Access to legal advice-the more things change.....

Senate Estimates committee hearings on the Federal Budget commenced in Canberra this week, just as the Government was dealing with its first embarrassing leak. And, as the investigation got underway, plenty of reminders that it is yet to deliver on its whistleblower protection promises .

The commencement of the committee hearings prompted a look at answers provided subsequently by the Government to some questions taken on notice on disclosure of advice issues the last time the committees met in February.

To Senator Ray's question PDF 55KB about any consideration being given to mandatory tabling in Parliament of legal advice received on the consitutionality of an act of government , which in his view went beyond the normal bounds of privacy and confidentiality, this response:"It is a longstanding practice, observed by successive Governments that legal advice is not disclosed unless there is a compelling reason to do so.While there may be circumstances where the Government may wish to make certain advice available any such decisions are matters for the Government of the day to make having regard to the facts of the particular case."

So the circumstances must have suited the Government to respond to another question by Senator Ray by releasing legal advice received that justified the tabling of an Auditor General's report critical of the Howard Government's rural grants program during the caretaker period just before last year's electionPDF 262KB

But they didn't suit when asked about whether legal advice had been obtained and from whom, about the constitutionality of quickly aborted plans for sittings of parliament in February, or about the apology to indigenous people. The response to both questions:"The Attorney-General has indicated that it would not be appropriate for the Department to provide the information sought." (Questions 55 and 56 here).It was the same response to the same questions(21 and 22) asked of the Australian Government Solicitor.

Its hardly the way to illustrate the difference between this government and its predecessors particularly given the commitment to "end the culture of secrecy"(Mr Rudd at the National Press Club in November last year), and Mr Rudd's view that "access to government information and decision-making are keys to a healthy and vibrant democracy."

Oh, and by the way the Federal Government's FOI Guidelines: fundamental principles and procedures which predates the Rudd Government but appears to still apply, includes the following from a memorandum from the then head of the Attorney General's Department to government agencies, cautioning against overuse of the legal professional privilege exemption in the Freedom of Information Act:" Federal Cabinet decided in June 1985 that agencies should not claim exemption for documents which have no particular sensitivity....The client should be advised that legal professional privilege should be waived unless some real harm would result from release of the documents."

Cain's call to enable FOI laws

Former Victorian Premier John Cain, responsible for the Freedom of Information Act introduced in that state in 1983, has added his voice to those calling for improvement in the laws and the way they operate. Cain says government contracting on the current scale was not contemplated at the time and confidentiality claims hide important information that should be publicly available.

Call for FOI review in Tasmania

Tasmania has a new Premier-but, mind you, it's nothing to do with "shreddergate" or other governance related recent scandals. Just before Premier Lennon took the great leap forward, the Ombudsman joined Rick Snell and Australia's Right to Know on ABC TV's Stateline last Friday in calling for a review of the state's Freedom of Information Act.The Ombudsman says he's willing, but does not have the resources to do the job. There is a great opportunity for the new Premier to draw a line in the sand on openness and transparency. Will he go where his predecessors have failed to tread?

Postscript: in an initiative that signals "I'm not Paul Lennon", ABC reports that Premier Bartlett's "first act as Premier has been to establish a Parliamentary committee to look into a body to examine the ethical conduct, standards and integrity of politicians and the public service in Tasmania. The joint select committee will be asked to look at mechanisms to promote ethical and open governments. He says the move can restore trust in the government."

Houses not in order

Picking up on the UK disclosures, does it really matter that we don't know much about payments from the public purse to members of parliament, and how each has spent the money?
In my view its"Accountability 101". Payments to ministers, as such, are usually accessible under freedom of information laws as relevant documents are held by the minister or the agency for which they have responsibility. Parliamentarians and payments to ministers in that capacity, are another matter.

I'm sure most are good honest hardworking folk, but that's no reason why we should not demand high level accountability for public money.Left to their own devices, our parliamentary representatives have created systems that have the potential for some nice little earners outside public glare. No wonder we haven't seen leadership from those who have the numbers to make parliamentary departments subject to freedom of information laws. A couple of examples.

Federal MPs get a daily travel allowance when away from home, including time spent in the nation's capital.There is a six monthly report on members travel published by the Department of Finance and Deregulation. Its not on the web, and gives total amounts spent. Last year now Shadow Treasurer Malcolm Turnbull publicly acknowledged he paid his Canberra allowance to his wife as rent on an apartment she owns there. As to what others do, none of us have a clue.

An Auditor General's report seven years ago noted there was no public reporting on other allowances or payments made to MPs who in addition to publicly funded electorate offices (and three staff), have a privately-plated Commonwealth vehicle, and receive electorate, printing, postal, and telephone allowances. While travel allowance payments are reported, travel at government expense by spouse or dependents is not. Many of the payments appear to be made on the basis of self certification, without the need for proof of expenditure.

The report says "a key area in which some overseas models reviewed, particularly those of Canada and the United States, differed from the approach currently taken in respect of the Australian Federal Parliament is that they provide for significantly greater levels of public disclosure of the guidelines and/or rules that govern entitlements’ expenditure by the members of the respective legislatures; and of the costs incurred by the individual members."

Minister of State John Faulkner to his credit has made a start- cracking down on payment of public funding for elections in the absence of evidence of expenditure, and winding back "printing allowances "that became electoral year war chests. Regulations were tabled in March to reduce the printing allowance for members of parliament from $150,000 a year to $100,000 a year and abolish the option to roll over 45 per cent of entitlements to the following year.

Senator Ludwig said at the time "Prior to the last election, with members of parliament having a printing allowance of $150,000 per annum and being able to roll over 45 per cent of that allowance to the next year, more than $240,000 could be spent by a single member of parliament in a single year—in a single election year. This cannot be justified as appropriate spending. The combination of the rollover and the increased level of the entitlement allowed members of parliament to build a war chest for election spending out of moneys originally designed for communicating with constituents and the community. This, of course, is taxpayers’ money."

Well yes, but unfortunately the Government appears to have done nothing about disclosure of what the money is spent on, or sought to limit use, so in an election year there is nothing to prevent a member paying for how to vote cards from printing allowance and for direct mail from the postal allowance.

In NSW, Greens MLC, Lee Rhiannon has been attempting to throw some light on what NSW MPs get in allowances and gives some details here. There appears to be no public reporting and many payments do not depend on evidence of use of the money. Her website lists the following:

• Expense allowance for members who have an official title.
• Electorate allowance. In theory to be spent on expenses. Rhiannon says payments can be pocketed by the member.
• Logistical support allocation: A lump sum of money to spend on travel, printing, stationery and other 'office expenses'.
• Electorate mailout account: A $5.5 million Carr Government initiative allowing MPs to send out glossy newsletters promoting themselves.
• Sydney allowance: Money given to non-Sydney MPs for the time they spend in the capital.
  
• Printing bonus: Extra money for some MPs to spend on printing.
  
• Charter transport: Rural MPs get cash to use for flying around their large electorates.

Rhiannon notes that parliamentarians also have home fax and phone bills paid, and free flights to and from Sydney - over 100 per year.

The parliament house websites contain no information on rules and guidelines for payments,or actual payments to members.

As to the other states and territories?

So while in the UK Freedom of Information has proved a useful tool to force some accountability, because records of expenditure were kept by the parliament, we have a clear need for more fundamental changes here. Don't expect a rush to action. The late Peter Andren is sorely missed.

