ALP details FOI and privacy reform plans

Federal Labor has released a policy statement "Government information: Restoring trust and integrity" outlining planned Freedom of Information changes, and initiatives on journalist shield laws, whistleblower protection and suppression orders.

The key FOI changes are to act on the Australian Law Reform Commission Open Government report of 1995 including rationalisation of exemptions, and review of FOI charges. Conclusive certificates will be abolished.

Labor will establish an Office of the Information Commissioner to include both FOI and the existing functions of the Privacy Commissioner. The FOI Commissioner will have a role in advocacy and support within government, but will also take over merit review of FOI determinations. Aggrieved applicants will be able to seek review for free, replacing the current process where such matters go to the Administrative Appeals Tribunal.

The Australian Law Reform Commission review of privacy laws will continue with Labor planning to ensure that its recommendations cover issues associated with consistency of rules in privacy and FOI laws concerning protection of, and access to personal information.

There is quite a bit of press coverage including these articles in The Australian and The Age and this editorial in The Advertiser.

"Could do better"

Annual report time.

The Commonwealth Ombudsman's Annual Report provides a one page (page 108) summary of FOI complaints received and dealt with during the year. About 300 complaints in all with Centrelink and the Department of Immigration featuring prominently. Delays in processing and complaints about the agency decision are the main issues.

The NSW Ombudsman as usual goes into a lot more detail about FOI complaints received during the year. Chapter 20 has the details (Freedom of information.pdf). Over 200 formal complaints, and a lot more informal ones.

The Report highlights a couple of areas of concern - the downward trend in the percentage of determinations where all documents were released (81% in 1995-96, to 52% in 2005-6); delays in processing, sometimes of four months or more; failure to provide reasons to justify refusal of access; unjustified class claims that certain types of documents are subject to legal professional privilege; and a failure by some agencies to offer discount on charges where public interest warrants.

Agencies that feature in case studies in the report include the Office of State Revenue, City of Sydney Council, RailCorp, Energy Australia, the RTA, Macquarie University and Manly and Fairfield City Councils.

Appendix G (Appendices.pdf) lists the number of complaints against each agency. Not all were the subject of preliminary or formal investigation but those that broke double figures were: Corrective Services (10); Education and Training (13); Health (20); Police Force (63) and RTA (12).

Access to information issues concerning local councils are also mentioned in the chapter dealing with Local government.pdf . The Ombudsman reports that after some years of inaction, Sutherland Shire Council finally disclosed critical information about public safety risks to residents living next to Kurnell Oil Refinery.

'Could do better' is still what comes through from these reports.

UK PM commits to more open government

Is this catching?

UK Prime Minister, Gordon Brown in a broad ranging speech touching on human rights issues, has announced the Government will not proceed with plans to increase fees for Freedom of Information applications. He has also appointed the Editor of the Daily Mail to chair a three person panel to investigate the relaxation of the 30 year rule.

Brown undertook to make government more open and to widen access to information "because government belongs to the people not the politicians". As one of the UK experts notes "we haven't heard that rhetoric" for quite some time.

FOI reform gets acknowledgement

Maybe this is the election campaign with something for just about everyone. According to this report in the Australian (and reported elsewhere), the Prime Minister said that some changes to Freedom of Information will be announced during the campaign.

So both the major parties are committed at least to saying something more on the subject before 24 November.

Wookey walks in the west - or was that dumped?

Quite a fuss in Western Australia as the Acting Information Commissioner's Annual Report discloses that the Government will not renew her contract and plans to replace her, at least for a "transition period" with an officer from the Premier's Department.

The Acting Commissioner puts the details of what has happened over the last year or so in terms of her dealings with the Government in the foreword (Part 1 - Contents/Foreword (PDF) to the Annual Report. It sounds like a raw deal, and lack of common courtesy to boot.

The Attorney General apparently sees the decision to replace her as routine.

Here is Keryn McKinnon's take on it all in the West Australian - "disdain" for the public and a blow to effective FOI in the west.

Messy privacy and disclosure issues for local councils

Two recent NSW Administrative Decisions Tribunal cases deal with matters concerning disclosure of information by local councils and the vexed question about the interplay between privacy legislation and other legislative obligations to disclose council documents.

WL v Randwick City Council (2007)NSWAP58 is an Appeal Panel decision on a matter decided in January in favour of the Council. We commented at the time that the reasoning in the original decision was thin. The Appeal Panel has now found errors in the decision. The upshot will give rise to some head scratching in the local government community. The Appeal Panel has found that photographs of unauthorised building work being undertaken in an apartment block, when combined with the name of the property owner is 'personal information' and subject to privacy principles in the NSW Privacy and Personal Information Act. The Appeal Panel found there had been a breach of the disclosure principles when information about the unauthorised work had been sent to the strata manager and other unit owners.

