FOI reforms a red flag for business?

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In a recent post I mentioned significant aspects of Minister Faulkner's Federal Freedom of Information reform package regarding private sector or business information -changes to the business affairs exemption and planned referral to the ALRC of the issue of private sector disclosures- and that so far, the Government has not invested time or energy in explaining why they are necessary and warranted. Leading law firm Allens Arthur Robinson (and I imagine others) are starting to raise the red flag with clients, concluding this briefing note on the subject thus:

"While companies seeking Federal Government information concerning administrative decisions or in connection with litigation may benefit from the reforms, there may be unwelcome implications for companies that provide services to the government or whose business affairs are detailed in government information."

AAR will help if anyone out there wants to pick up on the alert about "unwelcome implications" to lodge a submission in response.

On the broader front of the importance of open transparent and accountable government, and changes to the law to better balance the public interests in secrecy/confidentiality and the right to know, I'm afraid the Australian business community has largely been missing in action for years.

Unless the Government puts an effort into explaining and putting the case for what it is on about with these reforms, naysayers- in this case, powerful and infuential ones- will be happy to occupy the space.

NSWLRC throws an oar in on FOI reform

This is from a post in early February, generally welcoming the NSW Ombudsman review report on the Freedom of Information Act:

"The Premier has responded in a media release with a general commitment to greater transparency, to Cabinet consideration of the report's 88 recommendations, and to introducing the new Open Government Information Bill in "the upcoming session of parliament." Good, but a little short of President Obama's example of how to get the message out there that things were to be done differently from day one. The Premier might have done better by adopting some or all of the suggested policy and management changes to get the ball rolling now [1.6], and giving someone very high up in the system some very public accountability for finalising the details for the proposed new legislative framework within a specified but short timeline. Some muscle, clout and capacity to knock heads together will be necessary as the 152 page report leaves room for argument and bureaucratic infighting about the details. Just one - the suggestion for consideration that the Information Commissioner should take over as privacy overseer as well. Others are the recommended review of NSW secrecy laws, and resolving which agencies should continue to enjoy a partial blanket exemption for information about particular government functions.Get the picture?"

There have been no public indications of what has been happening within the NSW Government since, but I'd expect a fair bit of that predicted behind the scenes infighting. Just one small indication- in a highly unusual development, the NSW Law Reform Commission (undertaking a review of NSW privacy laws just entering its fourth year) has popped its head above the ramparts to join the fray, with a statement of its preliminary views about the Ombudsman's proposals in this 27 page submission last month to the Attorney General.The main thrust is to indicate that it opposes the recommendation that the Information Commissioner be part of the Ombudsman's Office. So does the Privacy Commissioner. Last month in a belated submission to the Law Reform Commission on a consultation paper issued in June last year, the Privacy Commissioner's main concern was to argue that the Ombudsman's Offfice shouldn't become the Information Commissioner.

Max Weber who enlightened us all those years ago about the behaviour of bureaucracies would be an interested observer of these machinations around bureaucratic survival and retention/expansion of power and authority. Plus ca change....

Shine a little light on politicians use of public money

This letter in today's Sydney Morning Herald under the heading "Show us the money" in response to yesterday's editorial, will sound familiar to those who read the post here on the same subject on Monday.

"I agree we should accept the umpire's reasonable assessment that an increase in electoral allowance is justified ("Let's be honest about MPs' pay", April 28). But we need transparency about these and other allowances paid to our representatives. The electoral allowance is taxable income, but if not spent - and no one knows what is paid to whom, and for what purpose - it goes into the pocket. MPs should be required to report on what they do with our money. For some reason the Government, in its recently announced Freedom of Information reforms, has not acted upon a 1995 Law Reform Commission recommendation that the departments that administer Parliament be covered by the FoI Act. Even that would not go far enough to meet today's expectations of transparency and accountability. Information about expenditure and retention of any allowance payments should be up on the web for all to see.

Peter Timmins Potts Point"

Meanwhile, Sean Parnell in The Australian, with the help of a little noticed Auditor General's Report and the Freedom of Information Act, gives some details of The Australian Political Parties for Democracy Program, a program administered by the Department of Finance and Deregulation, involving grants of up to $1 million a year to the major political parties.