FOI delivers parliamentary accountability-in UK

The House of Commons has released the documents containing information about how some members spend the allowance they receive when parliamentary duty requires those of them from other places to be in London, following the High Court decision referred to on this blog last week and the subject of Matthew Moore's column in the Sydney Morning Herald on Saturday.

There has been much to marvel at, as reported by the Daily Mail , none better than this account of the health minister insuring the life of her husband, also an MP and claiming the cost of their joint mortgage on a second home and the insurance premium as expenditure under the allowance. There has also been much head scratching that the equivalent of over $A250000 was spent arguing that the information should not be disclosed. Here is the account of Heather Brooke, the right-to-know campaigner who initially requested the details, of the three year battle and it's not over yet

The Daily Mail quotes Brooke, as saying: 'All public figures should learn from this case and realise that proactively publishing this information is the way forward and that by dragging their heels, MPs have only lowered themselves in the eyes of their constituents What is utterly unacceptable is the secrecy of the system and it indicates that MPs did not feel able to justify these expenses to their constituents.These revelations give the lie to MPs' arguments that these receipts would damage their security or privacy. The only reason they were held back was to avoid embarrassment.'

Its all now in the public domain after a long and expensive battle, because the houses of parliament in the UK are subject to the FOI legislation. In Australia, at Federal state and territory level they are not.

Good news and no news on transparency and accountability

The good news is that Minister of State John Faulkner's announcement of the first stage in electoral law reform saw legislation introduced into the Parliament on 15 May to

• Reduce the disclosure threshold for donors, registered political parties, candidates and others from ‘more than $10,000’ (indexed annually to the CPI) to a flat rate of $1,000.
• Treat donations to different branches of a political party as donations to the same party, so that donors will need to disclose donations totalling $1000 or more to any combination of the branches of the party.
• Reduce the timeframes for the lodgement of returns by political parties to every 6 months, and shorten a range of other reporting periods under the Act.
• Make it unlawful for registered political parties, candidates and members of a Senate group to accept overseas donations, and unlawful for associated entities and other third parties to receive overseas gifts that are used solely or substantially to incur political expenditure.
• Extend the prohibition on accepting anonymous gifts and donations for registered political parties, candidates and Senate groups to all anonymous gifts, and to also cover associated entities and other third persons that use anonymous donations for political purposes.

The legislation will also put a halt to the"money for running"(should that be jam?) rort where candidates who get more than 4% of the vote qualify for public funding but get the money regardless of whether they spent that much during the campaign:"any payment of election funding should be tied to actual “electoral expenditure” that has been incurred. The policy intention behind these measures is that candidates, registered political parties and Senate groups should only receive the lesser amount of either the electoral expenditure that was actually incurred in an election campaign, or the amount awarded per vote (currently approximately$2.18), provided at least 4% of first preference votes have been won. The existing entitlement remains unchanged, but the new claims process will require the agent of the candidates, registered political parties and Senate groups to lodge a claim specifying all or part of the electoral expenditure incurred in an election campaign for which they wish to receive election funding."(Senate Hansard 15 May page8).

The "no news" is that "The Rudd government is progressing with several accountability measures - Freedom of Information, privacy and whistleblowers reform," Senator Faulkner told The Weekend Australian , as reported on Saturday, six months since the election that brought the government to office, following its commitment to act on these issues.

Bloggers (and others), the future is yours!

Where are we bloggers on the edge of politics going, what sort of clout might we come to exercise, is new technology changing, for better or worse, the nature of dialogue about what's going on, or should be going on around us? I have just signed up for this Microsoft sponsored opportunity to hear Matt Bai from the US and some interesting Australian panelists discuss these issues in Canberra on 25 June.

Thanks to Peter Black for the heads up.

NSW ADT sticks to "disclosure to the world" but policy needs rethinking

The Appeal Panel of the NSW Administrative Decisions Tribunal in Cheney v Sydney West Area Health Service (2008) NSWADTAP 29 has decided that disclosure of documents to an applicant under the NSW Freedom of Information Act is "disclosure to the world", and that this prospect needs to be taken into account in determining whether disclosure of a document containing information about the personal affairs of a person to another would be unreasonable.

In this case the applicant, convicted of a crime, sought access to information to present to court in an application to overturn a conviction, and was prepared to provide an undertaking that the information would not be disclosed in any other circumstances. All documents but two had been released, and only parts of those were claimed exempt. Given the particular sensitivity of the information withheld about the victim of the crime, the Appeal Panel decided there had been no error of law in the finding that disclosure would be unreasonable.

The Appeal Panel discussed but declined to follow a contrary decision in the Supreme Court of Victoria in Marke v Victorian Police where the Court found that in considering whether disclosure of personal affairs information to another person was unreasonable, it was necessary to take into account all relevant circumstances, including the extent of likely further disclosure if the documents were released to this particular applicant. It was wrong to assume in every case that the documents would in effect come into the public domain. (I understand an appeal is pending in this case).

Some Australian FOI acts (eg the Federal and Western Australian acts), but not the NSW or Victorian acts, contain specific provisions to the effect that an applicant's reasons for seeking access are not relevant in any decision to grant access, and thus provide one of the justifications for the "disclosure to the world" consideration. Nevertheless, the issue of the applicant's motive or interest can crop up, for example in a rare case where disclosure is clearly relevant to an individual's right to justice and is strong enough to constitute a public interest in disclosure. This issue apparently was not argued or considered in the Cheney case. It would require more than an assertion, and a judgment about relevance, but a wrongful conviction is in the right sort of territory where this issue could be argued.

The ADT Appeal Panel reasons for refusing to follow the Victorian Supreme Court(17-20) were that the objects of the NSW Act refer to the "rights of the public"to access government information, not to the rights of an individual, and that the Act contains no reference to the motivation of the applicant or limitations on further disclosure:

"There is no provision, for example, for the agency or the Tribunal to place conditions on disclosure or to limit in any way the use that is made of documents that are disclosed pursuant to the FOI Act. If there were, then mechanisms would be needed for an agency to assess the credibility of any assurance in relation to the extent of disclosure. No such mechanisms are provided for, either by the agency or the Tribunal. In addition, if the approach of Hansen J in Marke v Victorian Police were followed the result would be that some applicants may be given access to documents while other applicants would not be granted access to the same documents. That situation leads to the conclusion that an applicant may need to give reasons for an FOI request and advise the agency of what he or she proposes to do with the documents. As we have said, there is no mechanism for an agency to assess the credibility of an applicant before reaching a decision as to whether or not disclosure would be unreasonable or whether the override discretion should be exercised. For those reasons, with respect, we do not consider that the views of Hansen J in Marke v Victorian Police should be followed by this Tribunal."(at 20).

In several earlier decisions NSW Tribunal members had taken a different approach. In Gilling v Hawkesbury Council (1999) NSWADT 94 Judicial Member Flemming said that in weighing whether disclosure was unreasonable there was a need to weigh public interest factors for and against disclosure. The applicant’s motive in seeking access to details of those who had complained to the Council about her was ‘to better understand the complaint and be able to respond to it. This is not an unreasonable purpose’ and disclosure was consistent with the objects of the Act. Deputy President Hennessy had followed a similar line of reasoning in another case involving the same parties.

