September 28 - International Right to Know Day

On September 28 last year we headed our blog "Right to Know" - no big deal down under",

We are pleased to see however that this article written by Tasmanian academic Rick Snell "Three quick steps to enlightened FOI" appeared in The Australian today marking September 28 as a special day.

The celebration of this day around the world began when a group of openness-in-government proponents from roughly three dozen nations joined together in Sofia, Bulgaria on September 28 2002 to form a coalition known as then "Freedom of Information Advocates Network". They chose the annual commemoration of this event in order to symbolise the global movement for the promotion of the right to information.

Today, almost sixty nations, covering all continents of the world, have established some form of regime at a national government level, similar to our own Freedom of Information laws.

Things have improved since 2002 but there is still a long way to go.

Major parties on review of conclusive certificates

The Law Council of Australia has released the results of a survey of the major political parties on some current legal issues. One issue raised concerned the conclusive certificates that can be issued by ministers under the Federal Freedom of Information Act. The Council asked whether the party would support a change that would allow full merits review of a decision to issue a certificate.

The Government response was no change to the limited review now available, the Australian Labor Party reiterated its commitment to removing power to issue certificates with a particular reference to internal working documents, and the Greens and Democrats indicated more extensive plans for FOI change.

Deja vu: the more things change.......

Matthew Moore of the Sydney Morning Herald in "PM's election act offers no end to the secrecy" provides an interesting historical slant on the announcement this week that the Australian Law Reform Commission has been asked to review the FOI Act: Moore points out that the present Government's pre election policy in 1996 was to implement "appropriate and workable" recommendations from an earlier ALRC report completed in December 1995.

The Government has not responded to the report in 11 years in office.

Moore also contrasts the current ALRC terms of reference with the broad ranging terms of the earlier inquiry and the emphasis they placed on extending rights of access.

Surveillance society not just an overseas phenomenon

There has been plenty of publicity about the emergence of the "surveillance society", particularly in the UK, but this article in the Sydney Morning Herald says that there are probably 40,000-60,000 security cameras monitoring Sydney alone.

As a recent survey by the Australian Privacy Commission found, a majority of Australians aren't concerned about the use of surveillance cameras. However one of the experts quoted in the article reminds us that it's not so long since we would have responded to news about surveillance of this kind in places like Moscow with a lot of tut tutting about how terrible it was that the Soviets monitored the day to day movements of their citizens.

FOI reviews all round but wheels may be simply spinning

When we commented, following the Queensland announcement about a review of Freedom of Information (which in turn followed a similar announcement in Victoria), that this could be catching, the last thing anticipated was yesterday's announcement by the Federal Attorney General of a review of Federal state and territory laws, by the Australian Law Reform Commission.

As those quoted in these reports in The Australian and the Sydney Morning Herald, the announcement on election eve comes 11 years after the Commission concluded a two year examination of the Federal Act and put forward 106 recommendations for changes to the legislation and improvements in the way it was implemented.

The Government did not respond to the report despite having been in office ever since.

With a report deadline of the end of 2008, the complexity of achieving any harmonisation of Federal and state laws, and the inevitable years of consideration of any recommendations, all this is unlikely to provide any solutions to well established deficiencies in our freedom of information laws.

Breaking Freedom of Information news

Federal Attorney-General Philip Ruddockwill ask the Australian Law Reform Commission (ALRC) to examine Freedom of Information (FOI) laws and practice across Australia.

The ALRC will examine existing Commonwealth, State and Territory access laws and practices, with a view to providing advice on how to harmonise those laws and practices.

“This action is partly in response to the Right to Know campaign and demonstrates the Government’s commitment to better administration in Australia,” Mr Ruddock said.

See full media release here

Sports stars say drug use private matter

This report in The Age has Australian sports professionals advocating a new approach to illicit drug use (not the performance enhancing variety), and calling for legislative protection of privacy and penalties for those who fail to provide adequate security for records, or who publish such details.

More grist for the mill as the Australian/NSW Law Reform Commission proposals for a statutory cause of action move on to the public consultation phase.

Thanks to PogoWasRight.org for the lead.

Sun rising in sunshine state

The independent review of the Queensland Freedom of Information Act is off to an interesting start with the Chairman David Solomon outlining his views on some key issues in an interview with Greg Roberts of The Australian, in yesterday's edition ("Curb on cabinet as refuge for files" ).

Solomon is quoted as saying that documents should not be exempt simply because they are wheeled into Cabinet - an exemption provision that has provoked criticism for years.

"Whether the Cabinet had looked at it or not was irrelevant. You can't simply have minister or a public servant saying "I have taken it to cabinet, therefore it's exempt"".

