FOI decisions around the country in June

The most important recent Freedom of Information decision (at least in NSW) was the NSW Court of Appeal ruling that the Administrative Decisions Tribunal had no power to examine issues associated with the adequacy of an agency search for documents - see my post and this commentary by Matthew Moore in the Sydney Morning Herald.

The following is a summary of other reported review decisions around the country over the last month. Overall assessment: occasional wins for applicants, sometimes as a result of an agency concession once external review is underway; NSW has the busiest review process; and it's a tough game for an applicant who spends money and wins against a Federal Government agency well represented at taxpayer expense, and then seeks an order for costs, as winning is but one of several criteria.

Federal Administrative Appeals Tribunal
Collins and Indigenous Business Australia[2008] AATA 505
The Tribunal declined to recommend to the Attorney General that the Government pay the $6000 in costs incurred by the applicant in contesting an agency decision to refuse access to documents. The agency had conceded before the Tribunal hearing by releasing what were claimed to be 99% of the requested documents, thus satisfying the threshold question that the applicant had been "substantially successful " in her claim. However the Tribunal was not satisfied that three of the four other elements necessary for exercise of discretion to make a recommendation were satisfied: the payment of the costs or any part of the costs would cause financial hardship to the applicant; the decision of the Tribunal on review will be of benefit to the general public; and the unreasonablity of the agency decision to refuse access.

Bienstein and Attorney General (Commonwealth of Australia) [2008] AATA 490
Consideration [42-50] of the law concerning what constitute all reasonable steps to locate a document. Tribunal satisfied [51-56] that those steps have been taken in this case. The Commonwealth Act is silent on who is to make a decision on an application to a minister for documents but [33] "it would seem that the FOI Act has not displaced the general principle that a Minister may authorise another to make a decision on his or her behalf. The decision would be made in the Minister’s name and the Minister would accept responsibility for it.”

Queensland Information Commissioner
LKJ and Queensland Police, A Federal Member of Parliament(Third Party) [210183, 2 June 2008]
The Police had responded to an application (by LKJ) for all documents held in relation to a phone call from the office of an(unnamed) member of Federal Parliament on a particular date or any communications since, by neither confirming or denying it held any relevant documents. In the course of the review, this claim was dropped and a number of exemptions claimed for three documents held. The First Assistant Commissioner rejected a claim that disclosure of a warning posted on the Police database would prejudice the maintenance and enforcement of the system or result in a person being subject to serious harassment or intimidation; that disclosure of another document containing advice or opinion would result in specific and tangible harm to the public interest; and ruled the names and identifying particulars of electorate office staff in two of the documents was contrary to the public interest because of physical safety concerns.

Western Australian Information Commissioner
Stapleton and Attorney General Re[2008] WAICmr 21
Exemption upheld for legal privilege claim, and uniquely in WA, the Commissioner has no powers to consider whether privilege was waived as a result of the conduct of the agency.

Victorian Civil and Administrative Appeals Tribunal
Currie v Building Commission(General)[2008[ VCAT 979
Exemptions upheld for information provided in confidence and subject to legal professional privilege in the course of an investigation into the conduct of duties by a council inspector, and declined to exercise discretion to require disclosure. However sympathy for the applicant who had been badly done by:

"I wish to indicate that I have some sympathy for the applicant because clearly she has been put to a lot of expense, discomfort and a waste of time by the fact that her house has been placed over a sewer pipe. It is all most unfortunate and I can understand that the applicant is very angry about such a matter. However, that does not mean that the recognised building surveyor, respondent, the council or the Water Authority are necessarily to blame. I do not know. That may be a matter for another tribunal or court to decide on another day. But, I think it is unfortunate that this problem has occurred and I can well understand that the applicant is upset and concerned about the matter and has indeed wanted to find out all the information in relation to it. However, I believe that releasing these documents would neither be in the public interest nor as a matter of law be permissible to be released, bearing in mind the findings I have made."

NSW Administrative Decisions Tribunal
Parsons v Baulkham Hills Shire Council[2008] NSWADT 188
The Tribunal set aside the agency determination, concluding that disclosure of internal working documents concerning investigations by Council officers into alleged unlawful clearing of land, would not on balance be contrary to the public interest. While the public interest during the investigation phase may have favoured non-disclosure, the decision to prosecute had been taken, disclosure might assist the applicant in defending the case, and there was no evidence that disclosure would have any detrimental effect on council operations or interests. (Judicial Member Wilson is a rare member of the Tribunal who manages again in this case to hand down a decision without once mentioning a precedent).

Cianfrano v New South Wales Treasury[2008] NSWADT 182
The Tribunal upheld the agency decision to refuse access to two documents concerning the sale of the Sydney Markets on the basis of the cabinet document/executive council exemptions, and parts of a third on the legal privilege exemption. Although it declined to exercise its discretion to require disclosure of exempt documents, the Tribunal rejected [31] a submission from the agency that it had no discretion in the matter because of a direction issued by the Premier about disclosure of cabinet documents generally. The agency released several documents during the course of the proceedings that had previously been claimed exempt.

Cianfrano v Audit Office of New South Wales[2008] NSWADT 183
The Audit Office is exempt from the operation of the Act (Schedule 2) in relation to its "investigative, audit and report functions." The applicant sought access to background documents relating to two specific pages of the Auditor-General’s Report to Parliament for 2001 and one specific page of the Auditor-General’s Report to Parliament for 2002. On a preliminary issue, the Tribunal determined it had jurisdiction to decide whether the documents claimed to be exempt were documents relating to ‘report functions’. The Tribunal rejected [18] arguments by the agency that a Supreme Court precedent established it had no jurisdiction to consider such an application. Following the recent decision of the Court of Appeal, the Tribunal had no jurisdiction to consider the adequacy of the agency's search for relevant documents.

Black v NSW Police[2008] NSWADT 177
The Tribunal upheld a decision to refuse the applicant, who held a firearm license, access to information about the person who supplied information to the Police that prompted the temporary surrender of the weapons on grounds that disclosure would reveal a confidential source in relation to the enforcement or administration of the law.

Dezfouli v Justice Health [2008] NSWADT 175
Tribunal upheld agency decision to refuse access to some parts of the medical file to a patient at the Long Bay Forensic Prison Hospital . Relevant exemptions included danger to life or security, adverse effect on effective performance of agency functions, and personal affairs. Strong weight given to the context in which the agency operated in considering the exemption claims. Tribunal accepted [39]:

"evidence as to the need for nursing and other health professional staff employed by the respondent to make comprehensive and accurate notes of matters relevant to the treatment provided to patients, and that such notes may include information and observations that might be perceived by a patient to be negative. From my examination of the relevant documents, they contain information identifying staff of Justice Health, being the full name, first name, or in some instances, signature of staff members."

Cianfrano V New South Wales Department of Premier and Cabinet[2008] NSWADT 174
Tribunal has no jurisdiction to consider an application for external review of a request for an advance deposit, only a decision by an agency to refuse to continue to deal with an application because a requested deposit was not paid.There is no provision in the Act for a "deemed decision" to refuse to continue to deal with an application [34].

Saggers v Director General Department of Premier and Cabinet Ministerial & Parliamentary Services [2008] NSWADT 164
Exemption upheld for legal privilege claim for letter of instruction to the Crown Solicitors Office to act on behalf of the Department in the sale of the assets of Sydney Markets. Tribunal satisfied[16] "that in providing legal advice and assistance in the process of lease and sale of the markets site the CSO had the requisite degree of professional independence from the respondent." Tribunal[27] fails to resolve uncertainties about its "residual discretion " to require disclosure of a document found to be exempt on legal privilege grounds.

