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Wednesday, April 30, 2008

Ombudsman urged to dig around Police and Health FOi practices

The Daily Telegraph has also thrown its weight behind the NSW Ombudsman review of the Freedom of Information Act, emphasising the need to have a close look at what is going on in some agencies:

"The Daily Telegraph, a frequent user of the state's FOI laws, has noted great variance in how agencies comply.The NSW Police Force, for example, appears to believe it has its own unwritten exemption from compliance. Health agencies, too, have become more obstinate in the face of recent scandals."

Tuesday, April 29, 2008

NSW Councils advertising inserts may breach privacy law

It's fairly common practice for NSW local councils to include in the mail out of rates and other notices, advertising material for which they receive a direct or indirect benefit. Some recipients regard this as unsolicited advertising, and it would be wise for councils to at least provide an opportunity to "opt out". One ratepayer has taken the matter to the NSW Administrative Decisions Tribunal arguing that the practice involves a breach of the use principle in privacy legislation (Section 17 of the Privacy and Personal Information Protection Act (PPIPA)).

In AK v Gosford City Council (2007) NSWADT289 the complainant argued that a four page flyer that consisted of advertising material for companies linked to a prize for the early full payment of rates sent to him with his rates notice, was a use of personal information for a purpose not directly related to the purpose for which the personal information had been collected. The Council had been engaged in this practice since 1992. The ADT decided that it was unobjectionable to include in an insert information about the Council, and information about prizes relating to the payment of annual charges. However the inclusion of other material about company products or services could could involve a breach of the privacy principle.

The Tribunal (para. 20-23) was of the view that an exemption in the Privacy Code of Practice for Local Councils may apply, and (at para. 25) that the ratepayer may have in effect consented to this use if material of this kind had been sent to him and he had failed to previously complain about misuse of personal information.

As the Tribunal did not have evidence on these matters it referred the issue back to the Council for resolution.

Friday, April 25, 2008

Action needed to match Canberra's FOI rhetoric with applicant's reality

In an article today in the Sydney Morning Herald, I comment on a recent decision in the Federal Administrative Appeals Tribunal, upholding an exemption claim under the Freedom of Information Act for a four year old report on a major policy initiative by a working group of senior public servants, and how this sits uncomfortably alongside the mood of the 2020 Summit "for a more vibrant democracy through increased public participation in the operation of our democratic institutions, and more open, accountable government." It concludes

"If the Rudd Government is interested in encouraging greater public participation in government decision-making, it needs to do something about an act that accommodates such decisions, and about the attitudes to disclosure by agencies such as Treasury inclined to grab onto an exemption claim just because they can."

Rick Snell in The Australian also comments about Canberra's FOI record:

"Five months have now passed since the federal election. In that period the federal Government has made all the right noises, a few important symbolic changes and delivered the right rhetoric but appears to have changed little in the way of actual practice of FOI at the commonwealth level.

The Australian Law Reform Commission has sought new terms of reference to carry out a full scale review of federal FOI legislation and practice. Yet surprisingly for a government keen to announce an inquiry at almost every press conference, the ALRC has been kept spinning its wheels waiting a response.

In November or December last year, Rudd should have said in his best pragmatic Queensland voice, "Go for it".

There was much talk at the 2020 Summit of the need for collaborative government. Yet such collaboration requires the two-way flow of information between governments and citizens bereft of spin and the willingness to modify proposals or admit to error and oversight in policy development.

This two-way flow of information can and should work without FOI. However, FOI is needed to ensure that it happens not just for the easy problems but also for the most contentious and difficult issues."

NSW Ombudsman FOI review in the news

More comment about the planned Ombudsman review of Freedom of Information in NSW in an editorial in the Sydney Morning Herald yesterday, and by Rick Snell in today's Australian, including these observations about the current state of play:

The Herald( scroll down to "What's the big secret?"):

"( The Ombudsman's work) will have little impact unless the Iemma Government embraces the spirit of the freedom of information law instead of thwarting it.
The Freedom of Information Act is an endless source of aggravation to those trying to use it, whether community organisations, journalists, businesses or individuals. Requests that should be processed in weeks can take months. Some requests are flatly refused, while those documents that are released may be out of date, heavily censored or not what was sought. Then there's the money: a single application can easily cost hundreds and sometimes thousands of dollars. Of course, it is hardly surprising that some bureaucrats think their job is to release as little as possible; they are simply taking their cue from a government obsessed with controlling information to avoid criticism.

Announcing his inquiry, Mr Barbour declared freedom of information legislation a cornerstone of good governance: "It ensures government decision-making is open and transparent, and that decision-makers are held accountable." No wonder Labor has been so reluctant to have effective legislation in NSW."

Rick Snell:

"The risk with the NSW Ombudsman's review is that it will take too long. The chances are high that any recommendations will either be ignored or delayed yet again and the NSW Government will go to the next election still fixated on excessive secrecy.The problems with FOI are not isolated to NSW.

There has been a recognition that all is not well with FOI across all levels of government in Australia. The success stories are far too rare and often the result of a long, costly and persistent struggle by a few applicants. Some of the blame can be traced to complex, inconsistent and obsolete statutory provisions or charging regimes that are easily manipulated or abused by over-secretive agencies.

