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Friday, October 31, 2008

Where's the enthusiasm in Canberra for ending excessive secrecy?

Sometime soon (he says confidently) Senator John Faulkner's speech on the Government's transparency and accountability agenda at last night's Transparency International gathering in Sydney will appear on his website. It's not been posted so far (update- it has now and its a good and comprehensive speech of impressive achievements in many areas) but the only new news according to those who were there was an announcement of the publication of an annual report on ministerial staff employed by federal ministers- how many,what they cost etc.

There was nothing else new, reported at least: just a repeat of the commitment in principle we have heard often over the last 18 months:
"Transparency ensures appropriate visibility to government actions and the political process," Senator Faulkner said. "I've personally taken the view, after many years in both politics and parliament, that there's no better way to achieve integrity and accountability within government and government transactions than by promoting transparency and openness. "Australians must be able to know how their government works and have confidence that authority is exercised appropriately."
I'm sure Senator Faulkner is genuine, but given this sentiment, it's difficult to explain why we haven't to date seen a scrap of change or even a sense of urgency for reform in the FOI field.(Update-this year is again mentioned as the timetable for legislation to abolish conclusive certificates.) Or, apart from the occasional Faulkner speech, anything to progress the much talked about culture change to shift government away from its widely acknowledged preference for secrecy.

On the contrary enthusiasm for practical steps towards governing differently may be dimming in even higher circles, after almost a year of up-close and personal dealings with the public service and complex policy problems.

As John Roskam (of the Institute of Public Affaairs) in an opinion piece in the Australian Financial Review today notes:
"In a speech in Melbourne on Tuesday night, the Prime Minister spoke about the importance of maintaining business and public confidence during these ‘‘unprecedented times''. He went on to say: ‘‘It is incumbent upon all of us in political leadership to be very careful about what we say. Now is not the time to be questioning the head of the commonwealth Treasury. Now is not the time to be attacking the head of the Reserve Bank.''
The PM is right about personal attacks. But no questioning? Isn't that the scrutiny necessary for the transparency and accountability we have a right to expect?

Roskam seems to be reading the PM's remarks in the same way I read some signs from Treasury Secretary Ken Henry last week: these things are best sorted behind closed doors, what we say or consider there has to remain confidential, any questioning of our wisdom may have grave repercussions.Roskam continues:
"The cause of good governance in these ‘‘unprecedented times'' is best served by having more debate, not less.....The Prime Minister has two reasons why he thinks Australians should just sit down and shut up while he makes financial policy on the run. First, he says we must get economic policies ‘‘right'' and this is a process best undertaken without having an argument about them. Second, he argues that the lesson of the bank deposit guarantee saga is that ‘‘politicising'' such issues is ‘‘unhelpful in the markets''. The reply is simple. Making policy in the glare of public scrutiny doesn't guarantee that the policy will be right, but there's a greater chance of it being right compared to having the policy made in secret."
This isn't the time for the PM to be backing off his National Press Club commitment a year ago:"I'll end secrecy"

Two week extension for FOI submissions

For those like me struggling to respond to the NSW Ombudsman's 139 questions about how to improve the Freedom of Information Act and the way it is administered, a welcome extension of the deadline to 14 November.

Smoke still rising from the battle for Beacon Hill

The Save Beacon Hill High School Committee has long ago lost its eponymous battle, but the associated Freedom of Information skirmishes have continued, perhaps concluding with this decision by the NSW Administrative Decisions Tribunal to dismiss proceedings brought against Landcom.Three years after the original application and many slow steps in the process, Landcom released all remaining documents it said it could find about the sale of the school.The Tribunal rejected the Committee's attempt to keep the matter alive on the adequacy of search issue.

The decision highlights yet another problem about what can be done when this type of issue arises in the Tribunal, following the NSW Court of Appeal ruling that the Tribunal cannot go behind an agency's claims regarding what relevant documents are held.

The Administrative Decisions Tribunal Act sensibly provides for co-operation between the Tribunal and the Ombudsman on a range of matters and a memorandum of understanding between them (December 2006, pre-dating the Court of Appeal decision), specifically refers to referral by the Tribunal of a matter to the Ombudsman, even one outside Tribunal jurisdiction.The Committee sought referral in this case claiming it was not satisfied about the agency's steps to locate all relevant documents.

However Judicial Member Montgomery accepted arguments advanced on behalf of Landcom that the Tribunal's legislation limited the exercise of the discretion to refer to matters that came within its jurisdition. As the Court of Appeal had decided adequacy of search was outside jurisdiction, the Tribunal could not formally refer such a matter to the Ombudsman.

The President of the Tribunal remarked in a decision prior to the Court of Appeal ruling that it would be perverse if the Tribunal had to accept any agency claim about what documents were held, without powers to test or go behind such claims. He was right then, and the law should be amended to address the problem.This latest decision mitigates against sensible co-operation between two bodies with review powers, and further complicates matters for FOI users.It's another in a long list of necessary changes to the laws.

The deadline for submissions to the Ombudsman's review of the FOI Act was 31 October but I'm sure he is still open to suggestions.

Update:deadline extended to 14 November.

Transparency and accountability, after a fashion.

This isn't just a Victorian problem but The Age comments on the annual "democracy dump" that saw over 200 annual reports tabled in Parliament in one day.While the tabling of the reports in theory means we can all dig through those of interest, there is an issue just about everywhere of whether parliaments have the interest and capability to properly exercise oversight responsibilities by examining reports on executive government activities, and playing their proper role in the accountability chain.

Old ways in FOI decision making surface in NSW.

Yesterday we heard of the NSW Premier's intervention to require disclosure of documents that a government agency had fought for seven months to refuse access.Today a reminder of what the Premier must regard as the bad old days. News Limited papers report that the NSW Ombudsman may have found evidence of an attempt at direct political interference by a member of staff of the then Minister for Roads( now Treasurer) to force an agency determination to refuse an application under the Freedom of Information Act.More details in the Daily Telegraph.

Here are some comments from December 2007 on ministerial involvement in FOI decision making.

Thursday, October 30, 2008

NSW to tick another transparency box

Now it's lobbyists in the sights as NSW Premier Rees pursues greater transparency and accountability, with this announcement of a NSW Government Lobbyist Code of Conduct including a public register to be in place by February 2009. It's to be modeled on the Federal and Western Australian precedents, with all of the weaknesses pointed out here in April. But things have come a long way since Premier Iemma made these dismissive comments about the need for any change in April 2007.

NSW Premier Rees tells RailCorp, and a broader audience he means it.

The Sydney Morning Herald today in "Rail blunders put hundreds of commuters at risk" gives details of an internal safety investigation report from RailCorp about two bungled rail projects that have cost NSW in excess of $150 million and that could have cost lives.We are reading about it, as Lynton Besser tells us, "because Premier, Nathan Rees, intervened to order the release of the report after a seven-month battle between the Herald and RailCorp, which is now before the Administrative Decisions Tribunal, to have the document released under freedom-of-information laws."Well to be accurate it's during that fight, with RailCorp represented by a big city law firm, which would have gone into next year.The RailCorp safety investigation report is here.

As Matthew Moore comments elsewhere in the Herald:
"Under Iemma, Bob Carr, Kevin Rudd or John Howard, this document would have remained secret. But Rees is desperate to be different. He told Parliament last week NSW would no longer be the secret state, and promised to change the public-service culture....(In intervening in this case) he's put public servants on notice that the rules have changed and sensitive documents such as this one should be released, even if it embarrasses people."

The Herald has posted the FOI determination by RailCorp to refuse access. Why RailCorp didn't want you to see the report is well-crafted template lawyer's stuff, and illustrates the range of excuses you can grab onto, supported by bits and pieces from decisions in various parts of the country, quoted selectively when they appear to help, to defend a decision to refuse access.There would have been a strong chance that the decision would have stood up to review in the Administrative Decisions Tribunal. A lot of evidence and legal argument beyond the resources of most of us would have been required to try to have the decision overturned.