Former Queensland Information Commissioner, Fred Albietz, who was a strong and positive voice for disclosure, and who was highly critical while in office about the Cabinet exemption is quoted as saying the review of the Act was overdue. The loophole for Cabinet documents "was so wide you could drive a horse and buggy through it".

The Australian also reported yesterday that the incumbent Queensland Information Commissioner has resigned in the light of the appointment of her husband, Ken Smith, as head of the Premier's Department, citing potential conflict of interest.

Fresh thinking in Queensland about transparency in government

Maybe this is catching. The new Premier of Queensland, after her first Cabinet meeting, has announced an independent review of the Freedom of Information Act to be conducted by a three member panel, chaired by David Solomon, former Chairman of the Electoral and Administrative Review Committee (and a distinguished journalist to boot).

Premier Bligh said she wanted to provide the public with greater accessibility to information and greater transparency:

"It is now 15 years since Queensland saw its first freedom of information laws," Ms Bligh said. "Freedom of information was introduced in Queensland at a time when the worldwide web didn't exist, when emails were a completely unknown phenomenon and when text messages were not part of our lives."

The Premier said a culture had developed where information that should be released was being kept hidden, and suggested many documents looked at by Cabinet could and should be put into the public arena.

The review panel will include the former head of the Premier's Department, Simone Webb, and Dominic McGann, a partner at the law firm McCullough Robertson.

A discussion paper is to be issued in January.

This fresh approach (see our blog below about the transparency record of Premier Bligh's predecessor) follows a similar announcement within days of assuming office by the Victorian Premier, John Brumby.

Good stuff.

Divergent thinking in Australia and the UK about disclosure of advice documents

Disclosure of information about the workings of government, in particular advice and internal communication in the course of decision making, is often highly contested.

Two recent decisions by review bodies in Australia and the UK show up a divergence of opinion about the balance between the public right to know, and the need for confidentiality associated with advice given in the course of the decision making process.

A recent decision by the Federal Administrative Appeals Tribunal
(Emery and Secretary, Department of Workplace Relations (2007) AATA 1513)is illustrative of the current approach here regarding applications for advice documents. The case concerned access to a briefing minute prepared for the minister in 2004 on proposals to amend the Safety, Rehabilitation and Compensation Act.

The Tribunal was satisfied that the document contained advice, recommendation, and "deliberation" in the course of "deliberative processes" and thus came within the first limb of the internal working document exemption (Section 36 of the Federal FOIA). Such documents are exempt only if disclosure "would be contrary to the public interest".

The Tribunal accepted the evidence of a senior officer of the Department that disclosure would be contrary to the public interest because it would reveal "frank and confidential communications" with the minister, and because disclosure would lead to "a deterioration in the quality of advice" because public servants in future would be deterred from providing written advice.

Paragraphs 44 - 49 list the precedents in support of the former claim; paragraphs 50 - 57 list those that support the latter claims.

On this basis, disclosure of advice documents would appear to be contrary to the public interest at any time, right up until open access to government documents after 30 years.

Yet recently, the UK Information Tribunal (Friends of the Earth and Information Commissioner) (pdf) expressed scepticism about these type of broad public interest claims.

In a decision about access to information under environmental laws, where the issue was whether disclosure was contrary to the public interest, it decided communications between government agencies concerning North Sea Oil issues should be disclosed even though a final decision on the substantive issues had not been made. It found that the public interest in access to information about government functions, overrode claimed public interests in non disclosure.

The Tribunal considered evidence similar to that argued in the Australian decision referred to above about why disclosure would be contrary to the public interest, but reached exactly the opposite conclusion. It decided that disclosure of documents now two years old was not likely to pose a threat to the candour in future deliberations (paragraphs 54 - 60). "Too much ......can be made of the alleged virtues of candour and frankness......The touchstone is, and remains at all times, the public interest". It rejected the argument that because the ultimate decision was one for the minister that "the views expressed by officials along the way..should (not) be subject to public scrutiny". The Tribunal (paragraph 61) was also "unimpressed" by generalised contentions that disclosure of advice would have a "possible adverse impact upon record keeping":

"(O)fficials in all public authorities as well as Ministers in government should now be fully aware of the risk that in a given case their notes and records and indeed all exchanges, in whatever form are in principle susceptible to a request or order for disclosure. It is not enough in this Tribunal's view to fall back on a plea that revelation of all information otherwise thought to be inviolate would have some sort of "chilling effect"".

This sort of thinking is not evident in the Australian Administrative Appeals Tribunal at the moment.

FOI "loophole" undiscovered for 15 years

A tip for those inside or outside government who frequently find themselves involved with freedom of information issues.

