare sought to impose.

It turns out that the Freedom of Information applicant Consumer's CheckBook, sees access to these records as a way of assessing how many times individual doctors have billed Medicare for major, high risk procedures, in order to gauge their experience levels. Eventually it hopes to add other data in order to give a more complete picture.

"It's hard to get information on doctors. This will be a valuable and important thing", said the President of CheckBook.

Tell it to former patients at Canberra Hospital.

Some privacy concerns on the rise but Aussies laid back about security cameras

The Federal Privacy Commissioner has released results of its 2007 survey of public attitudes towards privacy.

The media release is here and the report here. (PDF)

Concerns about identity theft, particularly through the use of the internet, are on the rise; confidence in the trustworthiness of health service providers is high; nine out of ten Australians are concerned about information personal information being sent overseas; and over 70% regard government agencies with confidence.

On the other hand public trust in financial institutions has declined; and 36% have decided not to deal with a business or charity because of practices in the handling of personal information.

And perhaps surprisingly, most Australians are aware of the presence of closed circuit television cameras in various locations, but the majority is not concerned about their use.

Aussie winner of privacy competition

Congratulations to Melbourne school girl Erica Hei-Yuan Chan ( see full release), the winner of the Privacy Week International competition for secondary school students promoting the awareness of privacy issues.

Privacy Commisioners at odds over Access Card

Notwithstanding the fact that the President of the Australian Privacy Foundation thinks the National Access Card project is dead in the water, consultation comments on the draft Human Services (Enhanced Service Delivery) Bill 2007 continue to hit the deck.

And what a contrast in the views expressed by two of our Privacy Commissioners.

Federal Commissioner Karen Curtis welcomes progress on the privacy front in changes made to the first draft, but provides a list of other suggestions for safeguards that should be considered as spelled out in this submission.

On the other hand, Victorian Privacy Commissioner Helen Versey ( 23 August 2007) says the scheme still raises a whole range of privacy and security concerns. So concerning in fact, that

"In its present form and as embodied by the Exposure Draft, the proposed Access Card still presents unacceptable privacy risks that far outweigh any benefits that a single card might bring. The personal information of most, if not all, of the Australian population remains vulnerable to misuse, including for criminal purposes".

Do public servants take much notice of tribunal decisions?

At both Federal and state government level, Australia has many tribunals that undertake merits review of administrative decisions. In a recent paper "The Impact of External Administrative Law Review: Tribunals", Linda Pearson of the University of NSW (and a part time member of the NSW Administrative Decisions Tribunal) raises some important questions about the impact of tribunal decisions on the bureaucracy. She says that despite the fact that lawyers, administrators, tribunals and courts have been talking about these issues for 30 years, there is still limited evidence about impact, beyond the anecdotal.

Pearson says that the total operating costs for the five Federal tribunals is $90million per annum and at the state level cannot be easily assessed.

As Pearson says, we just don't know what happens within government agencies when tribunal decisions are handed down on matters that are relevant to ongoing administration. Do decision makers know about them, and do they translate any key points on interpretation of the law into practice when such issues again arise?

Anecdotal evidence in NSW at least is that Administrative Decisions Tribunal Freedom of Information and privacy decisions, and the guidance they offer on interpretation and application of the law are not well and widely known throughout the NSW public sector.

Then of course there is the related issue of what weight to attach to particular decisions in the light of the fact that there are significant inconsistencies in many tribunal judgments.

Many individuals obtain justice through tribunal consideration of their applications. Pearson is right to say that more work should be done to see what general effects such decisions have on decision makers.

Federal Labor spells out FOI reforms

Opposition Shadow Attorney General, Joe Ludwig, in a speech last week to an information conference in Melbourne, said that Freedom of Information reform would be a priority if the Australian Labor Party was elected in the forthcoming federal election.

Senator Ludwig said that action need to be taken to promote a pro disclosure culture. Labor would "look at putting in place key findings of the 1996 Australian Law Reform Commission Open Government Report". He specifically mentioned revision of the Act, the establishment of an Information Commissioner, rationalisation of exemptions so that information would only be withheld where this was in the public interest, and ensuring charges are not a barrier to access. Senator Ludwig also said consideration would be given to combining responsibility in government for information access and privacy issues.

