COAG on performance in health and education sectors

Here are extracts from the COAG Communique released after yesterday's meeting 0n agreement reached between the Prime Minister and the premiers regarding increased transparency and accountability in the school and health systems. I'll be interested to see what experts in these fields make of what the PM and others involved say are big steps forward.

Education

All jurisdictions agreed to a new performance reporting framework. COAG agreed that high‑quality accountability and reporting is important for students, parents, carers and the community. It is also important for tracking the achievement of the COAG targets.

The reporting agreed by all governments includes:

• streamlined and consistent reports on national progress, including an annual national report on the outcomes of schooling in Australia;
• national reporting on performance of individual schools to inform parents and carers and for evaluation by governments of school performance; and
• provision by schools of plain language student reports to parents and carers and an annual report made publicly available to their school community on the school’s achievements and other contextual information.

COAG agreed to a set of performance indicators to indicate progress towards achieving the agreed outcomes, with particular reporting on outcomes for Indigenous students and students from low socio-economic status communities.

COAG noted that funding for the non-government school sector is being appropriated through separate Commonwealth legislation – the Schools Assistance Bill 2008 and that the accountability framework for non-government schools and school systems will be consistent with that of the new National Education Agreement.

COAG agreed that the new Australian Curriculum, Assessment and Reporting Authority will be supplied with the information necessary to enable it to publish relevant, nationally‑comparable information on all schools to support accountability, school evaluation, collaborative policy development and resource allocation. The Authority will provide the public with information on each school in Australia that includes data on each school’s performance, including national testing results and school attainment rates, the indicators relevant to the needs of the student population and the school’s capacity including the numbers and qualifications of its teaching staff and its resources. The publication of this information will allow comparison of like schools (that is, schools with similar student populations across the nation) and comparison of a school with other schools in their local community.

Health

The Commonwealth and the States have also agreed to the following objectives and outcomes for the health and hospital system. These are:

• children are born and remain healthy;
• Australians manage the key risk factors that contribute to ill health;
• Australians have access to the support, care and education they need to make healthy choices;
• the primary health care needs of all Australians are met effectively through timely and quality care in the community;
• people with complex care needs can access comprehensive, integrated and coordinated services;
• Australians receive high-quality hospital and hospital related care;
• older Australians receive high-quality, affordable health and aged care services that are appropriate to their needs and enable choice and seamless, timely transitions within and across sectors;
• patient experience: Australians have positive health and aged care experiences which take account of individual circumstances and care needs;
• social inclusion and Indigenous health: Australia’s health system promotes social inclusion and reduces disadvantage, especially for Indigenous Australians; and
• sustainability: Australians have a sustainable health system.

The Commonwealth and the States have also agreed to report against a number of performance measures to address these outcomes including: preventable disease and injuries; timely access to GPs, dental and other primary health care professionals; life expectancy, including the gap between Indigenous and non-Indigenous Australians; waiting times for services; and net growth in the health workforce. The COAG Reform Council will report progress against these performance measures annually, commencing in 2009-10.

In addition, the COAG Reform Council will report performance against a range of measures, including:

• reduced incidence and prevalence of sexually-transmitted infections and sentinel blood borne viruses (for example, Hepatitis C, HIV) for Indigenous and non-Indigenous Australians;
• increased immunisation rates for vaccines in the national schedule;
• reduced waiting times for selected public hospital services;
• a reduction in selected adverse events in acute and sub-acute care settings compared to 2008-09 levels;
• a reduction in unplanned/unexpected readmissions within 28 days of selected surgical admissions compared to 2008-09 levels;
• increased rates of services provided by public hospitals per 1,000 weighted population by patient-type compared to 2008-09 levels;
• timely access to GPs, dental and primary health care professionals; and
• a reduction in selected potentially avoidable GP type presentations to emergency departments.

The Commonwealth and the States have also agreed to provide a basis for more efficient use of taxpayer funding of hospitals, and for increased transparency in the use of those funds through the introduction of Activity Based Funding. It will also allow comparisons of efficiency across public hospitals.

FOI simple for ABC

Matthew Moore in the Sydney Morning Herald last Saturday commented on the Australian Broadcasting Corporation's exemption from the Freedom of Information Act in relation to program material, and the generous interpretation of the provision to deny access to an application for correspondence with Malcolm Turnbull about a profile screened on him.

The ABC was successful in the Federal Court two years ago in convincing the Court to take a broader view of the meaning of the exemption than the protection of ABC's commercial interests, apparently what was originally intended. Here is a post about that case from August 2006 and the decision that "with respect to documents in relation to its program material" covered anything that had a direct or indirect relationship to program material.