The deeper problems lie in the level and extent of variable compliance by different government agencies. Many in the highest levels of the bureaucracy demonstrate a puzzling reluctance to accept that FOI acts were adopted by parliaments to transform the way government agencies handle information.

Some within the public service have administered FOI as if it was merely a quickly passing fad and something alien and unnecessary. Too often those officials committed to implementing the FOI Act have been sidelined, poorly funded and treated as politically naive and excluded from internal debates about whether information should be released."

Thursday, April 24, 2008

Swifter,higher,stronger indeed

What is it about the Olympics and secrecy?

When the Games were held in Sydney in 2000, the NSW Government,presumably at the urging of the IOC, enacted an amendment to the Freedom of Information Act that provided that any information held by the Sydney Organising Committee for the Olympic Games, and other government agencies created to run the Games that was confidential to the International Olympic Committee (no matter what is was, or when it was sought), was exempt from disclosure.The only test was whether the information was confidential to the IOC. It' still there(Clause 21, Schedule1), available for use in any rare matter that might crop up eight years after the Games.

A provision in similar terms was later added to protect information about the World Masters Games to be held in Sydney in 2009.

There seemed no justification for these additional exemptions, then or now.

In Canada, host of the next Winter Olympics, another inventive response to the issue of transparency (and presumably about the use of public funds or assets),emerged last week when it was revealed that the agency concerned there has decided to keep no written record of meetings.

As for the Beijing Organising Committee.......................

Wednesday, April 23, 2008

Reaction to planned review of NSW Act

Here is the Sydney Morning Herald report on the Ombudsman's planned review of the NSW Freedom of Information Act (including a comment by me); another from The Australian (reporting a promise of additional resources by the Premier); and a media release from The Greens, calling on the Premier to commit to a change and to a response to recommendations within six months. My comment last night about how this could be a much better process still stands.

Tuesday, April 22, 2008

NSW Ombudsman acts to review FOI Act

The NSW Ombudsman has announced today a comprehensive review of the Freedom of Information Act, which will cover not only the provisions of an act which he describes as dated, complex and difficult,but also its day to day implementation to identify what works well and what could be improved.

So, first, this is good news.

It comes 17 years after the then Ombudsman first called for a review of this kind, a call repeated at regular intervals by those who followed him in office since. All NSW governments have remained unmoved on the issue of review and reform during this time.The announcement comes seven months after the Premier, Morris Iemma was asked in Parliament what he intended to do in the light of the Ombudsman's call for review in last year's annual report.Five months later he said the head of his department would have a chat with the Ombudsman. Nothing has been heard from him since. The Ombudsman appears to have decided, finally, enough is enough

Then on the down side.The review process is likely to take a year or so, giving the Government a convenient way of avoiding doing anything in this area until it is completed. In the absence of even the slightest acknowledgment by the Premier of the need for change, the Government will have complete discretion on what, if anything it will do in response to the findings. And as is the way with these things, the Government may take months or years to respond in any event.

It could all be very different if the Premier indicated his intention to put NSW at the forefront in enhancing democratic practices in Australia and made a commitment to open, transparent and accountable government, with a modern FOI Act that recognised and guaranteed the right of access to information, unless some demonstrable harm would result from disclosure.

If that was where he wanted to go, a short sharp review of the kind commissioned by the Queensland Premier last year, or the Ombudsman and a small group of others, would only take a few months to tell him how to get there.

The Premier and the Premier of Queensland were both at the 2020 Summit in Canberra last weekend. Both would have heard that fundamental changes in FOI were high on the list of changes needed in governance. The Queensland Premier has indicated she intends to keep in touch with those from Queensland who attended -one of her particular interests? Their input on freedom of information.

Now there's an idea Mr Iemma.

Bartlett directory of 2020 commentariat

The blogosphere has been buzzing with comment from participants and others on the 2020 Summit.Senator Andrew Bartlett has put together this useful list, with links.

Services Sydney scores a rare win

Services Sydney, a private infrastructure development company has been involved in a long battle to try to access the assets of the NSW Government owned monopoly provider, Sydney Water, in order to be able to provide some services in competition.

Given this background, it may have been surprised by the substantial win in the NSW Administrative Decisions Tribunal recently in a case involving 10 documents(now four years old), claimed to be exempt by the Independent Pricing and Regulatory Tribunal and Sydney Water. The documents related to a pricing review of Sydney Water by IPART in 2005.The win resulted mainly from the failure of the two agencies to provide the ADT with evidence to support their arguments about the sensitivity of the information contained in the documents.

The ADT rejected claims in respect of four documents on the basis that the agencies had not demonstrated through evidence that particular detriments would follow disclosure.With regard to five other documents claimed exempt as Cabinet documents, the Tribunal was not prepared to accept assertions by public servants about the documents, and before deciding their status wants to see chapter and verse, the documents themselves,before a further hearing in May.

The Tribunal decided that two of these documents, a report and appendices prepared for a government agency by the Institute for Sustainable Futures and the Centre for International Economics,were not prepared for submission to Cabinet:

"An objective assessment of the material before the Tribunal suggests that the Report was prepared for the purpose of DIPNR and the relevant Minister(s) being able to prepare a Metropolitan Water Strategy/Plan, which would be submitted, to Cabinet for consideration. That is, the Report was not a document, which was envisaged as being a document for submission to Cabinet, it was a document on which a further document was to be created and it was this further document, which was prepared for Cabinet. It was a document prepared so that it could form a basis on which a submission to Cabinet would be prepared and therefore not exempt under this particular paragraph of clause 1 of Schedule 1 of the FOI Act".(at 84)

Still, the Tribunal upheld an exemption claim for one document.