Judicial Member Robinson in Humane Society v National Parks and Wildlife Services [2000] NSWADT 133 found that an application for access to the details (names and addresses) of holders of licences issued by the National Parks and Wildlife Service to cull flying foxes in order to protect their commercial orchards did not involve the unreasonable disclosure of information concerning their personal affairs. An important consideration was the motive of the applicant, who was planning to undertake research and observe the effects of such licences. As the motive went beyond mere curiosity and there was no evidence that the applicant intended to harass or otherwise interfere with the affairs of the licence holders, disclosure would not be unreasonable.

President O’Connor subsequently decided that the motive or interest of a particular applicant is an irrelevant consideration except perhaps where the interest in access is so strong that it could amount to a public interest in disclosure.

The question whether disclosure would result in the unreasonable disclosure of information concerning a person’s personal affairs must be approached in a relatively abstract way. The nature and content of the information is the primary consideration. The wishes of the person to whom the information relates are relevant, though not conclusive. The purpose of the third party can rarely, if ever, be given consideration. Ordinarily the motives or purpose of the access applicant have no relevance to the judgement required in considering whether Clause 6 should be invoked.

In theory, at least, once access is given under FOI to one citizen any other citizen who makes the same request should have the same rights. But some authorities do recognise that a point may be reached where an applicant may be able to demonstrate a personal need for the information that is of such strength as to amount to a public interest consideration in its own right.

I consider that the FOI Act does not establish a scheme under which agencies can deal differentially as between third party applicants who make the identical request for someone else’s personal records, and under which agencies can make varying calculuses as to the reasonableness of disclosure in that way."

This was precedent for a decision to refuse a father access to a document that would disclose to him the religion nominated in hospital by his estranged wife for their child, as his special relationship with the child was not relevant and his standing in the matter was no different from a complete stranger or a journalist.

In Victoria, in a long line of cases the Victorian Civil and Administrative Tribunal (and its predecessor) has taken the view that motive and purpose need to be considered, and may weigh in favour of disclosure to a particular applicant information which would not be disclosed to someone other than the applicant (see for example Birrell v Department of State Development [2001] VCAT 1258):"the balancing of interests requires a consideration of all the circumstances, including the interest that the applicant has in the information in question, the nature of the information that would be disclosed, the circumstances in which the information was obtained, the likelihood of the information that the person concerned would not wish to have disclosed without consent, and whether the information has any current relevance."

The Cheney decision puts things in NSW on a different footing, but it's yet another issue worthy of further examination by policy makers.

For example shouldn't there be some special consideration for access where the applicant has a unique relationship with the person concerned, such as a parent seeking access to documents concerning a child (as in the Uddin case), or a spouse or close relative who seeks access to information about a deceased person? Or for FOI acts to provide access to information that can only be used for particular purposes and not for others- there are precedents in other legislation in most jurisdictions.

Here is what the Australian Law Reform Commission had to say about this issue in its 1995 "Open Government" report:

"In 1987 the Senate Standing Committee on Legal and Constitutional Affairs recommended that the AAT and the courts should be able to release documents that would otherwise be exempt under s 41 or s 43(1)(c)(i) subject to undertakings by the applicant as to how the documents will be used. The Review does not support this recommendation. It would be difficult, particularly for the AAT, to enforce such conditions and, in any case, enforcement action would come too late. Any damage the conditions were designed to guard against would already have been done. In addition, if it was considered appropriate to allow the AAT and the courts to release documents subject to conditions, it would be logical also to allow agencies to do so. The difficulty of enforcing conditions imposed by an agency would be even greater than in respect of the AAT and the courts.

The Review considers that amending the Act to permit an agency to take into account a special relationship between the applicant and the third party when determining whether the public interest in disclosure outweighs any interference with the third party's personal privacy is a preferable option. Such an amendment would not mean that the existence of a special relationship would automatically preclude the document from being exempt. It will merely be a relevant factor in determining whether the information should be withheld. There will be circumstances, for example a situation involving domestic violence, where the special relationship will contribute to the conclusion that disclosure is not, on balance, in the public interest.[24] The important thing is that the relationship will be a factor that can properly be taken into account. By 'special relationship' the Review means a close relationship, generally a family relationship. It does not mean any situation in which the requested information is of special significance to the applicant, as opposed to the general public. The FOI Commissioner's guidelines should explain this and provide examples. The guidelines should also make clear, however, that in weighing the public interest in the applicant being given access to the information, the decision maker should take into account the fact that there is nothing in the legislation to prevent a successful applicant from distributing the information more widely."

Another of those recommendations not acted on since the report was completed in 1995. NSW and states other than Victoria should also have a think about this.

ALRC to recommend privacy data breach notification requirement

We'll be hearing a lot more about this when the report is released, but Australian Law Reform Commission President David Weisbrot told a conference yesterday that the review of privacy laws will include a recommendation for a notification requirement for personal data breaches that involve a real risk of harm.

A tale of two tax stories

The latest edition of "Open Government:a journal on Freedom of Information" includes a comparative case study by Dr Judith Bannister of Swinburne University of Technology in Melbourne of two freedom of information applications for tax policy related documents to treasury departments in the United Kingdom and Australia.

Both agencies resisted disclosure, relying on public interest arguments, but in the UK, the Information Commissioner overruled the decision, the minister did not resort to additional protection of a ministerial veto, and the documents were released. In Australia (the McKinnon case), a ministerial certificate was issued, no holes were found during the restricted reviews that followed, all the way to the High Court, and the documents have never seen the light of day.

Still living in hope that the Rudd Government will deliver on those election promises. Some day.

No stopping big brother

The Federal Government claimed a "saving" of $1.2 billion over four years in last week's budget for ditching (last December) the Howard Government's National Access Card, but there is no stopping exploration of the wonders of technology, ie data matching. Minister for Human Services Joe Ludwig has provided details of a plan to spend $138 million on a program to enable Centrelink to cross check information about welfare recipients through direct access to their bank accounts, in addition to tax records. Any recipient is fair game-no need to show reasonable suspicion of fraud, before this intrusion on what we once regarded as part of life involving some degree of privacy."Nothing to hide, nothing to fear" advocates might want to keep an eye on the next function creep step that technology enables government to take in accessing potentially handy data about the citizenry.

Haneef detention-1300 documents and still counting

Dr Haneef's legal team did not come up empty handed after seeking documents under the Freedom of Information Act held about their client's detention- some 1300 pages of sometimes heavily edited documents were released, and Crikey has posted them on the web.(As it's a subscription service they may not last long on free content.) The lawyers are seeking an expedited hearing of an application for review of the decision to refuse access to some documents. As mentioned here recently, some documents were claimed to be exempt

"because disclosure "may jeopardise future investigations and discourage bureaucrats from giving frank advice to ministers". Maybe the first reason cuts some ice but the second is another of those chestnuts Mr Rudd and his ministers need to toss on the fire."

The documents released reveal weaknesses in Government claims made at the time and have been passed to the Inquiry into Dr Haneef's detention.

NSW ADT rules government policy subject to objectives of FOI Act

In the latest decision in a long running battle over access to documents about the sale of the Sydney markets, the NSW Administrative Decisions Tribunal has upheld a decision by the Department of Premier and Cabinet to refuse access to documents, based on cabinet documents, executive council documents, and legal professional privilege exemptions. The decision addresses several matters of broader interest.