"While some of the taxpayer funds have been spent promoting democracy in the Asia-Pacific region, the Labor and Liberal parties have spent more of their grant money hooking up with established Western organisations and paying staff to arrange their travels."

The basis for the deletion of "the names of those involved and some of the projects" from documents released to The Australian is not explained in the article.

On pages 11 and 12 of the Auditor General's report in a comment about shortcomings of the program, it turns out that the arrangements are such that the parties don't have to spend the grant funds for the purposes outlined in their annual applications for money, have not properly acquitted the money received, and that the Department hasn't in place any measures relevant to assessing expenditure against the objective of "strengthening democracy internationally."

Googling government information

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With the Queensland, Federal and NSW governments all moving in the direction of greater pro-active disclosure of information on the web, as part of Freedom of information reforms, one question that arises is whether we can find important information relevant to our interests, now and once the new era is underway, using publicly available search engines such as Google?

Search engine results are essentially statistical. Important but obscure government material might not rate highly. In addition there is the possibility that other problems might stand in the way of easy access to government information.

An expert in the field a few months ago told me that in addition to bad luck in finding things on-line because other documents might out-rate important government ones, other factors might be poor searchability as a result of use of language in documents not likely to be used by the public; poor URLs; poor page structure; failure to include documents or data-bases in the index due to the way they are published or linked, eg only linked from within a Flash document or in pull-down menus or via a password-protected site; and not that we would expect this, deliberate hiding through use of robots.txt.

There is a whole raft of guidance on web publishing on the Australian Government Information Management Office website. I assume the state equivalents such as the NSW Chief Information Officer have something similar. Whether all this means we are in good hands I have no idea.
(I don't even know whether robots are used on any government websites, how the index is created or what Flash means.) Google itself says it has the answers. Are our techo types onto problems of searchability and the use of publicly available search engines? I'd be interested in your comments.

These issues to one side, many government websites appear to have other problems. For example Usability One published in February the results of a survey of 12 Federal Government websites after new accessibility guidelines (WCAG 2.0) were released by the World Wide Web Consortium in December 2008.

"The accessibility guidelines provide a reference for web developers and web designers to create websites that are accessible to any user, regardless of physical, sensory and cognitive disabilities, and/or technological barriers. None of the websites audited adhere to all criteria in the latest accessibility guidelines. Clearly, updates will have to be made. Even UsabilityOne is updating their website based on the new guidelines. It is possible to excuse websites not being compliant to the new guidelines at this stage. What is alarming is the vast majority didn‟t even comply with the WCAG 1.0 guidelines which have been in place for over 9 years. Of most concern is that many of the Government Department websites reviewed are responsible for protecting the rights of the public, including those with disabilities."

No sign of transparency for MPs allowance spending

A fuss of sorts today over a Remuneration Tribunal Determination to increase the electoral allowance for Federal senators and members of the House of Representatives by $4700, the first increase for years. Guardians of the public purse such as Senator Bob Brown threaten disallowance when the matter comes before the Senate.

I don't have a problem with the umpires assessment that an increase is justified.But I'm back on an old hobby-horse to point out that there is no transparency about what the pollies do with the money.The electoral allowance (details here as part of the bigger payment picture)-currently ranging from $27300 to $39600- is "an expense of office allowance payable to Senators and Members to reimburse them for costs necessarily incurred in providing services to their constituents."It's taxable income, but If not spent - and no-one knows what is paid to whom, and for what purpose- it goes in the pocket.

Parliamentarians should be required to acquit the allowance by reporting what happened to the money.It's not just this allowance either that doesn't receive public scrutiny. For some unexplained reason (duh!) the Government, in the recently announced Freedom Of Information Reform package has not acted upon a 1995 Australian Law Reform Commission recommendation ( ALRC 72, Recommendation 73) that the parliamentary departments (who dole the money out to members and senators) should be covered by the FOI Act. Even that wouldn't go far enough to meet expectations these days - information about expenditure and retention of any allowance payments should be up on the web for all to see. An exception of course for identifying particulars of any money paid to a constituent in financial hardship, if any allowance was used in this way.

The same goes for state and territory parliaments and parliamentarians.