It's unusual for a government agency to come unstuck in the ADT because of a failure to adduce evidence to support exemption claims.

Monday, April 21, 2008

Morning after reflections on 2020 Summit

Assessments of the 2020 Summit seem mostly positive and realistic about what results when you lock a lot of people in a room for a relatively short time and tell them "discuss" the major challenges facing the nation.But there are also plenty of naysayers as well.

Two pieces of particular interest:David Marr in the Sydney Morning Herald provides some colour on the way things went in the Governance group, making sense of that reference to grumpyness yesterday . Brad Norrington in The Australian gives some additional details of issues covered that included shield laws, whistleblower protection and political party funding.

We shouldn't be satisfied with the assurance that the Government will respond by the end of the year to suggestions on improving openness and transparency, and increasing public participation in government affairs.

Prompt action by the Government on Freedom of Information reform should be seen as low hanging fruit-easy pickings for those who spoke loud and often before the election about what needs to be done to address an enduring culture of excessive secrecy in some government agencies,and a myriad of other problems with the law and the way it has been implemented.

The Initial Report published yesterday urged state governments, all represented by their leaders ,to also take on board the ideas that emerged. None of the states (other than Queensland) have shown much interest in fundamental reform on FOI and related issues.

We live in hope.

Sunday, April 20, 2008

Tell them about FOI in NSW, it's a great story(not)

I think I saw NSW Premier Morris Iemma sitting in the backrow in the Health group at the 2020 summit, as might befit the former Minister for Health in NSW,and someone rightly concerned about the crisis in the public health system in NSW.

Did his path cross with David Marr in the Governance group who said on Saturday that this comment in the folder sent to him by the Premier put him over the edge when it came to responding to the Premier's urging to represent NSW interests at the Summit. Could have been an interesting chat over morning tea:

"But what killed any ambition to represent NSW is Iemma's spruiking for the state's wretched FOI regime. "Since its introduction in 1989, the Freedom of Information Act has contributed significantly to the openness and accountability of Government. The act continues to perform that function, and its operation is continually subject to scrutiny and review …"

What do we want:statehood for Northern Territory.

Yes, it has not taken long for disgruntlement to feature in media reports about the 2020 summit. Where will we be by Monday morning?

Queensland behind the game on health research

Well, as we said recently, its not all happy news on the transparency front in Queensland.

Access to data about non personal information about the incidence of cancer is off limits for research purposes even though its available as a matter of routine elsewhere.

Mostly smiles as 2020 Summit wraps up

Lots of optimism, as well as ideas from the final session of the 2020 Summit just completed. I'm sure there are also tales of disappointment and frustration that we will also get to hear about soon enough.One participant told Peter Mares on Radio National today there were a lot of grumpy people in the Governance group yesterday, and the scuttlebutt was that it was proving to be the most difficult of the 10, but things had improved this morning .

The Summit has given a boost to the idea that we can and must do a lot better in many fields. Improving the way government works was a central theme.

As the Prime Minister said in his opening address:

"What we are looking for from this Summit are new directions for our nation’s future.And if we succeed, what we are looking for is also new insights into how we can govern Australia, a new way of governing our nation.Because the old way of governing has long been creaking and groaning.Often a triumph of the short term over the long term.Often a triumph of the trivial over the substantial.Often a triumph of the partisan over the positive.And the truth is all sides of politics, Brendan’s and mine, we are both guilty of this.It is time we started to try and turn a page."
Many of the reports from the 10 groups referred to a theme familiar to anyone who has worked in or around government:the need to recognise and deal more effectively with issues that cross departmental or federal -state boundaries- Tony Blair had a crack at it with his "joined up government". Easier said than done, human nature and the ways of bureaucracy being what they are.

The Initial report of the groups was posted immediately on the 2020 website and a more detailed report is to follow in a couple of weeks. The PM encouraged participants and the rest of us to use the site to join in the ongoing discussion ,and promised a reaction to all the ideas by the end of the year

John Hartigan , the group co-chair said Governance came up with about 200 ideas.The published report lists only the biggies: a republic, more opportunity for community interaction with government including through the web, a bill or charter of rights, a standing commission of experts to focus on making the Federation and federal -state agreements work better, automatic enrollment of voters, a preamble to the constitution recognising first peoples custodianship.

And open and accountable government including a completely revised freedom of information act.

Much of what needs to be done to start the change process in this area is well known and understood.Mr Rudd said as much before the election. How about it Minister of State Faulkner? Something simple, for example like telling the Treasury and other government agencies that those like Brent Fisse mentioned here a few days ago should not have to run a gauntlet of technical legal arguments when they seek to better understand the background on important new policy proposals of great public significance.

The Initial Report, with the Governance Section on pages 32-34 is here PDF 825KB

Friday, April 18, 2008

Just how interested are you in 2020?

This could sort the sheep from the goats-there will be live streaming for some sessions of the 2020 Summit(but from the look of things not the Governance group)from here over the weekend, and television coverage from ABC1 and ABC2.All 8000+submissions were sent to participants over the last few days, so that that must have been fun.Look forward to the fruit of collective wisdom about the nation's future over the next couple of days.