Fagan v Department of Education and Training [2008] NSWADT 163
Exemption claim upheld on basis that disclosure would constitute an offence under the Children and Young Persons (Care and Protection) Act. Tribunal [16-17] rejected the agency submission that revealing "which Act this offence provision is contained in....would in itself reveal information which may constitute an offence under that Act and would render this determination an exempt document under the FOI Act."

McGuirk v University of New South Wales [2008] NSWADT 159
Dealt with several issues concerning jurisdiction. The Tribunal has no authority to consider a late application for review lodged more than 60 days after a reviewable decision[19-29]; where the applicant failed to seek internal review of a "deemed refusal"within 49 days of the lodgement of the original application and the agency exercises its discretion to refuse a late application, the Tribunal has no jurisdiction to consider a subsequent application for external review[ 44-45]- but [ 46] this observation:

"In my view, where, as in this application, an internal review request is made out of time following a ‘deemed’ determination of refusal of access to the documents requested, it would be prima facie unreasonable for an agency not to exercise its discretion to allow the late application."

On another point the Tribunal commented[at 50] that "the approach adopted by the University in this application is unnecessarily restrictive and arguably contrary to the Tribunal’s obligation ‘to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms’."

Members interests bared and await inspection-in Canberra

Pure coincidence, after the post here yesterday, that new registers of interests of members of the House of Representatives and Senate, and details of the cost of travel for members and former members were tabled on the last day of sittings in Canberra as Parliament rose for a two month break. Here is what The Age (with this additional report about disclosures by senators) and the Sydney Morning Herald thought newsworthy; other print media, as best I can tell, are yet to run a story. If these disclosures were available online we could make what we wished of all or any of the declared interests and use of taxpayers money. As it is, to find out what any of us may wish to know, it's a trip to Canberra to inspect the binders-during business hours of course.( Postscript: The Special Minister of State has now published on the web, the aggregate travel allowances and expenses for each person who was a Minister, Parliamentary Secretary, Opposition Office Holder or Leader of a Minority Party during the period 1 July to 31 December 2007, and establishment information in relation to their staff. It's a start)

And while the detail of many allowances paid to and spent by our MPs(Federal and state) remains hidden from view, the disclosure of the use of the London allowance by their UK counterparts, strongly resisted but eventually forced by the High Court in accordance with the Freedom of Information Act, has led to significant reforms and tightening of the rules, as reported in The Guardian.One change is routine, regular disclosure on the web, in the name of restoring public trust and confidence.

Thanks to the Democrats for trying

A salute to the Democrats as they leave the Senate for the last time, for their close interest in transparency and accountability issues, particularly Andrew Murray whose efforts included two Freedom of Information reform bills that never made it, and Natasha Stott Despoja for her advocacy of improvements in privacy laws, one of which would have made our political parties subject to the law, all to no avail. If they were less than entirely successful in "keeping the bastards honest", it wasn't for the want of trying.

Members interest declarations not easy to find

wajuzi.com
A post here in March commented on the requirement for members of parliament to lodge a declaration of interests, and the wonderfully anachronistic practice in this day and age, of only making the register available for public inspection in Parliament House in Canberra during business hours. (Presumably it's the same in state and territory parliaments). Good to see that OpenAustralia.org is on the job already raising the obvious question why the register isn't online.

From what they have found out so far, no wonder the media, or the good burghers of Canberra who might wander by, occasionally miss a noteworthy disclosure:

"Not only.. is the register only kept in one office in Canberra, and not available online for everyone to see, it is not even available in electronic form.Rather, the Register of Members’ Interests is a set of 7 binders with around 1500 A4 sheets in them, which are continually updated (by hand) throughout the course of the parliamentary term. Supposedly, many of the sheets are handwritten."

Minister for Finance Lindsay Tanner has just written on Open Forum about Web2.0 and the Government's wish "to explore the ways technology can be used to establish more immediate and collaborative relationships between government and citizen." Online publication of the register and other crucial accountability documents attracting dust in parliament and government offices in Canberra would provide a walkup start.

Big welcome and congratulations to OpenAustralia.org

A big bouquet to Matthew Landauer, Katherine Szuminska, Bruno Mattarollo, Matthew Panetta and Wade Millican for the launch last week of OpenAustralia.org and free and easily searchable Federal Hansard (the parliamentary record for readers from afar). Its based on the work of mysociety in the UK and their TheyWorkForYou website.

This is a terrific and welcome resource. I'm with OpenAustralia.org on this:

"For all its faults and foibles, our democracy is a profound gift from previous generations. Yet most people don't know the name of their representative, let alone what they do or say in their name. We aim to help bridge this growing democratic disconnect, in the belief that there is little wrong with Parliament that a healthy mixture of transparency and public engagement won't fix."

12 year old cabinet documents still make a front page story

The front page article by Linton Besser in yesterday's Sydney Morning Herald "The $1b toll bribe that bought Labor votes" may have caused the reader to gag on the cornflakes when reading details from cabinet documents dated 1996 released under the Freedom of Information Act. It's not widely known that the exemption for cabinet documents in the NSW Act (Clause 1, Schedule 1) cannot be used to refuse access to a document 10 years after it came into existence. Other exemption clauses may still be relevant, but apparently not in this case.

Ombudsman urges FOI action not just at Immigration

The Commonwealth Ombudsman's report on delay by the Department of Immigration and Citizenship (DIAC) in dealing with requests under the Freedom of Information Act draws attention to the fact that prompt access by an individual to personal information held by a government agency is critical for many applicants affected by government decisions, and that DIAC, faced continually with a large number of applications(last year almost 15000), failed at senior management level to recognise and act on systemic problems in the way it made information available generally, and in processing applications. A major problem highlighted by the investigation was that requests for information which could be dealt with aside from the FOI Act were being dealt with as FOI requests.

These type of problems are not unique to DIAC and Professor McMillan concluded with these obsevations to the broader public sector audience:

"4.4 Two messages lie behind (DIAC's) problems and (the proposed) reforms. The first is that FOI can impose complex demands upon an agency and require a concerted and high level response from the agency. Shortly stated, FOI is a core business activity of government agencies that will only be undertaken adequately if appropriate managerial attention and resourcing is directed to the task.
4.5 The second message is that this commitment to high quality FOI administration requires cultural as well as managerial devotion. Access to government information is both a statutory right and an essential requirement for administrative transparency and open government. As examples given in this report illustrate, members of the public often need timely information in order to enjoy other rights or make other claims against government."

And seven months after the election of a government with a specific commitment to create a new position to provide leadership and guidance on FOI, the Ombudsman also felt it necessary remind the Government of his oft repeated view that this is part of the answer to the problem that FOI has not lived up to its promise.

"4.6 The issues raised in this report tie into a broader debate now occurring in and outside government about the reform of FOI laws and processes in Australia. A prominent issue in that debate is the proposal to create an FOI or Information Commissioner to oversight FOI administration across government and to focus attention on the whole-of-government responsibility to comply with minimum legislated standards for openness. The findings of this investigation lend support to that proposal, whether the oversight function is created as a separate office or a designated function of the Ombudsman. Briefly stated, the Freedom of Information Act is a special law that can present difficult challenges for government. There is a need for a better understanding across government of the commitment and steps that can be taken to ensure that timely access to government information becomes a respected right and not a hollow ideal."