The Corporation's latest Annual Report (Appendix 18, page 201) records that only nine FOI applications were received in the year to 30 June. But eight were refused entirely, and one resulted in partial release of requested documents. I haven't checked but I'd be surprised if any agency subject to the Act could beat that rejection rate. Maybe the program material exemption proved to be handy in all or some of these cases-the report doesn't elaborate on what exemptions were claimed.

All a far cry from Canada this week where the ABC's counterpart CBC is crying foul over "distorted attacks" through 150 FOI applications this year, most from two media organisations, leading to a spate of stories based on released documents about travel, hospitality and corporate expenses. Apparently no generous exemptions of any kind have been of much help in dealing with those kind of requests.

Seriously, make that "even more slowly," progressing FOI reform

The reason why the Bill to amend the Freedom of Information Act to abolish conclusive certificates won't sail through Parliament straight away is that on the recommendation of the Selection of Bills Committee (PDF 55KB), the Senate has referred it to the Finance and Public Administration Committee for report in March 2009.

The only reason given by the Committee for this recommendation is "to allow all stakeholders an opportunity to review the final Bill and ensure the efficacy and transparency of the mechanisms applicable to a decision to exempt material; review of appropriate regime for such decisions, etc."

Hard to see any external stakeholders coming forward to suggest certificates should be retained, that the review mechanism for certificates that will be abolished needs any further discussion, or that the minor technical add-ons to the exemptions proposed are worth worrying too much about. At this rate really substantive FOI reform will be lucky to go from gleam in the Government's eye to implementation much before the start of 2010.The Government is in the driver's seat on all this although it needs help in getting legislation through the Senate.Must either be an indication of reality bites on that front, or suit someone's sense of priorities.

Here is Senator Faulkner's Second Reading Speech, and the discussion in the Senate on the Selection of Bills Committee recommendations, courtesy of Open Australia.Not a word or query from anyone about why the referral was necessary except from Senator Bob Brown who thought it was important. Senator Brown also managed to get the bank deposit guarantee bill sent off to another committee but on that one the report back is due next week on 4 December.

Mere mortals are left scratching heads about a process Senator Faulkner described a month ago "as seriously progressing a high priority reform."

Documents held by former councillor still within FOI reach, maybe.

John Lightowlers

The Acting WA Information Commissioner, John Lightowlers, has ruled that any documents, including emails and other digital information held by a former member of the council of a local authority, are documents of the council for the purposes of the Western Australian Freedom of Information Act if they relate to the performance of the councillor's role as a member of the council, and were created or received by the councillor in his or her official capacity while an elected representative. Ross William Leighton and Shire of Kalamunda [2008] WAICmr 52.

The Acting Commissioner [ 56-57] based his decision on the definition in the Act of documents of an agency, which encompasses documents to which an agency is entitled to access, even where the documents are not in the actual possession or custody of the agency, and provisions of the Local Government Act and the State Records Act regarding duties to maintain and recover government records.

This seems like a first where an FOI application has been found to extend to documents currently held by a person no longer serving as a councillor.On the basis of the reasons outlined by the Acting Commissioner it would likely be the same result under FOI legislation in other states, and probably applies also to documents held by former ministers and public servants.

The NSW Ombudsman ( Joint Premier's/Ombudsman FOI Manual 2007 at 3.5.4) hasn't had any doubts that documents held by current councillors in their elected capacity and which concern their civic or council duties under any act are documents held by the council for the purposes of the FOI Act.The WA decision takes one more logical step.

Unfortunately for the WA applicant, the Acting Commissioner was satisfied that the former councillor had destroyed all relevant documents and purged her computer of records after she ceased being a member of the council, so the victory on the scope of the application turned out to be rather academic.

The public interest and the cabinet room.

Serious students of the Westminster system of government might be surprised to learn that in the UK, the home of the system, information about the goings-on in the cabinet room are not subject to a specific exemption under the Freedom of Information Act, as is the case here where inputs into cabinet decision making, deliberations and decisions are exempt without the need to demonstrate harm or satisfy any public interest test. In the UK, cabinet documents are only exempt to the extent that any requested documents, if disclosed, would reveal information relating to “formulation of government policy” or “ministerial communications” but subject to a public interest test to assess whether the need for confidentiality trumped the public interest in disclosure.