Lead not just in the air in Mt Isa

The Queensland Government's apparent good intentions in charging the Solomon review with the task of fundamental re-examination of the Freedom of Information Act earned it high praise in FOI circles, but as this editorial in today's Courier Mail points out, the day to day performance on transparency issues is not reflective of its stated lofty ambitions.

Thursday, April 17, 2008

Treasury proves it's still a 'closed shop'

Just as participants in the 2020 Summit start to gather to discuss among other things "how best to implement an effective agenda of open government", and "how best to engage the community in government decision making", along comes a timely reminder of some of the obstacles to achieving these objectives.

The Deputy President of the Administrative Decisions Tribunal, Professor Walker, in Fisse and Department of Treasury has found that a report, now four years old, on the legal and policy issues associated with the introduction of criminal offences for cartel behaviour prepared by a working party of government officials, was exempt from disclosure under the Freedom of Information Act. This despite evidence from the applicant , an expert on competition law and two other highly respected authorities in this field, that the report was of central public significance to the business community, the legal profession and academics, and that the failure to disclose it would impede informed public debate and academic research on an issue that is controversial and still under consideration.

However the Treasury successfully argued that the executive summary of the report was exempt as a copy of a document prepared for submission to cabinet; and the full report(other than factual information released to the applicant) was exempt as an internal working document, on the grounds that it contained advice and recommendations, the disclosure of which would be contrary to the public interest.

The executive summary had been attached to a cabinet submission, but for the exemption to apply it had to be established that submission to cabinet was the purpose, understood at the time, for which it was prepared.The evidence on this(at 69 )was equivocal. Cabinet had asked the Treasurer to come back with recommendations after the working party had completed its report, but it was clear the report was for the Treasurer and was submitted to him. On one reading it was open to Professor Walker to conclude that the document was a preliminary document of a kind not covered by the Cabinet exemption , but he attached weight to other evidence including the views of a senior officer in the Prime Minister's Department that everyone understood the document would end up going to cabinet even though no-one actually said this(at 84).

Treasury dropped the argument that the working party report as a whole was exempt as a cabinet document,but came at the issue through a side door, submitting that it was contrary to the public interest to disclose this document because:
"release of the report would disclose the content of material prepared to support a recommendation to Cabinet and formulated for the purpose of assisting Cabinet deliberations and a Cabinet decision. Disclosure would breach the convention of Cabinet confidentiality, which is pivotal to the proper functioning of the executive and the parliament of the Commonwealth. Even though the full report does not fall within the terms of (the cabinet exemption) the public interest would not be served by interfering with the convention of confidentiality"(at 112)
Professor Walker in essence accepted the argument that the product of consideration of the issues by a group of senior public servants should be accorded the same degree of confidentiality as the deliberations of ministers in the cabinet room because cabinet subsequently looked at a submission from the Treasurer on the same subject that may or may not have reflected their views or recommendations.

It was irrelevant that the report was not provided to cabinet, considered by it or adopted by it(at115);that no deliberations of cabinet would be directly disclosed(at117);that there was no inherent sensitivity of the subject matter(at119);that four years had elapsed since the report was prepared(at121);or that there had been a change of government in the meantime(at122).

All this my be "good law "in the sense there are precedents that support this interpretation of the Act and conclusions drawn from the evidence by Professor Walker.

But if the Rudd Government is really interested in striking the right balance between the right to know and the confidentiality necessary for the operations of government, and encouraging public participation in government decision making(an underlying rationale of the FOI Act for 25 years) ,it needs to do something about an act that contemplates decisions like this, and about the attitudes to disclosure by agencies such as Treasury that seem inclined to grab onto an exemption claim just because they can.

Someone at the 2020 Summit might ask the question.

Love to know what Kate Harrison, now chief of staff to the minister responsible John Faulkner makes of this.She acted for Fisse until appointed to the Minister's staff a few months ago.

Openness,transparency and accountability a key focus at 2020 Summit

From a report in today's Herald Sun, featuring comment from each chair of the 10 sub-groups, John Hartigan reflects on the challenge for Governance:
"IT has been easy for some to criticise the summit. Most of it has been superficial and cynical. It shows why a discussion is long overdue. The time is right for smart, passionate, creative thinkers to consider bold changes for Australia. The governance group will examine ways to overcome the limits of the electoral cycle that stifles the kind of bipartisanship that's needed. Australians often lack faith in politics and the machinery of government. We are increasingly denied access to government information we have a right to know. I don't think too many Australians are satisfied with the way our three levels of government work together. There are also questions about whether our rights are protected. Equally, there are calls for a return to greater personal responsibility.

In tackling these issues we've focused on improving the openness, transparency and accountability of government, overhauling parliamentary democracy, reinventing Federation and the administration of government. We will re-examine our rights as well as our responsibilities as citizens. "

Wednesday, April 16, 2008

2020 Summit submissions published

Well, yes there does appear to be the odd shortcoming in our system of government.

Even before the 2020 Summit commences,775 submissions were received on Governance issues by closing time last week and have now been published on the 2020 website( go here and select "Governance").

I'm there at no.8140,but you may have seen the submission here last week

I don't know what the secretariat intends to try to make sense of all this for participants.It's unlikely they will have time to sift through the submissions before Saturday. Good process would require an effort to synthesise what has been put on the table so as to inform discussion and debate.