This sounds like a polite message to Special Minister of State Faulkner to get on with it.Sean Parnell in The Australian quoted the Minister describing the DIAC delays as "a serious matter that the Government will bear in mind as it moves forward with its FOI reforms. The Government is progressing FOI reforms and stands by its commitment to fix the system"

Queensland's OneSchool in the spotlight

The story in the Courier Mail doesn't quite match the headline "Backflip over OneSchool online student database"- one school principal cold on some aspects does not a backflip make- but there are signs of concern and some rumblings of discontent in Queensland about the inclusion of photographs and other details, and the privacy implications associated with the collection,use and disclosure of this type of information, once the project received wide publicity.

A glimmer of light on political donations-at least for NSW local council candidates

Much needed reforms to Federal election laws, particularly in relation to political donations, have been sidelined for a year, according to Special Minister of State John Faulkner, as a result of the Opposition using its numbers in the Senate to refer the bill to a committee with a very generous report deadline.The proposed reforms could be improved, but the Opposition move seems primarily designed to give it another year under the current unsatisfactory rules.

In NSW a Legislative Council Committee has tabled its report on state political donation laws, recommending a ban on donations from business, and on donations of more than $1000 from individuals, with disclosure twice a year of donations of more than $500. This report provides an overview.The Committee's Report is here. All eyes on the Iemma Government to see what emerges, but it has acted to require all donations of more than $1000 to candidates in this year's local council elections to be disclosed. No mention of when- the requirement should be public disclosure before we have to vote.

FOI processing-12 years outmatched by 30

The Independent Audit into the State of Free Speech in Australia, conducted last year on behalf of the coalition of media organisations, Australia's Right to Know, included a lot of stories about excessive delay in dealing with freedom of information applications. Greg Chamberlin of the Courier Mail took the prize: an application in 1993 for information from the Queensland Treasury for documents relating to Jupiter's Casino resulted in a determination in June 2005.( Report 6.10)

But how about this report from the US Reporters Committee for Freedom of the Press that a court in Washington state has just ordered disclosure of documents sought in an application 30-yes 30-years ago?

Thanks to Charles Davis US FOI Advocate for the heads up.

NSW Court of Appeal rules no go for Tribunal on adequacy of search for documents

In a decision that appears to further complicate things for those who seek to contest an agency determination under the NSW Freedom of Information Act, the NSW Court of Appeal has unanimously ruled that the Administrative Decisions Tribunal has no jurisdiction to examine issues concerning the adequacy of an agency's search to locate documents containing information of the kind requested.The result is if an agency says it can't locate a document that may have once existed, says it does not hold any documents, or that certain documents are the only ones held even where the applicant knows there are, or should or could be others, the Tribunal has no power to go behind the decision, examine any evidence put forward by the applicant, or order the agency directly to undertake a further or better search.

The reasoning (which appears to be a correct reading of the Act) is that the Tribunal only has jurisdiction to review a determination required by Section 24 of the Act, to refuse access to documents; a determination to refuse access is only in respect of documents that an agency says it holds, not others it can't find, or that it might hold ; and the Act is otherwise silent on Tribunal powers to examine the adequacy of the search by the agency for relevant documents.[Justice Basten 112-135]

In other jurisdictions, FOI legislation confers powers on external review to examine the adequacy of the search in certain circumstances, or has been interpreted in a way to allow the review to examine whether a determination was fully responsive to the request in that a reasonable search had been undertaken for all relevant documents.The decision overturns previous rulings by the Tribunal, rejects a decision of the Victorian Supreme Court on a similar issue, and distinguishes contrary decisions in the Commonweath and ACT tribunals.[ Justice Basten's conclusions at 133]

The unanimous decision of the Court was that the Act provided another avenue of review in that the Ombudsman specifically has powers to investigate a complaint regarding conduct in the handling of an FOI application. So in effect, anyone concerned about this aspect of an agency's response should take it up directly with that office. While this is correct, a complaint to the Ombudsman might not result in a satisfactory outcome: the Ombudsman may, or may not, investigate the complaint, and the agency may, or may not, respond positively to any Ombudsman recommendation. Meanwhile an applicant can't go to the Tribunal while a matter is being investigated by the Ombudsman. And of course time (and perhaps the importance of the requested documents to the applicant) passes.

Although not mentioned in the decision the Tribunal has powers (Section 39 of the Administrative Decisions Tribunal Act 1998) where a case is before it, to refer a matter that could be dealt with by the Ombudsman to that office, and under a memorandum of understanding between them, may refer a matter relating to administrative behaviour, and specifically a matter where an agency denies the existence of a document. The power has apparently rarely been used to date. However where a matter concerning search for documents is referred, the Tribunal won't be able to do anything if the Ombudsman reports back on inadequacies, and as mentioned above, the Ombudsman can only make recommendations that an agency take action to correct any shortcoming in procedure.

Justice Basten suggests (correctly) that the decision is not the desirable outcome, and says such outcomes are not the responsibility of the court, which must interpret and apply the law. Fixing any problem was for those who make the laws in parliament:

"The reasoning in a number of the cases placed weight upon the desirability of the Tribunal having power to review the adequacy of a search and the power to direct the agency to undertake further searches. No doubt there are reasons of policy why it might be thought desirable that the Tribunal entitled to review the merits of a refusal to supply access to documents should have power at least to direct further inquiries in relation to the ascertainment of the class of documents to be considered. On the other hand, it may be thought that, administrative review of the search process being available through the office of the Ombudsman, an applicant not satisfied with the outcome of such an investigation should be restricted to judicial review, even though that has potential costs ramifications and is limited to assessing whether the agency has failed to carry out its legal obligations or has acted beyond its legal powers. These matters are, however, for the Parliament and do not form a basis for the Court to reconstruct the statutory language to give effect to that which is perceived to be a desirable outcome. "[134]

Here is what the President of the Tribunal, who has 10 years of experience in applying the Act and observing agency conduct, had to say(quoted by Justice Basten at 81) in his decision that has been reversed by the Court of Appeal, about the situation that now applies in NSW (emphasis added):

"65........The situation that arose in (the case decided by the Victorian Supreme Court) underlines the need for the Tribunal to satisfy itself always that the determination before it is a fully responsive determination. The Tribunal may have to ascertain whether there has been a possible failure by the agency to address all documents in its possession. Such a failure can properly [be] characterised as a refusal of the kind referred to in s 24(2); and is reviewable.
66 Were the agency’s submissions in the present case(that the Tribunal has no jurisdiction) to be accepted, the Tribunal would be deprived of any capacity to go behind a mere statement by the agency that it does not hold any further documents.
67 An applicant is entitled to put such a statement in issue on the basis contemplated by s 24(2). To interpret the Act otherwise would result in a perversity. An agency could issue a token determination relating to some only of the documents identified by the request, and remain silent as to the other documents...."

What does the Premier, the minister responsible for the NSW Freedom of Information Act, who remains uncommitted to any change in the Act or the way it is being administered, make of what the highly experienced President of the Tribunal regards as a "perversity"?

The decision( the substance of which concerns one in a series of long running applications by Robert Cianfrano for documents concerning the sale of the Sydney Markets) is here and also includes references to a series of administrative oversights on the long path from the Tribunal to the Court of Appeal.

