Brandis late entry for chutzpah 2009 prize

I've still got my feet up but didn't miss this opinion piece by Opposition front bencher Senator George Brandis in The Australian yesterday, serving it up to the Rudd Government (which deserves quite a bit) over Freedom of Information reform, but going overboard with claims that nothing has been done, and without the slightest note of irony, commenting (as a former minister in the Howard Government) that ministers must lead on the culture change issue. Peter Timmins of Potts Point managed to put aside the Steig Larsson to offer this comment:

Promised reforms not heard of, not one iota of progress? Senator Brandis fails to mention that the Government did legislate to get rid of those odious ministerial certificates and on the last day of scheduled sittings, introduced FOI Reform legislation into Parliament, which has now been sent off to a Senate committee for report in March.The pace (2 years to get this far) and scope of reform have been major failings and deserve criticism. So does the fact that "culture change"is still reserved for when an Information Commissioner emerges sometime in 2010. Starting to send a message about how and why things were to be different should have started in December 2007, as soon as a government committed to reform got its hands on the wheel. Senator Brandis of course won't need reminding that the Government of which he was a member completely ignored 106 recommmendations for change in the ALRC Open Government Report released in December 1995, and took not the slightest step to do anything about a prevailing culture of secrecy during its 12 years in office. I wonder what he reflects back upon when he writes things won't change unless ministers themselves take the lead in encouraging a culture of disclosure? We won't go into Howard Government inaction on the 500+ secrecy provisions in Commonweath statutes including the draconian Section 12 of the Crimes Act, whistleblower protection, and shield laws for journalists.Or the now Opposition's blocking of a move to bring the threshold for declared political donations down from Howard's $10000+ to $1000. But its good to see Senator Brandis at least interested in the topic."

I'll get to that Annual FOI Report he refers to soon, helpfully released on 22 December, but meanwhile back to the much more entertaining The Girl who Played with Fire.

That's about it for now-all the best to all of you

http://news.bbc.co.uk/media/images

Not guilty, but a glimpse of Sydney in summer.

Best wishes to readers and thanks for the interest, leads, feedback and comments during the year. I'm not travelling far, so irregular or normal transmission will resume as and when something crops up, and at least after a suitable post Christmas/ New Year recovery period.

Who is a journalist? Yes it will matter...

This will be a issue of some significance when the Federal Freedom of Information Reform (Amendment) Bill 2009 passes Parliament (again, hopefully) next year.

The companion Exposure Draft Federal Freedom of Information (Fees and Charges) Amendment Regulation 2009 proposes that where an agency is reasonably satisfied that the applicant is a journalist and the application is made in connection with the applicant's activities as a journalist there will be no charge for the first five hours of time spent in dealing with the application.

(A question not quite on topic is whether "journalists" should be singled out for this concession. What about others who might use the Act to seek non personal information, such as researchers and academics, or interest groups or think tanks that might struggle to come within the same concession for non profit organisations (defined as an organisation not carried on for the profit or gain of its individual members)? Journalists and the media play an important Fourth Estate role on the public's behalf in pursuing government accountability, and the proposed concession rightfully recognises this. It's passage would rid us of the famously narrow interpretation of the public interest concession for journalists in the Peatling case.

However in the context of an act focused on citizen rights, there is also a case for consideration of a broader concession for any applicant not seeking information for a commercial purpose, where for example, the making of the application is for the purpose of access to documents that would increase "scrutiny, discussion, comment and review of the Government's activities", words used in the proposed new objects section of the Act.

Or on a grander scale, should Canberra follow Tasmania's lead and abolish charges altogether, simply retaining an application fee? Such an approach would be consistent with the proposition advanced by the Gov 2.0 Task Force that government information should be available free as a public resource. Then there was the ALRC recommendation in 1995 that charges for anyone should be based only on documents released. The way the Government has framed these questions since March 2009 has limited the public discussion of other possibilities and options.)

Back on topic, if they are to be accorded special treatment, the Exposure Draft regulation contains no definition of journalist. There won't be a problem for those employed by a media organisation who apply on company letterhead or who are well known and established names. But what about others such as freelancers, authors, and ahem, bloggers and the emerging school of citizen journalists?

Leaving open to " reasonable satisfaction" of an agency, who is to be eligible and who isn't, and what constitutes "activities of a journalist" will surely lead to differences in the interpretation and application of the provision. Some parameters should be set either in the law or in binding pronouncements by the Information Commissioner.

However the Commissioner's proposed powers do not extend this far. There is nothing relevant to their exercise in connection with charges in the Exposure Draft regulation. The Reform Bill states (proposed Section 93A) the Commissioner " may " issue guidelines for the purpose of performance of a function, or the exercise of a power under this Act, and agencies must have regard to any guidelines issued. However the Explanatory Memorandum points out the power granted to the Commissioner is discretionary, so guidelines on issues concerning charges might never emerge. Even if they do, the Memorandum states "It is not intended that the guidelines have binding effect."

The issue of who is a journalist is a live one also in connection with the proposed Federal shield law for journalists ( which contains no definition) and Government consideration of the Australian Law Reform Commission Report on privacy laws, and continuation of the media exemption.

For FOI purposes however we need a workable, consistent approach that defines a journalist by reference to function not status, and recognises new media and all the forms of journalism that are emerging, including bloggers. One precedent, if we stick with journalists in and others out, would be to adopt the definition recently agreed by the US Senate Judiciary Committee for Federal shield law protection purposes, as those “with the primary intent (at the time information was sought) to investigate events and procure material in order to disseminate to the public news or information...” This would cover those employed by media organisations, plus bloggers, freelancers and any other person involved in disseminating information to the public.

Submissions on the Exposure Draft close on the wonderfully convenient 11 January- just as a few public servants return from summer holidays- so if you have a view let them know. I don't imagine Australia's Right to Know think much of the idea of bloggers getting a guernsey for charges concessions, given News Limited's boss John Hartigan 's view that the the blogosphere is all eyeballs and no insight, and far inferior to the denizens who stalk the corridors of the Daily Telegraph and other News publications.

Gov 2.0 Task Force points the way forward

Nicholas Gruen CEO Lateral Economics

Make what you will of the fact that Ministers Tanner and Ludwig, having received the Gov 2.0 Task Force Final Report, released it immediately- on 22 December. This time of year is often associated with the release of information that sails beneath the radar, not just Christmas reading.

Congratulations to Task Force Chairman Nick Gruen and other members for the enthusiastic embrace of the possibilities offered by the new collaborative tools and approaches of Web 2.0 and the unprecedented opportunity to achieve more open, accountable, responsive and efficient government. And for correctly identifying many of the obstacles to achieving this, with leadership and culture change high up in the order of things. I'm all for its aims and objectives.