However policy and the ground-rules have changed."We are deadly serious about changing the culture when it comes to government information," the Premier said yesterday.It will be an ongoing challenge to get this message through the various nooks and crannies of government agencies. And what will the ADT make of the Premier's statements on the public right to know in considering whether to release otherwise exempt documents in the exercise of it's discretionary powers?

The sun has risen this morning and the earth continues to turn on it's axis, contrary to what RailCorp predicted. And the ongoing debate about management of the rail system in NSW, a matter of major public significance continues, better informed.

How much time and public money was spent on this by RailCorp over the last seven months? How much more time, energy and money is being spent to prevent access to other documents about important aspects of the way our government carries out public functions?

Wednesday, October 29, 2008

Commonwealth Ombudsman reports on 2007-2008

The 2007-2008 Annual Report of the Commonwealth Ombudsman, Professor John McMillan, is now available, with a chapter (6- pages 114-115) on Freedom of Information. The report outlines various activities relevant to FOI undertaken by the Ombudsman, most of which have been referred to earlier in the year. Good to see the Ombudsman has been involved in whatever internal discussions have gone on within government circles about FOI reform, and that, apparently for the first time, independent government agencies in the Prime Minister's portfolio involved in integrity issues (the Ombudsman, the Australian National Audit Office, Australian Public Service Commission, Inspector-General of Intelligence and Security, National Archives and Privacy Commissioner) now meet regularly as a group. Moving right along now.....

The Ombudsman has been strong on the need for FOI reform but investigating complaints about FOI matters is a small part of what the office does-206 complaints last year out of a total of 18,000 within the Ombudsman's jurisdiction The majority of FOI related complaints were about Centrelink (23%) and Immigration and Citizenship (21%).The main issue raised continued to be delay in processing requests,(about 34% of all complaints) with another 31% about the correctness of the primary decision.

The Ombudsman gives agencies a tickle up over delays, the duty to assist applicants and ensuring staff are adequately trained, but disappointingly fails to give details or comment about the outcomes of FOI investigations or, in contrast to other chapters, to provide any case studies on FOI related investigations.

Monday, October 27, 2008

Getting FOI reform in the fast track

At the end of July I made some suggestions for action Senator Faulkner could take to shift things along on the Federal Freedom of Information reform front apart from the commitment to two phase reform sometime down the track. At that time and probably still, Senator Faulkner thought those complaining about slow progress were "ungenerous critics." My list appears to have made not the slightest impression on anyone in Canberra. So no illusions here about influence but what about a list of initiatives NSW Premier Nathan Rees could consider if he wants to keep the ball rolling in his plan to end excessive secrecy in NSW?

Matthew Moore in the Sydney Morning Herald on Saturday kicked things off suggesting the Premier could push agencies to respond positively to Ombudsman recommendations following the investigation of complaints regarding FOI, and provide guidance on what he expects to be disclosed publicly as a matter of routine, starting with the cost of ministerial trips and the cost-benefit analysis of major government spending commitments such as the staging a V8 car race at Sydney Olympic Park. On the first point, the Ombudsman's Annual report reveals 171 positive outcomes from 190 completed investigations in the year to 30 June, so there are a few from last year reluctant to accept the Ombudsman's wisdom. On the second,for starters get up on the web the register of interests of members of parliament, government grants made to organisations to carry out functions on behalf of the government, and inspection reports on food standards in restaurants, schools and hospitals.

As to other possibilities:

Designate someone with standing and clout (with no connection with the dark arts of the past) to act with your authority to turn things on their head in this area, as you explained your intention last week. Ask the Ombudsman to have his review report on your desk promptly, and in any event to let you have a first report on policy and public management issues by 1 January.

Tell Education and Health there is to be no more foot-dragging on the publication of information about performance in the schools and health systems and that NSW is to stand with, not against, Federal ministers in this endeavour.

Issue a policy directive that documents should be released unless there is clear harm to government, individual or business interests. Get rid of all the wishy-washy and in some cases questionable guidance in the Manual issued last year by the Premier's Department that provides a straw to hang onto for those looking for an excuse to knock back a request.

Put some performance measures in place and make it clear performance- particularly timely access- in this area is the responsibility of a senior officer in every agency. As the Ombudsman has pointed out NSW Police appaear to have systemic problems.

Tell agencies that in assessing charges the Government sees a public interest in use of the FOI Act to access documents concerning the conduct of government functions, or that will contribute to debate about matters of public concern, and that charges should not stand in the way of access to these type of documents.

Find out what happened after Morris Iemma acknowledged shortcomings (I use the word loosely) in the disclosure of government contracts on the web, as has been required by law since January 2007, and get things sorted so that local councils are subject to a similar requirement from 1 January 2009.

Check what sort of public money, time and energy is going into defending in the Administrative Decisions Tribunal questionable FOI determinations by agencies to refuse access to documents and convince agencies to pull the plug on those that aren't necessary in a government no longer to be described as the secret state.Ditto regarding any rearguard actions currently in the courts where government agencies are contesting Tribunal decisions.Ditto for complaints to the Ombudsman that haven't yet been investigated.

Go and talk to the next meeting of FOI officers from government agencies who meet in the Parliament House Theatrette on 12 November and tell them your expectations- this group meets every few months and has done so since 1989.It would be a first - none of your predecessors have ever attended a meeting

Whew, all this before getting moving on a new act early in 2009!

Good luck.

Henry on Treasury and transparency

Canberra Times
The coincidence of timing that had Senate Estimates Committees spending hours last week going over the fine detail of the Government decisions of 12 October on deposit guarantees and the fiscal stimulus package, provided rare insights into what happens behind closed doors on major decisions that have to be taken promptly. As someone once said when comparing sausage making with policy development, not a pretty picture and you'd never eat a sausage again. Treasury Secretary Ken Henry's picture also tells a lot about what eight hours before a senate committee can do to you.

This was classic policy on the run (well Treasury had been thinking about the stimulus package since January or February)- great uncertainty, limited information, not much time.So it's not surprising that the process in hindsight looks, well, untidy- little consideration of options, risks, or unintended consequences; limited input from the Government's own experts such as the bank regulator;no modelling or cost-benefit analysis; some round-figures like $10.4 billion plucked out of the air.Nor is it surprising that things need to be refined as events moved forward.

There are plenty of opinions about the rights and wrongs of what was decided, but what does the exercise tell us about attitudes to transparency and accountability? One thing that emerged is that Henry thinks government decision making is best left to insiders and would be improved if pesky people didn't ask questions about it later.

Henry told the committee, “In my view, it would be better if we had not had any media reporting on this issue. [This would] allow the officials the opportunity to reflect soberly and deeply upon the implications of the various options ”

Here is some of the media commentary since.

An editorial in The Australian:
"Dr Henry's evident discomfort at media coverage at Tuesday's marathon Senate hearing is understandable, given the picture that has emerged of a flawed policy process. He is in many ways a fine public servant, but he clearly does not appreciate the importance of media scrutiny, continuous disclosure and accountability in a free and open democracy. It was, after all, his department that frustrated the release of Freedom of Information documents on the technical issue of bracket creep, a case The Australian took all the way to the High Court."
Brian Toohey in the Canberra Times :
"On the contrary, more public discussion may have lead to an outcome that caused less disruption in the financial markets than the subsequent freezing of mortgage funds and so on.

At least Henry did not go as far as the Australian Federal Police Commissioner, Mick Keelty, earlier this year called for a ban on defence lawyers and journalists criticising the role of police and intelligence agencies in a terrorism case “until the full gamut of the judicial process has been exhausted''

When the opposition leader, Malcolm Turnbull followed up The Australian’s report (about disagreement between Treasury and the Reseve Bank) in parliament, Rudd’s initial reaction was completely over the top. He even accused Turnbull of having being on the “strong red cordial”. In his appearance before the committee, Henry criticised Turnbull for earlier calling for guarantee limited to $100,000, saying it was “unhelpful” to canvas the issue publicly.