So a lot of interest this week as Sir Gus O’Donnell, the head of the Civil Service, leads a last-ditch attempt to block the release of minutes of Cabinet meetings in the run-up to the war in Iraq.Richard Thomas, the Information Commissioner had ordered the Prime Minister's Office to release copies of Cabinet minutes and records relating to meetings held between March 7 and 17, 2003.Details of the meetings would reveal the Attorney-General’s legal advice on the war and the positions of individual Cabinet ministers as well as the strength of internal opposition within the Government to the March 20 invasion.(Update:according to this summary of what Sir Gus said in evidence yesterday views are not attributed to individuals in the minutes other than the PM summing up. "That’s not to say someone wouldn’t be able to work out who said what." The summary provides some interesting insights.)

Mr Thomas had ruled that “a decision on whether to take military action against another country is so important that accountability for such decision-making is paramount” and that the public interest in disclosure outweighed other factors.Sir Gus is appealing the decision.

This Timesonline report gives further details.

Would never happen here- there is no public interest test in any of our FOI acts when it comes to cabinet documents. The only way to learn how big decisions are made by some governments is not through the Freedom of Information Act, but to tune into ABC TV's The Howard Years where former Foreign Minister Downer told us last Monday( Episode 2) that he and Howard used to often just get together to sort out the big foreign policy issues without bothering to run them by the cabinet. You can see why we need an absolute barrier to knowing what goes in the Cabinet room, at least for 30 years after decisions are taken.

Federal Government gets to first base on FOI reforms-conclusive certificates to go next year.

The Rudd Government has started to deliver on one element of its Freedom of Information reform commitments with the introduction into Parliament today of legislation to abolish entirely conclusive ministerial certificates.It's a welcome move, and goes further than recommended 13 years ago by the Australian Law Reform Commission, but took a year to eventuate and is nowhere near the top of most lists of urgently needed changes. On that front we are now told the Government "will release exposure draft legislation for public comment addressing broader reform measures aimed at promoting a pro-disclosure culture, as early as practicable in 2009." This culture change model, talked about for 12 months so far, should be something to behold when it is finally unveiled.

Senator Faulkner said the Freedom of Information (Removal of Conclusive Certificates and Other Measures) Bill 2008 was "a very important step towards achieving greater accountability in government decision making. It strengthens the right to obtain documents under the FOI Act and the Archives Act, and is yet another measure in the Government’s wider transparency and accountability reforms." In the Second Reading speech Senator Faulkner told the Senate the Bill includes provisions that mean "certificates issued previously will be revoked if and when a new request for access to documents covered by a certificate is received. In effect, revocation will be deemed to have taken effect at the time any new request is received. A decision will then be made under the established processes on whether or not an exemption should be claimed for any document formerly covered by a certificate."

The Bill contains a couple of other measures that tighten the FOI Act in some relatively minor ways, perhaps just demonstrating that some parts of the public service still have a wishlist that has ended up in Senator Faulkner's intray of what should be done to fill gaps in existing protections :

"To assist the AAT in reviewing an exemption claim to protect from disclosure national security documents and other sensitive information, the AAT will be required to call the Inspector-General of Intelligence and Security to provide expert evidence if it is not satisfied as to the merit of an exemption claim of this type.

The Bill also addresses an anomaly affecting rights of access to documents relating to intelligence matters where they are held by a Minister rather than an agency. Under the current Act, a document held by an agency is excluded from the FOI Act if it has originated with, or has been received from, an intelligence agency or the Inspector-General of Intelligence and Security, but the same document would not be excluded if it happens to be held instead by a Minister. The Bill remedies this anomaly."

A final comment on conclusive certificates:we assume that none have been issued in the 12 months since the Rudd Government took office but as there is no reporting requirement on use of the powers by ministers and heads of government departments, it's simply an assumption. As best anyone could work out something like 14 were issued in the later years of the Howard government.There is still no great urgency in dispatching the dreaded things: the Minister's office says it is anticipated the Bill to abolish them will be debated in the next session of Parliament-presumably February next year.

Overall positives for Rudd after one year, but stiil some biggies to deliver.

Plenty of assessments- universally overall positive- on the occassion of the first anniversary tomorrow of the election of the Rudd Government. The thrust of many is that the Government has successfully avoided major disasters, and after many months of looking very cautious and obsessed with process and inquiries, has been transformed into action-oriented by quick(maybe too quick in some respects) responses to the economic and financial markets crises.A couple of examples from Paul Kelly and Michelle Grattan.