I intend to have a trawl through the submissions to seek to identify any new thoughts about open government related issues over the next few days

Poll says Aussie democracy AOK

The ANU Poll of 1000 Australians in March about what they think about governance includes:
Confidence in Institutions
• Australians have most confidence in the defence forces, universities and the police, and least confidence in the public service, trade unions and banks.
• In an international context, the confidence Australians express in their institutions is some of the highest in the world.

Satisfaction with Democracy
• There is a high level of satisfaction with democracy in Australia.
• Satisfaction has been consistently high since the late 1960s, with the partial exception of the period immediately after the 1975 constitutional crisis.
• Australia ranks as one of the countries with the highest levels of satisfaction with democracy in the world.
What constitutes "democracy" for the purposes of the poll isn't mentioned.

It will be surprising if the Governance Group at the 2020 Summit at the weekend concludes everything is as rosy as this sample of punters seems to think.There are lots of "could do much better"markers starting with the right to access government information. I could but won't go on.

Tuesday, April 15, 2008

ICAC decides all above board in battle for Beacon Hill

The Manly Daily reports that the NSW Independent Commission Against Corruption has decided against any formal investigation into the decision to close the school and sell the land, the subject of many Freedom of Information battles, in recent years.

Monday, April 14, 2008

Nothing personal,just your fingerprints please

The US Secretary of Homeland Security in Ottawa last week suggested that fingerprints were not "personal data", implying that collection and use, and sharing between authorities should be beyond the reach of privacy laws.

Canada's Privacy Commisioner wasted no time in telling her Minister(publicly) that this was not a view consistent with Canadian law, and that she expected to be consulted about any arrangement with a foreign government about sharing this type of information.

Hopefully our authorities take the same line with the US, but a public statement would be reassuring

MPs expenditure should be on the public record

You would hope its only a matter of time here also, as at least one party leader in NZ reflects on a recent order for disclosure of expenditure by MPs in the UK, and says bringing the Parliament under the Official Information Act will happen in NZ sooner or later.

Federally,this is one of the 106 recommendations for Freedom of Information in the Australian Law Reform Commission 1995 Open Government Report that were ignored by the Howard Government . The ALP said it would act on them, so just a matter of time?

None of our state legislatures are subject to FOI laws either.

Real time disclosure of political donations

During an interview on Radio National's The Public Interest, the Director of the New York City Campaign Finance Board said she had offered the Australian Electoral Commission(and the NSW election authority) free access to software that would facilitate almost immediate publication on the web of declared political donations.

So what's behind the proposal by Minister of State John Faulkner that this information be published within 8 weeks of lodgment?

The Canadian and US experience is that details of expenditure also must be disclosed if reform objectives are to be realised. For good measure, Canada puts a very low cap on how much can be spent during the campaign period.

ABC TV"s Four Corners tonight promises another depressing account of how our "donations for influence"system works.

Thursday, April 10, 2008

Minister Faulkner puts privacy law reform on the priority list

A strong commitment to privacy reform including uniform laws from the Government yesterday, as outlined in this article in The Australian.

Special Minister of State John Faulkner in his speech also spoke of work underway within APEC on a co-operative scheme on privacy complaint handling that may help to some degree with cross border issues.It will eventually allow a person in Australia or any other member country to complain to their privacy regulator about a breach of privacy principles in the handling of personal information by an entity in another APEC country. A one stop shop , as the Minister put it.

Still some way off, lots of detail to come, and no mention of remedies.

It's significant and a bigger deal than some of the other APEC Privcy Data Subgroup initiatives the Minister mentioned Australia is leading, for example putting together an APEC Privacy Contact Directory

Feds confirm conclusive certificate powers to go

Here is what the Acting Prime Minister told the Maritime Union of Australia yesterday about work going on within the Government on the issue of conclusive certificates, including whether anything should be done concerning certificates issued years ago that are still current and protect documents about the Howard Government involvement in the 1998 waterfront battle.

"The 1998 MUA dispute is now part of this nation’s history and it will continue to be studied and discussed for years to come.I understand the concern of those who worry that the full history is not yet known, because the Howard Government engaged in a cover up.The previous Government's practice of issuing conclusive certificates under the Freedom of Information Act 1982 was a practice that the Australian Labor Party objected to at the time and it is a practice we oppose now.
Our policy is to end their use in FOI applications, and we will deliver on that promise.Prohibiting access to documents under the FOI system should not be left to the whim of a Minister. Rigorous and independent decision making within our public institutions is critical for an effective FOI system.The previous Government, with the flick of a pen, put documents out of reach and out of access - without any form of appeal. The Rudd Government is committed to ensuring that no FOI decisions will be quarantined from procedures for review. No decisions have yet been made on how our changes to the FOI laws, which will prevent conclusive certificates being issued in the future, should deal with conclusive certificates issued in the past. That issue needs to be considered as part of our changes to the legal framework."

NSW Tribunal rules on FOI whisleblower exemption

The Appeal Panel of the NSW Administrative Decisions Tribunal has adopted a narrower interpretation than in previous cases of the exemption in the Freedom of Information Act for"matter relating to a protected disclosure within the meaning of the Protected Disclosure Act 1994" (Clause 20(1)(d)).