The speech also included a commitment to reforming shield laws for the media and other professions, and whistleblower legislation.

Full text: Joe Ludwig speech

On FOI, Australia far from perfect but....

Rick Snell, writing in the Sydney Morning Herald yesterday sounded a real note of optimism about the prospect of the Cambodian Government not only embracing Freedom of Information, but also being prepared to consider progressive concepts that the Australian Government hasn't yet contemplated.

I'm not sure what the Cambodian experts would say about this. One Cambodian American friend of mine who has worked in international affairs for more than thirty years at the School of Advanced International Studies at the Johns Hopkins University and in international organisations, has read the article. He describes the Cambodian Government as "murderous and corrupt" and completely under the control of Hun Sen, with a statute book of laws that sound impressive but have never been implemented.

Rick is no doubt aware that the President of the World Bank has just given the Cambodians a stern warning about corruption, and that Prime Minister Hun Sen has "angrily denied" allegations of fraud and corruption with World Bank funding. Cambodia was ranked 151 among 163 countries in Transparency International's 2006 Corruption Perceptions index

I think Rick's comparison of the Cambodian and Australian position on FOI is a bit rough, given the fact that the "progressive" draft FOI policy is yet to be considered at the top in Cambodia, the law is yet to be passed and their track record on implementation of even basic democratic laws and rights is pathetic. While things here are far from perfect it will be amazing if Cambodia, under the present regime will get within cooee of transparency standards of any government in Australia.

Interest in FOI would have to form part of a much bigger picture to be taken seriously in Cambodia.

FOI technicalities take years to resolve

In this recent decision Justice Gray of the Federal Court, found that Federal ministers in receipt of a Freedom of Information application, can't simply transfer a request to their departments under Section 16 of the Act on the basis that the subject matter of the document sought is more closely connected to the functions of the departments, without first locating the documents in their possession. Even though it was accepted that the ministers didn't hold documents, the grounds on which they sought to transfer the requests were not open to them. It's another example of the legal technicalities involved in FOI administration.

A couple of other points. The applicant represented herself in the Federal Court, having rejected the services of a Court provided counsel "as she did not feel he had a sufficient understanding of administrative law". And she won.

The wheels of justice, as evidenced in this case, are moving at glacial speed. Justice Gray heard this matter on 15 February 2006. The decision was handed down on 8 August 2007. The original FOI applications go back to 2004.

Privacy concerns about Victorian Coroner's files

Bill O'Shea, a past President of the Law Institute of Victoria, drew attention in The Age yesterday to the passage of legislation in Victoria that, in his view allows public access to coronial files, without appropriate privacy protections.

It's hard to know what to make of the outcome - O'Shea suggests it is contrary to Law Reform Commission recommendations - and the Victorian Privacy Commissioner, who usually doesn't miss much, has nothing on the web about the issue.

It's also unclear whether the law is in step or out of step with what happens elsewhere around the country.

FOI guidance available after long delay

Well finally the NSW Government has published an up to date statement of policy, and detailed guidance about the implementation of the Freedom of Information Act. It will take a little time to digest what's here and what it means but at least there is detail now on the public record about many aspects of the Act, that public servants and FOI applicants will find useful.

I'll have more to say about this later in the week.

Data security breaches a hidden problem in Australia

The Gartner IT Security Summit in Sydney this week was told that data security breaches are occurring regularly in Australia, and maybe more widespread than the well publicised incidents elsewhere in the world. The only difference here is that they are hidden from the public.

It's timely therefore that Senator Stott Despoja's Privacy (Data Security Breach Notification) Amendment Bill 2007, has hit the Senate (you can find the text and the explanatory memorandum under Bills introduced by Private Members).

This article (thanks to PogoWasRight for the lead) provides a summary and some additional background.