Turnbull refused to accept that either opposition politicians, or the media, should stay silent. He said, “We live in a democracy. With great respect to Dr Henry, while it might be desirable from his point of view if the civil servants of Australia could make all these decision out of the gaze of the public, and no doubt the politicians, that's not the type of society we live in”.

Turnbull was right on this. As Michelle Grattan in the SMH said

"By being overaggressive the Coalition senators failed to make the most of their hours of grilling Henry. On the other hand Henry left himself open to criticism by sounding as though these matters were secret business of the Government and the "Official Family" - the Treasury, Reserve Bank and other regulators."

Henry also made the following revealing comment about his view of the public interest in access to information about public service advice: it can be disclosed where this will correct some apparent misreporting in the media.
'Whilst I would not normally entertain questions such as this one, and in my 24 years of appearances before these committees never have, I think on this occasion there probably is a public interest in my confirming that in respect of the advice that was tendered to the Government, and that supported the decision that it took on Sunday the 12th of October, Mr Stevens and I were of one mind,'' he said.

Earlier, Dr Henry told the committee that suggestions Mr Stevens had opposed the bank deposit scheme prior to its announcement were "W-R-O-N-G”.“Were reservations expressed? No,” Dr Henry said.

“We noted there would be matters of detail to be sorted out in the implementation of the package, we did not express reservations.”

“I'm surprised that people would imagine that things could possibly be otherwise in announcing a package of this size that it could be implemented without matters of detail, having subsequent to the announcement, having to be sorted out.”
No-one seriously thinks that. If they do it's because government goes out of it's way to try to sound as if it has all encompassing solutions to black and white problems.Routine disclosure of what the government's experts think would also encourage informed debate and public understanding of the issues and options.

More not less transparency, and honest straight talk would be in all our interests.

Saturday, October 25, 2008

FOI reform movement not quite complete

I hadn't seen any sign of South Australia showing much interest in Freedom of Information reform but there is a glimmer in this strongly worded editorial in The Advertiser, deploring Australia's "miserable" 28th ranking in the Reporters Without Borders world press freedom rankings mentioned here yesterday:
"Premier Mike Rann has made some positive noises regarding reform of Freedom of Information laws but he needs to transform his well-known ability to talk into his less well-known ability to take action. Other states are taking up the challenge."
The other big gap in the Australian FOI reform pantheon is Victoria where the Government seems to have packed it in after a misguided effort came a cropper in the Parliament in February.

C'mon guys, all aboard!

Friday, October 24, 2008

Premier Rees clear message to NSW public sector:The public has a right to know

In addition to the media release issued yesterday, NSW Premier Nathan Rees made a statement in Parliament on improving transparency and accountability. The full text is at page 33 of Hansard.

Without repeating much of what was in the media release the following are some important points from the Premier's statement that ministers, ministerial staff, public servants and those who seek information from government agencies might keep in mind. They're the views of the man in charge (emphasis added):

"In the estimates hearing last week....I indicated my clear preference for publicly releasing reports that the Government has commissioned. Transparency and accountability are the cornerstones of good government. The people of New South Wales should be given as much information as possible about the activities of the Government.....

I have examined the(Freedom of Information) Act and met with the Ombudsman over the last six weeks and it is clear to me that this Act is broken. I plan to fix it. The days of a secret State are over. Queensland has done its own review recently. I support what Premier Bligh is doing and the direction she is taking: in particular, applying a stricter public interest test, reducing the number of freedom of information exemption categories and having more effective provisions so that time limits are complied with.

While it is tempting to just take the recent Queensland review and implement it here, the Ombudsman has asked me not to simply adopt those recommendations just yet but to wait until his report is complete in the new year. I have taken that advice and given my support for his review.

I intend to create a new Freedom of Information Act in New South Wales early next year after receipt of the Ombudsman's report. One should bear in mind that this Act is 20 years old, designed well and truly before the electronic age. It is broken and we will fix it. Obviously I cannot commit to implementing all of the recommendations sight unseen but I do commit to fundamental reform of the Act.

As I have discussed with the Ombudsman in recent weeks, the three most important protections that I think the freedom of information system needs to preserve are: first, the confidentiality of a citizen's personal information; second, the confidentiality of commercially sensitive information that might prejudice business community members; and, third, the confidentiality of Cabinet deliberations to protect the collective responsibility of Ministers in Cabinet, a notion that has served our Westminster system well, here and overseas, for centuries. Other exemptions are important but my general view is that the public interest is best served by making information freely available.

Many of the people I have spoken to in recent weeks about this matter said that it is as much about culture as it is about black letter law. In advance of a new Act I also committed to making changes promoting a pro-disclosure culture and practice in the public sector that go beyond the Freedom of Information Act. I firmly believe that the routine disclosure of information outside of freedom of information fosters transparency and makes the Government more accountable for its actions. It also cuts the taxpayer-funded cost of dealing with reams of freedom of information applications.....

Next week I expect more reports and information to be available. It is time for the culture within government to change. My clear message to the New South Wales public sector is this: The public has a right to know."

28 the number for Australia's press freedoms

Australia was 28 in the 2008 world press freedom index of Reporters Without Borders released this week. No change from last year, another indication of slow progress on the package of promised reforms (for example FOI, whistleblowers protection, shield laws for journalists) and of some of the extreme provisions in our anti-terror laws.The Australian report for 2008 is here.

With a brilliant sense of timing given their current place in the news, Iceland was first.Some of our usual comparators: New Zealand equal 7, Canada 13, United Kingdom 23 and US equal 36 (an improvement on last year but with with 135 countries ahead in the rankings.)

Transparency flag flying in the US as well.

Of course it's not just NSW where the call has gone out for more openness and transparency.Here, from Sunshine Week, is a list of, and links to, some of the voices urging improvement in the US, on the eve of Presidential and other election contests on 4 November.

Reporting on the death knell of the secret state.

The Sydney Morning Herald report today on Premier Rees announcement of the end of excessive secrecy in NSW unexpectedly describes me as a former head of the freedom of information unit in the Premier's office. For anyone scratching their head about this, I was never in that position nor ever an employee of the NSW Government. Merely a consultant including to Premier's for the first couple of years in getting FOI up and running in NSW.These days more commenting than consulting.

Thursday, October 23, 2008

Premier Rees says days of a secret state are over

Well a powerful editorial in the Telegraph and look what happens? NSW Premier Nathan Rees issued this media release this afternoon Rees acts to end Government 'secrecy
A couple of extracts:
Mr Rees said he would turn the Freedom of Information system on its head to end a culture of secrecy within the Government and bureaucracy.“I’ve examined the Act and met with the Ombudsman over the last six weeks and it’s clear to me that this Act is broken,” Mr Rees said.“I plan to fix it - the days of a secret state are over.Mr Rees said he had written to the NSW Ombudsman offering the Government’s strong support of his review of the Freedom of Information Act 1989 (NSW).
“Today I am issuing a Memorandum to all Ministers asking them to ensure that their agencies take a more proactive approach to the release of ‘public interest’ information.“In particular, agencies will be directed to routinely publish information that is released regularly under the FOI Act.“The days of NSW acting like some kind of secret society have ended. It is time to change the culture of information exchange between the Government and the public.“I’m disappointed that some Government agencies – whose job it is to improve services – believe they should do so under some kind of black veil.“While certain details will always need to be kept confidential for legitimate commercial or security reasons, the public has a right to know a wide range of other details to give them confidence in Government decision making.”
This is exactly what is needed but strong,consistent and visible leadership from the Premier,ministers and senior public servants will be vital if NSW is to shake the secret state tag worn with apparent pride for many years. The devil will be in the detail of the law, policy and day to day implementation of the new order.