However the Task Force clearly didn't think much of points raised in my submission on the Draft as none seem to rate a mention, including that experience shows the law plays a big part in all this (the Three Pillars described as the foundation for change- leadership, policy and culture- should have had the law there somewhere) and needs to be as explicit as possible on what agencies must do; that the Information Commissioner's powers in the FOI Reform legislation regarding proactive disclosure need to be enhanced because left to their own devices agencies aren't necessarily the best judges of what information should be published; and that other factors such as the 500+ secrecy provisions in Federal laws are a chilling factor that contribute to the current climate and its disposition against openness-as does the exercise of micro-control at the political level on information flows to the outside world. There were other issues raised as well...but I'm not going to be churlish at this time of the year (by listing them or noting that my submission wasn't acknowledged or posted on their blog...)

On just one point, there is a lot to be done before Federal public servants will feel empowered to "participate in professional discussion, share ideas and further develop their expertise through networks of knowledge (such as blogs and other new tools of collaboration) with fellow professionals and others."

Personal experience at Open and Shut is that in almost four years of blogging about transparency and accountability in government, with apparently a significant proportion of the readership from within the public services in Australia, not one has so far put a name to a comment on any of almost 1700 posts that have appeared. Anonymous in all his or her incarnations is our hands down chief contributor. That tells you something about the prevailing climate. Then there is the fact that in some instances agencies continue to argue in FOI cases that disclosure of information would give rise to confusion, misinterpretation and uncertainty, and that if drafts or indications of individual officers views were disclosed public servants wouldn't commit thoughts to writing in future.

Let's hope the Report has strong support when it is dusted off in February by interested readers and by the inevitable internal working party that will pick over it, and even later in 2010 when the Information Commissioner has a position to occupy and a desk to sit. Maybe those observations by the UK Information Commissioner about the need to take a tough line to get agencies to do what they should- not something you find in the Task Force Report- will also attract some attention.

Information commissioners need to carry a big stick-and use it

With Federal and NSW information commissioners to be appointed next year (well, hopefully) to join those operating for years in Queensland and Western Australia, and the Tasmanian Ombudsman to have new responsibilities, this first broad ranging interview by Christopher Graham after six months as Information Commissioner in the UK provides food for thought about the style and approach needed:

"I think (in the past) the Information Commissioner's Office [ICO] has not been alert enough and fierce enough with public authorities that do not comply with their requirements under the Freedom of Information [FOI] Act," he said.

"After five years, public authorities should be able to do better. From now on, we will be a rather tougher partner. We will insist on adequate responses within the time limits. I will be up for issuing what are known as 'information notices' [which compel public authorities to supply information to the ICO or they will have committed a criminal offence]. We have not really done this so far but we will from now on."

On managing privacy obligations the Commissioner has no doubt tougher penalties are part of the compliance answer:

"People guilty of serious, negligent and reckless breaches of people's privacy – basically where information entrusted to organisations, companies or public authorities is made public without authority – should be liable to custodial sentences. Courts ought to have the power to jail offenders for up to two years. At the moment offenders who are caught might get a modest fine which is, frankly, set off as a business expense. But if people knew they could go to prison, they would think twice about committing such an offence that some people now consider as just a prank."

Graham is also about to hop into another issue that has largely gone through to the keeper in Australia:

Mr Graham's latest initiative – announced on Wednesday – is to carry out a massive analysis next year into surveillance – a follow-up to his organisation's report "A Surveillance Society" published in 2006. The Information Commissioner is clearly concerned society's obsession with CCTV cameras has gone too far. "There needs to be some evidence that it is necessary. You can't just say: 'It's a [crime] deterrent so we will have it.' It needs, for example, to go into pubs where there is a history of trouble. But it's unfair for a licensing authority to have CCTV as a matter of routine because law-abiding citizens should be able to have a meal or a drink without being captured on CCTV."

Year end downer to positive FOI reform in NSW

Further to where things stand in NSW, I've heard that the recruitment process for Information Commissioner, kicked off with great urgency in September when applicants had only two weeks to apply, ran into the sand somewhere after interviews took place with a panel chaired by Secretary of the Department of Justice and Attorney General, and before any name was put by the Attorney General to the Parliamentary Committee with veto power over an appointment. Headhunters have now been engaged to find someone for the job.

Leaders with, to paraphrase the ad, integrity and commitment to open and accountable government, experienced in government processes, comfortable with the exercise of statutory powers, with expertise in complaint handling and dispute resolution, and who can communicate and deal with a whole raft of stakeholders from general public to the leaders of government, may be harder to find than first thought, even if they don't necessarily have to have a law degree. Or pay and conditions weren't attractive enough? Or this NSW government in the current circumstances is not the employer of choice for some who might be well qualified?

A bit of a downer to end a year of generally positive reform measures, given the announced intention to have someone appointed in November, that implementation guidance from the Office of Information Commissioner is still to materialise, and there has been nothing done to raise public awareness in readiness for a new era of openness. That start date for the new law of "early 2010" might be subject to reinterpretation.

Tale of two cities when it comes to FOIing ministers

Any resemblance to recently deposed NSW Premier Nathan Rees purely coincidental.

Since 1991 NSW has stood out from other jurisdictions with no overall reporting on agency Freedom of Information performance (apart from an Ombudsman's survey not necessarily undertaken every year), with each agency reporting individually in its annual report. The exception is a report on applications received by ministers, where cross-government details are included in an Appendix in the Department of Premier and Cabinet Annual Report.

According to the 2008-2009 report published recently (page 90), the number of applications to ministers halved last year, 20 in total, compared with 54 in 2007–08. There wasn't a lot of joy for applicants either. Of the applications finalised by Ministers’ Offices, the Report states six were discontinued; four were granted in full or the documents were otherwise available; one was granted in part or the documents were otherwise available; two were refused in full on the basis of exemptions; and for six, no documents were held. Two ministers, the Premier (5) and the Minister for Primary Industries (4) accounted for almost half.

The reported statistics however may be a little rubbery as keeping track of ministers as they go out the door, or change responsibilities is tough going apparently. Hence this note:

"The Department has not been able to locate data, however, for some Ministers who ceased to hold office during the financial year or changed portfolio responsibilities."

But how to explain this comparison, drawing from information in the WA Information Commissioner's 2008-2009 Report (Part 7 page 84). It lists 247 FOI applications to state government ministers since the Government was sworn in in September 2008, including 50 to the Treasurer, with three other ministers each exceeding the 20 mark, the combined total for all ministers in NSW? People in NSW have given up, or don't know there is a separate right under the FOI Act to access minister's documents; they know a minister doesn't hold anything much in the way of documents that aren't held by their agencies; the stats are distorted as some ministers treat any FOI application they receive as if it is ministerial correspondence and send it off to the agency to deal with?