The Bill would require any Federal agency or private sector body subject to the Privacy Act, to notify the person concerned of any breach. There is nothing in the Bill that requires consideration of the type of breach and would seem to apply regardless of whether the disclosure is trivial or significant, and without regard to the prospect of harm. There will be criticisms of the breadth of this.

Unclear yet whether the Government - which controls the numbers and determines what legislation gets considered - is interested in advancing this issue with or without amendment.

Privacy expert says access card dead in the water

Australian privacy expert and Chair of the Australian Privacy Foundation, Roger Clarke, made it pretty clear in a recent address to the AFR GovTech Conference in Canberra, that the National Access Card has all the hallmarks of a monumental failure and is going nowhere.

He says that the people around the Minister responsible realise it's an unmitigated disaster and have shunted it into a siding:

"The big Booz Allen Hamilton contract will be paid out. But the tenderers for the big contracts can pack up and go home now and the public servants can go hunting for their next jobs. That will save us as taxpayers, a cool billion dollars that would have been sadly wasted if the project had proceeded".

At least we can be confident we won't hear much about it (from the Government at least) with a Federal election only months away.

Federal ALP Platform released

The Federal Australian Labor Party platform adopted at its National Conference in April has been posted on the web. Chapter 11 "Reforming Government" includes policy on a wide range of issues concerning integrity and openness in government administration including use of public money for political advertising, the operations of Parliament, ministerial conduct, campaign finance and whistle blower protection.

On Freedom of Information the final version doesn't vary from the draft quoted here in May, but states:

55. Labor will promote transparency and open government through improved freedom of information legislation. Conclusive certificates will be abolished and internal working documents that do not compromise national security will be accessible. Reports on the operation of government and government-funded agencies will be regularly tabled in parliament.

56. Freedom of information provisions should be available to all. Labor will ensure that the costs involved in using freedom of information procedures do not put them out of reach of the community.

57. Labor will ensure that considerations relating to outsourcing, privatisation, notions of commercial confidentiality and corporatisation are not used as excuses to allow government and government-funded agencies to escape the requirements of open government and accountability. The rights of clients and other recipients of such services, including rights to access to information, privacy, correction of inaccurate information and, where necessary, redress, will be maintained.

Coincidentally here is another report today about commitment to open government and accountability by US Democratic candidate Barack Obama.

UK Commissioner and public confidence in decision making

The UK Information Commissioner has made an interesting decision on access under the Freedom of Information Act to documents concerning a meeting between former Prime Minister Blair and a lobbying group of leading executives of multi national companies. While upholding a Cabinet Office decision to refuse access to some documents, the Commissioner ruled it was in the public interest to release background briefing materials in relation to the meeting.

The Commissioner's finding turned on his view that disclosure would "increase public confidence that decisions are properly made". See: Information Commissioner rules on Cabinet Office complaint.

It's been a long time here since we have seen that sort of factor cited as a determinative public interest.

NSW transparency sad State of affairs

Victorian Premier John Brumby's commitment to greater transparency has prompted Matthew Moore in today's Sydney Morning Herald, to reflect on the unhappy situation in NSW where media releases by the Premier and most ministers aren't even publicly available, and the Premier's only Freedom of Information commitment to publish an up to date manual for public servants by the end of 2006, is still to be realised.

As commented previously, Premier's Department guidance on agency implementation of the Act is 13 years old.

Privacy Awareness Week

The Privacy Commissioners in the region have got together for privacy awareness week this year.

Promote Privacy Awareness week 26 August - 1 September with a free poster.

Whoops, devil in the detail, again

This sounds like an expensive oversight.

For years, NSW Government agencies represented by the Crown Solicitor, have been arguing in the Administrative Decisions Tribunal that the Tribunal had no power to undertake a review of a Freedom of Information matter where the applicant in the case raised the issue of the sufficiency of search for documents.

The Tribunal has maintained the position that it has such powers.

In August last year the Department of Commerce, represented by the Crown Solicitor's Office made an application in a case where this issue arose, to have the question of law resolved by the Supreme Court.

The case was heard in January and a decision (Director General Department of Commerce v Cianfrano (2007) NSWSC849) handed down last week. The Crown Solicitor's Office took it seriously as the Crown Solicitor appeared in the proceedings.