The Tribunal again rejected submissions that in respect of cabinet and executive council documents (restricted documents under Section 57 of the Freedom of Information Act), it did not have powers to undertake normal merits review of the agency determination(at 41-46).

The Tribunal also rejected an argument by the Department that government policy as set out in a memorandum issued to agencies about cabinet documents imposed a blanket prohibition on the exercise of its discretion to release such documents found to be exempt. In comments that would apply as well to the exercise of the discretion by a government agency, the Tribunal said:

80 I am satisfied that the Premier’s Memorandum satisfies the definition of ‘Government policy’ in section 64(5). I have reviewed this policy. While recognising that the proper administration of the Government requires a degree of confidentiality for Cabinet documents, and that the unauthorised and/or premature disclosure of Government documents undermines the process of government, policy must be read subject to the provisions of the law, in this instance the provisions of the FOI Act. The objects of the Act, quoted above, provide a legally enforceable public right of access to information held by the Government, “subject only to such restrictions as are reasonably necessary for the proper administration of the Government” (section 5(2)(b)).

81 In the light of the provisions of the FOI Act, the Premier’s Memorandum does not, in my view, impose a blanket prohibition on the Tribunal exercising its residual discretion in relation to documents (3), (4), (5) and (7), as claimed by the Department. However, the Tribunal should, where appropriate, give effect to that policy in exercising its powers. For example, in determining what restrictions are reasonably necessary for the proper administration of the Government?

The Tribunal was not satisfied that the evidence warranted exercise of the discretion to require disclosure in this case.

UK shows a lead on Freedom of Information

The High Court dismissed an appeal by the House of Commons from a decision of the Information Tribunal requiring disclosure of payments relating to the Additional Costs Allowance, an allowance payable to Members of Parliament who represent constituencies outside London or outer London constituencies.The judgment includes this observation :

"We have no doubt that the public interest is at stake. We are not here dealing with idle gossip, or public curiosity about what in truth are trivialities. The expenditure of public money through the payment of MPs' salaries and allowances is a matter of direct and reasonable interest to taxpayers. They are obliged to pay their taxes at whatever level and on whatever basis the legislature may decide, in part at least to fund the legislative process. Their interest is reinforced by the absence of a coherent system for the exercise of control over and the lack of a clear understanding of the arrangements which govern the payment of ACA. Although the relevant rules are made by the House itself, questions whether the payments have in fact been made within the rules, and even when made within them, whether the rules are appropriate in contemporary society, have a wide resonance throughout the body politic. In the end they bear on public confidence in the operation of our democratic system at its very pinnacle, the House of Commons itself. The nature of the legitimate public interest engaged by these applications is obvious."

Unlike the UK , none of Australia's freedom of information acts extends to information held by our parliaments. The Australian Law Reform Commission Open Government Report, in one of 106 recommendations in 1995 that have not been acted on, recommended this be rectified in the case of Federal parliamentary departments. Only patchy information is available about payments to members of parliament, for example where relevant documents are held by a government agency responsible for some payments such as travel.Parliaments generally handle payments of allowances and entitlements.

And while we continue to see ongoing resistance here to disclosure of advice documents, several decisions in the UK have found the strong public interest in knowing what advice government received justified disclosure after a decision on a matter has been made within government, as outlined in this article by Maurice Frankel of the Campaign for Freedom of Information. Similarly while Minister of State Faulkner introduces a registration requirement for lobbyists, in the UK, in the light of a recent decision, the lobbying industry is on notice that representations to government are not automatically confidential, given the public interest in knowing who is seeking to influence decision making.

NSW Premier not commited to FOI reform

The following Q and A in the NSW Parliament last Thursday, saw the Premier play straight bat when asked for a commitment to act on the recommendations to come from the Ombudsman's review:

Ms CLOVER MOORE: I direct my question to the Premier. Given that the New South Wales Freedom of Information Act is based on principles developed more than 30 years ago and that it has been the subject of more than 60 amendments, and given the poor rate of freedom of information releases in New South Wales, will the New South Wales Government commit to implementing the Ombudsman's recommendations following his review of the Act?

Mr MORRIS IEMMA: As the member quite correctly states, the Ombudsman has commenced a review. The Government welcomes that review and will provide whatever assistance and cooperation he requires in that process. The member also made the point that the legislation has been around for a long time. I add that the Freedom of Information Act is one means by which information is released to the public. The member might recall that in previous years the bulk of freedom of information requests related to health records. They are now made available to the public outside the freedom of information process.

I understand the member had a role in the release of contract and tender information. It is also now released outside the freedom of information process. The information that is released now contains much more detail than would have been possible under the old freedom of information process. The Government welcomes the Ombudsman's review. It will support it and cooperate with the Ombudsman. It will also give very serious consideration to his recommendations when the report is completed.

As Matthew Moore commented in the Sydney Morning Herald yesterday, the dismissive (or lack of) government response to recent recommendations in Ombudsman reports on FOI complaints do not encourage optimism that the Government is at the ready to act on what comes out of the review.

Australia's Right to Know report card

Australia's Right to Know, the coalition of major media organisations, marked its first anniversary yesterday, with Chairman John Hartigan of News Limited releasing a short report card of pluses and minuses on freedom of speech issues over the last 12 months. Overall, pretty similar to the assessment of Christopher Warren of the Media Entertainment and Arts Alliance referred to here the other day- some positives, some disappointments, but high hopes things will get a lot better in the coming year.

Others, me included, are concerned that there are no signs of progress on many of the issues identified in last year's Audit prepared for the coalition, and that positive Federal commitments, for example to a pro disclosure culture, are still parked in "good intentions". We are also concerned that the coalition itself has not done more to create a constituency for strong and prompt action by all governments on existing constraints on access to, and publication of information in the public interest, and pursued these issues in a more vigorous and publicly visible manner.

Here is an exchange between Rick Snell and me in the last few days, just before the welcome re-emergence of the coalition in the public domain. Rick was commenting on my post about the contrast between our patience, waiting for change here, and the more assertive approach of those behind the National 2008 FOI Summit, held in Philadelphia earlier this month:

"Some very good points. However the Australian Right To Know coalition, after some good research and lobbying efforts seem to have largely left the field.

I was hoping that they would have a continuing agenda and not be content with a few commitments for change made by 1 government (as opposed to a truly national campaign aimed at both the States and the Commonwealth).

There is a need to both build a constituency for change and to constantly monitor performance. The Americans have done this activity extremely well.

I am at a loss that the ARTK and Australian Press Council have not organised a national conference to debate the issues and to motivate and nurture future research.

I am being approached by an increasing number of journalism and law students undertaking research in this field.

The lessons from FOI experience around the world is that information management requires constant attention and adjustment. It also needs a well informed and vigilant FOI community.

The ARTK coalition is in an ideal position to take a number of steps to help develop that community in Australia.

Rick



Rick

11:23 PM

Peter Timmins said...

Rick,

I share your disappointment. Even when the Federal Government comes good on its commitments,there is along list of other matters that need attention in Canberra and the states.The Coalition is well placed to lead, but publicly at least, is hard to find or hear."

Let's hope the first anniversary of the coalition marks a turning point in its development into a strong, permanent, well resourced and widely supported voice for Australia's Right to Know.