Guesses or suitably informed opinion welcome.

Relatively happy but busy Information Commissioner in the West

Western Australian Information Commissioner Sven Bluemmel in the Annual Report 2008-2009 details brisk Freedom of Information business, with 180 applications to his office for external review in the year to June 2009 up from 103 in the previous year. The average time for resolving complaints, just under 79 days, is impressive compared to similar review stats elsewhere.

While the Commissioner found a high level of technical compliance by agencies with obligations under the Act, he expressed some concern about the "spirit " in which things are done; some show little interest in an administrative process for making information available, either proactively or on request, instead of the freedom of information process; agencies, on occasion, are overly focused on the procedural aspects of a request to the exclusion of looking for an outcome which achieves the objects of the Act; and many published information statements are overwhelming or irrelevant to members of the public, either due to their sheer length and complexity, or to the lack of relevant information.

Agency performance details are summarised in Part 3 ( Police and health agencies topping the bill) with the Commissioner noting agencies are charging more often and waiving charges less; that complaints by Members of Parliament increased from 4 to 80 in the year, many involving complaints against decisions of Ministers; and that there wasn't an appeal against any of the Commissioner's findings during the year, a pretty positive performance metric (or they're just less litigious in that part of the country.)

Overall, sounds like better than a pass mark from the Commissioner who observes:

"Notwithstanding the challenges ahead, freedom of information in Western Australia remains on a firm footing - as illustrated by the statistics presented in this report - and will continue to play an important part in our robust and vibrant democracy."

Not a mention of the FOI reforms elsewhere in the country, actual or mooted, or the need for changes in the law or government policy. I would have thought one lesson is that you won't get too much adventurism if agencies are left to decide for themselves what information should be proactively published.

What ever happened to...

In case you were wondering, as the country goes into wind down to the festive season and before summer torpor takes complete hold:

The NSW Information Commissioner

Applications for the advertised job to lead NSW into a new era, with a new open government act closed on 28 September. Not a drum roll since, with the Office's website variously describing the state of play as "the recruitment process is on target with the implementation plan to have a permanent commissioner appointment by November 2009", and that the Commissioner "will take up duties by the end of 2009." The Government Information (Information Commissioner) Act (Section 4) gives the NSW Joint Parliamentary Committee on the Ombudsman and the Police Integrity Commission a right of veto over the appointment and Parliament looks well and truly packed up for the year, if not the holiday season. The first Acting Commissioner Judge Taylor has been on leave since 9 November. Maureen Tangney Assistant Director General Policy and Legal, Department of Justice and Attorney General has been the Acting Information Commissioner (and Privacy Commissioner) since. Start date for the Government Information (Public Access) Act is still listed as "early 2010" but unlikely to be too early I venture.

NSW Law Reform Commission review of privacy laws

The Commission received this reference in April 2006, with terms of reference slightly extended and a related reference given in June 2009. The references contain no report date, and aren't even close to the record- 11 years in total including 4 when the report on surveillance languished in the Attorney General's in-tray before being released, and rejected in its entirety. A report on one aspect of the current references, a cause of action for invasion of privacy, has been released. But as to the rest.....

Federal shield laws for journalists

The Evidence (Journalists' Privilege) Bill passed the House of Representatives in May, but has been on the Business List, without progressing, in the Senate since June 2009.

Federal whistleblowers' protection law

Parliamentary Committee (Dreyfus) Report tabled in February 2009; no formal Government response to the Report other than a commitment to introduce legislation in the life of this Parliament.

Transparency for political donations

The Federal Government's attempt to legislate to reduce the disclosure threshold to $1000 from the current $10000 plus has been stuck in the Senate since March, courtesy of the Opposition.

So a tick for the Government for trying on that one, and a couple of half ticks for getting its Freedom of Information Reform bills into Parliament at the death (but the Information Commissioner and other changes- described for two years as high priority- are way off, with a Senate Committee to inquire and report on the bills in March 2010) and for its phase one response to the Australian Law Reform Commission report on privacy, with legislation to be introduced next year.

Victorian Police and personal information

Do they, don't they, will they, won't they? What goes Mark 2,3...

The Age editorial today wonders about Victoria Police practices, agreements to hand over a wide range of information to private corporations about people involved in protests, the privacy concerns, whether a list of those agreements will be made public, and possible political pressure being exerted on the Commissioner on this issue. His latest position- that information about agreements could only be released under freedom of information legislation- probably means an application was on the desk first thing this morning.

Gov 2.0 Draft Report needs to toughen up.

The following are comments I've offered on the Draft Report of the Gov 2.0 Task Force, which contains many worthy and commendable suggestions:

"You need to toughen this draft up in the light of close to 30 years of experience since the last attempt at open government principles through the Freedom of Information Act. Strangely this experience and the lessons to be drawn don't rate a mention in the Draft. Nor do other environmental factors such as the more than 500 secrecy provisions in Commonwealth laws, the subject of an Australian Law Reform Commission inquiry about to result any day now in a final report to the Attorney General. Most commentators agree these laws (particularly the draconian Section 70 of the Crimes Act with two years imprisonment for unauthorised disclosure) have a chilling effect on public service attitudes. The other elephant in the room is the emphasis at the top on micromanaging information flows to the outside world. Something is going to have to give if Gov 2.0 is to have a chance, but (this) possibly (is) a little beyond your terms of reference.

Perhaps your response is that, as in the terms of reference, you are talking primarily about "non-sensitive information." There is no discussion in the Draft of what this means. The FOI experience is that anything is sensitive if someone high up enough thinks so, and public servants know this and often play the game themselves. Australia's longest running most expensive legal battle (McKinnon v Treasury) was over documents relating to the number of wealthy people applying for the first-home buyers grant and "tax bracket creep", that were 4 years old by the time the matter got to the High Court. The FOI case book (only a very small part of the full story) is full of examples.Even documents that are 30 years old get the treatment on occasion- last January's annual release (by the Archives Authority) did not include all or part of some Cabinet documents on the Uranium Marketing Authority something being talked about in 1978, but apparently never established.The reason- legal professional privilege, something the ALRC 10 years ago recommended be removed as a reason for refusing access to archived documents, but which has never been taken up by Government since

I could go on but turning to matters raised in the Draft.