Unfortunately for all, including the taxpayer, Justice Hall found that he had no authority to decide the matter as there had not been a proper reference from the Tribunal: under the relevant legislation, a matter could only be referred to the Court by an Appeal Panel of three members of the Tribunal. In this case the matter had been referred by the Deputy President of the Tribunal sitting alone.

It's back to the drawing board on this one a year after the attempt to have the matter resolved.

At the risk of being seen to have a food fetish....

I just have to bring to your attention this report from First Coast News in Florida, that a Freedom of Information application to the Food and Drug Administration resulted in a report that the object found by the applicant in a can of Libby's Green Beans, was indeed a cooked mouse.

I'm sure this was an isolated incident but as the report says the head and tail of the mouse are still unaccounted for, you should know that GAF Foods Australia lists Libby's as one of the brands imported here from Dubai.

When opening beans, please remain alert, even though the FDA report says that "as the mouse had been thermally processed, technically its safe to eat".

Miracle - FOI shows UK hospital food worse than patients thought

Shock horror!

The worst nightmares of those in the UK about hospital food have some basis as a series of Freedom of Information applications have led to the release of alarming information about the hygiene standards in kitchens used to prepare food for hospital patients.

There are now calls in the UK for published ratings for hospital canteens in addition to those already made available in many local council areas on restaurants.

Meanwhile in NSW the Government initiative to make information publicly available about food hygiene standards in restaurants, has got to the stage where there is now a register of convictions (the only conviction since 1 July, is for a restaurant that breached the law selling dodgy scotch whisky), and plans for a mid August meeting to discuss a database of council on the spot fines.

Maybe they need to include some stakeholders from the hospital system as well?

Victorian FOI reforms necessary everywhere - or just hot air?

FOI expert Rick Snell, of the University of Tasmania, was quoted in the Australian on Saturday as urging all Australian governments to reform Freedom of Information laws, along the lines of a commitment last week by Victorian Premier, John Brumby. Snell said all Australian laws were "out of date and needed an overhaul", and without reform Australia's FOI regime would remain one of the most restrictive in the world.

However Daily Telegraph columnist Piers Ackerman says that based on past performance by Australian Labor Party governments, Brumby's pledge will come to nothing. Ackerman seems to suggest that getting the truth out about the late High Court Justice Lionel Murphy, and a decision not to prosecute a union leader by former Victorian Premier, Joan Kirner, will be the test of whether the ALP "isn't just hot air on press freedom".

I can think of lots of other tests more relevant than these couple of archaeological digs into ancient history.

Victorian university exam papers and marking guides not exempt

It looks as if it came as something of a surprise to the University of Melbourne to discover that provisions of the Victorian Freedom of Information Act are a bit different from those in the Federal and other state FOI legislation when it comes to seeking to protect marking guides and examination papers.

In McKean v University of Melbourne (2007) VCAT1310, the Victorian Civil and Administrative Tribunal found that an examination paper and marking guides for two University examinations were not exempt from disclosure. The key issue when it came to the marking guides, was that the relevant provision of the Act provided for exemption where the use of the document for the purpose for which it was prepared, had not been completed. Once the exam was over, there was no grounds for claiming exemption.

In other Australian jurisdictions the legislation usually includes an exemption where disclosure would prejudice the effectiveness of procedures or measures for the conduct of examinations, and include a public interest test.

The Tribunal said that the University's arguments for exemption would have cut some ice elsewhere, but were not relevant given the provisions of the Victorian Act.

Irish damper up about DNA of the unconvicted

Just a postscript on the recent post about retention of DNA samples.

The Irish Times reports that their Human Rights Commission is of the view that retention of DNA samples for indefinite period of those who have not been convicted of a crime is "an unacceptable invasion of the right to privacy".

Makes sense, but sadly no sign of a public debate about such issues on this side of the world.

Not enough light on safety issues and government reports

This report in The Australian that Chinese-made tyres recalled in the US after a double fatality, are still being sold in Australia, didn't refer to a related access to government information issue.