The Appeal Panel(at 21) said that while the words needed to be interpreted broadly, this did not mean they should be given the widest possible meaning. The objective of the Protected Disclosure Act was to protect information that would identify a person who had made a disclosure .In this case, information about the investigation of a protected disclosure by the University of NSW and sent to the Ombudsman, was "matter relating to a disclosure" and came within the exemption in Clause 20(1)(d) .

However the Appeal Panel went on to consider whether it should exercise its discretion to require the release of those parts of the document that would not reveal the identity of the informant. After taking into consideration the objectives of the FOI Act and the evidence before it,the Appeal Panel concluded this was the correct and preferable decision:
"The public interest reflected in the FOI Act is the public interest in openness and accountability. In this case the public interest, which is promoted by the exemption in Clause 20(1) (d), is the public interest in protecting from reprisals public officials who disclose corrupt conduct, maladministration and waste in the public sector. The object of the PD Act is to encourage and facilitate such disclosure. Section 3(1)(c) of the PD Act relating to the investigation of protected disclosures is not an object of the PD Act. It is merely a means by which the object is to be achieved. That provision does not justify keeping details of investigations confidential, especially given that the confidentiality guideline in section 22 applies only to information that might identify or tend to identify a person who has made a protected disclosure. Making the details of investigations public may well encourage agencies to conduct a thorough and objective assessment of the protected disclosure. In that sense disclosure would promote openness and accountability"(at 41)

Shreddergate in Tasmania

Here is the Mercury's update on Tasmania's "shreddergate", including the reconstructed document that the Deputy Premier tried to disappear, after telling Parliament that the decision it recorded him making had never been made.If Kons had succeeded, the only remaining record would have been the Department's submission recommending the appointment.You can imagine the sort of arguments that would have been used to protect this from disclosure in the event of a Freedom of Information application.

Are The Greens members of parliament who put all this together eligible for an investigative journalism award?

As for what it says about the integrity of public records, and ethics at the top in government in Tasmania? Vale.

Wednesday, April 09, 2008

FOI delivers another head on a plate

A document obtained under the Freedom of Information Act,and some painstaking reconstruction of another trashed document by the Tasmanian Greens, have led to the resignation of the Deputy Premier of Tasmania, Steve Kons, after it was revealed that he had misled Parliament. Documents also reveal that the then head of the Premier's Department Linda Hornsey intervened successfully to stop an appointment to the magistracy by Kons of the person responsible for examining the Gunns pulp mill proposal, who had during that time raised difficult questions with the proponents.Kons had denied in Parliament that he had proposed the appointment,but the trashed document showed otherwise.

According to this report in The Mercury , Hornsey has been in Canberra heading the 2020 Summit Secretariat.


2020 Summit submission

Here are my 500 words submitted today to the PM's 2020 Summit on the Governance topic.

Identify those provisions in the Constitution that are outdated (eg Section 59 gives the Queen power to disallow any law made by the Australian Parliament within one year of assent) or inadequate (eg Section 51 gives the Commonwealth authority over lighthouses and buoys, but makes no mention of the environment).

Promote public understanding of these issues, and the reasons why change is desirable.

Include in the debate the republic and effective protection of human rights.

Clear up uncertainty about roles and responsibilities of the different tiers of government with constitutional reform where necessary.

Appoint an adviser to the Prime Minister responsible for enhancing democratic practices. The Prime Minister should set targets and report progress.

Promote a better understanding among the voters of the importance of democratic principles and participation in public affairs.

Ensure that the political parties who control who stands for election, and frequently how members vote in parliament, have an obligation to have regard for the need for parliament to be broadly representative of the community as a whole.

Proscribe party fund raising such as payments to sit with ministers at events, which are inconsistent with the principle of equal access to decision makers.

Enshrine the principles of open and transparent government in the day to day operations of government agencies.

Require the release of research to promote discussion and debate on policy issues that impact on the public.

Reconsider the need for the 80 separate secrecy provisions in Commonwealth laws and repeal Section 70 of the Crimes Act that imposes strict liability for unauthorised disclosure of any “fact” acquired by an officer in the course of duties.

Make information promptly and publicly available on the web about the allocation and use of public funds, grants to organisations and contracts, the register of interests of members of parliament and their travel and expenditure details.

Recognise that in many areas government information is a national asset that could be further utilised by the non government sector to achieve economic and social advancement. Examine the costs and benefits of current limitations on access, copyright and cost recovery policies and what could emerge if the government provided such an incentive for the development of an information economy.

Modernise the Freedom of Information Act to reflect the digital world through a right of access to information rather than to paper-based documents. Simplify the Act to require disclosure unless identifiable harm would result. Impose administrative sanctions for any failure to comply with the open government principles of the legislation. Recognise publicly outstanding performance by individuals who through release of information promote public debate and discussion of government policy proposals.

Extend the Act to cover any organisation involved in the provision of services on behalf of a government agency, and any privatised body that conducts functions that were previously the responsibility of a government agency.

Provide that a failure to respond to a request for information is deemed to be a decision to grant access, unless the information commissioner authorises non disclosure.

Tuesday, April 08, 2008

FOI in the slow lane in WA

In the fast moving state of Western Australia, some things hardly move at all-like the Government's Freedom of Information Amendment Bill, still awaiting debate in the Legislative Council 13 months after it was introduced into the Assembly by the Attorney General. Maybe they have twigged to the fact that the legislation is no great effort at reform,and could do with a major makeover .