While the Task Force is encouraged by the FOI Reform proposals, among the many positive proposals, some, particularly the proacative publication requirements of direct relevance to Gov 2.0, do not take things very far. The Explanatory Memorandum states: "Proposed section 8(2) sets out information that must be published. The classes of information substantially reflect classes of information that must be published under existing paragraph 8(1)(a) and subsection 9(1) of the FOI Act. For example, an agency will continue to be required to publish information about its operations and on the rules and guidelines that are used to make decisions affecting members of the public."

It goes on to say "Additional classes of information must also be published. Under proposed paragraph 8(2)(d), for example, agencies will be required to publish details of statutory appointments....Proposed paragraph 8(2)(g) requires agencies to publish information in documents to which access is routinely (regularly) given in response to access requests under Part III of the FOI Act."

Proposed subsection 8(4) establishes that an agency may publish other information it holds. The intention is that an agency, in addition to publishing the information that must be published under proposed subsection 8(2), will publish other classes of information that it holds, having regard to the objects of the FOI Act and guidelines issued by the Information Commissioner (see proposed section 9A in this Schedule). Agencies are generally best placed to identify information they hold which should be published taking into account the objects of the FOI Act."

Many with experience in the field would seriously doubt this last sentence.

A little further on proposed section 9A raises hopes about publication. It "requires agencies to have regard to the objects of the Act and to guidelines issued by the Information Commissioner in meeting the obligations to publish information.... The decision on what to publish is to be guided by the objects of the Act (for example, information that could assist in increasing scrutiny of the government’s activity or could increase public participation in government processes). The Information Commissioner’s guidelines may address classes of information appropriate for publication (beyond the mandatory classes of information in proposed subsection 8(2)), how long information should remain published, as well as the manner in which information should be published."

Two points here- what "must have regard to" means will be picked over closely in many quarters. But if you find your way to the proposed section on Information Commissioner's powers you find that the Commissioner may never issue (Guidelines):

"Proposed section 93A gives the Information Commissioner a discretionary power of issuing guidelines for the purposes of the FOI Act. The reference to guidelines addressing certain matters under proposed subsection 93A(2) is not intended to limit the power of the Information Commissioner to issue guidelines on other aspects of the operation or administration of the FOI Act. An agency or Minister must have regard to any guidelines issued by the Information Commissioner (that is to consider the guidelines). It is not intended that the guidelines have binding effect.
Proposed subsection 93A(3) provides that guidelines are not legislative instruments.."

Your consultants in an Appendix refer to the UK Publishing Scheme. I think we should aim a little higher. But the point is that the UK Model Scheme is more than that-it is mandatory.

As outlined above the Government's proposal is underpinned by the idea that each agency knows best, and the Commissioner can't make anything mandatory in any event.

A minor point. This sentence is wrong: "Changes to the fees and charges associated with FOI requests have also been put forward in March 2009 via the Freedom of Information (Fees and Charges) Amendment Regulation which seeks to reduce or make free of charges applications for some government information." The changes were released in December 2009 and submissions are invited until early January. Elsewhere in the Draft there are quotes from John Quiggin about the positive overall effects of free (no charge) information. But no mention that the FOI proposals fall way short on this. The Government has never mentioned the ALRC 1995 recommendation that charges only be imposed for documents released not those that aren't.

Another point that I thought you might take up is the Government's intention to stick to the concept of access to "documents"(admittedly broadly defined) not shift to "information" in the Reform Bill. There is a very 1980's feel to many parts of the law that are unamended by the proposals before Parliament. You won't find anything about data-sets in the law likely to emerge from this process.

Just in conclusion what I regard as some lessons from FOI experience.

Legislation needs to spell out explicitly what must be done. Reform by administrative decree won't work in this area.

Ministers and senior executives have to lead the discussion and debate but first must be sold on the pluses, and convinced of how to manage the risks. With FOI an early group of enthusiasts within government were not followed by others with the same zeal, while the anti forces bided their time to take things backwards, not forward. And no one at high level spoke up for years (except the Ombudsman) while some still in high places kept telling the world (still) the public service can't do its advice work without an absolute guarantee of confidentiality.

Keep lawyers in their place on this stuff- public management informed by a healthy understanding of contemporary thinking about democratic practices, not the fine points of the law should dominate in the discussion.

The overseer needs strong powers, and stick. There isn't much of this in the FOI Reform Bill. The personal characteristics and style of whoever ends up with the job are equally crucial to success.

Reporting and measurement are important tools that encourage public administration action. So are performance agreements with senior people that stipulate this is an important criterion. As are published report cards on agency performance. Obama's recent directive included a requirement for a transparency plan-what the agency intends to do in the next 12 months to promote greater transparency.

I remain very interested in where to from here for the Task Force product. For some hard to fathom reasons the open government/ FOI reform worlds seem to have been operating in different universes. Some heavy hitters such as the business community still seem to be part of neither...

Born 00/00/1988-what's not correct about that?

On the topic of self represented litigants, you like to see a winner like 18 year old Majur Sufara Ndonya, born in Sudan and a settled refugee in Australia after years in a camp in Kenya, who took the Minister for Immigration to the Administrative Appeals Tribunal after the Department refused his Freedom of Information application to amend records of his name and birthdate which he claimed were incorrectly recorded. The respondent submitted that, on the balance of probabilities, the information in the records including a date of birth 00/00/1988 was correct. While there was evidence of confusion about the details, there was no doubt about the significance of it all for the applicant:

"Mr Ndonya feels strongly that he is disadvantaged by circumstances beyond his control. When he came to Australia he was put into a class at school on the basis of his incorrect age; he struggled because he was actually several years younger and he eventually dropped out of school; he is currently completing his year 12 studies. He says that going by his current name and date of birth depresses him and reminds him every day of the situation he left behind in Sudan. He has been laughed at on occasions such as on public transport when he has had to produce identity documentation showing his date of birth as 00/00/1988. He believes his career, social and emotional future will be adversely affected. He wants his correct name, to reflect that he is Christian. Although some agencies recognise him by his correct name and date of birth, he says the respondent’s records remain the official source of his identity in this country and he is aggrieved especially by the certificate of citizenship which is the public proof of his identity."[40]

Good luck with the studies Emmanuel Kot Job, born 12 September 1991. Put this decision in your CV, it says a lot about your character as a new Australian citizen.

Costly wrong call on privacy law

The self represented (the norm in Freedom of Information and privacy cases) often face a challenge in pressing the right legal button and don't get much help when they miss. The law itself is complex and confusing enough. Judges (usually) stick strictly to what is argued before them, nothing else.