The decision also means that one element of government policy about the administration of the NSW FOI Act no longer applies because it is inconsistent with the law. The FOI Manual published by the Department of Premier and Cabinet and the Ombudsman includes a section (4.8) on "Documents which cannot be located", and the following:

"4.8.4 In the case of either destroyed or lost documents, the agency should make a determination refusing the application, to ensure that the applicant will have full rights of review. Only where the agency is sure that it has never held a document should the applicant be advised that the document is not held by the agency under s.28(1)(b). [policy]"

The Court of Appeal says[135] the law is that "the formation of an opinion that an agency does not hold a document is not a determination for the purposes of s 24.". The decision means there are no rights to internal review or review by the Administrative Decisions Tribunal where a document is no longer held because it has been lost, destroyed or cannot be found..

University student teacher evaluations should be publicly available

Professor Ross Guest of Griffith University in The Australian Higher Education supplement last week said we would greatly benefit if we all knew what university students thought about the teaching skills of their teachers, and contrasts our general culture of secrecy with the US where the law requires state funded universities to make such information publicly available:

"Imagine a university world where students knew who were the better teachers and they could vote with their dollars. This would lead to massive shifts in funding to universities and within universities on the basis of teaching quality in the same way that funding follows research quality. There are forces driving us toward this brave new world. Students are likely to demand better data on teaching quality. A portent may be the situation in the US where teaching evaluations in state-funded universities are publicly available under legislation. In Australia FoI applications for detailed teaching evaluation data might be difficult to block. In any case, it is only a matter of time before students threaten to boycott teaching evaluations unless universities commit to publishing the data in full. This has reportedly occurred at one US university at least. We are notoriously reluctant to subject our individual teaching performance to measurement and even more reluctant to publish the results."

Queensland culture change in the frame

The Queensland Premier keeps saying it, so its worth keeping it in the frame:

".. in another thinly veiled swipe at Beattie government secrecy, Ms Bligh vows to lead a "new wave of Freedom of Information reform". "Not just a reform of the law, but change in the culture . . . from pulling information out of government . . . to government pushing information out to people." Ms Bligh told The Sunday Mail late yesterday that the Beattie government had done some "remarkable things" for Queensland. "But it is time for us to bring a fresh focus and to acknowledge that some improvements are needed," she said.

Anyone interested in budget transparency?

Its tough going if you are looking for acknowledgment of improved transparency in some areas of government activity. Take the Federal Budget for example. Minister for Finance and Deregulation Lindsay Tanner, in an address to a CEDA conference two weeks ago, said that the improvements in the quality of information provided in this year's budget papers had received little media attention, and proceeded to spell out a raft of reforms in "many ways directed at making it easier to identify government waste and excess."

A Google news search indicates that no newspaper in the country devoted a column millimetre to what the Minister said.( Thanks to the anonymous reader who drew attention to Minister Tanner's own edited version of his speech published in The Australian, and to an opinion piece on his attendance at the CEDA meeting by Peter Cameron in the Gold Coast News. But as to analysis of what he had to say- the point still stands.)

So what do the experts make of Minister's claims? None of the better known commentators who blog on economic matters-such as Peter Martin ,Joshua Gans, John Quiggin or Andrew Leigh- said a word about it either.

We'll have to wait for departing Senator Andrew Murray's assessment of Operation Sunlight due sometime this month

Red letter day in September

From today's Australian:

"PM speaks up: Kevin Rudd is to give the keynote address at the Pacific Area Newspaper Publishers' Association conference in September. He is expected to talk about freedom of information and the importance of environmental management by the newspaper industry."

Approved council minutes still subject to FOI amendment

This NSW Administrative Decisions Tribunal decision resolved a Freedom of Information review application of a refusal to amend a report to a local council meeting by ordering the council to make two of five requested amendments and upheld the council decision on the other three. In an earlier post we commented that the dispute about whether the Tribunal had jurisdiction to consider the application could have been avoided if the applicant had sought to exercise rights under privacy legislation rather than seeking amendment under the Freedom of Information Act.

One of the unsuccessful arguments put was that as the report formed part of the approved record of the council meeting, the council could not after the event make an amendment because of its obligation under the Local Government Act to ensure full and accurate minutes of a council meeting were kept.

"The two amendments that I have determined should be made - in paragraphs 2 and 3 of the Report, do not, in my view, interfere with the Council’s obligation under section 375 of the LG Act to keep full and accurate minutes of the proceedings of a meeting of the Council. The amendments merely make a relatively minor correction to a report to the Council, albeit important to Mr Livermore in terms of the accuracy of the personal information concerning him contained in the Report. Since this was purely a report by the General Manager to the Council on a staffing matter, the amendments would not appear to affect the fullness or accuracy of the Council minutes." (56)

Solomon and related developments

Dr Paul Williams in the Courier Mail urged the Queensland Government to act on the recommendations.

Keryn McKinnon in the West Australian can't detect any sign of interest from the Premier there in broad ranging reform of the kind advocated by David Solomon.

Meanwhile, and as a reminder that Queensland does not have a privacy law but some of Solomon's recommendations assume the Government will legislate, the Queensland Council for Civil Liberties raised privacy concerns regarding a proposed online database of all state school students.

The Courier Mail found it ironic, with all the attention on the possibility of greater transparency, that the Brisbane City Council rejected in the same week, an application for documents about rate increases in different parts of Brisbane.

And Fox Sports reports that the Government is stonewalling on a Freedom of Information application for a contract relevant to the location of a second AFL team in Queensland, and the charming remarks of a departmental media officer who may somehow be involved:

"It has been 68 working days since The Sunday Mail sent its request and there has still been no formal acknowledgement of the application.Since late April, there has been 17 calls made to Spence's department, with the last call on Wednesday prompting media officer Mark Symons to respond: "You'll get sweet f--k-all if you're going to go the heavy with me".

White House admin support just like the cooks and cleaners

With discussion here (in some circles) about extending freedom of information legislation to organisations not now covered, and general thinking that the US provides a model for those arguing for improvement in our access to government information laws, a court decision that the White House Office of Administration is not an agency for the purposes of the US Act comes as a surprise.It's also a reminder that there are limits on what the US has to offer in terms of good practice.

Timothy B. Lee provides a good overview of the issues involved. Just shows what potential confusion arises when you live at the office:

"The (Federal) FOIA applies to executive branch entities with "substantial independent authority," and it specifically excludes the president's personal staff and advisors. For example, the executive residence staff, which does cooking and cleaning for the president and his guests, is not subject to FOIA requests. Similarly, purely advisory bodies like the Council of Economic Advisors and the National Security Council are exempt from FOIA because they simply provide advice and administrative support to the president, and wield no independent authority.

The Office of Administration provides administrative support to the executive offices of the president and vice president. It offers a variety of clerical, administrative, and technical services, including—most crucially—e-mail services. In 2007, CREW made a demand under FOIA that OA produce internal documents concerning the extent of its e-mail problems. Rather than producing the requested materials, the Office of Administration reversed its decades-long policy of complying with FOIA requests. CREW sued, and OA told the courts that due to its proximity to the president and its lack of policymaking authority, it was not an "agency" as that term is definied by FOIA, and that it was therefore exempt from information requests.