As Keryn McKinnon comments in the West Australian, the Government has also failed for years to appoint a permanent Information Commissioner so it probably barely registers on the radar that the current incumbent has been acting in the job for four months.

All these things take time-we know.

The farce is on us

Who knows how many applications to the NSW Administrative Decisions Tribunal for review of Freedom of Information decisions are failing because the applicant did not act within 60 days from when the agency should have, but didn't, respond to a request for internal review? Experienced hands at the Sydney Morning Herald have now suffered the same fate as the applicant in this case mentioned here a couple of weeks ago. Just how many others are withdrawing before their matter comes on for hearing, when the jurisdiction issue is raised during a planning conference; we will never know as the Tribunal does not include this sort of information in its annual report.

As for the interest within the Government in this problem for FOI users it's the usual stony silence

Some more concerns about 2020 Summit papers

Following on from the comment here yesterday about the Governance topic, Henry Ergas in today's Australian points out some problems with other 2020 Summit background papers.

Monday, April 07, 2008

Wharfies try again but documents still secret

The Maritime Union of Australia, on the 10th anniversary of the Howard Government intervention in the waterfront dispute, has raised the issue of access to documents that would show thinking within the government that led to the drama. Under the Howard Government access to most documents had been denied on various grounds and had been the subject of a conclusive certificate that the documents were exempt. The Acting Prime Minister, Julia Gillard said that the current government will not overturn the certificate. Labor Party policy prior to the election was to remove the powers to issue such certificates - one of those promises yet to be acted upon.

Under the Federal Freedom of Information Act conclusive certificates endure for the period stipulated, or apparently forever if no date is specified. In 1987 a Senate Committee recommended that the duration be limited to two years after which time another certificate could be issued. In 1991 the Senate rejected a proposal to introduce a five year limit, on the basis that this was too long. The Australian Law Reform Commission in its Open Government Report in1995 recommended two years for certificates relating to Cabinet and national security and defence documents.

The Howard Government let the matter rest there. As a result any certificate issued without any time limit still applies, as the MUA has discovered.

Some shortcomings in the 2020 Summit background paper on Governance

The background paper and questions on Governance issued to 'trigger conversation both before and during the 2020 Summit' may just do that, but they won't help shape discussion at the Summit itself. In fact by making some disputed claims, and not providing background information on some important elements of the topic, they could make dialogue and consensus on a whole range of complex issues even more difficult.

The set of 13 PowerPoints (PDF 260KB) includes one (9) on Freedom of Information that unfortunately does not provide basic information about debate on this topic. It consists of a claim that "granting rates" are 95% for personal information and 89% for other information, with the only qualification on this rosy situation in the form of three sentences from two court judgments about accountability and secrecy, and an unsourced claim that 70% of Queensland applicants were satisfied with the FOI process.

Nothing here about the stack of reports that have identified the problems in this area as an enduring culture of secrecy; lack of leadership within government; inadequacies in the law; technical legalistic responses; long delays; high cost and slow review mechanisms.

I'd be struggling to put all this on a single slide, but what has been provided is a poor attempt at providing basic information that someone will need to spend a moment or two at the Summit to correct.

Then, in what will be a surprise to most government watchers, there is a table (slide 8) that lists Australia as 12th when ranked against other countries in terms of "transparency of government policy making". You have to ask yourself exactly what is being measured here when countries not renowned for democratic practices such as Singapore, are rated one, Hong Kong five and Malaysia 16. My guess from the footnote is that it is a score of something to do with monetary policy based on a survey of business leaders, but to put this forward as a positive general indicator of the trust in Australian public institutions is a bit of a stretch.

With all of the controversy about the role of the public service, the background slide (10) on this topic is devoted solely to how difficult it may be to recruit sufficient public servants in future.

Questions are raised in the document about accountability of the Parliament and the role of the judiciary, but there is nothing in the background paper on these topics.

Quite a few preliminary summits were held around the country over the week end. Andrew Leigh of ANU (also down for the big event) attended the Canberra Summit and says that one of the real difficulties is that there is no time at this sort of event to respond to sceptics, so inevitably ideas that survive are the broad general ones that no one could disagree with. ACT Chief Minister Jon Stanhope said that at times it felt like policy speed dating.

A vital element for any process of this kind is good solid background information in advance, and a framework for discussion. The Governance group will be operating at a disadvantage on 19-20 April in this respect.

Thursday, April 03, 2008

Nothing to show for four months of thinking about FOI reform

The Rudd Government was sworn into office 4 months ago today. Frenetic is the best word to describe the work rate of the Prime Minister and his team during this period.

But Freedom of Information is one of the few areas where we are still to see any public indication of the Government's progress on plans for reform. Remember this - "I'll end secrecy", Mr. Rudd told the National Press Club 3 days before the election last November.

Here are a couple of indications that nothing much has changed. Michael McKinnon, FOI Editor Channel 7, on ABC Radio 702 yesterday said that bureaucrats continue to use flawed old arguments to reject FOI requests; and in an article in Crikey yesterday Ian Ward of the University of Queensland tells how the office of his local member of Parliament (one Kevin Rudd MP), wasn't able to tell him anything about the Government's cabinet committees because the Prime Minister's Office advised information of this kind is usually not disclosed. The names of the committees and the ministers who sit on each - they have to be kidding!