The Weekend Australian included a scorecard for many ministers ranging from 9/10 for Julia Gillard and Lindsay Tanner to 5/10 for Steve Conroy but didn't even bother to assess John Faulkner the minister responsible for integrity issues.We've said it before Faulkner has some runs on the board, but no there is no excuse for the pathetically slow pace of Freedom of Information reform which is still to get to first base. Even if we accept the proposed two stage reform process, just what is the hard part associated with abolishing conclusive certificates that means 12 months on, no legislation to achieve this has found its way into Parliament? As to the "changing the culture" intentions, don't start me....

My assessment for Faulkner overall would be 7/10 but on the FOI front nothing to justify a pass and "needs to do much better."

There have been a couple of observations in the media about form regarding openness and transparency, generally along the lines of an opinion piece in the Australian Financial Review last Thursday by Sophie Morris(no link available) who commented that" The Rudd Government is an avid practitioner of the dark art of managing the news, despite its commitment to end the practices of its predecessor." Morris said "Faulkner's efforts to remove some of the systemic barriers to transparency have been thwarted by a media strategy that seems designed to manage the message so closely that public oversight suffers."

Morris quoted John Warhurst of ANU saying the Rudd Government ' is not any more open than the previous mob for all their efforts to say they would be." On the money for mine.

FOI review in Tasmania to first base

The Tasmanian Government has the review of the Freedom of Information Act and the Protected Disclosures( whistleblowers) Act underway today with an invitation to the public to comment on how the legislation has been working and how it could be improved.

In an approach that contrasts with the NSW Ombudsman's Discussion Paper and its 139 questions, many on complex technical legal issues, the Tasmanian review poses four "simple" questions:

• Is the Freedom of Information Act adequate to ensure a proper degree of transparency in State and Local Government processes?
• Are the exemptions in the Act appropriate, should they be reduced or expanded?
• Are the timelines in the Act for responding to requests for information appropriate?
• Are the mechanisms for reviewing FOI decisions adequate?

On Protected Disclosures, just two, whether the Act:

• adequately encourages and facilitates disclosures of improper conduct by public officers and public bodies; and
• appropriately protects whistleblowers against detrimental actions.

Submissions on both reviews close 13 February 2009.

FOI more fitting the Google age is in the frame: Attorney General Lara Giddings said

“The review will examine whether the Act provides sufficient access to information and flexibility to cover new technologies and ways of communicating....“Eighty five percent of homes now have access to the internet and email, most government business relies on a computer system, and a rapidly increasing amount of government information is received and stored electronically with no paper file generated. Dealing with the rate of change is one of the challenges we hope to address the review."

The law coincides with common sense on access to information concerning deceased child.

Neither of the parties appear to have brought this recent Victorian Court of Appeal decision to the attention of the NSW Administrative Decisions Tribunal that release of information concerning another's personal affairs under the freedom of information should not be considered in all cases, disclosure to the world.If accepted and applied it might have made for a more straight-forward decision to disclose information in this case.

However Judicial Member Moloney (new to the ADT FOI ranks?) in JY v Commissioner of Police[2008] NSWADT 306 still found important public interests justified disclosure to the mother of a deceased child, information(with identifying particulars deleted) held by the Police in statements about the child's death provided for coronial proceedings that never proceeded. This despite the objections of the three people concerned,the father/ex husband who was looking after the child when she died, and arguments from the Police the statements had been obtained on the basis of confidentiality.

It seems like a happy co-incidence of common sense and the law which don't always go together.

The decision however reveals yet another complexity arising from the NSW Freedom of Information Act. Judicial Member Moloney[46] had this to say about the consultation requirements prior to the release of information concerning personal affairs of the child:

"According to the ordinary understanding of the words ‘closest relative,’ a person’s closest relatives are the person’s "nearest blood relations": see Antill-Pockley v Perpetual Trustee Co Ltd [1974] HCA 52 per Gibbs J (at [5]), with whom Stephen J agreed. A child’s closest relatives are its parents. Where, however, one parent has the sole parental responsibility for the child, whether by Court order or the death of the other parent, that parent will be the child’s closest relative. In this case, there is no evidence that there were in existence Court orders relating to parental responsibility for the child. As a result I conclude that both JY and her ex-husband were the closest relatives for the purposes of section 31(5). Each of them was required to be and has been consulted."

The same reasoning would require consultation with both parents of any child, prior to disclosure of information concerning a child not capable because of age or other factors of acting independently.

Tough school on the cost front for those who pursue FOI rights.

Almost two years ago, this post highlighted the unsatisfactory situation that someone who wins a favourable judgment in the NSW Administrative Decisions Tribunal (in that case a privacy issue), which a government agency then successfully challenges in the courts on a question of law, will end up with a bill for the agency's costs where the court exercises discretion to apply the normal rules that costs go to the successful party.It seems rough justice as the person concerned was involved in the court proceedings through no fault or action on their part.