In today's decision, Judge Kollar-Kotelly bought this argument. Acknowledging that it was a close case, she concluded that OA was more like the White House housekeeping staff than the full-blown federal agencies that FOIA was intended to cover"

Reasonable steps in searching for documents

This recent decision by the Administrative Appeals Tribunal provides a good statement of the law concerning the requirement in the Federal Freedom of Information Act to undertake a search for documents relevant to an application and what to be considered if they cannot be located. In this case the documents were 40 years old and records of this kind may have been in poorly marked boxes in a government storage facility. However Defence had put a considerable effort into searching records in various locations and the responsible officer could not identify any further steps that could practically be taken . Senior Member Dunne agreed and(at 20) summarised the relevant issue:

"..the question is not, “Were the searches that were done reasonable, in a general sense?” Rather, the question is, “Is there a reasonable step that has not been taken?” As was succinctly put by Finn J, is the Tribunal, upon review, properly satisfied that the respondent has done all that could reasonably be required of it to find the documents in question?"

Solomon Freedom of Information proposals in the news.

John Hartigan Chief Executive and Chairman of News Limited:"Freedom of Information ball is in the Premier's court"( Courier Mail) warmly welcomed the report:

".. it is a historic document that could put Queenslanders at the vanguard of a new form of open government unlike anything else in the country. It has the potential to start a snowball effect that could elevate Australia from its position as one of the worst countries in the Western world for free speech, to one of the best. It is a model for profound, radical and positive reform and, to her credit, one which Bligh welcomed warmly. It could lift a shroud of secrecy from our country which has been eating away at the very notion we call democracy."

Craig Johnstone: Assistant Editor "Winds of accountability blow through FOI corridors" (Courier Mail) canvassed the wide range of reforms under consideration and picks up on a point made here last week that there is nothing to prevent the Queensland Government making an immediate start on the new era through a direction to agencies to err on the side of disclosure. Johnstone also reports the Premier appears to have reservations about extending the law to bodies funded by the government such as private schools and charities.

Matthew Moore FOI Editor :"Bligh bounds ahead" (Sydney Morning Herald):

The logic of Solomon's report reveals the glaring deficiencies in every other FoI law in the country, especially in the Commonwealth act. Kevin Rudd was elected promising to reform the FoI law by scrapping conclusive certificates and appointing an information commissioner. Even those modest promises appear no closer. After events in Queensland this week, Rudd and his cabinet secretary, John Faulkner, have little option other than to deliver more sweeping changes than they envisaged. Either that, or be judged as failures

Rick Snell in "Secrecy obsession keeps us in the dark" in Adelaide's Sunday Mail(no link available) said South Australia risks being left behind in this area:

"The SA Government operates as if the creation of policy frameworks in health, education and transport, etc., are its exclusive property and the Government can therefore decide who is informed, when and under what circumstances. Doctors who are concerned about the health system are denied access to consultant reports. Taxpayers are prevented from seeing an $81,000 report into the quality of hospital food because it could cause ``confusion'' and create "unnecessary debate'' and "mischief''. Plans to replace the Royal Adelaide Hospital with a $1.7 billion project are formulated in secrecy and progressed on a need-to-know basis. Critical experts in the system - doctors, nurses, patients and volunteers - are kept in the dark and sidelined. ...Premier Rann has a clear choice. He can continue to preside over an information management system that has scarcely changed since the horse and buggy days or he can put in place the infrastructure needed to create effective policies for a 21st century information state. State governments can no longer afford to rely on a handful of political servants and secretive consultant reports to generate policies, ideas and solutions."

The editorial in The Age "If you're paying for it you should know about it" comments on the Victorian Government's preference for secrecy regarding the Toyota subsidy, the amount paid from the public purse to host the Australian Grand Prix and more generally regarding "commercial in confidence" provisions in government contracts:

"In all this, the Brumby Government's attitude contrasts dismally with that of the Bligh Government in Queensland, which has accepted, and is expected to implement in large part, a wide-ranging review of freedom of information law by the journalist and barrister David Solomon. Mr Solomon has proposed changes that include allowing public searches of government databases, the release after each cabinet meeting of an edited agenda and non-confidential documents, and simplification of the FoI process.Compare this with the Brumby Government's attempt to further erode this state's FoI laws by extending the response time for FoI applications. That bill was rejected by the Legislative Council, in which neither of the major parties has a majority. Upper-house reform was a fortunate Labor achievement: without it, the present Labor Government would have taken Victoria even further down the path to the secret state."

More needed than just an information commissioner

UK Information Commissioner Richard Thomas

With the Federal Government committed to establishing (sometime) an information commissioner to provide leadership and to deal with freedom of information complaints, and Queensland considering an enhanced role for its commissioner in accordance with recommendations of the Solomon Report, this article in The Independent is a reminder from the UK that the work of the lead agency responsible for encouraging openness in government is never done. And of the need to properly resource those responsible for review of agency decisions on access. Complex cases in the UK are taking up to two years to resolve.

What does the public service have in common with a ute on a country road?

Allan Gyngell Executive Director of the foreign policy think tank, the Lowy Institute, has spent his career in and around government in Australia, including a stint as adviser to former Prime Minister Paul Keating. He heaped praise on the professionalism and quality of the Australian Public Service in delivering a paper recently on Think Tanks and Foreign Policy but also had this to say about another attribute of the service:

"However, it is also small, highly collegial, prone to unnecessary secrecy and, if left to its own devices, as opaque as the windscreen of a Ute on a dusty road in February."

MPs travel in the dark

In a recent post about the opaque setting in which members of parliament use public money, I said that at least we had regular reporting on Federal MPs travel.

Yet Kim Wheatley in The Advertiser reports that in identifying almost 40 overseas trips by soon to retire senator, Grant Chapman, including a "lap of honour" this year, with "complete records difficult to obtain, parliamentary insiders believe there are likely to be more."

Things on this front may be worse than I thought.

The Australian Law Reform Commission in the 1995 "Open Government" report recommended that the parliamentary departments should be brought under the Freedom of Information Act-one of 100+ recommendations not acted upon to date.

The Solomon report in its discussion of the need for the widest possible coverage of public sector bodies in Queensland (pages 77-105) makes no mention of extending the proposed right to information act to parliament itself.

Complexity in the move to simplicitly

One of many positive recommendations in the Solomon report is that in Queensland most Freedom of Information exemptions be replaced by a single exemption where disclosure would on balance "be contrary to the public interest." If this is acted upon, it would not represent a first in Australian access to government information law.

Since 1993 local councils in NSW have been required by Section 12 of the Local Government Act to provide access to specified documents, and to"other documents" unless satisfied disclosure would on balance be contrary to the public interest. In many respects (eg the public availability of staff submissions to councillors) local councils leave NSW state government agencies for dead when it comes to transparency, but experience with this single broadly stated exemption suggests some important lessons that the Solomon review may have taken on board, at least to some degree.

What is clear is that it won't work unless parameters with teeth are established for those who have to implement the law and make judgments about the balance of public interest considerations. In NSW councils have floundered in this area with little help from the Department of Local Government or the Local Government and Shires Association. And the relationship between Section 12 and other laws is so complex (not helped by the rare occasions it has cropped up in the Administrative Decisions Tribunal), it was one of the matters referred by the Attorney General to the NSW Law Reform Commission in 2006.There has not been a word from them on this since, despite the plan to publish a consultation paper by-wait for it-December 2006.

Even when the guidelines are clear, an authority with clout needs to step in to protect against lawyerly attempts to find loopholes. Just one example.

The Local Government Act and the NSW Freedom of Information both contain a provision excluding as an irrelevant public interest consideration, that disclosure could lead to misinterpretation or misunderstanding of information in a document to be disclosed.(This still gets a lively run in some other jurisdictions around the country).