I have no idea of the merits of the matter, but take these recent NSW Supreme Court proceedings involving a case against TAFE employees ( Sellwood and Calvert) by a student (Chan) claiming, among other alleged wrongs, a breach of privacy. Part of the statement of claim in one case read:

[170] By 28 November 2005, the Defendant had begun a collection of/recording of personal information about the Plaintiff prohibited by the NSW (PPIP Act). In the alternative, the Defendant had acted without due authorisation in such collection/recording of personal information.

[171] As a result of the fact in the above paragraph, the Plaintiff suffered injury.

Justice Davies dismissed this part of the proceedings:

One, the employee, the defendant in the case was not an "agency" for the purposes of the NSW Privacy and Personal Information Protection Act [34-35]. Comment: Yes, but no mention of the fact the emloyer, TAFE, is an agency and as such is responsible for compliance by employees with the Information Privacy Principles.

Two, Section 69 states that nothing in the Act gives rise to or can be taken into account in, any civil cause of action. Comment: Yes, but no mention of the fact that the Act establishes a scheme for complaint about breach by an agency of privacy principles, with eventual recourse to the Privacy Commissioner or the Administrative Decisions Tribunal.

Three, while the law in Australia is, as Justice Davies put it, "a little unclear" about whether there is a tort of breach of privacy, the plaintiff did "not purport to sue based on such a tort. His cause of action is based on specific breaches of the Act." Section 69 ruled this out[38]. Comment: Yes, but no mention of the fact that the Act (Section 55) creates a statutory right to damages against an agency by conferring power on the ADT to award up to $40000 for loss or damage as a result of a breach of a privacy principle.

Mr Chan not only lost on this one- he was ordered to pay 90% of the costs of the defendant in the proceedings.

It may have been different if he had followed the Privacy and Personal Information Protection Act procedures seeking internal review of conduct, and if still aggrieved, taken a complaint to the ADT. But he would be none the wiser about the alternative course (now probably closed through the lapse of time) from reading the judgment.

Police and personal information-what goes?

The Victorian Police practice of agreeing to hand over personal information to private sector organisations undertaking major infrastructure projects, in the name of public safety, has been under the hammer all week since Paul Austin in The Age broke the story on Saturday about an agreement with AquaSure, the private consortium building Victoria's desal plant. Austin reported the memorandum of understanding says the Police "will release law enforcement data" to AquaSure:

"Law enforcement data may take the form of any text, images, audio and video, may be stored on computing devices, in hard copy, or on other storage media, and includes (but is not limited to) data related to individuals, aggregated data, written reports and correspondence, memoranda, police diaries, official notebooks, running sheets and other data repositories."

While the first reaction was for everyone involved to defend the deal, with reassurances that "the sharing of information will be done without breaching privacy laws", as the week rolled on the Privacy Commissioner who had not been consulted showed a keen interest (Victoria Police to brief Privacy Commissioner on protestors' files), the Police had a rethink about what they had agreed to, and Austin reported on the "political storm" that had ministers including the Premier on the back foot.

No-one has explained publicly, the early conclusion that information sharing of this kind was in accordance with privacy laws, but the Victorian Information Privacy Act (Section 13 and IPP 2 in Schedule 1) includes several significant "outs" that permit law enforcement agencies to disclose personal information in certain circumstances. Maybe even these weren't as accommodating as first thought.

Just a thought-what is police practice in this area elsewhere around the country? In NSW for example law enforcement agencies are excluded from compliance with information protection principles except in connection with their administrative and educative functions (Section 27 Privacy and Personal Information Protection Act). What if anything goes, here and in other jurisdictions?

Obama directive to agencies: "open up".. like this!

While we mull over the draft report from the Federal Government's Gov 2.0 Task Force before submissions close next Wednesday, President Obama has upped the ante on open government, issuing this Directive to all US Federal agencies. A few highlights.

Each agency is to:

Publish before the end of January at least three collections of "high value" government data on the Internet that never have been previously disclosed. The material must increase accountability, improve public understanding about the agency's mission, create economic opportunities, or be in high demand by the public.

Create an Open Government Webpage within 60 days describing its activities related to open government.The Webpage shall incorporate a mechanism for the public to:
i. Give feedback on and assessment of the quality of published information;
ii. Provide input about which information to prioritize for publication; and
iii. Provide input on the agency’s Open Government Plan

Within 120 days develop and publish on its Open Government Webpage an Open Government Plan-in effect a strategic action plan for transparency- that will describe how it will improve transparency and integrate public participation and collaboration into its activities, in particular (1) inventories agency high-value information currently available for download; (2) fosters the public’s use of this information to increase public knowledge and promote public scrutiny of agency services; and (3) identifies high value information not yet available and establishes a reasonable timeline for publication online in open formats with specific target dates.

Designate a high level senior official to be accountable for the quality and objectivity of, and internal controls over, the Federal spending information publicly disseminated

Distribute useful information without waiting for requests under the Freedom of Information Act.

Take steps to reduce backlogs of requests for records under the Freedom of Information Act by 10 percent annually.

Consider how agencies can use contests and prizes to find new ways for employees to improve open government.

The Directive includes all sorts of related policy development and coordination initiatives, requiring links between agency and central government websites, and directions on use of open formats as well. No worry about copyright- Government has no copyright under US law.

While some initiatives mimic developments in certain quarters here, the directive generally is more comprehensive and goes further than we have ventured. It provides plenty of thought starters for those thinking about these issues in Australia.

NSW report on whistleblowers not as good as it sounds

On what to make of the NSW Parliamentary Committee Report on whistleblower protection, a few observations from Dr Peter Bowden who I first met about 25 years ago when he was responsible for managing development programs for senior public servants for the Australian Public Service, and I was a humble consultant trying to improve policy development skills for program participants. Bowden is an Honorary Research Associate in the Department of Philosophy at the University of Sydney, NSW Branch President of Whistleblowers Australia and gave evidence to the Committee. He offered these personal comments in an email exchange. Comments from others are welcome.

"I tend to disagree with the report.The report is a commitment to the status quo. It in fact is even a backwards step on the previous recommendations by the same committee ( which were never implemented, incidentally) . The major step has been to take back the recommendation that the Ombudsman's office take charge of the act.Despite the rhetoric of the Committee's Chair, Frank Terenzini , the Committee has not given overall responsibility for managing whistleblowing in NSW to the Ombudsman Office. He has assigned it the responsibility for developing procedures, for training, for reporting on achievements, But if an agency or department still want to cover up their misdeeds, or sideline the complaints of a whistleblower, they can. The whistleblower cannot go to the Ombudsman and have it override the department.The Ombudsman's office will be little more that a glorified clerical office.Despite the fact that the media is the most powerful option open to a whistleblower, the Committee has been particularly weak.It has suggested a further inquiry be held."

Gruen says "what do you think so far?"