In WT v Auburn Council (2007)NSWADT253, the Council conceded a breach of privacy principles. The only issue in the decision was whether an award of damages should be imposed upon the Council. The Tribunal awarded $5000 to the complainant.

The Council had released information to a firm of solicitors about complaints received concerning the state of the applicant's property, orders and infringement notices issued to the applicant under the Local Government Act, correspondence between the applicant and the Council, photographs of the complainant's property, an internal memorandum and medical reports.

The firm of solicitors was representing an insurance company in a matter involving a claim for compensation by the complainant. Before they received the documents from the Council they made an offer of financial payment but withdrew the offer after the Council documents suggested flaws in the complainant's case.

The Council said the release of the documents was an 'unintentional' disclosure as the Council officer concerned had released the documents after incorrectly relying on written advice from the solictors who sought the documents and said they "were available under Section 12 of the Local Government Act".

Everyone who has looked at the complex set of legislation that applies to local councils in this area agrees it's a mess. The Government asked the NSW Law Reform Commission to look at this 18 months ago but there has been no developments to date.

Meanwhile councils still struggle to make sense of it all.

Personal information free at last - maybe

A year ago in 'Privacy right to personal information - for free?' we drew attention to some comments by the Deputy Ombudsman, that a government agency in NSW could not charge where a person requested access to personal information held in accordance with provisions of the NSW Privacy and Personal Information Protection Act. This apparently was the result of a mix up when the Act was amended in 2004.

It's taken a year for this to come to broader attention with an item posted on 23 September on the homepage of the NSW Privacy Commissioner.

But as ever nothing in the privacy field in NSW is straight forward. An agency can charge if some specific legislation that applies would permit it to do so. This probably means local councils can charge. And agencies can charge for access to health information if sought under the Health Records Information Privacy Act.

Clear as mud?

I don't know how many disgruntled people there are who might have paid up for information that should have been provided free of charge - it's another interesting question whether they might be entitled to a refund.

National Access Card on the chopping block?

According to this report in Australian IT, the ALP will scrap the National Access Card project entirely if elected on 24 November. No doubt some anxiety for those with large contract bids still swinging in the wind almost 12 months after tenders were called.

All quiet on this issue on the Government's part so far.

FOI movement at the station

Two interesting pieces from Chris Merritt, Legal Editor of the Australian.

A bit more background on David Solomon and the Review of the Queensland FOI Act.

And some comment on Opposition plans for improved accountability and FOI, with announcements due during the course of the Federal election campaign.

Kiwis keep births deaths and marriages in public domain

Faced with strong opposition, the NZ Government has watered down some proposed changes to access rights to information about births, deaths and marriages. This article from stuff.co has the details.

The original plan was seen by some as "privacy overkill", or a big step backward for rights of access to information that should be in the public domain.

The new proposal is for continued public access, with a requirement for those who access records to show identification, and a register of those who access records.

FOI delivers: advice documents not exempt

Matthew Moore in yesterday's Sydney Morning Herald ( "A refreshing win against an obfuscating ministry") provided a good summary of another positive decision on access to documents by the NSW Administrative Decisions Tribunal.

In Dawson v Ministry of Transport (2007) NSWADT 236 the Tribunal found that a document on public transport in the Lower Hunter was not exempt despite claims by the Ministry that it was a Cabinet document and/or an internal working document. The Tribunal was not satisfied that the evidence showed that it had been prepared for submission to Cabinet, and affirmed an earlier decision that a document prepared to form the basis of a subsequent Cabinet submission is not itself a "Cabinet document". While the document contained advice, it was not, on balance contrary to the public interest to disclose the document as deliberations had been finalised and decisions made on matters addressed in the document.

Many of the arguments advanced by the Ministry about why the public interest favoured non disclosure are of a kind that still are viewed favourably in Federal and Victorian FOI cases. In NSW, in the Tribunal at least, they aren't getting very far.

Sunshine solution for hospital infections

The Australian Health Insurance Association Conference heard this week that the publication of hospital results spurred better care and lowered costs. There is strong evidence from the US at least, that release of detailed hospital-acquired infection figures would reduce the frequency of infections.

According to this report in today's Sydney Morning Herald, it's all led the Health Minister, Tony Abbott, to float the idea of a score card rating for public hospitals, and performance reports "to end the official secrecy which shrouds problems in hospitals".

Can't beat that sunshine.

Apparently in some states, hospital waiting list details still aren't routinely released. It might still be a big step to get even more detail about what is going on in the health system.

Access to private sector health records already available

The complexity and fragmentation of Australia's privacy laws is well known, and the Australian Law Reform Commission Discussion Paper on Review of Australian Privacy Law (in three volumes running to almost 2000 pages) has all the gory details.

It's not surprising that confusion reigns on many issues. In WA for example "Private hospital records remain private" it appears to be the view that there is no existing right for an individual to access records about treatment at private hospitals or from other private health service providers.