It's probably an issue in other jurisdictions as well.In NSW you can seek a certificate under the Suitors Fund in appropriate cases but even when granted, at the end of the day, payments are a matter of discretion for the Director General of the Attorney General's Department.

The NSW Court of Appeal has just told Michael McGuirk, who has featured in many freedom of information cases, that it won't give leave to appeal a Supreme Court decision in favour of the Independent Commission Against Corruption, which overturned a Tribunal Appeal Panel decision in his favour and awarded costs in the Supreme Court proceedings against him. McGuirk submitted that he should be able to argue against the cost order before the Court of Appeal because " a costs order such as that made against him would have a major dampening effect on persons who sought to exercise their claimed entitlement to gain access to information pursuant to the provisions of the FOI Act, an entitlement which he correctly said was given importance in the scheme of the legislation."

He's right about the potential dampening effect on anyone who knows about what could happen if the matter ends up in the courts at the agency's initiative.It can be a tough and expensive game when you take on a government agency and end up in courts.

However the Court rejected the submission. Justice Giles made a rather weak distinction between this case and the pursuit of FOI rights, and other cases where cost orders were not imposed because of more compelling public interests.In commenting about the Court decision to award costs, he said [14]:

"Her Honour was exercising a discretion. For the purposes of the leave application it is necessary to consider whether it can be said, and with what degree of force, that her Honour’s decision was so unreasonable that it fell outside a proper exercise of the discretion. I do not think that it can be said with particular force. Appeals against discretionary decisions, particularly on matters of costs, are difficult. In my judgment the prospects of success in an appeal against the costs order made by her Honour are very slight. In those circumstances, in my opinion the proper exercise of our discretion is to decline to grant leave to appeal in that respect also."

McGuirk also was stuck with ICAC costs for the unsuccessful Court of Appeal application.

The substantive issue at the heart of the matter was the Supreme Court finding that the Tribunal had no merits review powers where an agency rejects an application for documents concerning functions listed in Schedule 2 of the Act.

Blanket exemptions for ICAC and others that are not subject to review put a large hole in the transparency and accountability framework of the legislation. The need for them should be seriously questioned

More disclosure examples from Scotland the brave

Scotland already has some impressive pro-active disclosure requirements that our access to government policy makers should aspire to, for example a surgeon's track record and the register of MP's interests.But it isn't stopping there.

Minister for Parliamentary Business Bruce Crawford in releasing a discussion paper on extending the Freedom of Information Act to some private sector bodies, announced that, as part of the Government's drive towards greater transparency in government, Ministerial travel and diary information would be published on the Scottish Government website from today. He said:

"We believe that the people of Scotland have the right to more information about how Ministers spend their working days. That is why we have improved the way in which information is recorded and why we have decided to make that information freely available, the first administration in the UK to do so."

The only government here that appears to be well-advanced on the pro-active disclosure front is Queensland, and the NSW Premier has asked ministers to look into this.The list of what should be available automatically is formidable, and growing in the light of best practice standards set by the Scots and others.

Courts and media rights to access and publish what's doing.

The coalition of media organisations, Australia's Right to Know has published The Review of Suppression Orders and Access to Court Documents in Australia ( ARTK Report), highlighting excessive secrecy associated with the judicial branch of government. The report details the growth of suppression orders across the country, the wide variations and lack of consistency in the judicial approach to granting applications for orders, and the problems for the media in accessing court documents.

Here is a summary from AAP and some commentary from Richard Ackland on the report and associated issues, including (off on a little tangent) observations about instances of media self-interest in not reporting on some matters close to home.

The Standing Committee of Attorneys General at a meeting in Brisbane last week saw a "commitment of the States and Territories to further develop the framework for a national electronic register of suppression orders."Communique and Summary of Decisions.

That's something but there is a long way to go on this one.

ALP FOI policy commitment: no need to dig out your hard-copy.

Just over a year ago, one month before the election and as reported here, Federal Labor released a well received policy statement,"Government information:Restoring trust and integrity" outlining planned Freedom of Information changes, and initiatives on journalist shield laws, whistleblower protection and suppression orders.Some might get a surprise when they now go to where the policy statement used to be,"Government information: Restoring trust and integrity" and come up with "This page is currently offline. Please check again at a later date."

Relax folks.Pre-November 2007 materials can be found here, including the elusive
government_information policy_xx.pdf

As to implementation, ........