The Federal Government's Gov 2.0 Task Force with Nicholas Gruen in the chair has not been your usual run of the mill exercise with blogging, competitions, and mashups following release of its discussion paper on issues relevant to promoting government openness and public engagement.Nearing the end of year deadline for the final report its taken another unusual step, posting the Draft report today for comment by 16 December from any takers. This from the Executive Summary won't surprise readers:

"... the greatest barrier to Government 2.0 is cultural. Leadership on the issue of more open disclosure and engagement is the key driver of cultural change."

A bit of reading (159 pages) before saying more. Copy me in on any comment you make.

Federal Government still interested in examining private sector disclosure rules

Thanks to the alert reader who noticed in the fine print of the Second Reading Speech on the Freedom of Information Amendment (Reform) Bill, confirmation that the Government intends to go ahead with a reference to the Australian Law Reform Commission on private sector disclosures. Timing is vague, compared to then Special Minister of State Senator Faulkner's statement in March 2009,

"Terms of reference for this review will be finalised by ministers later in the year."

Parliamentary Secretary Byrne on 26 November gave no indication of when this is likely when he said:

To ensure the reform package delivers effective change, provision is made in the bill for the act to be reviewed two years after the commencement of the reforms. The government will also consider further improvements and will ask the Australian Law Reform Commission to inquire into whether the FOI Act or another disclosure regime should apply to the private sector."

Business is not out of the woods on this one, despite these earlier signs. Strangely in March and November and the months in between there has not been a public word from the Government about the thinking behind this initiative. Presumably issues concerning disclosures by private sector entities that carry out public functions, receive large amounts of public money, or relate to public health, safety and environmental impacts of their activities are part of the picture. All will be clear sometime.

In passing noticed that Bronwyn Bishop (Liberal Mackellar) in Parliament in June spoke about Australian participation in an Inter-Parliamentary Union Assembly in Addis Ababa earlier in the year "and a reservation from Australia ( accepted by the meeting) relating to freedom of information, and that was that it should apply to governments and not to the private sector." Not exactly consistent with the Government's expressed interest in exploring the issue more closely. The IPU Resolution adopted at the meeting, among many statements on Freedom of Expression and The Right to Information:

"Encourages the development of freedom of information beyond State actors to encompass significant private-sector companies and bodies."

Thanks to Open Australia for the Hansard links.

NSW whistleblower protection law and practice in need of comprehensive overhaul

When the Parliamentary Joint Committee on the Independent Commission Against Corruption in June 2008 was asked to inquire into and report on the effectiveness of current NSW laws, practices and procedures in protecting whistleblower employees, it ran into a problem: despite the fact that the Protected Disclosures Act had been in operation for 15 years , no central government agency had owned or supported the Act. None had information to indicate whether the law had worked effectively or not.

In the foreword to the recently released Final Report, Committee Chairman Frank Terenzini comments:

What became apparent very early in the process was that although the Protected Disclosures Act was enacted in 1994, the regime and associated procedures to protect people who came forward to disclose wrongdoing was never really given the attention and ownership it perhaps deserved. Changes made over the years were minor and peripheral. The intention of the original legislation sought to gather existing protections found in various Acts of Parliament, which resulted in a complicated procedure for reporting. It also set a high eligibility criteria for individuals seeking protection that served as a disincentive for potential whistleblowers. In addition to these issues however, the take up and application of the regime was by far the greatest issue that became apparent during the inquiry. Apart from the NSW Ombudsman’s Office playing an active role in producing guidelines and advising agencies and members of the public about protected disclosures, the inquiry found that there was no central body to administer the Act or collect statistics about the system of protected disclosures in New South Wales. Further, in the absence of any of any consolidated statistical information collated by a central agency, the Committee did not have access to any objective data about the operation of the scheme, including the extent to which public officials have sought the protections available under the Protected Disclosures Act and the resulting outcomes.

The Committee relied on the research for, and findings in, the Whistle While They Work Project and on submissions and evidence from witnesses, before concluding there was no coherent and unified direction for the whistleblowing scheme in NSW. It made 31 recommendations for comprehensive reform and a new policy direction that would place the Ombudsman, properly funded, at the centre of the scheme, to promote its objects and ensure information is collected from which it should be clear in a few years what works and what doesn't.

The law's 15 years as an "orphan" means necessary cultural change, an essential part of the reform agenda, is still to be addressed. That idea prevalent in the 90's of not needing a coordinated push to make good ideas like this work-"let the managers manage"- takes a hammering in this report. Left to their own devices public sector bosses won't necessarily act to give effect to policies and procedures to implement laws such as this. Culture change doesn't necessarily follow when you pass a law requiring people to act differently. Someone needs to make it happen.

The Committee says culture change is essential to "ensure that employees wanting to make disclosures are confident of receiving protection, confident that their disclosure will be investigated, assured that reprisals will not be tolerated and confident that wrongdoers will be prosecuted.... The Committee shares the view of the Deputy Commissioner of the ICAC, that it is a management responsibility(in each government agency) to set the tone in relation to protected disclosures. There needs to be a real commitment from management to see disclosures as a valuable management tool."

There are lessons in this for those trying to promote culture change on access to information in NSW and elsewhere.

The Committee unanimously recommended the following measures: • Strengthening the protections available for whistleblowers through more effective detrimental action provisions involving increased penalties, DPP responsibility for prosecutions, and making detrimental action a disciplinary matter (as well as a criminal offence); • Making access to the institutions and apparatus of protection easier and less complicated; • Providing for injunctions and civil damages; • Simplifying and clarifying particular provisions of the current legislation to assist and encourage whistleblowing in the public sector, in particular, providing for a disclosure to be protected if it is made in the honest belief on reasonable grounds that it tends to show corrupt conduct, maladministration or serious and substantial waste; • Extending the protections available under the PDA to cover contractors, engaged in providing services across the public and private sector interface. Other measures aimed at improving the effectiveness of the scheme include: • Coordinated oversight and monitoring of the operation of the protected disclosures scheme to ensure agencies and departments properly deal with disclosures and afford protection to whistleblower employees; • Mandatory and standardised agency policies and practices, to encourage reporting and protection of whistleblowers; • Clearer policy direction and legislative reform for the protected disclosures scheme. Recommendations have also been made in relation to protected disclosures made by employees against members of Parliament, which was part of the terms of reference for the inquiry.