"Read the Act".

This advice is prompted by a report in today's Western Australian " Secret Cabinet papers for scrutiny just 10 years on". The article refers to "a little-known loophole in the (WA) Freedom of Information Act which the experts say will have far reaching implications for the operation of government".

Attorney General, Jim McGinty, apparently was so shocked that he has refused to rule out closing the loophole. Political commentators yesterday said it will lead Cabinet ministers to be far more careful about their discussions and deliberations.

The loophole? A provision (Clause 2(4)) that's been in the WA Act for 15 years.

It provides that after 10 years a document that at the time it was created, could attract the Cabinet document exemption provision, ceases to be a Cabinet document for the purposes of the FOI Act.

It doesn't mean that the document can't be exempt on grounds other than the Cabinet document exemption, but such a decision would turn on the nature of its content.

The provision is similar to provisions in other FOI legislation, for example NSW and Tasmania.

We drew attention some time ago to success by Tasmanian FOI expert, Rick Snell, who used the Tasmanian provision to access documents, but only after the intervention of the Ombudsman.

In comparison with some other FOI acts, the Western Australian Cabinet document exemption is generous in affording protection not only for documents prepared for submission to Cabinet, or that would reveal deliberations or decisions of Cabinet. In WA it's sufficient that a document was prepared for 'possible' submission to Cabinet. (Queensland and Victoria have even more generous Cabinet document exemptions).

"Discovery" of a provision that has been in the Act for 15 years, without any adverse effect on the operations of government, shouldn't lead to the sun failing to rise tomorrow morning in Western Australia or to ministers leaping out of windows of tall buildings.

The Beattie enigma: a "media tart" with poor record on transparency

The resignation of self confessed "media tart", Queensland Premier Peter Beattie last week, has prompted some reflection on his time in office, and his accomplishments.

In the Courier Mail ethicist Dr. Noel Preston puts the ruler over integrity in office and finds the record "disappointing". Dr. Preston says that Beattie leaves office with a record of undermining democracy and the institutions of government:

"The concerns are real, including: politicisation and bullying in the public service, adverse reports from a previous auditor-general, a perceived weakening of ethical standards in government-owned corporations, compromising the separation of powers in the relationship between the police commissioner and the government, and an inappropriate appointment process for the former information commissioner.

Indeed, it is the continued practice of information control and abuse of Freedom of Information through Cabinet secrecy which is most corrosive of democratic process and transparency".

See our earlier wheelie bin blog on the Queensland Cabinet exemption in FOI

Senior writer with the Mail and adjunct lecturer in the Department of Politics and Public Policy at Griffith University, Dr. Paul Williams, also notes that Beatties's political achievements are clouded by his approach to transparency in government:

"(H)is penchant for "spin" and the control of information.....make a less savoury record. The strangling of Freedom of Information laws is the most often cited, but his total domination of parliamentary and committee processes will also be noted".

Dr. Williams seems to sum up for both:

"These are legacies of which no one should be proud"

FOI delivers blow by blow account of nine year drafting exercise

Matthew Moore in his Sydney Morning Herald "What they won't tell you" column illustrates through documents obtained under the Freedom of Information Act some of the reasons it took over nine years to draft the revised NSW FOI Manual.

In "After nine years it must be a well written manual", he details some of the infighting between the Premier's Department and the Ombudsman's Office, with the then head of the Premier's Department, playing a key role in frustrating progress since 2002. Turnover of staff involved over the years must have contributed to the stop start nature of the project. And lack of firm direction from the top to get this done clearly allowed the exercise to meander on over the years.

Well at least a tick for FOI that the documents about what happened were released in response to an application by a regular user of the Act, who put "right to know" in action.

As to whether "it must be a well written manual", that's another question that those who now have to work with it, or rely on it, are best placed to answer. Good luck to us all.

Pass the parcel Freedom of Information application

I'm not quite at the stage of regularly reading the Combined Pensioners and Superannuants Association (CPSA) of NSW newsletter "The Voice" but an anonymous reader of the blog has drawn my attention to this article "How the NSW Government Frustrates CPSA FOI Applications" in the August edition.

There are always at least two sides to every story, but the CPSA version of events surrounding an unsuccessful attempt to access documents makes interesting reading. They sought access to information about a community consultation that the government claimed indicated "overwhelming" support for a policy initiative in which they were interested. There was a long delay that went far beyond the statutory time limit (including past the March election), followed by eventual transfer of the application to another agency. Then after a complaint to the Ombudsman (who found nothing untoward in the delay) they finally received a response from the second agency that no documents were held about consultation with the public.