Dr Henry's encounter with Jim and hairy nosed wombats

The Federal Treasury (make that all treasury departments) has a well-earned reputation for secrecy in many aspects of its work. We commented recently that Treasury would seem to prefer that major policy issues are sorted behind closed doors, that what goes on there remains confidential, and suggests subsequent questioning of that wisdom may have grave repercussions.Treasury Secretary Ken Henry had previously commented about why important elements of the policy development process won't be committed to paper if Freedom of Information applicants succeed in seeing what went on in the making of important decisions.

Perhaps Dr Henry's couple of weeks helping hairy-nosed wombats while on leave, and his work this year on the reform of our tax laws have opened new horizons regarding the importance of public debate and engaging with the citizenry in policy development. This (with emphasis added) from his address yesterday to the National Press Club ( Jim and hairy-nosed wombats feature prominently):

"Progressing tax system design isn't easy. But I'm optimistic. Certainly, it will be more feasible if we have a sensible discourse. Recognising that, the Review Panel has committed to a few ground rules: first, we must remain open to new ideas; second, the review is both too complex and too important to rush; and third, we cannot make good progress without engaging the community.

The steps in the review process are these. In August, as I have noted, the Treasury released its architecture paper, to seed debate. Next month, the Review Panel will release a consultation paper. That paper will summarise what we've heard so far from the community, identify some key issues, draw out the choices that emerge from our analysis of the issues, and seek views on a range of more specific questions. Following the release of the consultation paper there will be a second, longer consultation period of perhaps six months. During that time, there will be many opportunities for engagement – public meetings, round table discussions, and a tax policy conference in June.

We're going to see a first in Australia: ordinary Australians like Jim will be given the opportunity to put their commonsense view directly to people like me – and not just at the pub. The tax system is for the benefit of every Australian and it follows that every Australian should be able to debate its design.

In the second half of next year we will be writing up our report, due to the Government by December 2009."

Ordinary citizens like Jim will be better able to put views regularly on a range of matters if agencies like Treasury commit to greater transparency in the conduct of government business that affects us all.

Commercial TV knows a thing or two about FOI

Errol Simper in The Australian last week commented on Ray Martin's Andrew Ollie memorial lecture and gave the free to air television networks heaps over their news and current affairs programs, prompting the following response from Michael McKinnon, FOI editor of Seven Network.In addition to his defence of Seven and his own industrious FOI work, there's a bit of news (for me at least)-the ABC is setting up an FOI Unit.

"Having read Errol Simper's column on November 3, I can only assume he doesn't regard watching Seven News as part of his responsibility. The snide scribe contends that commercial networks are failing in their duty to keep politicians and governments honest by rigorous reporting and investigation. Crucial to good journalism is accuracy. To this end, Mr Simper should consider the following facts.

Seven reporters Aela Callan and Robert Ovadia are finalists for the 2008 Walkley for television news reporting of the so-called Iguanagate story involving a federal MP's alleged abuse of power. Last year, Mark Riley and I were nominated for five separate investigations into government failures or abuse of power.

In recent months Seven News has reported on crumbling bridges in Adelaide, assaults on Melbourne's transport system, deaths caused by mistakes in Sydney hospitals and police corruption on the Gold Coast. All told, there have been dozens of stories for which governments have no cause to thank us.

Today Tonight is fighting the Civil Aviation Safety Authority and Qantas in the Administrative Appeals Tribunal to get access to secret documents on overseas maintenance of aircraft. The maintenance documents are one of five separate AAT appeals launched by Seven.

Almost two years ago, Seven News employed me as Australian television's first freedom of information editor. Despite Mr Simper's jaundiced view, I would like to think I am earning my keep. Certainly there have been front page follow-ups of our investigations by a number of newspapers.

Recently the ABC, which seems to be the only network Mr Simper watches, has sought our advice on setting up its own FOI bureau.

Accurate, in-depth and unrelenting reporting is a fundamental duty of any media company. Seven News is happy to be measured against any competitor on its performance.

Michael McKinnon
FOI editor, Seven Network"

Trust and transparency

An opinion piece in the Wall Street Journal about whether President-Elect Obama in office can keep the faith of the digital under 30's, through the way he governs. The Journal quotes Don Tapscott, author of best seller "Wikinomics," "Growing Up Digital," and the just released "Grown Up Digital: How the Net Generation Is Changing Your World":

"To win the trust of Net Geners, governments have to be transparent," Mr. Tapscott says. "At a minimum, policy makers should publicize their overall goals and objectives and, for specific issues and decisions, the documents they relied on, the names of the participants in the decision-making process, and their underlying rationales and criteria, and they should provide reasons why alternative policy options have not been pursued."Mr. Tapscott, also .. suggests that Freedom of Information requirements should include "tools of policy making: the models, simulations, problem-structuring tools and geographical information systems that policy makers use themselves."