No getting away from it, it's great news.

Openness and transparency should be at top of NSW list

The editorial in today's Daily Telegraph, "Rees should unshackle FOI " puts reform at the top of current challenge list in NSW: "Premier Nathan Rees has much to do in his new job, but nothing so urgent as reforming the State Government's openness and transparency,"and concludes:
"The NSW Ombudsman Bruce Barbour this year initiated his own inquiry into the state's ageing FOI laws, which have become inadequate with new technology. Incredibly, Barbour has been left alone to sort out government transparency - a task requiring much assistance. Nathan Rees, as a matter of priority, needs to put on the table his reform plans for FOI, as has taken place in other states. Included in those plans must be more accountability for MP perks, publication of private sector deals and penalties for anyone who willfully abuses FOI laws."
Kelvin Bissett's article on the Ombudsman's Annual Report includes the following:
"Mr Barbour said yesterday there are "cultural issues" within government that continue to work against openness. He said any application that concerns sensitive information, or a request from a journalist, can be expected to be met with fierce opposition."

PM&C solution for leaks and other sundry wisdom

Senate Estimates hearings such as the Senate Finance and Public Administration Committee on Monday(see post below for a link to the transcript) often throw up little gems.The Department of Prime Minister and Cabinet material starts on page 20.

Who outside government knew the significance of a reference in an article in a magazine in October that the Secretary of the Department of Prime Minister and Cabinet Terry Moran had told staff of all departments after the FuelWatch leak in May " to watch their language" in co-ordination comments on cabinet submissions in case they later surfaced publicly?

Well no one present at the hearings on Monday could say whether these words had ever passed Mr Moran's lips- they plan to ask him and get back- but it was revealed that the leak had led to a decision in the Department to stop putting comments in writing . As Deputy Secretary Mrdak told the Committee, since 28 May, the Department has only provided verbal comment on cabinet submissions being brought forward by other ministers. It turns out it is still the case five months later. Mr Mrdak assured the Committee "we are looking to shortly recommence providing written coordination comments."That's a relief, as was his observation that the verbal only procedure was limited to PM&C. Let's just hope he's right and this good practice lead hasn't spread like wildfire across the public service in the meantime.

The response to the FuelWatch leak was to batten the hatches across government in the handling of cabinet material .Mr Mrdak told the Committee that apart from an Australian Federal Police investigation and an internal departmental investigation( outcome: the leak didn't come from PM&C):
"A number of measures have now been put in place inside departments to restrict the availability of material to those who need to know and see material. Additional security measures in terms of education and auditing of processes and also some additional security measures on the CabNet network are now being processed. Once those are all in place, which we expect to take place in the next week or so, we believe we will be in a position where we have enough assurance to recommence providing written coordination comments."

Inevitable probably. Alas no mention of my suggestion in June about another possible response to leaks that reveal, after a decision has been taken, differences of opinion among public service policy advisers:
"We... don't usually get to see what goes on behind closed doors,( apparently) in the interests of the government sounding decisive, wise and at one in choosing a particular course of action. If in announcing the decision to proceed with FuelWatch, the Government had indicated that expert opinion on the results for petrol prices was divided, even released a summary of what its advisers said, but concluded it held enough promise to go ahead, there would have been little room for subsequent embarrassing disclosure of differences in the ranks. Of course it would have been otherwise if the case for the proposal was threadbare. Maybe in that case the wise would not proceed."
I'd say the same applies to the current issue of who thought what about the deposits guarantee.

On another topic Geoff Mulgan, Adelaide's Thinker in Residence and formerly the director of Tony Blair's strategy office has been engaged to provide advice on the establishment of a similar division in the Prime Minister's Department and to provide advice on the Government response to the 2020 Summit recommendations, due by the end of the year.

And on something that had a big run in Estimates last time around, Senator Faulkner stuck to his guns that information about private functions of the Prime Minister at official establishments, such as last year's New Year's Eve bash, would not be disclosed but this commitment: "that for every official function we will make public guest list and costs."Senator Ronaldson raised the perfectly reasonable point that the result was that all the PM had to do was pay the bill to avoid any public knowledge of who he might wine and dine on taxpayer funded property that goes with the job. Senator Faulkner batted that one back by pointing out that the Howard government disclosed nothing about cost or attendance at any event hosted by the PM.

There are loads of trivia on other topics including the Prime Minister's household arragements, and more seriously, two breaches of the Code of Conduct for ministerial staff currently under investigation, but I'll spare you.

The short story of seriously progressing a high priority reform

Caucus Secretary and Minister of State Senator John Faulkner appeared before the Senate Finance and Public Administration Committee as part of the supplementary estimates hearings on Monday and was questioned about Freedom of information reform plans. It took a lot of questions (page 30) to get confirmation that phase one of the reform process, legislation to abolish conclusive certificates, will proceed; and that phase two reform including the establishment of an information commissioner "is being seriously progressed within government" and remains a high priority for the first term of a Rudd government.(The Government's term runs to near the end of 2010.)

What if any significance should be attached to the fact that there was no mention of "this year" in connection with phase one, or to an original timetable of late this year- subsequently changed to possibly next- for a discussion paper on phase two, I don't know, but some might fear the worst. In any event, for something being "seriously progressed" as a " high priority" for a government elected 11 months ago, visible progress on FOI reform is sooo slooooow.

Senator Faulkner hopefully will have more to say on the topic when he talks to Transparency International on 30 October.

The hearing covered many issues (a couple to be mentioned in my next post) and stretched from 9am to 11 pm, so a full reading of the transcript Finance and Public Administration could be seen to be cruel and unusual punishment. As for those who asked and answered questions.....

Wednesday, October 22, 2008

Two small steps for the right to know...

In addition to the brief summary in the last post, two other issues in the NSW Ombudsman's Annual Report Chapter 10 - Freedom of information.pdf represent small steps in the right direction.

The Ombudsman, supported by advice from the Solicitor General,makes it clear that an exemption in the Act (clause 13(a) Schedule One) where disclosure could be expected to found an action for breach of confidence, does not extend to a contract of employment where the parties have simply agreed to put in a confidentiality clause. The issue came onto the Ombudsman's table when a number of NSW universities refused access to the employment contract of the vice chancellor, and followed a decision supportive of this position in July 2006 by the NSW Administrative Decisions Tribunal.At the time we commented that the ADT decision was highly questionable and that the Ombudsman for years had been pushing the line, correctly in our view, that public sector employment arrangements, at least those for senior officers, should be in the public domain. The Solicitor General advised the Ombudsman:
“clause 13(a) is principally directed to cases in which a person has provided confidential information to a government agency and another person seeks to obtain access to that information by lodging a request under the Act. A right of action arising under a confidentiality clause of a contract would be for a breach of the agreement, not for a breach of confidence...The Solicitor General did not consider the disclosure of Vice Chancellors’ employment contracts would meet these criteria because the contracts would be unlikely to contain confidential information imparted by the VC to the university or vice versa."

The universities response could have been somewhat firmer:
"We have shared the Solicitor General’s advice with the universities and they have all indicated they would consider it in any future application of clause 13(a)."
The Ombudsman also reports success, again with some input from the Solicitor General,in persuading the Department of Education that it should revise a policy direction that any report of a school incident was for the dominant purpose of use in legal proceedings, and was thus subject to the legal privilege exemption in the Freedom of Information Act.This always seemed ridiculous: surely a report would be prepared so that there was an accurate contemporaneous record of what happened, and at the time no legal proceedings were underway or in reasonable prospect. Here is the relevant extract:
"Last year, we suggested the Department of Education and Training (DET) consider redrafting their reporting school accidents policy in regard to the application of legal professional privilege. DET’s policy stated that legal professional privilege will apply to all school accident reports, thus pre-determining a blanket exemption for such documents requested under FOI. Our view, supported by the Solicitor General, is that this approach is wrong. DET has advised us that they have now amended the policy to state that legal privilege ‘may apply.’"
So change in this field is by way of small steps I'm afraid.