Not a good look for the two agencies involved, RailCorp and the Ministry of Transport.

Thanks to the sharp eyed reader for the lead.

Australian Law Reform Commission releases privacy door stopper

It's hard to fault the Australian Law Reform Commission on its attention to detail in the just released discussion paper on reform of Australia's privacy laws. See:
Discussion Paper 72, Review of Australian Privacy Law

The report contains the Commission's preliminary views, runs to almost 2000 pages and includes over 300 recommendations.

For the faint hearted (or time pressed) the Overview (34 pages) available here might be all you need.

No one will be surprised that the Commission concludes that our privacy laws are fragmented, overlap, and are inconsistent, and have failed to keep up with developments in the world around us.

The Commission maps a path forward, calling for national consistency and a uniform set of principles to apply to public and private sector bodies. It recommends abolition of some exemptions from the Act that currently apply to small business and political parties, but says the exemption that applies to activities in the course of journalism should remain, with "journalism" defined in the legislation.

The paper recommends there should be a defined cause of action for breach of privacy, and sets out a range of defences. This issue is the subject of more detailed consideration in a NSW Law Reform Commission Paper that is already out for public comment.

The Commission recommends a notification of breach requirement, limited to where there is a reasonable prospect of harm to the interests of the person concerned. Trivial breaches would not require notification.

It revisits some Freedom of Information issues, and picks up on some of the recommendations made 12 years ago in the ALRC review of the FOI Act, which still awaits a response from the Federal Government. The recommendations include steps to remove overlap between FOI and privacy rights by confining an individual's right to access personal information from a Federal Government agency to the Privacy Act.

Importantly it calls for the creation of an Information Commissioner (the Ombudsman) to “own” responsibility for ensuring the Act is interpreted and applied appropriately, and to monitor what happens in FOI administration across all Federal Government agencies.

Overall it’s an impressive piece of research that will keep the commentators busy during the consultation phase to follow.

There is, and no doubt will continue to be, plenty of reporting on the issue. See ZDNet Australia and Australian IT as two of many media reports today.

US record on openness mixed, but still strong supporter for FOI

In the US OpenTheGovernment.org has released its 2007 Secrecy Report Card providing statistics under a variety of headings to show that while there has been some improvement in interest in openness and accountability, as demonstrated by Congressional initiatives, in other respects, government secrecy across a broad array of government agencies has continued to expand.

It says something about the US, that statistics of this kind are readily accessible, and advocates of greater openness can draw on them to publish a report of this nature.

The US also deserves a tick for its support of Freedom of Information laws around the world. This release by the State Department, in support of International Right to Know Day on 28 September, shows that the US Government is prepared to give prominent critics of the current state of things in the US, a platform to espouse the benefits of FOI.

Australia Council protects grant recipients

The Australia Council has dug in its heels about release of details of grant recipients who have completed projects late or not at all. We commented in an earlier blog about the original determination to refuse a Freedom of Information application for documents.

This article in the Courier Mail reports the decision to refuse has been confirmed on internal review.

What's different is the earlier report quoted the Minister for Arts Senator Brandis as saying this sort of information should be in the public domain. As I said at the time, this makes sense to me. The later article says Senator Brandis "has chosen secrecy over transparency". No explanation offered here about an apparent change of heart.

APEC Refugee

With so many helicopters overhead and traffic disruptions as a result of the APEC Leaders Meeting in Sydney until Sunday, I'm heading out of town for a couple of days.

New policies in NSW FOI Manual

Those in the NSW public sector responsible for Freedom of Information issues have no doubt been reading the fine print of the new Manual issued by the Department of Premier and Cabinet and the NSW Ombudsman. As is well known, it has appeared 13 years after the last government guidance on the interpretation and application of the Act.

At 376 pages, it's a big read. It includes a whole range of new policies on various aspects of managing FOI requests. They are spread throughout but we have consolidated them in this document in the order in which they appear. Policies range from important issues right across the board to very minor matters. Some other important guidance in the Manual hasn't been given policy status.

The Manual also reflects differing opinions of the Department and the Ombudsman on various issues. This together with brief reports of sometimes conflicting court decisions may add to confusion amongst FOI practitioners rather than provide the long awaited clarity on important issues.

Unfortunately the Premier didn't take the opportunity in putting his name on a memorandum to ministers, to commit the Government to high standards of transparency.

Or to emphasise the importance of FOI and related issues.

Or like his Victorian counterpart to commit the government to an overhaul of the Act and a review of access to government information generally in the light of the information rich, technology enhanced world in which we live.

The NSW FOI Act, and associated policies and procedures are still very much "horse and buggy" in the google age.