In fact these rights are already contained in the Federal Privacy Act and apply throughout the country. There isn't a need for state privacy legislation to facilitate access to these records. The Law Reform Commission Discussion Paper says that the passage of health laws in NSW, Victoria and the ACT is part of the problem of overlap and uncertainty about the current state of the law.

NSW Ombudsman 'difficult complainant project' under scrutiny

The NSW Ombudsman has been managing the development of a pilot project about dealing with so called "difficult complainants" and unreasonable complainant conduct.

Perhaps predictably it received a Freedom of Information application for documents concerning its work on the project. The Ombudsman's Office released some documents but refused access to others.

In Cianfrano v NSW Ombudsman (2007) NSWADT235, the Administrative Decisions Tribunal found that documents withheld from disclosure by the Ombudsman's Office were exempt as internal working documents. The fact that the project was not complete was an important factor in deciding that the public interest favoured non disclosure of documents of this kind at the moment. However the public interest factors might well change once the project has been completed.

The Tribunal did not accept on the evidence an alternative argument by the Ombudsman's Office that the documents were also exempt because disclosure would diminish the commercial value of information about a training package being developed as part of the project.

Australia Talks FOI

Australia Talks on Radio National last night included a segment on "Freedom of Information and Digital Policy" featuring Rick Snell of the University of Tasmania and Michael McKinnon, Freedom of Information Editor Channel 7. It provided a good overview of some of the current problems and issues regarding record keeping.

Smartcard an answer still looking for the problem?

We've heard from all sides of politics already on just every issue you could imagine and the election campaign hasn't even started yet. One issue that is probably not going to be up in lights if the Government can help it is the National Access Card proposal. It deferred the next round of legislation and the election will determine whether it gets the chance to take this step.

The Auditor General this week released a report - Proof of Identity for Accessing Centrelink Payments

It's all pretty dry stuff but according to an article in yesterday's Australian Financial Review "Finding weakens smartcard case" (no link available) buried away in the report is a finding that there is no evidence of identity fraud among Centrelink's customers or internal fraud by staff. These were important elements of the case for the National Access Card project. The KPMG report that identified the problems and produced the cost benefit for the proposal has never been released.

The Auditor General identified plenty of problems with proof of identity in Centrelink but the AFR article suggests the smartcard in some respects is still an answer looking for a problem.

Privacy still an issue with electronic health records

Last night's 7.30 Report on the ABC included a segment on major problems in the health sector through lack of access to medical information by treating doctors and others, and the progress (or lack thereof) on the introduction of a national electronic health record system. It still seems a long way off, although some progress has been made on state systems including in NSW.

Privacy concerns - particularly how to limit access to some sensitive information rather than make everything available to everyone who is part of the system - remain.

Federal agencies still lagging on contract disclosures

The latest audit of Federal agency compliance with a requirement to notify the Senate about confidentiality provisions in contracts, has been released by the Auditor General. The Senate Order for Departmental and Agency Contracts (Calendar Year 2006 Compliance)

The report shows continuing compliance problems, and invalid claims for confidentiality. It concludes that years after the requirement was imposed, not enough has been done to provide information and training to those responsible for contract administration.

Federal Shadow Finance spokesman, Lindsay Tanner, is planning to release a policy that would require more information in this area, including a register of contracts, and certificates of explanation for commercial in confidence provisions.

WA "secretive Government" slims down annual reports

In Western Australia, as the annual reporting season gets underway, Keryn McKinnon in her column "Reporting seasons exposes a secretive Government" says that the Premier has directed agencies to not include information about Freedom of Information applications (and performance measures) on the basis that 'people don't read these details anyway'.

McKinnon says that less information from government agencies is hardly in line with current expecations of greater transparency.

Hole in Queensland FOI Act regarding late determinations

A recent snippet in the Courier Mail suggests that a problem with the Queensland FOI Act may mean that a determination on a Freedom of Information application made after the statutory time limit, may not be a proper determination, meaning that protections in the Act against actions for defamation and breach of confidence do not apply.

It appears in this column by Des Houghton (scroll down to "FOI exposes a time bomb").

Other acts, for example NSW (Section 24(2A)) include a provision that a determination even if made late is covered by the protection against liability provision.

Thanks to a Queensland reader for bringing this to our attention.

Snapshot of Victoria and FOI

The Victorian Ombudsman's annual report tabled in Parliament recently includes about the investigation of complaints about Freedom of Information matters. Complaints were down by 4% on last year, perhaps reflecting improvement resulting from the Ombudsman's highly critical special report on the operation of the Act last year.

The report found several cases involved misleading reasons for claiming exemptions and some decisions that showed little regard for the objectives of the Act. "Some agencies took advantage of every available exemption to provide as little material as possible".

Delay, beyond the 45 day time limit, and an inability to locate files were also identified as ongoing issues of concern.

The FOI section is at page 20 in the report.