However the Ombudsman's review of the Act proceeds, and the new Premier has said some of the right things and made what passes in NSW for bold decisions- ministerial media releases to be on the web, disclosure of payments to briefly employed spin doctors, release of a consultants report on what's wrong with RailCorp.

Who knows where this might lead.

NSW Ombudsman annual report

The NSW Ombudsman's Annual Report released today was accompanied by this media release in which Bruce Barbour repeated the call for more open and transparent government, and for a change in attitude within government.

Some high- or low- points on Freedom of Information from the report:

Applications to agencies appear to be down by about 10% over the period 2005-6 -2006-7.

Since 2002–2003, the percentage of FOI applications reported to have been approved in full in agency annual reports has decreased by approximately 18%.

Over the past four reporting periods, the total number of applications refused by the NSW Police Force based on exemption clauses has increased by 43% (from 12% of refusals to 55%).

In 2007-2008 the Ombudsman received over 220 formal complaints about FOI applications.Three agencies- Education and Training(13) Health(30) and Police(53)- made it into double figures. In many cases, the agency had not made an actual determination to refuse to release the documents, rather, it had made a ‘deemed refusal’.The Ombudsman finalised over 190 FOI complaints and achieved 171 positive outcomes in these matters.

The number of complaints to the Ombudsman claiming an agency has failed to carry out a proper search for documents has been on the rise as a result of a Court of Appeal decision that the jurisdiction of the ADT does not extend to review of the adequacy of searches undertaken by the agency in response to an FOI application.More are expected.

Primary Industries, Health and the area health services, Police, Corrections, Roads and Traffic Authority, RailCorp and Education feature in case studies in Chapter 10 - Freedom of information.pdf

Faulkner on the agenda

Minister of State and Cabinet Secretary John Faulkner is speaking on"Accountability and Transparency: Our Agenda" at University of Sydney Law School on 30 October, an event organised by Transparency International. Details and registration here.

Tuesday, October 21, 2008

Mystery solved but FOI watch in the West waning

Thanks to the keen-eyed Queensland reader who pointed to this correction in The Australian on 28 August to the effect that Keryn McKinnon, FOI Editor of The West Australian is on 12 months leave for family reasons, but will return. Pity the the paper itself hasn't put this information on the FOI blog. Or kept the watch on FOI in WA going, through a replacement.

Where's Keryn?

Can any reader enlighten us on what's the story behind the screaming halt to the blog on The West Australian website by Freedom of Information Editor Keryn McKinnon? There have been no new postings since the end of July.I sent a letter to the paper after the change of government there suggesting that the new government and its promise of Freedom of Information reform warranted more not less scrutiny of the kind McKinnon has written about over the last year or so. Never heard a peep back.

Any reported sightings or inklings of what's happened to McKinnon and The West Australian's interest in FOI?

Monday, October 20, 2008

New leadership but reminders of old tactics on open government

A Prime Minister who manages a 10% increase in his popularity rating to 71% is obviously travelling well- in "about to be shocking economic times", the government has more public support than when elected 11 months ago.

But as the opposition and some media commentators have noted, the government's reticence to provide information about the advice or forecasts that underpinned decisions to guarantee deposits in financial institutions and bank borrowing from abroad, and to deliver a fiscal stimulus package involving $10.4 billion in taxpayers money, is a far cry from all the claims that this government would be different when it came to open government.In fact it's a bit like the "if only you knew what I knew you would surely agree" line used frequently throughout history, but three examples come to mind: by former Immigration Minister Andrews last year to justify cancelling Dr Haneef's visa, aspects of the case for war in Iraq presented to us in 2003, and by President Johnson way back in 1964 to get the US Congress to authorise the commitment of ground forces to Vietnam after what turned out to be a false claim of an attack on US vessels in the Gulf of Tonkin.

Surely something more was on the table for consideration than the IMF prediction of zero growth for developed economies. Disclosure of our government experts' assessments whatever they were would assist public debate on an issue the PM has labelled the equivalent of a national security crisis.

And for someone who told us he was serious about doing something about the role of Parliament the PM also seems to prefer audiences other than Parliament to announce these major policy changes.

The PM's party in opposition in January last year made much of the fact that John Howard's $10 billion rescue package for the Murray River had not gone to Cabinet, and seemed to have been worked up on the back of an envelope. The boot would appear to be on the other foot now. Maybe the urgency of the present situation justified decisions based on skimpy research, limited cost- benefit analysis, and forecasts that were out of date almost immediately.But sharing the realities with us rather than stony face assurances all will be revealed in a month's time would be in accordance with the standard of transparency which the PM led us to expect.

The scene this week shifts to Senate Estimates. Given the tone set by the PM and Treasurer to date, for Federal Treasury public servants it's likely to be battle-stations with instructions not to give an inch. No doubt there are some potential Freedom of Information applicants out there sharpening the pencil.

NSW steps into 1995

NSW Premier Nathan Rees was right to call the swings of over 20% against the government in by-elections at the weekend a "shellacking", but he did manage to get instructions out to ministers, as promised last week, that their media releases from today must be available on the web, through a link on the relevant agency website.Probably not possible in the few days since the Premier made the commitment,but why not also a central link for all ministerial media releases like this one in Victoria?

But this is trivial stuff compared to what is to come. The Premier said:
"The plan that we put forward over the next month, including the mini-budget, will be fundamentally different to anything the people have seen in NSW before."
It should be more than just an interesting month.The Premier has just lost the head of his department who has quit, and asked government agencies to get rid of 20% of senior public servants- hardly conducive to the sort of behind the scenes work required to produce plans for a "fundamentally different" way forward.He is also about to be joined in Macquarie St by union boss John Robertson who is said to be on the fast track to a ministry. None of this is going to boost morale in an already dispirited and politicised public service which as a result of years of neglect, lacks the leadership and skills in many quarters essential for modern public management.

And on the accountability front, as we saw last week, the starting point for something "fundamentally different" is that the Secretary of The Treasury says he won't tell a parliamentary committee the date of a document because the Crown Solicitor says he doesn't have to.

Good luck, Premier.

Friday, October 17, 2008

A quiet approach to important FOI amendment in Victoria

The Age reported yesterday that an undercover officer from the police security intelligence group had infiltrated several activist groups including the Stop the War Coalition, Animal Liberation Victoria and Unity for Peace. The undercover agent also played a role planning this year's Palm Sunday peace rally and attended organising meetings with church and activist groups.The report included this:
"At the request of police, the State Government quietly amended the Freedom of Information Act in 2006 to prevent any document created by the police covert and intelligence unit from being released. This means people may not be able to access their personal files created by this branch of police."
The legislation that amended the Freedom of Information Act didn't go through too quietly- only parts of it did.

As the Attorney General told Parliament on 6 April, the Terrorism (Community Protection) Further Amendment Bill 2006 was all about " the state and national response to the threat posed by terrorism to the Australian community", and was "just one of a number of nationwide initiatives including engagement with various communities to eliminate the causes of terrorist activity". Not surprisingly it attracted the attention of members of parliament with speakers from both sides. But neither the Attorney General nor any of the other members who spoke in the Legislative Assembly made any reference to excluding from the FOI Act documents held by the Intelligence and Covert Support Department of the police force.

Only part of the bill was to amend the FOI Act.Here is what the Attorney General said on this aspect of the legislation in the second reading speech in the Legislative Assembly:

The bill also amends the Freedom of Information Act 1982 to clarify a number of technical and interpretative matters. Firstly, the definition of document in that act has been amended to ensure that the definition includes copies, reproductions or duplicates of a document and any part of a copy, reproduction or duplicate.