Public Citizen has the details: a 2000 Act requiring the creation of an early warning database that would alert consumers of potential defects in automobiles has not resulted in information being made available to members of the public. In fact until July 2006 the US National Highway Traffic Safety Administration finally lost a two year Freedom of Information battle to keep this information secret, when a court ordered information in the database to be released in response to a Freedom of Information application.

In Australia we also don't see routine publication of information of this kind concerning public health and safety issues. It's another area that shouldn't require Freedom of Information processes.

Matthew Moore in his column this week in the SMH raised a similar issue concerning access to other government held information, in this case reports about animal welfare and the live sheep export trade, only released after a long and expensive FOI battle.

More contenders for the "sunshine solution".

Good FOI news from Victoria

In one of his first speeches in office, the new Victorian Premier John Brumby, has committed his Government to greater openness and transparency, including a rewrite of the Freedom of Information Act.

His predecessor made a commitment to reforms prior to last year's election, but never got around to it before resigning.

Sunshine solution to getting Thomas back on track

Short posts, on holidays (back later this week though folks).

Readers will be aware of the recent fuss about the safety of Chinese exports, including, heaven forbid, Thomas the Tank Engine toys that contain too much lead.

Australians and others at least enjoy some legal protections and the importers and distributors of such products including big brand names, have an incentive to act to protect their reputation. In this editorial the UK Financial Times says that Chinese consumers, who have been subjected to appalling abuses, including the sale of lethal antibiotics and milk powder, don't have information or power to remedy the situation: the Government there resorts to "spectacularly ineffective methods" (like executing the boss of the State Food and Drug Administration) instead of promoting transparent regulation, media freedom and an independent judiciary.

The "sunshine" solution which is usually, at least to some degree, the best remedy. The Financial Times says that China must accept that Chinese consumers, as well as those in developed countries, "have the right to know what they are buying and deserve to be protected from dangerous products".

Police DNA powers raise privacy concerns - at least in UK

Short posts, on holidays.

NSW Police Commissioner, Ken Moroney, recently made news with his suggestion that the Police should be able to keep a database of DNA of those found innocent of a crime. He was commenting about a Government decision to give the Police powers to demand DNA samples of suspects arrested for any offence, not just serious crimes. Despite apparent Government willingness to confer the powers, the Commissioner decried any intention to use DNA sampling for minor crimes.

Last week this issue made the news in the UK where a proposal for similar police powers is under consideration. In this report, The Daily Telegraph says that the whole issue of the national DNA database, now with a record of 4 million samples, is to be the subject of an inquiry but the UK Human Genetics Commission.

One of the major concerns is police power to collect samples for people arrested for minor offences, such as dropping litter or ignoring a road sign - the sort of thing that sounds possible in the light of the proposed NSW legislation. But relax folks, the Police Commissioner (who retires shortly) says the police won't use the powers for such things. Phew....

In this opinion piece on Saturday, Sam Leith explains why the police shouldn't have powers to take DNA samples from those charged with minor crimes, or to keep samples from those found innocent. Leith says just because the police give you a ticket if you don't pick up the dog poo shouldn't mean that your DNA is held indefinitely on a national database.

Canadian Privacy Commissioner on notification of privacy breaches

Short posts, on holidays.

Like Senator Stott Despoja (see post below), the Canadian Privacy Commissioner is pressing for statutory changes that would mandate notification to those effected by a breach of data security principles, but in the meantime the Commissioner has issued voluntary guidelines on the subject, including criteria for notification and a checklist of issues to be considered.

The Australian Federal Privacy Commissioner favours a notification requirement, but this issue is probably not going anywhere before the Australian Law Reform Commission reports next year.

Proposal for data breach notification

Short posts, on holidays.

According to AustralianIT, Democrats Senator Stott Despoja, plans when Federal Parliament resumes, to introduce a private members bill requiring organisations to notify customers in the event of a data breach concerning personal information.

Such a requirement seems inevitable, given international trends, but as usual, the devil will be in the detail.

Thanks PogoWasRight for the lead.