The LGA version relevant to councils in dealing with access applications outside FOI refers to as irrelevant the fact that a person-presumably any person-would misinterpret or misunderstand the information. The FOI provision that applies in the administration of the Act to all state and local government bodies in dealing with FOI applications, says it is not relevant that the FOI applicant would misinterpret or misunderstand the information. Maybe you can see the loophole coming. And the official guidance set out in the FOI Manual 2007 published by the Department of Premier and Cabinet and the Ombudsman does not disappoint.

Paragraph 10.4.19 under the heading"Ill-informed speculation and public confusion" reads:

"(A)lthough the possibility that the applicant him or herself may misunderstand information contained in a document cannot be taken into account, it may be a relevant consideration that release of the document would mislead the public generally, or otherwise cause general public confusion"(emphasis added).

Just how the decision maker is to make a judgment about who or how many people constitute the public for this purpose isn't the subject of any further wisdom, but you can see what an agile mind could do with this. On any technical subject most of us might not fully understand but why that really matters has not been established.

The Solomon Report is aware of the problem of leaving the public interest as an "amorphous" concept and has a go (Recommendation 42, page 155) at listing public interest factors that should be included in the law. It includes in the irrelevant category, the NSW FOI provision, that according to the leaders here means that it may be relevant to consider whether persons other than the applicant may be mislead or confused by the information disclosed. Is that what Solomon intends?

The NSW experience illustrates the complexity involved for Queensland in moving from complex legislation and a myriad of exemptions, to a simpler right to information law, but may the wind be at their back.

Solomon sets FOI reform hares running

Further reporting, comment and opinion on the Solomon report today. All positive, with a consistent theme that proposed reforms should be emulated nationally.

The Courier Mail finds the Premier's positive response heartening, but regrets that confidentiality will be assured for some ministerial briefing documents. In an editorial, The Australian commends the report as

"an effective blueprint designed to change the culture of government for the better. By its nature, public information should belong to the people, and not exclusively to politicians and bureaucrats. As a robust democracy, Australia has nothing to fear and much to gain from transparency, openness and an end to duplicitous cover-ups. Public administration and the quality of journalism would improve as a result."

The Sydney Morning Herald editorial "The way to free up FOI" says the report should grab the attention of every government in Australia and urges Premier Bligh to make a start now on implementing its spirit and intent.

Sean Parnell, FOI Editor of The Australian reports that Federal Cabinet Secretary John Faulkner has welcomed the report as a "valuable contribution to FOI reform "and says the recommendations will be given "careful consideration"in the Federal Government's review process. But as Rick Snell comments in The Australian those review processes have been "snail-like" with nothing to show after 29 weeks.

Snell also sees the potential for reform across the board:

"The Solomon report has delivered to Premier Anna Bligh and all Australian governments a blueprint to achieve the next generation of Australian FOI or right to information laws and practice....The report proposes a new model, a new name and, most important, a new approach to the handling of government information. Governments have been offered protection for some of their most important decisions; bureaucrats have been offered an easier to administer scheme in which their key mission will be to facilitate access; and citizens will receive more high-quality information on a regular basis."

No prizes for guessing the NSW Government's response as reported by Sean Parnell:

"A spokesman for NSW Premier Morris Iemma said the (NSW FOI) act "has contributed significantly to the openness and accountability of Government." The spokesman said the act was "continually subject to scrutiny and review".

Well, the NSW Government failed to act on much needed reform since the Ombudsman first raised the issue in 1991, and with no commitment to change of any kind now awaits the outcome of the Ombudsman's own initiated review.What Solomon proposes for Queensland and Premier Bligh generally accepts are light years ahead of the law, policy and practice in NSW.

Canberra should find new Queensland thinking of interest

This ABC News report"Pressure for Qld FOI changes to go national"includes comments by Rick Snell and me on the AM program this morning:

"University of Tasmania senior law lecturer Rick Snell says if implemented the changes will fundamentally transform the state from defaulting towards secrecy to virtually always defaulting towards openness. Mr Snell says the Solomon report, if adopted, will benefit the Government, public service, the media and the public."It will move Queensland to the forefront of freedom of information legislation in Australia and it will also move to the forefront of freedom of information within the world because these proposals give a blueprint on how to move Freedom of Information into the next generation," he said.

One of the key recommendations is changing the public interest test to ensure that information is released unless its disclosure is deemed to be contrary to the public interest. Mr Snell says it's a major shift. "What this proposal does is actually put it up front and says there is a basic public interest in releasing information unless there is a very good reason not to," he said.

FOI activist Peter Timmins has also welcomed the report, saying it represents healthy new thinking. "It takes freedom of information out of a sort of legal battle and very clearly advocates the idea that government should have a policy of openness and transparency," he said. "And I think its recommendations would illustrate, if they're picked up, how that sort of system could work more effectively than what we've had so far."

Mr Timmins says the Queensland example should be embraced by the Federal Government, which is also reviewing its FOI laws. "There is an important message here for the Federal Government which really before the election said it would act on freedom of information and six months on hasn't," he said. "I think they could take a leaf out of Dr Solomon's book and give very close consideration to many of these recommendations."

Much to like in Queensland review report

The Solomon Review is impressive and comprehensive, and contains important new ideas about how to deliver on the objective that underpins all our freedom of information acts- extending as far as possible the rights of the public to access government information. It's not possible to do justice to the 141 recommendations in this brief comment. Overall this is good positive stuff, not just for Queensland but for consideration elsewhere should government leaders show interest in reform.

The report recommends fundamental change to the framework, with a government wide information policy that recognises information as a core strategic but public asset, the adoption of a "push" model of pro active disclosure, a simplified right to information act with greater clarity about grounds for refusal of access, and an information commissioner to provide strong and continuing leadership and guidance across the public service on implementation of the scheme. The UK can take a bow on showing what can be done along these lines.

The Premier's reaction was positive: she said she felt "very comfortable'' with the reforms, including changes to the cabinet exemptions, and gave a strong indication that all or nearly all of the recommendations would be implemented. "It's not my intention to pick the eyes out of this and to put minor amendments to the existing Act,'' she said. "The legislative framework, in my view ... has to be adopted in its entirety."

A few minor quibbles from me: 25 working days for a determination of an FOI application seems excessive in the "google" age, and the recommendation against a public interest rebate on fees is hard to justify. And a bit of a worry how long all this might take given the scope of the report and the possibility of a degree of indigestion as government examines the recommendations

The Premier says draft legislation will be out for public comment later in the year and will be introduced in 2009. It would be great to see an administrative direction from her in the meantime that agencies are to err on the side of disclosure unless real harm to essential public interests are likely from disclosure.

Given the timeframe, and the breadth of issues covered in the report, the three person panel supported by two staff have done a remarkable job

Queensland FOI review report published

The Solomon Review of the Queensland Freedom of Information Act has issued its final report today-it runs to well over 400 pages. From a quick look at the summary there are plenty of recommendations for culture change, pro-active disclosure and simplification of exemptions. More to follow when I get a chance to read the detail.

Sunlight sinking in the west

Keryn McKinnon in The West Australian quotes the highly respected former Information Commissioner Bronwyn Keighly-Gerardy on the state of things in the west, where proposed but long delayed legislation will transfer review powers to the administrative tribunal:

“Right from word go, the FOI Act has always been slanted in favour of them (the government). The only redress the public has is the independent commissioner and the Government even wants to get rid of that. The FOI process is just a mockery.”

Data matching and privacy concerns

In March, reports surfaced of the Australian Sports Anti-Doping Authority providing Medicare with a list of athletes’ names and asking Medicare to search through its files in order to identify possible users of steroids and human growth hormones. A worthy objective maybe, but there was a flurry of concern at the time about whether there had been proper consideration given to the privacy issues concerning health information held by Medicare.