A technical amendment to section 25 of that act clarifies that the deletion of material from a document that would be reasonably regarded as not relevant to the subject matter of a request. This amendment simply reflects the current legal understanding of that act. An interpretative provision, clause 19 of the bill, will make clear that a document can be the subject of more than one exemption under the Freedom of Information Act at any one point of time. Again, this provision clearly establishes what is the well understood operation of the law in Victoria.

The amendments to section 29A of the Freedom of Information Act will extend the operation of this exemption provision to include documents created by the counter-terrorism coordination and emergency management department of the Victorian police force.

This provision will be retrospective in operation, however, I believe that honourable members will share the government's view that it is simply not appropriate, or indeed wise, that such material should be accessible under the state's freedom of information processes. Additionally, the bill makes clear that documents that are risk management plans of declared essential services under the Terrorism (Community Protection) Act or documents of a training exercise for declared essential services under the Terrorism (Community Protection) Act are also exempt documents for Freedom of Information Act purposes.

A further change (which is also reflected in the proposed amendments to the Public Records Act), is that exempt documents, as set out in section 29A, now expressly includes those documents whose disclosure could endanger the security of premises including land, building, places and vehicles.

"This change is consistent with the freedom of information legislation in New South Wales and public records legislation in Queensland and is intended to clarify the situation in relation to documents that relate to important state sites and buildings."

That was it from the Attorney on that subject, although the explanatory memorandum accompanying the bill may have been more comprehensive. Several Opposition speakers in debate on 4 May commented on the FOI changes and noted that some of the amendments to the FOI act went beyond those necessary to prevent terrorism.

No- one other than the Attorney General made any reference to the changes to Section 29 and neither he nor any other speaker mentioned an amendment that had the effect of including new subsection in Section 31 of the FOI Act- the law enforcement exemption-which provides:

"Notwithstanding anything to the contrary in this section, a document is an exempt document if it is a document created by the Bureau of Criminal Intelligence or (whether before or after the commencement of section 22 of the Terrorism (Community Protection) (Further Amendment) Act 2006) by the Intelligence and Covert Support Department of the police force of Victoria."
It all points up the need for close scrutiny of the fine detail of legislation and raises another issue: the justification for provisions in any of our freedom of information acts that have the effect of conferring blanket exempt status on all documents held or created by particular government agencies.

It's not just the Victorian act and not just police services that enjoy these generous exemptions.In NSW there is a long list (in Schedule 2 of the Act) of types of documents that are exempt because they relate to particular functions of specified agencies.When it comes to the Police in that state, documents created by the former Information and Intelligence Centre, the former State Intelligence Group, the Counter Terrorist Co-ordinationCommand, the former Protective Security Group, the former Special Branch, the former Bureau of Criminal Intelligence are all automatically exempt.

All the FOI acts include exemptions that cover information that should not be released because of the harm that would result including to the conduct of police functions in carrying out law enforcement and anti terrorist activity.Blanket exemptions for all documents of a certain kind put a large and unacceptable hole in the principle of accountability that underpins FOI legislation. There should be a compelling case made out for any such exemption.

In this instance the exemption for documents created by the Intelligence and Covert Support Department of the Victorian Police slipped through parliament very quietly, with the Attorney General aiding that cause.

What's on in FOI land

The Carter Center’s Access to Information Project has launched a calendar of events, including conferences, workshops, summits, retreats, and training sessions from around the world regarding access to information and transparency issues. If you know of anything that should be listed complete and send this form to Queries to .

The calendar is a bit of a reminder that the list of events in Australia on the topic, is, well thin to put it mildly.

Thanks to Rick Snell for the heads up.

Thursday, October 16, 2008

FOI specialists not up in lights at Walkleys this year

None of the media's FOI mafia made the list of finalists for the Walkley Awards for Excellence in Journalism this year. Long time investigative journalist Ross Coulthart (with Nick Farrow), who has used freedom of information laws to good effect over the years, is one of three finalists in both Television Current Affairs Reporting (Less Than 20 Minutes) and Investigative Journalism categories for a report on Sunday, Channel Nine,“Butcher of Bega". The program brought to light shocking medical malpractice on the south coast of NSW. Coulthart ( and Farrow) have picked up Walkleys before for outstanding investigative reports for the now defunct Sunday program

Seven years ago in Coulthart and Princess Alexandra Hospital and District Health Service (text here), Coulthart won an important victory when the Queensland Information Commissioner decided that a statistical table of adverse outcomes from cartoid surgery performed by the Hospital's Vascular Surgery Unit over a specified time period was not an exempt document, despite the fact that it indicated that one of the five surgeons involved had a "complication rate" higher than other surgeons involved.The decision( a summary here) included strong findings that disclosure of this type of information is in the public interest.Not sure why, but the decision didn't seem to cut much ice elsewhere.The reasoning behind it hopefully is informing Federal Health Minister Nicola Roxon's push for public access to more information about performance in the health system.

The full list of finalists in the Walkleys, to be awarded on 27 November, is here.

NSW Premier needs to spread the word on new era of transparency

The NSW Premier won't have to look far for a reminder of the significance of the task at hand in pushing the government in the direction of more transparency in the conduct of public functions - just right nearby to The Treasury in fact.

At a parliamentary committee hearing last week on the need for a mini-budget in NSW, questions were asked about statements by the then Premier Iemma on 7 September, repeated by his successor Nathan Rees on 10 September, that a drop in the NSW AAA credit rating would cost taxpayers $500 million a year. Apparently the correct assessment of the additional cost is in the range of $15-$20 million in the first few years, rising to $ 110-$120 million, for a total of $500 million over four years.

Greens MLC John Kaye had these questions for Treasury Secretary John Pierce:
Dr JOHN KAYE: Were you concerned that the public debate was being informed by a $500 million a year figure?
Mr PIERCE: It did cause me to cringe.
Dr JOHN KAYE: Did you translate that cringe into a telephone call to either the Premier or the Treasurer saying that that was not correct?
Mr PIERCE: We certainly discussed it with the Treasurer's office and put it in the documentation that the office would have used when talking to the Premier's office.
Dr JOHN KAYE: So, subsequent to those statements being made by one or both premiers, you did take steps to inform the Government via the Treasurer's office those statements were incorrect?
Mr PIERCE: Yes, I did.
Dr JOHN KAYE: Can you tell us on what date you did that? You cringed, so you would presumably remember the event—as we all did.
Mr PIERCE: Yes, I remember the event.
The Hon. GREG PEARCE: You referred to the briefing note earlier.
Mr PIERCE: Yes, but there is no date attached to it.
Dr JOHN KAYE: So it is an undated briefing note? That would be unusual for Treasury.
Mr PIERCE: It is easy to find out the date. It is in the system.
At the end of the meeting when Dr Kaye asked Mr Pierce to table the undated briefing note, he said he would need to check with the legal people, and it was agreed the matter would be raised again when Treasury appeared before the same committee for Budget Estimates on Tuesday of this week.Here is what transpired:
CHAIR: .. I requested that you advise us of the date of an undated interest-rate calculation, a briefing note, of the former Treasurer. Dr Kaye later requested that you provide the Committee with a copy of that briefing note and you undertook to consider whether to provide that briefing note. Do you have those documents with you?
Mr PIERCE: I am advised that the Crown Solicitor has advised that the Committee does not have the power to order the production of documents. If necessary, that should be dealt with by the whole House under Standing Order 52. If the Committee wishes to progress this request, I ask that the Committee refer the matter to the House.
Dr JOHN KAYE: Does that include telling us what the date was of the supposedly undated memo?
The Hon. GREG PEARCE: That is answering our question. You were asked the question what was the date of the member. So, you are saying that the advice is you do not have to answer?
Well, I'm sure the Crown Solicitor knows his law, but why in the new era of transparency did the Treasury Secretary feel obliged to act upon it, particularly to decline to tell the committee the date of the document?