It's not just a US issue or a matter for Net-Geners:-to restore trust for all of us, governments have to be transparent. A more open attitude to disclosure of this type of information would also improve the quality of decisions.

Unfortunately too many political and public service leaders around the globe regard the sort of thing Tapscott is talking about as state secret material.

Procedural complexities of FOI on public display

South Australian readers might find this relatively rare District Court Freedom of Information decision(Treglown v South Australian Police) concerning an application to the Police (SAPOL), an internal review by the Police Complaints Authority (PCA), and a disputed request for an advance deposit, of interest. Others might scratch their heads about the procedural contortions involved, as summarised here by Judge Cole[31]:

"The position now, in this matter, following the concession by the respondent that the request for the fee was not a valid request under s 17, is that there is in existence a deemed confirmation by the internal review officer of SAPOL’s deemed refusal of Mr Treglown’s application for access to documents. Mr Treglown has applied to the PCA for a review of that deemed confirmation of the deemed refusal by SAPOL, and the PCA has declined jurisdiction in relation to that application. The PCA declined jurisdiction on the basis of his opinion that a valid request for a fee had been made by SAPOL of the appellant. The parties have now agreed that the request for the fee was not valid. In these circumstances, it seems to me that the most appropriate course is to set aside the PCA’s decision that he does not have jurisdiction and remit the matter to the PCA in order that he may now review the deemed refusal by SAPOL in relation to the application for access to documents."

Everyone clear on all that?

The applicant may have been relieved that Judge Cole noted" that Ms Charlesworth(counsel for SAPOL) said in Court that, were the matter to be remitted to the PCA, SAPOL would not seek to have the PCA refer the matter back to SAPOL," and recommended that the PCA deal with the matter as expeditiously as possible.

On the other hand the applicant is no doubt mightily frustrated by the fact that the FOI application was lodged in July 2007, and is yet to get past first base.

The shift from secrecy to transparency

That in tray will be filled to overflowing long before 20 January but the US Sunlight Foundation has published an open letter to President -Elect Obama with suggestions from some of the experts on how he might "undo the culture of secrecy and transform the presidential administration into a transparent operation."It's an interesting read, and includes many ideas on Freedom of Information and related reforms that could be added to our own wish-lists for those government leaders here who keep saying they are interested in the topic.

Moving FOI from horse and buggy to the Google age.

Rick Snell has posted his Public Service Informant/Canberra Times article on his research page

He proposes a new approach to better manage the flows of information in the interests of good government and a well informed public that could then participate more effectively in government processes. An access to government information regime for the Google age is there for the taking if political and public service leaders change the mindset from manning the barricades, to sensible information sharing to make optimal use of a valuable publicly financed resource-government information:

"Australia is at a critical juncture.Governments are committing to significant FoI reform. The dividends from more openness by way of effective governance, better internal development of FoI information management and policy development are waiting to be harvested. The first generation of FoI was mistreated, diluted and consigned to a marginal role. The hope is that a new generation of public service leadership will see the need for better information flows and sharing and that they will contribute constructively to the design and development of FoI version 2.0"

Assumption of FOI disclosure to the world wrong in some cases

The Victorian Court of Appeal has unanimously dismissed an appeal by the Victorian Police against a finding by Justice Hansen that in considering whether disclosure to an applicant under the Freedom of Information Act would involve unreasonable disclosure of information relating to the personal affairs of another person, it was wrong for the decision maker to assume in all cases that disclosure was "to the world at large." The decision is only relevant to the interpretation and application of the personal affairs exemption. Victoria Police v Marke [2008] VSCA 218 .

The three judges issued separate decisions, with some differences in reasoning.The common ground was that the words "involve unreasonable disclosure" in the personal affairs exemption require consideration of all relevant circumstances including the nature of the information, and what if anything was known of the applicant's interest in accessing it .The possible dissemination of the information to others may be an important consideration in some cases, and could be assumed where the applicant was a journalist or someone equally likely to publish or put the information into the public domain. In other circumstances, such as this case, it was similarly relevant that it was known that the applicant sought access for a particular, discrete purpose, not connected with public dissemination.

The Court of Appeal dismissed the appeal and followed Justice Hansen's ruling that the matter be referred to the Victorian and Civil Tribunal for a decision in the light of the proper test.