The issue surfaced last week in Senate Estimates (Finance and Public Administration 28 May 114-115 ) when the Privacy Commissioner confirmed that no one had raised the matter with her office before the media reports. Three days later on 17 March, she commenced an investigation. It's an interesting (half) case study about data matching within government, but not a great confidence builder for those concerned about the handling of heath information by Federal government agencies.

Things have moved slowly since:
"Senator MASON—Have you completed that report?
Ms K Curtis—No, we have not completed that report. In the usual process, we wrote to both ASADA and Medicare, making what we call a preliminary inquiry of them, and, as a result of some information they provided back to us, we have then asked them further questions to be answered. We have not received all those responses to date.
Senator MASON—So the investigation is ongoing?
Ms K Curtis—Yes, the investigation is ongoing.
Senator MASON—Are your preliminary inquiries published anywhere, or is that simply internal?
Ms K Curtis—No, our usual process for handling a complaint or an own motion investigation is that we do it in accordance with the principles of natural justice, and we do those things in private.
Senator MASON—How long do you think you will take before that inquiry is finished?
Ms K Curtis—Once we have received the information back from both bodies, we will be able to make an assessment of where we go from there."

There is not much the Commissioner can do about the matter anyway.
"Senator MASON—What sorts of sanctions are you able to take on agencies?
Ms K Curtis—Own motion investigations are different to the powers relating to complaints. With own motion investigations, we essentially really would only have a ‘name and shame’ sanction. Also, we would ask parties...to reconsider their processes and to change their systems and implement new practices and procedures. But, in terms of formal sanctions, there is no formal sanction that I can impose."

Those potentially affected are apparently still in the dark.
"Senator MASON—When you say there were no complaints by any individuals, would any particular individual have known that their privacy may have been breached?
Ms K Curtis—Once it was in the media, perhaps it may have come to the attention of some individuals.
Senator MASON—But would a particular individual necessarily have known that their privacy may have
been breached? A group of individuals may—that is, the athletes—but would any particular individual?
Ms K Curtis—I cannot really comment about—
Senator MASON—You are not certain?
Ms K Curtis—what an individual would know or not know about whether they were possibly in a list of people that ASADA had provided to Medicare.
Senator MASON—So you could not be certain that any particular person would know that their privacy had been breached?
Ms K Curtis—Not at this stage, no."

Guidelines about data matching in many areas of the Federal Government are "voluntary"
"Senator MASON—When agencies seek to data match from different Commonwealth databases, there is a law and protocols that look at that situation, that accrue to that situation. What are they? What is the law?
Ms K Curtis—Essentially, there are two guidelines. One set of guidelines is mandatory and one set of guidelines is voluntary. The first set, which is mandatory, is those that relate to a data-matching act, which covers the way the tax office, Centrelink and the Department of Veterans’ Affairs match information using the tax file number. There are also voluntary guidelines that have been issued by a previous Privacy Commissioner in 1998 that cover the way other agencies data match, including the way, say, ATO would also data match when they do not use the tax file number.
Senator MASON—For example, ASADA and Medicare?
Ms K Curtis—Exactly.
Senator MASON—So there are protocols—
Ms K Curtis—Yes.
Senator MASON—that should have been followed?
Ms K Curtis—They are voluntary guidelines, though. Yes, that is correct."

The Guidelines suggest agencies run things past the Commissioner but this doesn't always happen
"Senator MASON—Generally, do agencies that are engaging or seek to engage in data matching of Commonwealth databases seek your advice? Should they seek your advice?
Ms K Curtis—The guidelines suggest that agencies should provide their protocol on the data matching to our office, and we report that in our annual report every year. They are also available on our website.
Senator MASON—Do agencies generally do that?
Ms K Curtis—To the best of my knowledge, the ones that we are provided with—that I know about—yes, they do.
Senator MASON—Is it common that agencies do not?
Ms K Curtis—I do not think ‘common’ would be an appropriate word, but I cannot be certain that all agencies do.
Mr Pilgrim—When it comes to the voluntary guidelines, we would be relying on individual agencies who are using them to provide us with the information. We do not have a process by which we are in a position to go around and randomly check every agency to see whether they have been undertaking those sorts of matching activities in accordance with them. We rely on them to, if you like, voluntarily provide us with that information each year."

20 years on, could some in government still be unaware of the Privacy Act?
"Senator MASON—Mr Pilgrim and Ms Curtis, would you be surprised if a CEO of a Commonwealth agency was not aware of the Privacy Commissioner and privacy issues?
Ms K Curtis—I would be surprised if they were not aware. The Privacy Act has been in place since it was passed in 1988.
Senator MASON—Twenty years now!
Ms K Curtis—Effective 1 January 1989. I would be surprised if senior people were not aware.
Senator MASON—Is it fair to say that health records in particular are privacy sensitive?
Ms K Curtis—Yes. Under the private sector provisions of our act, health records are actually specifically accorded a higher status, sensitive information, and given higher levels of protection. Under the information privacy principles which cover the way government agencies and departments operate, it is not the same sort of definition, but generally speaking—and it is borne out by our community attitudes survey, which we have undertaken every three years for the last three cycles of that—people think that their health information really ought to be carefully regarded.
Senator MASON—So, when you have the data matching of any individual and their Medicare records, that is potentially highly privacy intrusive—correct? And you would be surprised if a CEO of a Commonwealth agency was not aware of that?
Ms K Curtis—I would be surprised. The Privacy Act is well known, and it is a key act. It is part of the accountability framework of government."

Access to advice-perennial question,perennial answer

Battles raged in many of the Senate Estimates Committee hearings over the last two weeks, with the prominent players engaging from a different perspective as they settle into new roles of government and opposition. The battles of course have a familiar ring, with one constant the often unsuccessful attempt to get answers to questions about advice, usually dismissed simply on the grounds that the question goes to advice provided to the government or a minister. Another, is the opinion of the Senate's principal adviser on such matters, the Clerk, Harry Evans:

"As with legal advice, the mere fact that information consists of advice to government is not a ground for refusing to disclose it. Again, some harm to the public interest must be established, such as prejudice to legal proceedings, disclosure of cabinet deliberations or prejudice to the Commonwealth’s position in negotiations. Any general claim that advice should not be disclosed is defeated by the frequency with which governments disclose advice when they choose to do so."(Senate Estimates Finance and Public Administration 28 May page 70)

The same principle of the need to demonstrate specified harm to the public interest is reflected in freedom of information exemptions regarding documents that contain advice. Experience tells this issue can't be left to lawyers and as with the parliament, clearer parameters need to be established and enforced

Slowly, slowly for FOI reform

Three Freedom of Information issues were raised in the Senate Estimates Finance and Public Administration hearings on 27 May(transcript pages 93-96). All in all, government responses were disappointingly laid back and indicate that even basic questions on whether there will be public consultation on the detail of reform proposals are yet to be addressed.