By the way this is the same Crown Solicitor who in October 2006 raised the alarm about the "crisis" in government in NSW arising from, among other things, the Legislative Council exercising powers to require documents to be produced, thus distorting our system of government, and the Government’s ability to govern. As I suggested at the time
"tone at the top" set by these kind of remarks (it got worse regarding the imperative of not disclosing legal advice) significantly shapes the organisational culture of secrecy in the NSW public sector..

Premier Rees needs to tell the public service, starting with Mr Pierce, that he is fair dinkum about open and accountable government and that there is to be no more sheltering behind legal advice about how to avoid responding to parliament and its committees when legitimate questions- like the date of a briefing note- are raised in the exercise of oversight responsibilities.

Wednesday, October 15, 2008

NSW Premier Rees off to a promising start on transparency issues

NSW Premier Nathan Rees provided some positive indications in his appearance before the Legislative Council Budget Committee on Tuesday of the commitment to move the state away from the "secret state" tag worn with such pride for so long, and to enter a new era of less spin and more transparency. There is a long road to hoe here, but the new man made a more promising start on this front than any of his predecessors since Nick Greiner 20 years ago.

First up- ministers media releases will be posted on the web. Now don't laugh but the following exchanges represent the breaking of new ground in NSW,where ministers have worked hard to leave as few footprints as possible since the arrival of Labor in office in 1995, and the advent of widespread use of the internet around the same time:
The Hon. CATHERINE CUSACK: Premier, now that we have media releases that are informative rather than spin, will you agree to list all of those on your Premier's website and require your Ministers to list their media releases on their websites?
The Hon. CATHERINE CUSACK: And Ministers as well?
The Hon. TREVOR KHAN: In regard to putting your media releases up on the website, what time frame will you commit to to achieve that degree of transparency?
Mr NATHAN REES: I am happy to have a Premier's memorandum out by the end of the week on that. Today is Tuesday—I can do it by close of business tomorrow. Incidentally, we had already made that decision prior to today.
But the Premier isn't rushing to go too far in this direction:
The Hon. TREVOR KHAN: ....Premier, are you prepared, as the Prime Minister and former Prime Minister did, to post transcripts of press conferences on the website as well?
Mr NATHAN REES: Can I take that on notice?
The Hon. TREVOR KHAN: Sure.
Mr NATHAN REES: There are any number of people who tape every press conference. If they want to put them up, and that is over and above the other elements of media scrutiny, that is a call for them.
The Hon. CATHERINE CUSACK: I do not think they have the taxpayer-funded transcripts of press conferences. My colleague is asking if you would be willing to put those publicly funded transcripts on the website
Mr NATHAN REES: They do not read very well. That would be a concern of mine.
The Hon. CATHERINE CUSACK: Is that a reason not to post them?
Mr NATHAN REES: In part, yes, it is. Often I am asked to comment on things on the run. I would much rather give the public, if they are accessing it, a succinct position rather than something I have had to take on notice, whether it be in a press conference or here. My preference at this stage is to not do it, but I am not ruling it out.
The Premier and the Director General of his department then told the committee how much appointments of two additional spin doctors in the dying days of the Iemma Government cost on an annual basis($600,000), their salaries($290,000 and $220,000) and how much each had been paid on redundancy($30,000 and less than$20,000) when the new Premier sent them packing on day one in the job.Worth noting because of the recent refusal of a Freedom of Information application on the grounds information was personal. The Director General also disclosed that former Reserve Bank Governors Fraser and McFarlane are each being paid $3500 per day to provide advice on economic management.

This is all a contrast to the ancien regime which would have fought tooth and nail to resist disclosure of this sort of stuff.

The Premier noted he had released via the web a report by Boston Consulting on Railcorp which formed the basis of his decision to bring the State Owned Corporation back under ministerial control within a day of being asked for it, and said he would hope to be able to release the Twomey report on political funding within the next 10 days- a report the Government had received in August but which he had started reading last week.

The following exchange on freedom of information reform is a stark contrast to the belligerence evident when similar issues were raised a couple of years ago with then Premier Iemma and the Director General of the Department (now Secretary of the Federal Attorney General's Department) Roger Wilkins:
Ms LEE RHIANNON: Premier, Queensland, Northern Territory, Ireland, Canada and the United Kingdom all have an independent information commissioner. Your predecessors failed to overhaul the Freedom of Information Act for 19 years. Will you adapt an information commissioner and move to overhaul the laws without just relying on the Ombudsman? Your Government failed to do the review itself. Will you now move on it and do it?
Mr NATHAN REES: I have already said I want to reform the freedom of information laws. I think there is a public expectation for it but most importantly there is a policy imperative around it. Since the New South Wales Act was passed there has been an explosion in Internet usage and electronic communications and so on. I meet with the Ombudsman this week. That will not be the sole source of advice I take on the matter. I am particularly interested in Anna Bligh's response to the report that was done in Queensland. There will be changes to freedom of information legislation. I would like to be able to give you more details today but our thinking on it is not that advanced yet except to say there will be significant reform.
Ms LEE RHIANNON: Can you give us a time line? When is that going to happen? We had the promises before from Mr Carr and it just went off into the never never.
Mr NATHAN REES: Can I take that on notice? I do not know how comprehensive the process to date has been. I do not know when Mr Barber's report is going to be finalised. I need to get advice on the Queensland response. Can I take it on notice?
Ms LEE RHIANNON: Okay, thank you.
After wrongly claiming that NSW ministers were subject to a cooling off period for post ministerial employment in areas within their responsibility( they are only required to consider talking to the Parliamentary Ethics Adviser) the Premier said he would look at the four year old recommendations of the ICAC "and, if there are improvements to be made for the sake of transparency, I am happy to look closely at them."

A promising start if action backs up words.

Tuesday, October 14, 2008

Experts think ALRC privacy recommendations may not go far enough

This article in today's AustralianIT indicates that quite a few speakers at last week's conference on ALRC proposals for privacy reform gave the Commission's recommendations a good but not good enough assessment.

The Oz article is peppered with quotes from experts outside government along the lines that the report failed to recommend the"fundamental rebuild that will be necessary in future"; the proposed law will collapse under its own complexity -- and with it consumer trust"; "missed opportunity"; many of the most critical issues are not resolved; the proposals still leave huge gaps in protection, and create endless complications for victims seeking help; and so on.

Waters and Vaile see the need for a shift from the light touch regulatory model:
"Above all, they say, the new challenges require a more vigorous approach to promoting respect for privacy, based on recognised principles of responsive regulation. "This means not only real teeth for the watchdog but also greater willingness to bite than successive privacy commissioners have displayed," Waters and Vaile say. "Preventing us from sleepwalking into a surveillance society, as Britain's Information Commissioner has warned, requires taking on some powerful vested interests, not just business as usual."
Some additional papers, (but not all and nothing of note from the session on the proposed cause of action for breach of privacy) are now on this website.

On the cause of action front here is an interesting comment on what in the UK are emerging issues about a celebrity's reasonable expectation of privacy (in this case Sienna Miller) , and the possible distinction the court made law might make between an expectation while lying topless on a public beach or a boat near the shore, and the expectation doing the same thing on a boat miles off-shore only to be captured by a telephoto lens.

Governor Arnie no wimp on health privacy

While Australian policy makers consider the ALRC recommendations for improving privacy protection, Internet Business Law Services reports that new laws in California, with effect from January 2009, will provide for fines from $25,000 to $250,000 on health facilities and individuals for every time they inappropriately obtain, use or disclose medical information.Other fines apply where data security violations put a patient at immediate risk of injury or death and up to $250,000 for a failure to report breaches to authorities.The moves follow a number of high profile instances of unauthorised "peeking" by staff at celebrity health details, including those of Governor Schwarzenegger's wife.