Ideas for FOI reform have wide application

Some thoughts from Rick Snell on Freedom of Information reform in Tasmania- most of these suggestions would make sense just about anywhere in Australia.

Federal action on lobbyists- good, but.........

Minister of State Faulkner yesterday announced the final version of the Government's proposals concerning the register of lobbyists and related matters such as the limitation on post separation lobbying by former ministers, staff and senior public servants.

The full details are on the Department of Prime Minister and Cabinet website

These reports in The Australian, Sydney Morning Herald and The Age highlight some of the changes since the draft proposal was floated, including the addition of lawyers to those required to register when representing a third party, and an exception for disclosure of the client where this may be market sensitive information, until the reason for sensitivity has passed. The Minister retains absolute authority to strike someone off the register but must now provide reasons.

I'm sticking with my comment in April when the draft was released, that this is progress but "light touch ", and a long way short of best practice, with Canada at the forefront.

PM avoids specifics when it comes to advice

The Opposition raised a series of questions in Federal Parliament yesterday, asking the Prime Minister to table advice received on high profile issues such as the inflationary effect of industrial relations policy or the actual cost of the commitment regarding computers in schools, in the light of his "more open government" commitments. The PM avoided specific responses and stuck to this highly familiar refrain:

"On the general question of access to information contained within government, could I also say this: those opposite used and abused the freedom of information system. We have put forward a program to reform FOI. We made it in direct response to the ‘right to know’ campaign led by media organisations in the lead-up to the election. We have made those commitments quite plain, and during the period ahead we will be implementing them."(House of Representatives Hansard 13 May page 8)

The Australian sums it up "Hypocrisy as Rudd dodges open government questions"

No sign of money for the new era of open government

I'm no expert when it comes to analysing the detail of government accounts, but my foray tonight into the 2008 Budget, looking for some reassurance about the Federal Government's plans to get on with Freedom of Information reform, matched by funding, came up with zilch, in other words, a big zero.

Any initiatives involving new expenditure in connection with FOI or privacy would be expected to show up in the Budget Statement of the Department of Prime Minister and Cabinet, now the agency responsible for such things. If as the Government has been saying, it intends to establish an Information Commissioner to provide leadership and take over review of FOI determinations (one of a raft of promised changes), you would expect some allocation of funds for the year ahead, or in the next four years of forward estimates. After all, a properly funded office is going to cost more than a few dollars.

The allocations for expenditure on election commitments in the Prime Minister's Department contain no mention of any funds for this purpose . Maybe there will be enough in petty cash to cover it (hardly encouraging), or it's intended a special allocation of funds will be sought later when legislation creating the office is passed, but in any event its no cause for celebration for those looking for signs of serious and early intent of change.

The "outputs" for the Department(PDF 177KB) include:"Freedom of Information and Privacy Policy:Provide advice, briefing and support to the Prime Minister and government on national
and international freedom of information and privacy policy," but there is no specific allocation of funds, and the performance measure is whether the minister is satisfied with the advice. No mention here of any outcome along the lines of "enhancing the quality of democracy by ensuring accountability for government performance and the use of public money, and facilitating citizen involvement in government decision making", more's the pity.

Somehow the commitment to culture change and the re-examination of fees won't according to these calculations involve any damage to the bottom line, if they come to pass in the next four years.

The Privacy Commissioner gets a budget statement of her own (PDF 121KB).
By my reading, the Office will have 10% less funds next year than this, despite what can be expected to be a big agenda following the Australian Law Reform Commission final report on its review of privacy laws, due at the end of this month.

I'll be interested to see what the experts make of the bigger picture tomorrow.

No oxymoron- Government committed to budget papers that make sense

Its not a headline issue, but it will be interesting to see how tonight's Federal Budget matches the statements by Minister for Finance Lindsay Tanner, that Labor would take steps to provide comprehensive and detailed information about planned expenditure in a way that presents a coherent picture of how our money is being spent and for what purpose.

Here is a post on this blog last December, just after the Government was sworn in:

"Most people who have ever tried to make much sense of the Federal Budget papers since the introduction of outputs/outcomes budgeting, will agree with the Minister for Finance Lindsay Tanner, that the details provided of what a Federal agency is going to spend our money on, is impenetrable. The Minister, in the course of an interview on Radio National's The National Interest:"....(I)f you read... the portfolio budget statements... it's very difficult to connect them with the wider budget papers, it's very difficult to connect them with annual reports, and there is all kinds of basic information that a lot of people in the media - the community whatever - are entitled to have, which is just not accessible". The Minister said he had asked retiring Democrat Senator Andrew Murray, who has a long standing interest in this issue, "to act as a bit of an auditor on these issues for us". Senator Murray (whose credentials also include a detailed knowledge of Freedom of Information matters) will continue in the Senate until next July. In the course of a debate in the Senate in September, he expressed strong views about the need for greater disclosure of financial management issues, including removal of some discretionary authority of public service chiefs, and greater parliamentary oversight."

Senator Murray tells me he will provide a report in June.

We'll see what the pundits make of the budget papers in the next few days.

Spinmeister shows how it's done

Now this is someone who graduated with honours from spin school.

The York Daily reporting on a security violation at Three Mile Island nuclear energy plant in the United States in April, quoted a spokesman for the Nuclear Regulatory Commission describing the preliminary findings of an investigation, as “greater than very low safety significance.” How helpful!

Government recruitment agencies here, always on the lookout for someone good at the trade, are shouting "author, author?"

The violation did not endanger health or safety but further information could not be provided:

"Officials said releasing that information could result in the disclosure of safeguarded information — which seems to imply that whatever happened was a good deal “greater than very low safety significance." Basically, they aren’t telling us what happened for our own good. That’s certainly reassuring."

2008 FOI Summit in Philadelphia

They're a less patient lot in the United States where last week the National Freedom of Information Coalition held the 2008 FOI Summit, with what sounds like a great program, and a call to arms to fight for First Amendment rights in a keynote speech by Toni Locy, who faces a $5000 fine for every day she refuses to reveal her sources for stories about the 2001 anthrax attacks in the US. (Thanks to Charles Davis for the lead).

A former investigative reporter Ted Gup told participants that "journalists need to do a better job of explaining to readers why they should be concerned about expanding ''secretocracy'' in government and how it directly affects their lives

Proceedings included an FOI Hero award for Bill Chamberlin of the Marion Brechner Citizen Access Project.

Those pushing for change here might have all benefited from this panel discussion:

Coalition Care and Feeding—How do you keep that fledgling FOI group going, or take the next step? Join veterans of the FOI game who have "been there, done that" for tips on sustainability.

Patience a virtue while waiting for improvement in press freedom

Patience - www.mythprints.com

Derek Barry on Woolly Days provides a good summary of the Media Entertainment and Arts Alliance 2008 report into the state of press freedom in Australia, "Breaking the shackles", and its commentary on Legislation and the Courts, Government Actions Restricting Press Freedom, International Affairs, and Attacks on Press Freedom in the Asia Pacific Region.

Overall, according to Federal Secretary Christopher Warren:

"Were this to be a school report card, after years of under achievement this year’s card would still read: “Could do better”, but would note that: “Some positive signs started to appear before the end of last term ... we hope for a marked improvement next year.”