Welcome to FOI land:
Former Howard Government minister, Senator Abetz said he was "horrified " he received an FOI determination refusing access to some documents (in relation to the Bracks review of the car industry) from the Department of Prime Minister and Cabinet that had been made by the officer who had responsibility for the matters covered in the documents:"I would have thought in anybody’s language it would be a huge conflict of interest that you can sit on judgement on your own documentation as to whether it should be revealed under a freedom of information request."However according to the Department, this is routine:" the officer who is familiar with the documents is the one to examine the files and generally be the decision maker. But all exemptions are discussed more centrally in the department so that no decision maker would feel free to claim an exemption that did not have in the department’s view a sound base."Senator Abetz pointed out the decision maker "was the author, the personal author and personal recipient of documents. We are not talking about some knowledge of the documents, some contact with the documents. He was the author and recipient of documents and then deleted something in relation to those documents. That is a lot different and, I would have thought anybody would say on the face of it, a clear conflict of interest, but Prime Minister and Cabinet does not think so.
Ms Belcher—I will have a look at the case. I am not familiar with it personally."

FOI reform-still thinking, exposure draft "an option", 2009 not out of the question
Senator MURRAY asked Cabinet Secretary Faulkner where "we are with the development of the new FOI legislation?
Senator Faulkner—At the moment, as the minister responsible, I am working as assiduously as I can on these issues within government. Government, as you know, has a clear policy position on these matters, and I am working as hard as I can in terms of ensuring that those commitments are implemented.
Senator MURRAY—I want to compliment you on putting out an exposure draft of the lobbying code and then later on the final code. Is it your intention with the FOI legislation to do the same, to release an exposure draft—because it is an area of great interest and concern, and I am sure it will attract a Senate committee process? It might be best with an exposure bill rather than a final bill.
Senator Faulkner—That is certainly an option. These are obviously matters for cabinet’s consideration in the final analysis, as you would appreciate, but that is a serious option. I have to say to you, in relation to the Lobbying Code of Conduct, I think the process did work well. It is not something that we have seen much of at the Commonwealth level, but in this case I think what was a strong draft code was actually improved by that exercise. So I do understand the reasons that you suggest that that is one approach for the government to adopt. Obviously, current FOI decisions are being made under the existing legislative framework, as you
would appreciate.
Senator MURRAY— I had the impression... that you will try and complete your draft freedom of information bill this calendar year. There are some elements within the existing law on which your government already have settled policy, and I want to go specifically to the conclusive certificate issue. As I understand it, the amendment of the present provision allowing for conclusive certificates is a very easy one. It is effectively a deletion of that provision, but you may have other advice. Is it your intention or are you prepared to consider
moving an earlier bill to rid us of that pernicious mechanism, bearing in mind that, if you complete your draft bill for the overall legislation later this year, it might not pass into law until well into 2009, given the heavy legislative program you have got ahead of you.
Senator Faulkner—That is certainly an option. I appreciate the point that you make about conclusive certificates. I can say to you that the government had a clear policy on this issue, as you know, when it came to office. I think there is probably a lack of understanding in relation to the issue of conclusive certificates. Without a conclusive certificate, of course, there is still a full merits review by the AAT of exemption claims, as I know you are aware. The argument is that if conclusive certificates do not exist that is a significant step towards ensuring better accountability in government decision making on FOI requests. But, again, I appreciate the point that you make. But, in advance of a decision by cabinet, there is not a great deal more
about the process that I can really share with the committee....
Senator MURRAY— I am just concerned we make some progress rather than—
Senator Faulkner—I appreciate that. The point that you make is well taken.

Does the need for secrecy pass with time?
Senator MURRAY—I see FOI in kind of two sections. The first is what the law and the practice will be in future, because it is both a cultural and a legislative issue, and that will unfold when you produce your bill. The other is how to deal with the past and whether a line is drawn or whether previously refused FOI requests are capable of being revisited. I am not going to discuss that in general. I want to deal with a specific issue: the waterfront dispute. On 13 May
1998, the minister made a statement in response to the order of the Senate of 13 May 1998, partly on the basis of the sub judice convention. It was Senator Alston at the time. He seemed to indicate that disclosure of the documents was likely to contaminate the discovery process and prejudice all parties’ legal rights. The documents would be subject to confidentiality and the production of documents would be contrary to the sub judice convention. I am not certain as to what the statute of limitations is and so on, but it seems to me that the legal grounds that might have been there in 1998—10 years ago—and might have applied might no longer
apply. I am aware that there has been media debate and debate by leading members of the community about this issue. Has the government got any settled view on revisiting these areas which were refused—perhaps for reasons which are now time expired, such as being potentially sub judice or potentially subject to legal action?
Senator Faulkner—You asked me if the government has a settled view. To answer your question very directly, the government is yet to make a decision on existing certificates. You identify one certificate in particular in relation to the waterfront dispute. I understand the significance of that issue, but, because the government is yet to make a decision in relation to existing certificates, I am really not in a position to say how that more specific issue would be approached.
Senator MURRAY—I wonder whether you would consider taking this question on notice: is the
government of the view that the grounds that I outlined in general still apply in that the release of the documents at that time were likely to contaminate any discovery process and prejudice parties’ legal rights or be subject to the sub judice convention?
Senator Faulkner—I am happy to take it on notice....
Senator MURRAY— My view is that, if the legal grounds for withholding no longer apply because of the effluxion of time, the question is a policy one. Is it proper for them to be released? Do you simply draw a line under these events and leave it alone or not? It
was specifically withheld from the parliament chiefly on legal grounds. I think the effluxion of time might have done away with that."

Cabinet committees disclosed-earth does not move.

In April a Queensland academic reported no luck in getting information about Federal Government cabinet committees. Last week when asked in Senate Estimates Cabinet Secretary John Faulkner was happy to oblige:

"Senator MINCHIN—Can I ask the minister if the government has formally published a list of all cabinet committees and their membership?
Senator Faulkner—I am not sure whether it has been published, but I am certainly happy to provide it for you if you would like.....I will just read it into the record. The committees are: Expenditure Review Committee; National Security Committee; Parliamentary Business Committee; strategic budget committee; climate change, water and heritage committee; social inclusion committee; Indigenous affairs committee; economic development and international competitiveness committee and the COAG committee—it is nine in total." (Senate Estimates
Finance and Public Administration 26 May.)

The Hansard indicates Senator Faulkner then tabled a document listing membership of each, so if you show up at the Table Office in the Senate in Canberra during business hours you can ask to see it.

Rather than this information being made available, selectively, depending on who asks who, couldn't they just put this up on the web for anyone interested to see?

Victorian Police leak no breach of "legal duty"

Victorian Police operate under a more forgiving law than Federal public servants regarding disclosure of information acquired in the course of duties.

The Chief Justice of the Victorian Supreme Court has ruled that a police officer did not breach regulations when she responded to a request from a friend wishing to contest a speeding charge by sending copies of police manuals for the operation of speed detection devices. It didn't matter that the officer in passing them on, included a note "just remember you didn't get them from me."

The decision in DPP v Zierk (2008) VSC 184 involved the application of a regulation that provided: "Any member of the police force who publishes or communicates, except to some person to whom he is authorised to publish or communicate it, any fact or document which comes to his knowledge or into his possession by virtue of his office and which it is his duty not to disclose shall be guilty of an offence against this Act and liable to a fine of not more than 20 penalty units."

Chief Justice Warren decided that disclosure was unauthorised- Police policy was that publications must not be released " before seeking advice from the Freedom of Information Unit"-but there was no evidence that the officer was under any statutory duty not to disclose the manuals, or that disclosure involved a breach of the common law in the discharge of duties of office. The information disclosed was either freely available or available by application, and disclosure had not in any way jeopardised police functions.

The Chief Justice noted that while it was arguable that there had been a breach of discipline, this did not involve a breach of legal duty, particularly as officers were encouraged to apply policies using common sense, initiative and judgment.