Monday, October 13, 2008

Whistleblower law inadequacies evident in parliamentary inquiries in Canberra and Sydney

The House of Representatives Legal and Constitutional Affairs Committee has been beavering away on its whistleblower protection reference.Many submissions and transcripts of the six public hearings held to date are now available.

Commonwealth Ombudsman Professor John McMillan gave the Committee this snapshot when he appeared on 4 September:
Over the past two decades across all levels of government in Australia we have witnessed the prosecution and at times imprisonment on corruption and fraud offences of a state premier, state government ministers, a commissioner of police, a chief magistrate, members of parliament, judges, numerous officials at all levels of government and prominent national businessmen. Royal commissions and special inquiries in Australia over the past decade have investigated allegations of corruption in political lobbying, policing, job recruitment, occupational licensing, vehicle registration, land and building development, offender management, public procurement, revenue collection, financial investment and foreign bribery, as well as within crime and anticorruption commissions themselves.

If we lower the bar and look beyond corruption to illegality, maladministration, fiscal wastage and public health threats, the risks to integrity in government are much larger. To combat those threats and to preserve integrity, we need a comprehensive ethical strategy and a strong legal framework. Whistleblower protection laws must be an essential part of that framework for the simple reason that nearly all unethical behaviour occurring within organisations is known to and disapproved of by insiders. They are usually the first and sometimes the only ones to know of malpractice occurring within. So we need to encourage honest workers in the organisation to
uphold the public interest and to report what they know. To encourage them, we must first assist and protect them. This should not be a false promise; telling the truth should not be a costly mistake.

Our present legal framework is deficient. Simply, it lets people down. There is not a clear procedure for Australian government employees to report knowledge of wrongdoing, adequate protection for those who do or punishment for those who retaliate."
There haven't been any ticks for the status quo. Public Service Commissioner Lynelle Briggs probably came closest on 25 September when she told the Committee "(t)he commission believes that the current system works reasonably well but that there are a number of enhancements that could be made to deliver a more effective whistleblowing system."After a couple of hours of Q and A with the Committee, she wrapped up saying "(t)here will be an enormous amount of work to do in the future."

Much of the debate revolves around what disclosures should be protected, how protected disclosures should be encouraged, and how to make the system work in practice.Both the Ombudsman and the Commissioner submit their organisations are best equipped to manage the whole issue of public interest disclosures.

A NSW parliamentary committee has also been looking at the adequacy of state law and practice in this area, but to date there is less to show for its efforts. It is yet to publish any submissions and the only hearing to date involved two and a half hours with the Deputy Ombudsman and the Deputy Commissioner of ICAC. The Committee Chairman in a Media release at the end of September said it was clear" that the effectiveness of the current legislation that protects whistleblowers, that is the Protected Disclosures Act, is limited and there is no real ownership of the act. The evidence given has drawn attention to some pretty fundamental issues about the operation of the legislation.” More hearings to follow.

FOI delivers big weekend stories

Two big Freedom of Information disclosure stories over the weekend. In New Zealand, the Herald reported that a letter from a former undercover policeman to the Chief Justice, released under the Official Information Act, includes a claim that he lied in testimony in more than 150 cases that ended with people sentenced to terms in prison.

In the UK documents now over 10 years old , released to the Sunday Telegraph after a two and a half year Freedom of Information battle reveal that contrary to what was claimed at the time, Tony Blair acted almost immediately after a meeting with Bernie Ecclestone, who had donated a million pounds to the Labour Party, to get ministers cracking on ways to exempt Formula 1 from the ban on cigarette advertising . This from the editorial
"Documents obtained by The Sunday Telegraph under the Freedom of Information Act (FOI) nevertheless show conclusively that while Mr Blair may have had many political virtues, being straight with the public was not one of them.......It is a serious indictment of the way FOI operates that it should have taken Christopher Hastings, our reporter, more than two years to obtain the relevant documents. We wonder what other truths the guardians of "freedom of information" are protecting from public scrutiny until they can no longer harm the Government."
On the homefront media reports over the weekend based on Freedom of Information releases included
Council bus drivers flout law
Big banks ignored sub-prime troubles
AFP helps with death cases
Premier John Brumby spent $78905 on US trip
Consumers to gain loan watch website

Saturday, October 11, 2008

Piecemeal discovery of the sunshine solution.

In a column in today's Sydney Morning Herald I welcome the use of the t-word-transparency- now cropping up as part of the proferred solution being put forward by our leaders to to all sorts of problems, but suggest piecemeal use of the term is no substitute for a comprehensive commitment to open and accountable government and implementation plans to give life to the policy. There are widespread practices that are inconsistent with the frequent micro calls being made for greater transparency in this field or that.

The editor took the scissors to one paragraph in the middle of the column. The words in italics were in the original but not the published version:
"In NSW, after years when government leaders seemed to revel in the state’s reputation as the secret state, Premier Rees flagged an overhaul of freedom of information legislation “as part of efforts to improve both transparency and accountability of government”. This was also a reason for bringing Railcorp back into the fold as a state government agency. No details yet, but on the down-side NSW monthly accounts, usually released within weeks of month-end, are yet to appear for June. And no we can’t see any contract with the organisers of World Youth Day or for the V8 races at Homebush. As for any cost benefit analysis, the Premier says believe it, we’re miles in front."

Friday, October 10, 2008

Tassie democracy improvement plan not going quite to plan

The Mercury notes some backsliding regarding the basis for establishing an ethics commission in Tasmania, one element of Premier David Bartlett's 10 point plan to strengthen trust in democracy.
"If Labor does deliver its 10-point plan in full, it contains practical measures to improve transparency. It clarifies the relationship between police and ministers, provides protection for whistleblowers, improves Freedom of Information access and ensures better funding for the Ombudsman, DPP and Auditor-General......
Mr Bartlett's initial suggestion that a parliamentary committee decide the exact nature of the proposed ethics watchdog has now backfired. The Government's subsequent backdown has cast doubt on his often-stated commitment to openness and on the other aspects of his 10-point transparency plan."
Say it isn't so, Premier.

Thursday, October 09, 2008

A challenge on the home front for Federal Health Minister's transparency crusade

Federal Minister for Health Nicola Roxon has been rightfully pushing the states hard on greater transparency in the health sector but things in her own balliwick, at the Therapeutic Goods Administration, need some attention.

In an editorial in Australian Prescriber, Dr Agnes Vitry of the University of South Australia's Quality Use of Medicines and Pharmacy Research Centre says
"the current Australian situation, in which the data used to make decisions (by the TGA) and the reasons behind these decisions remain secret, is no longer tenable.Full transparency is required at all steps in the marketing of medicines, from publication of the trial protocols to assessment of the data by the TGA. It includes public disclosure of the potential conflicts of interest of all external experts involved in the TGA advisory committees. It concerns not only positive decisions, but also negative decisions, for example when a marketing application for a drug has been refused."

Dr Vitry highlights the fact that information readily available in comparable countries such as assessment reports for new medicines, lists of refused or cancelled marketing authorisations, minutes of advisory meetings, and reports submitted by drug companies are not available publicly in Australia.She details how the pharmaceutical industry, which funds the agency has successfully resisted even the modest changes that have been considered so far.

Dr Vitry concludes:
"Transparency requires political will and leadership. This is an active process that needs to be adequately resourced. While drug companies spend millions of dollars on promotion of medicines each year, it seems paradoxical that limited funding and cost recovery could prevent the TGA from appropriately informing the Australian public. The TGA urgently needs to take steps to improve its transparency if it wants to retain its credibility not only with the Australian public and health professionals but also on the international scene."
Thanks to for the lead.