New South Wales is the only Australian jurisdiction in which currently, disclosures made to the media may be eligible for protection in certain circumstances. The Committee suggests this aspect of the law is working well. It recommends [8.185] no changes while suggesting a Committee to be established should have a look at the issue. In NSW

"The Protected Disclosures Act provides that, in order to be eligible for protection, public officials making disclosures to members of Parliament or journalists must have already made substantially the same disclosure to an investigating authority or public authority, and the authority to whom the disclosure was made must have: decided not to investigate; or not completed the investigation within six months of the original disclosure being made; or investigated the matter but not recommended any action to be taken in respect of the matter; or failed to notify the person making the disclosure whether the disclosure would be investigated within six months of the disclosure being made."

Over to new Premier Keneally.

At the Federal level, we await news following the Government commitment in February to develop legislation this year, and act on the Dreyfus Report in this term of government.

FOI reforms that work in practice central to winning trust

It gets a mention in the small print of some of the analysis (here in The Australian) of the brief but troubled premiership of Nathan Rees, deposed as NSW Premier yesterday, but as acknowledged here in June, a hat tip to Rees for picking up the ball from Ombudsman Bruce Barbour and pushing major Freedom of Information legislative reform through the Parliament. (And for having a crack at the whole political donations mess.) But it wasn't a wise move to pass over responsibility for the new act to the Attorney General's portfolio, FOI having sat for 20 years in Premier's. As a whole of government matter, the much promised new era- Rees said it turned FOI on its head- of proactive publication and pushing the necessary culture change, should have had stayed with the boss. New Premier Kristina Keneally, with an enormous challenge ahead, mentioned almost as a first thought yesterday, her mission to restore trust in government. Sticking to these reforms, and making the extra yards to make them work have to be an essential part of her formula.

Dr Haneef battles tough law and some weak arguments

Dr Mohamed Haneef (Associated Press)

This report in The Australian this week alerted me to an Administrative Appeals Tribunal Freedom of Information decision in October involving Dr Haneef (Australian and Indian readers know who I mean) that I missed at the time. According to The Australian, the Department has appealed to the Federal Court.

Senior Member McCabe in Haneef and Secretary Department of Prime Minister and Cabinet [2009] AATA 777 granted access to some documents and to many parts of others that the Department had claimed exempt following an application by Dr Haneef in June 2008 for documents that shed light on the circumstances surrounding decisions to detain him and cancel his visa in July 2007. The decision is of interest in two respects: the absolute nature of two of the exemptions that will remain unchanged under the FOI Reform Bill introduced into Parliament last week; and arguments put (unsuccessfully) by the Department in arguing some exemption claims.

Section 33: documents that might damage international relations or contain information provided in confidence by a foreign government.

A document concerning outcomes of a meeting of the Australian government members of the National Counter-Terrorism Committee held on 5 July 2007 contained some information provided to the Australian Federal Police by the UK Metropolitan Police Service. Senior Member McCabe noted the information was "relatively uncontroversial information" but the only relevant question was whether disclosure “would, or could reasonably be expected to, cause” damage to Australia's international relations:

49. There is nothing in document 19 that should cause the MPS any difficulty, but that is not the test. I am not entitled to assume the MPS is committed to the same standards of openness that we try to observe in this country. Indeed, I am not entitled to assume the MPS will behave reasonably or consistently or helpfully. The focus is on how that organisation is likely to respond if the disclosure occurs. All I have is the guidance of Mr Appleby, and that guidance suggests the response is likely to be damaging. I note that the MPS does not appear to have reacted unfavourably to other disclosures, but Mr Appleby explained those disclosures as being, in effect, authorised by the MPS through its liaison officers. I am troubled by the conclusion, but there it is: the exemption is made out."

It was similarly game, set and match in respect of the same information claimed exempt also on grounds that disclosure would reveal information provided in confidence from a foreign government under s 33(1)(b). Evidence it was provided in confidence is all that is required. [At 80]:

"Deputy President McPherson pointed out in Re Haneef and Australian Federal Police [2009] AATA 51 (at [40]) that the information in question does not have to be confidential in and of itself. The information might in fact be publicly available. The test, rather, is whether that information was provided in confidence. The learned Deputy President reached that view after reviewing the Full Court’s decision in Secretary, Department of Foreign Affairs v Whittaker [2005] FCAFC 15; (2005) 143 FCR 15. I accept that view.

81.Mr Appleby said the information in document 19 was provided by the MPS. He said it did not originate from any other source. While he was not able to specifically identify who supplied the information to whom or in what circumstances, he said it was his understanding that all of the information provided was provided in confidence. I have no other evidence before me to contradict that assertion, and I accept it. In those circumstances, the exemption is made out and the redacted portion of the document should not be released."

Comment: In the case of both these exemptions, the triviality of the information or the strength of the public interest in disclosure are irrelevant considerations. In this case the United Kingdom said disclosure would cause damage to relations and that information had been given in confidence. But the same principles would apply if governments who might assert the time of day was information of this kind- North Korea, and Burma, come to mind, but there are others. More tightly drawn exemptions or a public interest test would provide more balance.

Exemption claim arguments

The Department prevailed in respect of many exemption claims, including for various cables from the Australian High Commission in New Delhi that contained assessments and comments from staff that if disclosed would damage relations. But on other points, some arguments (rejected by Senior Member McCabe) are surprising coming from the Department responsible for development of FOI policy in a government committed to changing the culture of secrecy in government.

See in particular [ 37-41] Senior McCabe's contrary view on an internal working document claim, that disclosing material in draft form might cause public servants to be less forthright in the future in giving advice or that the public would be misled or misinformed by release of a document that was not a final departmental position.

Similarly [58-60] on another document, leading to this conclusion by Senior Member McCabe:

"The limited discussion of options contained in the extract gives a clear and (I would have thought) uncontroversial picture of the bureaucracy’s thinking at a particular point in time. The nature of the information and the context in which it is provided make it clear that it is not a final view. There is little danger of it misleading anyone. Its disclosure would not deter diligent public servants from making similar comments in the future. In all the circumstances, I do not accept that release of the material would be contrary to the public interest."

[At 83] regarding disclosure of part of a document of a preliminary nature that does not pretend to represent a concluded view:

"I do not see how the disclosure would have the effect of chilling or discouraging the provision of advice. I do not accept it would be against the public interest to disclose the material."

There were other instances where the Department's claims were overruled including [125] an argument about deleting a word on grounds that disclosure would be very damaging to national security, withdrawn after Senior Member McCabe pointed out the word had been disclosed to the applicant in another document; several claims of confidentiality ,and personal information claims for names of individuals, already in the public domain.