These are earlier comments about a NSW Administrative Decisions Tribunal Appeal Panel decision in May this year that declined to follow the Hansen decision, and some of the policy issues that arise in these cases.The NSW Act (and some others) personal affairs exemption is in the same terms as the exemption in the Victorian Act. A Victorian Court of Appeal decision while not binding in NSW carries significant weight, so it will be interesting to see if in relevant cases NSW applicants (and those utilising FOI acts other than the Federal and West Australian acts) can use it to some persuasive effect.

A credit to America

There will be millions out there with "I told you so" signs, but this from your humble correspondent in September after a visit to the US and Canada, and who still has Juneau, the capital of Alaska, etched indelibly in memory:

"Obama is the likely winner because of McCain and because the smart money from donations will allow him to spend big, particularly to get people to vote. At 72, McCain would be the oldest first term president in history, and will be linked with many aspects of the Bush administration of the last eight years, particularly economic performance and Iraq. He has been Mr De-regulation for years, putting him in a difficult spot now given the financial markets crisis.

Palin,with limited experience, and all that in Alaska where standards of governance are, to be polite, way behind what's acceptable even in the Washington of George Bush, is already starting to lose steam and is still to face the sort of forensic examination that all candidates must endure at the hands of the media. Some of the problems arising from husband Todd's involvement in government affairs may mean even greater concern about "two for one" than those that arose for the Clintons. Palin can handle herself publicly but the McCain team and its supporters will be on tenterhooks as the campaign rolls on- an implosion may occur at any time."

The rest as they say....

It's a great credit to America, and inspires new hope in the rest of us.

Obama is on the record with big plans to improve accountability and transparency. Update: Matthew Moore in the Sydney Morning Herald on 8 November and Pro Publica both provide a broader account of President -Elect Obama's commitments in the FOI field.

Let better government roll.

"New FOI "in today's Canberra Times-hard copy only

Readers of the Canberra Times in hard copy today couldn't miss the cover story in the Public Service Informant supplement "FOI- the next generation" in which Rick Snell provides some insights into what might be possible if we really turned Freedom of Information on its head to reflect the Google age in which we live.Ironically the rest of us will have to wait- a bit like an FOI applicant really- until a digital version is available- the Times in its wisdom doesn't put the Informant on-line.

Movement on NSW contract disclosures

A hopefully well-informed reader has left an anonymous update that the NSW Government's website for contract disclosures- the subject of several comments here over the last two years, all using words like pathetic, and similar- is currently undergoing redevelopment to give it some efficacy as an accountability tool.The new version is to be released this month.Hallelujah!

" Us too" says NSW Opposition.

The NSW Opposition may be scrambling to keep up with the new Premier's plans to lift the shades on government in NSW, but to be fair they have been on about it for years.The Opposition Leader has made a new announcement of a commitment to some sensible Freedom of Information reforms including mandatory requirements for publication of information on the web, and the appointment of an information commissioner,according to this report in the Sydney Morning Herald.

I'm sure the details will be on the Liberal Party or Mr O'Farrell's website sometime soon-just not yet. Eventually found. On inspection, all fair enough but remarkably thin, given the 13 years the Opposition has had to think about the issue Restoring Your Right to Know - Improved FOI in NSW

ACT Government sees the green light on FOI and other reforms.

Enthusiasm for improved transparency, accountability and integrity will be evident in the new ACT Government to be sworn in this week, after The Greens with four Assembly members included changes for these purposes as part of the deal to deliver government to Jon Stanhope and the Australian Labor Party.

Many of the changes will be to the way parliament operates with agreement on what The Greens describe as a"Parliamentary reform agenda which will establish the ACT Assembly as a world leader in scrutinising and opening up the processes of government and taking a more collaborative and inclusive approach to the processes of parliament."

Other commitments include:

Demonstration of Government leadership in enhancing integrity in Government by working with oversight institutions to establish the concept of an integrity branch of government - comprising all those oversight institutions, in recognition of their joint interest and their separation from the Executive, Parliament and the Judiciary.

Completion of inquiries within 12 months into reform of the Pubic Interest Disclosure Law and Freedom of Information Legislation (including the appointment of an independent Information Commissioner).

Removal of provisions in the FOI Act which currently allow for conclusive certificates, except where they provide for the protection of national security information held by the Territory.

Passage of legislation which will require all political donations to be disclosed within one month of receipt and in an election period, on a weekly basis".

There is a world of difference between getting things done in the pocket-sized ACT and running the nation as a whole, but this last commitment makes proposed Federal disclosure of donations-twice a year, within eight weeks of the deadlines, and to be on the web as soon as practicable- look minimalist.

Full details are in the ALP Greens Agreement.