View the full report here

Openness and collaboration in responding to public policy challenges

Further to the comment here on Sunday about the public good of information sharing, anyone interested in pushing culture change in government in the direction of greater openness and increased citizen participation should snap up a container load of "Wikinomics:How Mass Collaboration Changes Everything" by Don Tapscott and Anthony Williams.

Some at the 2020 Summit were leading the charge on this one.Will ministers and public service leaders follow?

From the introduction:

"Leaders must think differently about how to compete and be profitable, and embrace a new art and science of collaboration we call wikinomics. This is more than open source, social networking, so-called crowdsourcing, smart mobs, crowd wisdom, or other ideas that touch upon the subject. Rather, we are talking about deep changes in the structure and modus operandi of the corporation and our economy, based on new competitive principles such as openness, peering, sharing, and acting globally."

Rare glimpse of details of Ombudsman investigation of FOI complaint

The Sydney Morning Herald reports today the findings of the NSW Deputy Ombudsman following a complaint by a journalist about the refusal of the Roads and Traffic Authority to disclose any of the 59 documents sought under the Freedom of Information Act concerning a $25 million payment to the operator for delays of road changes around the privately owned Lane Cove motorway.It is a hot issue because the delay and the payment meant that the public impact of the changes was neutralised in the lead up to the state election in March last year.

The article as posted on the web highlights some unusual aspects of the dealings between the RTA and the operator, and includes a download of the Ombudsman's report of the investigation. Such reports rarely find their way into the public domain, as the Ombudsman does not have authority to release other than to the agency and the complainant, but there is no limitation on what the complainant can do with it, so this one has been shared with us all.

A couple of points. This process of redress can be very slow- the application to the RTA was lodged in February 2007, and the applicant complained to the Ombudsman in June 2007. The report was completed at the end of April 2008.

There are limits on the Ombudsman's powers to look at claimed exempt documents for himself. The Deputy Ombudsman wasn't able to see 39 of the 59 documents because the head of the Department of Premier and Cabinet certified they were cabinet documents covered by the cabinet document exemption in the FOI Act, and thus beyond the reach of the Ombudsman's powers to require production to him.

An agency can hang in there even when unable to back claims with evidence. The RTA initially stuck to its guns about the exempt status of the rest of the documents, and even came up with a new reason for refusing access to some, based on a confidentiality provision in a contract that hadn't been mentioned previously. Faced with the Ombudman's preliminary findings, the RTA subsequently ditched some claims that they decided on reflection would not hold water.

At the end of the day all the Ombudsman can do is recommend an agency reconsider. The final report finds the RTA acted unreasonably and recommends everything except (the documents certified as cabinet documents) and a couple of emails between the RTA and its legal advisers should be released because the exemption claims are not made out. The RTA may, not must, act on these recommendations. It is now 15 months since the documents were sought.

Makes you wonder why we can't get the right decision the first time although no prizes for guessing why this does not happen when you can delay access to documents for 15 months, and then have the option of changing your mind, or not, as the case may be.

The report's discussion of the interpretation of the exemptions for cabinet documents (8.2), internal working documents (8.3), business affairs documents (8.4), confidentiality clauses in a contract (8.5), financial and property interests of an agency (8.6) and public interest (8.7), should be of particular interest to regular users of the NSW Act, inside or outside government.

Shredder busy in Tasmania

Not a great week in Tasmania last week for trust, confidence, honesty and transparency.Rick Snell and The Greens received separate but apparently identical responses to Freedom of Information applications for a copy of the submission to the then Attorney General on the appointment of a magistrate that he claimed had never been approved, only to be brought undone when the original, approving the appointment was found shredded in his rubbish bin. Guess what: the Department of Justice doesn't hold a copy. Despite the wonders of modern technology, any departmental trace of what was put to the minister has been lost or destroyed. Convenient, but embarrassing, to say the least.

Then as Sue Neales in the Mercury comments, some might see positives in the release of what amounts to a government guarantee for Gunns regarding sovereign risk concerning an aspect of the deal for the supply of timber to the proposed pulp mill. But why unprompted disclosure four months after the guarantee was signed?

"(And what about an)explanation about why 25 documents -- held within the Department of Economic Development relating to the Government's well-advanced plans to fund the private pulp mill's $65 million water supply pipeline -- could not be made publicly available. A Freedom of Information request to obtain this information this week received a blanket refusal on the grounds the information was commercial-in-confidence and formed part of protected information provided to the Government's inner Cabinet.
Increasingly around Australia, both arguments are being used as a form of obfuscation by governments seeking to prevent the public using FOI laws to discover what is actually going on behind the thick walls and closed doors of executive government. The problem is, as Michael McKinnon, Australia's leading FOI media exponent told a packed lecture at the University of Tasmania on Thursday, these excuses are usually used as a cover-up.
"Where you get this sort of government secrecy (in relation to FOI requests), you can almost always guarantee that there is a sweetheart deal going on," McKinnon said bluntly this week."

Amazing thought: public might help solve public problems

Speaking of culture change in the public sector, as we have been, Nicholas Gruen in a post on public goods on Club Troppo, reflects on issues arising from how the internet provides a new means of producing and utilising information and knowledge for everyone's benefit including:

Can governments become more open in their deliberations, to maximise the extent to which those outside government can provide assistance in solving problems. Can they use ‘web 2.0’ style collaboration to improve the quality of their deliberations and/or reduce its cost?

Now I'd like to see that sort of culture change in those who tell us that we can't know what is going on in government because it would lead to confusion or unnecessary debate, cause public servants not to write things down on paper, or inhibit their capacity to provide frank advice in future.

A start would be a requirement that government agencies publish policy research reports promptly, unless because of the special nature of the content, an identifiable harm to the public interest would result

Need to walk as well as talk

Lenore Taylor sums up on ABC TV's The Insiders today, after discussion of the Prime Minister's reaffirmation this week of the commitment to promoting a culture of disclosure in government:

"The new era of open government is something you do rather than something you talk about".

Exactly.

Matthew Moore in "Time to walk the walk Treasurer" in The Sydney Morning Herald yesterday:

"The Treasurer, Wayne Swan, was pressed on the Treasury decision on the ABC's Insiders(last week). He said the decision was nothing to do with him, suggesting that the bureaucrat using the "unnecessary debate" argument to withhold information was making the only decision available to him under the law.Not quite, Treasurer. Bureaucrats are free to release information that is exempt under the act. All they need is some encouragement to do so. Swan should not pretend nothing can happen until the law is changed. As the FoI expert Peter Timmins has pointed out, the law allows ministers to intervene. Swan could order the material's release.There would be no better way to prove this government's rhetoric about improving FoI is more than just hot air from politicians."

The point about intervention by ministers is not that ministers should get involved in day to day decisions in response to Freedom of Information applications- let's hope they have better things to do with their time. However they shape the law and create the policy environment in which the law is administered, and that's where the Treasurer was way off track in washing his hands of anything to do with Treasury's approach to disclosure . Within the context of the law (and everyone including the Prime Minister and with the exception of the Treasury, thinks it requires substantial change), and policy ( ditto,but still in the good intentions tray), the responsible public servant needs to exercise judgment about disclosure.