Victorian lobbyists up in lights, NSW could do better

As reported in The Age the Victorian Government's Register of Lobbyists is up and running, with an initial batch of 21 lobbyists, and details searchable, in line with most other states that have taken the plunge. The name of an individual lobbyist employed by a registered firm, or an organisation represented by a lobbyist can easily be ascertained. As mentioned here previously NSW seems to be on its own in making search of the Register difficult- each registration is in a separate pdf file, and there is no search engine that enables a search across all registered firms. For example it should be easy to find if Macquarie Bank has someone roaming the corridors of power, or if former Premier Bob Carr is employed by any registered firm. But you will only find both once you click on RJ Carr Pty Ltd. If you didn't know, you have about 150 separate entries to wade through to find this and other gems.

More than politics happening in Canberra

No legislative history available but the Information Commissioner Bill and the Freedom of Information Amendment (Reform) Bill both introduced into the House of Representatives last Thursday are now before the Senate Finance and Public Administration Committee for inquiry and report by 16 March 2010.

Pluses mostly, and room for debate on proposed changes to FOI charges

As part of the reform initiative, the Federal Government has released the Freedom of Information (Fees and Charges) Amendment Regulations 2009 Exposure Draft for public comment ( by 11 January). The summary: no application fees (including for internal review) will apply to access requests; no charges will apply to applicants seeking access to their own personal information under the FOI Act; for all other applications, the first hour of decision-making time will be free (except for journalists and not-for-profit community groups where the first five hours of decision making time will be free); and applications not decided within the statutory time frame will be processed free of charge.

Hard to argue against any of this. While going further than the Australian Law Reform Commission Open Government recommendations of 1995 in important respects, the proposed changes do not incorporate one ALRC recommendation- that charges should be based on documents released not withheld.

The abolition of the application fee in all cases will have the additional plus of facilitating straightforward lodgement of an application by email. The no charge where time limits are exceeded should prompt agencies to look seriously at more proactive or informal disclosure, and will place new pressure, particularly on those often late, to find efficiencies in processing.

There is room for debate whether journalists and not-for-profit- community organisations are the only applicants who deserve additional concessions on charges. Any applicant who seeks information about government's conduct of public functions for the purposes of dissemination arguably should receive similar consideration. This impinges on definitional issues, not addressed in the draft, about who is a journalist, and what constitutes a not for profit community group. The Exposure Draft leaves it to the agency- the power to waive is where an agency reasonably believes the applicant is a journalist etc. This issue cropped up earlier in the year in the context of consideration of shield laws for journalists ( the Evidence Amendment (Journalists’ Privilege) Bill 2009 is still not through the Parliament) where after some debate the Government decided to go with no statutory definition. Its also an issue being considered in the context of reform of privacy laws and ALRC proposals for change to the media exemption. In both instances the issue of bloggers and citizen journalism has been raised.

FOI on The National Interest

I am interviewed about the new Federal Freedom of Information legislation on ABC Radio National's The National Interest-the program will be rebroadcast at 12 noon AEDT on 576 AM on Sunday, or you can listen or download.

SA District Court finds Ombudsman erred on privilege law

One of the issues mentioned in the recent post about Freedom of Information issues in the South Australian Ombudsman's Annual Report has been the subject of a decision by Judge Herriman of the District Court in Legal Practitioners Conduct Board v Wharff [2009] SADC 126, an appeal against findings arising from an investigation by the Acting Ombudsman of a complaint about refusal of access to documents. After years of contention and rejection of the idea, the Conduct Board appears to have accepted [19-20] that it is an agency for the purposes of the SA FOI Act as the issue was not argued in the proceedings. (I notice the status of similar bodies under FOI is a current hot issue in far away Scotland.)

The important issues in the decision concern legal privilege. Judge Herriman was not satisfied [55] the Acting Ombudsman correctly applied the law in reaching his determination and made orders remitting the matter for redetermination in accordance with guidance provided [60] on the proper application of the law concerning privilege. Included in the judgment are these observations :

No severability in common law privilege

"It is not, therefore, appropriate to look at challenged factual material from the standpoints that (a) some part of it is not legal advice or (b) it has been ascertained by the author or by others in circumstances which did not themselves attract privilege or (c) it contains material put there for a separate purpose. If a court is satisfied that the dominant purpose of a communication otherwise meets the required test then, ordinarily, the entire document will enjoy privilege and no question of severability should arise."

The SA FOI Act enshrines a different notion

Judge Herriman [60(2)] was

"not satisfied that the exemption test applicable under clause 10(1) of the FOI Act is equivalent to or co-extensive with (common law privilege.) Had the legislators intended such a result, they might simply have said so. Indeed, the Commonwealth Freedom of Information Act 1993 expressly provides (s 42(1)):

A document is an exempt document if it is of such a nature that it would be privileged from production in legal proceedings on the ground of legal professional privilege.

But here, clause 10 provides that a document is exempt if ‘it contains matter that would be privileged’ on the ground of legal professional privilege. That phrase appears to me to introduce a concept that common law authorities have not squarely dealt with. They focus upon the question of whether a whole document is privileged, not on whether ‘matter’ contained within it might be....

It appears to me that the legislature has here (in clause 10) embraced a form of exemption that is considerably wider than that which would apply at common law. It looks not at the dominant purpose of the document itself but, rather, whether there is matter contained within it that would be privileged.

Under the FOI Act where part of a document contains privileged matter, the entire document is exempt

"..if a discrete part of a document can be so characterised, then the whole document can be said to ‘contain’ privileged material and a clause 10 exemption ought be available, notwithstanding that the dominant purpose of its creation as a whole document may not otherwise satisfy the common law test."

(Comment:I can't recall this issue arising elsewhere in jurisdictions that use the same formulation in FOI legislation, but would be interested in any comments.)

Judge Herriman found that the Acting Ombudsman had erred in law in addressing issues about whether privilege properly applied to agenda papers prepared for Board consideration in disciplinary proceedings:

"Once he found certain parts of an agenda did contain legal advice, the basis for a clause 10(1) exemption necessarily emerged and he erred in then proceeding to determine the matter by considering the dominant purpose of the whole document. Further, he did not properly direct his mind as to whether such material amounted to ‘evidence gathered for the purpose of litigation’

Judge Herriman added that if the FOI privilege and common law were co-extensive, the Ombudsman had "wrongly failed to consider the appellant’s argument that some factual matters in the agenda were necessarily intertwined with legal advice and should therefore also be part of any privilege claim"; had "misapplied the law and applied too narrow a test in approaching litigation privilege on the footing that ‘the dominant purpose test aside’, it could not be said that the documents in question could be ‘used in or aid the conduct of litigation’;and had "failed to turn his mind to the distinction between documents prepared by solicitors employed by the Board in the exercise of investigatory and legal advisory functions."

There were also errors in the way the Acting Ombudsman had addressed the public interest test in connection with a claim for exemption of internal working documents.