The Minister responsible, Senator Faulkner, has said nothing publicly on this issue.

Culture change and law reform in this area were said to be high priorities before the election last year. Four months on, the public record hardly inspires confidence in these undertakings.

Modest progress on lobbyists register

Special Minister of State Senator John Faulkner has released a draft code of conduct on lobbying that incorporates a public register of names and the interests they represent.

While the proposed scheme is a step forward, it's classic 'light touch' regulation and won't go far in assisting the public to know what goes on as influence peddlers go about their business.

The scheme, summarised in the Canberra Times today, only requires registration by those acting on behalf of a client, and will tell us nothing about those employed 'in house' whose job is to seek to influence government policy or decisions, or about industry organisations, charities and NGOs who are also heavily involved in these activities. It is based on the Western Australian model (gasp!). The Australian Financial Review says lobbyists registered there describe the scheme as well intended but not onerous.

Something more robust would involve disclosure of the names of all those paid to lobby, and regular information about who they contact and why; a prohibition on political donations by them; and some strong independent enforcement mechanisms. Canada leads on this issue and on others associated with integrity in public life, for example political donations. There, former ministers are banned from lobbying on matters dealt with while in office for five years - Faulkner's proposal is 18 months, and a year for senior public servants.

Regulation of lobbyists will always be difficult, and probably full of loopholes for those paid to know a loophole when they see one. The draft proposals are a modest start to a complex but important public policy issue.

Wednesday, April 02, 2008

Victoria's Virgin bid also off limits

And yes folks, details of Victoria's unsuccesful bid for Virgin Blue's business are.......confidential.

Excessive secrecy surrounds government business dealings

Lots of drum roll and fanfare yesterday with the announcement that Sydney has been chosen as the regional hub for Virgin Blue, and its new international V Australia will be flying daily between Sydney and Los Angeles. More jobs, more tourists, great benefits to the taxpayer all got a run the when the Prime Minister signed an agreement in Washington, and the NSW Premier proudly announced a Sydney victory over other competitors. Qantas appears the only loser, up to $200 million a year.

But what about cost to the taxpayer? The fine print in this Sydney Morning Herald report is that the concessions promised by the NSW Government, which include relief from payroll tax and other benefits, "remain confidential".

Relief from payroll tax is income foregone by the government. It's no different from a government grant. The rule should be that the public is entitled to know the details of these deals, and whatever cost benefit analysis has been undertaken within government that form the basis for such a decision.

Opaque dealings between government and business are not just limited to NSW, but it has pretty good form in this area. All contracts entered into by the Department of State and Regional Development that involve the provision of industry support are excluded from a requirement in the Freedom of Information Act to publish and make available contracts entered into by state government agencies.

Another example of excessive secrecy of the kind we just don't seem to be able to shake.

And the best FOI Law is........Mexico!

UNESCO has published the second edition of a comparative survey of FOI laws by Toby Mendel, the Law Programme Director with ARTICLE 19, the human rights NGO based in London. Mendel traces the development of international law concerning the right to access information, and uses uses a set of principles to assess regional trends and country specific access to government information laws in 14 countries( not including Australia). See 'Freedom of Information: A Comparative Legal Survey'.

The US and the UK feature as does Sweden with over 200 years experience in the field although the survey highlights some significant gaps and weaknesses in these systems. Policy makers here probably haven't paid much heed to the FOI law in Mexico, which on paper at least sounds a stand out. Some features not found in Australian FOI laws include:
  • right to information included in the constitution
  • applies to all public bodies including the legislature
  • the principle of transparency must be favoured in the interpretation of the law
  • failure to decide an application within the time limit is a deemed acceptance of the request and the information must be provided within 10 days for free, unless the independent review authority decides otherwise
  • fees limited to the costs of reproduction - searching for documents and decision making not charged
  • requests for information and responses themselves must be published
  • duty to publish electronically as a matter of routine 17 categories of information including subsidy programs, contracts entered into, and reports completed
  • civil servants who fail to comply or fully support the law are subject to administrative sanctions

Tuesday, April 01, 2008

2020 Governance discussion could prove challenging for the Chairs

Phillip Adams, a participant in the Governance Group at the 2020 Summit, tells us today that he didn't apply, didn't know he'd been nominated by anyone else, and didn't hear a word from anyone until he read his name in the paper on Saturday. He says he'll now have to think about the topic, but as he usually goes to sleep in meetings of this kind, his participation may be limited. All tongue in cheek, we hope.

Adams tells us it's a good thing that one of his frequent correspondents on Late Night Live on Radio National, the previously under recognised Queenslander Bridie Jabour, also has a spot in the governance discussion.

Maybe. Bridie (my research showed her to be a student at Bond University) in a column today in the Gold Coast Bulletin tells us that among the issues she plans to raise include better opportunities for students from rural areas, changing the whole education system, saying goodbye to Lizzie Windsor, drinking treated water and fixing the health care system. Bridie says she knows there will be a lot of older people there who will think they know better so she plans to:
"give a short talk about how Australia's future rests on higher taxes for the rich and leave the oldies to fight it out among themselves while the rest of us get on with the task of changing the world".
Co Chairs John Hartigan and Maxine McKew may have their hands full keeping Adams awake and keeping Bridie on the topic.