However as I pointed out last week:

"There is a strange quirk in the Federal Freedom of Information Act that has never been changed since 1982 - Section 23 says that a decision on a request for access made to an agency may be made by the minister responsible, or authorised public servants. No one has any idea how many decisions have been made by ministers, as this sort of detail has never been included in annual reports. It should be scrapped, but until such time, it is in accordance with the law if the Treasurer at any time feels the need to make a decision on an FOI application for documents that go to important matters of public policy, such as in this case the inflationary impact of the government's industrial relations policy. "

PM says future begins as soon as practically possible

Whether this represents an advance on "we'll introduce Freedom of Information law reform by the end of the year" remains to be seen, but the Prime Minister in speaking at an event at Fairfax Media yesterday, again made it clear change is on the way as soon as practicable.

In addition to the oft repeated commitments to promoting a pro disclosure culture, abolishing conclusive certificates and establishing an information commissioner, the PM said fees would be reviewed "to ensure they are compatible with a culture of disclosure and transparency". And more: "Labor is committed to ... implementing each and every one of the commitments we made in response to the Right to Know Coalition."

Good on Fairfax chief executive David Kirk for reminding the PM of last week's events including the police raid on the Sunday Times in Perth and of the arcane views in his Treasury department about the public interest:

"the Treasury denied a freedom-of-information request because they feared that it might spur too much debate on an important issue of the day. Since when, in a democracy, do we fear too much debate? These are retrograde - indeed, they are dangerous - steps, and are unworthy of our democracy."

The PM appears to have dismissed this as "the inevitable argy bargy between governments and the press ... There will always be argy bargy over this document and that document."

Well yes, but getting rid of hoary old chestnuts like this as a reason for refusing access is a matter of the law and government policy- something the PM's reforms should be addressing right now.

Meanwhile back in Canberra The Australian reports the Immigration Department has refused an application under the FOI Act by Dr Haneef's lawyers for documents relating to their client because disclosure "may jeopardise future investigations and discourage bureaucrats from giving frank advice to ministers". Maybe the first reason cuts some ice but the second is another of those chestnuts Mr Rudd and his ministers need to toss on the fire.

Amendment rights under FOI laws

Two recent decisions on amendment of record applications under freedom of information laws, examined the scope of this right and when it can be exercised.

The Acting Information Commissioner in Western Australia upheld a decision by Edith Cowan University to refuse to amend its records concerning a decision to exclude a PhD student from the program for a 12 month period. While acknowledging that aspects of the process had been unsatisfactory(the decision to exclude him had subsequently been reversed), the University decided and the Commissioner agreed that what had been recorded was not inaccurate or misleading:

"Whether or not the exclusion, or decision to exclude was a valid or effective exclusion or decision is not in my view a factor in deciding whether to amend personal information. Section 45 is not directed at the rewriting of history; it is about whether the recorded information is inaccurate, incomplete, out of date or misleading.(at 29).........
Section 45 is not intended to enable decisions of agencies to be changed or appeals against decisions to be made under the guise of amending records. It is not intended as a means of reviewing the effect of the decision of the agency with which the applicant is dissatisfied".(at 34)

The University had been prepared all along to add a notation to the records, in accordance with the Act, but as the applicant insisted on an amendment and refused the offer, he ended up with nothing from the process.

The NSW Administrative Decisions Tribunal in this case involving Tumburumba Shire Council had to decide whether it had jurisdiction to hear an application to review the Council's decision to refuse to amend a report on the cessation of the applicant's contract of employment.The right to seek amendment under the NSW FOI Act is limited to documents that contain information concerning the applicant's personal affairs.The Tribunal after discussion of precedents,decided the case could proceed:

"In my view, the fact of a person’s employment in a relatively high level governmental position such as the Manager of Environmental Services with a Council and the term of the person’s employment is information of an "official character". However, details of remuneration and leave entitlements, and of discussions concerning the renewal of the person’s contract beyond the mere fact that such discussions had taken place, including references to the person’s health and future plans, are matters of private concern. The fact that Mr Livermore may have discussed such matters with the other staff in the Council and with others in the community, does not affect the status of the information as that concerning his personal affairs, as was recognised by the Full Federal Court in Colakovski."(at 24)

While the applicant is still in the game, he could have avoided arguing this issue with the Council and the Tribunal if he had instead applied to amend the documents exercising rights under the NSW Privacy and Personal information Protection Act. Those rights cover personal information-any information about an individual- a wider range of information than that covered by the term personal affairs.

Don't ask me, I just keep an eye on these things.

The future will definitely start by the end of the year

Rick Snell and Australia's Right to Know also lament the disappointing "we'll get to Freedom of Information law reform by the end of the year" approach of the Federal Government, as reported in today's Australian.

Culture change to follow?

When does the future start?

The fact that Minister of State John Faulkner spoke to the Governance group at last month's 2020 Summit was well known, but I hadn't been aware that the text was published on his website.

His remarks again give cause for optimism that the Government will act on transparency and accountability issues, including Freedom of Information reform. It's just when, the detail about what, and the rather strange belief that you can keep talking about culture change(as in promoting a ‘pro-disclosure’ culture in government), when there are no visible signs this is happening. Instead we have the Treasurer still telling us, five months on, that what happens in Treasury on this front is nothing to do with him.

The Rudd Government would have been well advised to have put the message out on 3 December that the future starts now.

Famous UK kid has some right to privacy

Do kids of famous parents have a reasonable expectation of privacy, at least from the covert use of long range cameras used for photos for publication in the media? The Guardian reports the UK Court of Appeal has decided that the son of Harry Potter author, JK Rowling , has the same right as a "normal"kid in this respect, and the case for breach of privacy should proceed to hearing.Thanks to PogoWasRight for the lead.

The Australian Law Reform Commission final report on its review of privacy laws is due at the end of May, and seems certain to spark debate here about a cause of action for breach of privacy.

Principle hard to find in Treasury decisions on access

If you are somewhat confused about disclosure of Federal Treasury advice on various matters, the following is a snapshot. It is hard to discern the principle that underpins Treasury assessments of what should be disclosed or refused access. That is of course unless you see a pattern of refusing access to anything likely to cause major inconvenience to the Government or Treasury, and releasing information that gives the Government a leg up.

• Treasury refused access to most of the advice provided to the Rudd Government on the inflationary impact of the Government's industrial relations policy, in response to a Freedom of Information application from the ABC, as detailed here. Concern about public confusion and unnecessary debate featured in the reasons. The Treasurer was stretching things when he said it had nothing to do with him.
• The Australian today published what Treasury told the previous government in April last year about the likely inflation effect of what Labor was talking about at the time. This news report was based on a leak-no prizes for guessing who might still have a copy of the advice and a motive to put it in the hands of a journalist. As the Deputy Prime Minister pointed out, the Treasury assessment was made 10 days before Labor released its policy, and the inflation outlook has changed dramatically since.
  
• In response to an FOI application by Michael McKinnon, Treasury released parts of the briefing book provided to the incoming government, with large sections deleted. McKinnon is said to be challenging this in the Administrative Appeals Tribunal.
• Treasury Secretary Ken Henry, who has consistently argued the need for confidentiality in the provision of advice, took the unprecedented step of publicly announcing Treasury had advised the Government not to specify an amount in its submission on the minimum wage, to correct claims made by the Opposition. No need for an FOI application, or a long drawn out battle to gain access in this instance.
  
• Treasury argued successfully in the Tribunal that a four year old report of a working party on the policy and legal issues associated with the proposal to criminalise cartel conduct was exempt under the FOI Act.The Treasury did not argue the report was exempt as a cabinet document, but because cabinet later considered the issue, that the report was inextricably linked with the cabinet process. The Tribunal affirmed the Treasury decision that disclosure would be contrary to the public interest, despite strong evidence that it would assist public debate and research. The applicant, Brent Fisse has lodged an appeal with the Federal Court of Australia
  
• Treasury released documents that disclose some newsworthy tidbits as reported here and here. Both sets of documents released under the FOI Act seem helpful to the Government. The latter involved disclosure of (ignored) advice on inflation to former Treasurer Costello, giving Treasurer Swan a walkup start to inflict a little more pain on the Opposition.
  

Where are we on compliance when the Attorney General thinks mandatory means optional?

Matthew Moore in the Sydney Morning Herald last Saturday drew attention to the fact that successive NSW Attorneys General have failed to comply with a statutory requirement to undertake a review of the legislation that established the NSW Administrative Decisions Tribunal. A report on whether the legislation was achieving Parliament's objectives was required by law to be tabled in Parliament no later than July 2003. Almost 5 years later it is still to appear. Submissions were invited from members of the public in 2002. There has been no other opportunity since to express views about whether the Tribunal is providing speedy, independent merits review of decisions, without the legal trappings associated with court processes.

My view is that the Tribunal processes have progressively become more legalistic and there is a serious question whether in the Freedom of Information field in particular, this review model should be replaced by an information commissioner.

However the issue for the moment is what appears to be the attitude of the state's top law officer that a mandatory requirement to report to Parliament is optional. And this failure is not an isolated case. The Attorney General has never produced a review of the Privacy and Personal Information Protection Act, which, according to the Act, was to be tabled in Parliament no later than November 2004.

Who knows how many other similar requirements may have been ignored by NSW ministers? A search of the statute book identifies 235 NSW acts that require the responsible minister to undertake a review five years after the act received assent, and to table the report within 12 months of the fifth anniversary of assent. In many instances these dates have now passed. It's impossible to tell from the Parliament's website what reports have been tabled and what is overdue

Does the NSW Parliament take any interest in what happens after these provisions are included in legislation, or do anything when ministers fail to comply?

Australia's data breach stats prove nothing

The IT security writer for ZDNet Australia has a bone to pick with the Federal Privacy Commissioner about the lack of information on breaches of security of personal information in the public and private sector in this article with the catchy title "Why I hate the Privacy Commissioner's office"

He's got a point - as long as there is no obligation to report significant data breaches, or notify those who may be effected, we will remain in the dark about theft or misuse of personal information. Our statistics that show few breaches can't be taken seriously.

Thanks to PogoWasRight for the lead.

High Court weighs waiver in FOI case

The Osland case and the issue of waiver of legal professional privilege in the context of the Victorian Freedom of Information Act had a full day in the High Court of Australia recently, with judges reserving their decision until later in the month.

Not many clues in the transcript about what the judges made of the Victorian Court of Appeal decision that a media release by the Attorney General announcing a petition for mercy had been rejected, based on the unanimous advice of three eminent lawyers, did not constitute waiver of legal professional privilege. However several, including the Chief Justice queried whether the advice about the six grounds put forward in the petition was legal advice, a point apparently not argued previously, and central to the exemption claim.

It also emerged that of all those involved in review of the decision to refuse Osland access to the advice, only the President of the Victorian Civil and Administrative Decisions Tribunal had seen the document.He decided that the public interest required its disclosure, a decision overruled by the Court of Appeal.

BYO gloves

In an article about US Homeland Security Secretary Chertoff and his recent comments in Canada, that fingerprints aren't personal information, Al Kamen in the Washington Post is taking the micky-isn't he?

"As Chertoff, who after all was recently a federal appeals judge, knows quite well, no one should expect privacy in a restaurant or anywhere else where a fingerprint might be left. And we don't. That's why many diners here are beginning to use gloves when they eat at restaurants and some even wear those hospital booties. Others prefer just a discreet swipe of utensils and glassware with a Wet-Nap to ensure against DNA retrieval from saliva. (There is a growing -- and deplorable -- trend to bring personal cutlery, but that really seems excessive and, in finer establishments, downright disrespectful, especially if it's plastic). Is it possible the Canadians thought those signs at beachfront eateries -- "No shirt, no shoes, no service" -- were an effort to maintain appropriate attire? Everyone down here knows the restaurants just wanted to prevent the feds from trying to collect toe prints.

Canadians probably still go to barbershops -- where a single hair in the right hands can provide DNA, general health info, recent drug use data and other information. Our cousins probably haven't read about the growing in-home trim movement here.

And there's an easy way to guard against theft of your secret mattress Sleep Number. Just change the setting every morning before you leave."

Don't blame me, I'm just the Treasurer

The Treasurer Wayne Swan this morning on ABC TV's the Insiders responded to questions about Treasury's decision to refuse access to documents (see earlier post) by saying it was nothing to do with him, and was a decision by a public servant in accordance with the law.

The public servant in this case made a decision that the balance of public interest considerations favoured non disclosure, particularly because release might lead to confusion and unnecessary debate. The law is not black and white. There are precedents in court and tribunal decisions that go in all directions but the one cited hasn't had many ticks in recent years. It's a judgment call made against the background of policy. In any event a decision maker may decide to release a document even if it clearly came within an exemption provision.

It would be a simple matter for the Treasurer to make it clear that policy is to err on the side of disclosure, that policy research should be published unless some real harm would result, and tell Treasury to stop relying on broad unsubstantiated claims like "confusion and unnecessary debate". The Treasurer could then leave it to the public servants to get on with the job of disclosing as much information as possible, consistent with the Government's promises to encourage debate and make government more open.

There is a strange quirk in the Federal Freedom of Information Act that has never been changed since 1982 - Section 23 says that a decision on a request for access made to an agency may be made by the minister responsible, or authorised public servants. No one has any idea how many decisions have been made by ministers, as this sort of detail has never been included in annual reports. It should be scrapped, but until such time it is in accordance with the law if the Treasurer at any time feels the need to make a decision on an FOI application for documents that go to important matters of public policy, such as in this case the inflationary impact of the government's industrial relations policy.

The Treasurer, as has become routine for ministers, of course also said the Government plans to be different, but his comments today suggest he has done nothing to move the Treasury from its traditional closed door habits.

World Press Freedom Day,3 May

On the 60th anniversary of the UN Declaration of Human Rights, a freelance journalist from Mexico, Lydia Cacho Ribeiro has been awarded the World Press Freedom Prize for her efforts to expose political corruption, organized crime and domestic violence in the face of death threats, an attempt on her life and legal battles.

UNESCO provides some food for thought for political leaders everywhere and for many public servants we could name, concluding:

"Ensuring freedom for the media around the world is a priority. Independent, free and pluralistic media are central to good governance in democracies that are young and old. Free media can ensure transparency, accountability and the rule of law; they promote participation in public and political discourse, and contribute to the fight against poverty. An independent media sector draws its power from the community it serves and in return empowers that community to be full a partner in the democratic process.

Freedom of Information and Freedom of Expression are the founding principles for open and informed debate. New technology will continue to evolve and allow citizens to further shape their media environments as well as access a plurality of sources. The combination of access to information and citizen participation in media can only contribute to an increased sense of ownership and empowerment."