Goodbye to 2020 and all that

A couple of final thoughts on the 2020 Summit before all that enthusiasm and thousands of ideas disappear completely beneath the sand.

David McLennan in the Canberra Times (seriously) and Bruce Chapman in The Australian (amusingly) both highlight the problem of an over-ambitious plan to get 1000 people together for less than two days, with a blue sky agenda, in a process ultimately over engineered in the search for consensus. Poor preparatory material was also a clear weakness for mine, at least for the Governance discussion. Then there was the lacklustre government response a year after the event.

So what? Little gain but not much damage, you might say. Well for a government that came to office talking about the need to govern differently, The Age editorial on Friday cited this significant longer term impact:

"The attitude of both sides of politics presents a dispiriting contrast to the summit's bold vision of what kind of nation Australia should aspire to become by 2020. A year ago, summit co-chairman Glyn Davis said that, politically, "a government that ignored all of the views put forward by 1000 people would be taking a very high risk". The risk actually relates not only to the Government, but to Australians' perception of the worth of political engagement. If the summit briefly managed to get many people to suspend their cynicism about the political process, its lasting effect may unfortunately be to confirm the public's view that governments and politicians listen to the views of the community only when it suits them."

Open slather

Thought an experiment might be worth a try - an invitation to anyone to post a comment, opinion or observation, or raise an issue of interest or concern about any matters of likely interest to others who come here. Brevity (I know, not necessarily my best suit, but some of this stuff is complicated) and civility are the only rules. Just hit the comments button below - anonymous or otherwise your choice. Who knows where this might lead?

Update: Ok, ok it was Friday afternoon and you had a lot on, but we had a couple of readers chime in including Dissent from the US who asked what I thought was the number one privacy issue or concern here. I ventured a guess that ID theft and fraud were at the top of the list , with the general lack of appropriate sensitivity in government and business to privacy not far behind.Dissent put warrantless surveillance and Real ID (the push for authentication of drivers licences and related issues) at the top there. Any other thoughts welcome.

We'll try Open Slather and variants on the theme again from time to time.

Shield laws set for lively debate.

Attorney General Robert McClelland.

Some heavy going still ahead on the issue of proposed changes to shield laws for journalists, an important aspect of the discussion we are having about free speech, the right to know and the role of the media. Key players include:

The Attorney General Robert McClelland, who on behalf of the Government has put on the table the Evidence Amendment (Journalists' Privilege) Bill 2009, currently the subject of an inquiry by the Senate Legal and Constitutional Affairs Committee. With some changes, the legislation would enact for journalists in matters arising under Federal law, current protections in NSW legislation that apply to professional confidences in a variety of circumstances, one of which is journalist-source.

The state governments.With the Commonwealth in the Standing Committee of Attorneys General, they have been working away on changes to uniform evidence legislation that would extend protections for professional confidences to all jurisdictions, in line with the NSW law, as recommended by three law reform commissions, and adopted by SCAG in 2005. Chris Merritt in The Australian reports that the Attorney says the states have all agreed to the inclusion of new "public interest factors" in the model uniform evidence bill that would give judges discretion to protect a broad range of professional confidences. "These new factors give clear recognition to the public interest in freedom of the press" and are consistent with what is in the bill before the Senate Committee.However the Western Australian Attorney General in a submission to the Committee has cried foul, arguing the Commonwealth has jumped the gun in going ahead with journalist specific legislation, and objecting to some of the proposed changes, for example removing privilege where an offence or misconduct may have been committed by a confidant.Similar views are expressed in submissions by the NSW and ACT Attorneys.

The cross-bench senators and the Opposition who will determine what emerges from the Senate. Nicola Berkovic in The Australian reports concerns of The Greens and Senator Xenophon that the protections don't go far enough, and uncertainty about where the Opposition stand.

The media. In separate submissions the Australian Press Council, Australian Associated Press, Media, Entertainment & Arts Alliance, and Australia's Right To Know make a number of points about the detail of the proposal, links with whistleblower protections and secrecy laws. All argue for changes to ensure the protection of the identity of a source is the starting presumption only to be overridden by the exercise of a discretion where compelling public interests require.

The Committee has a hearing scheduled for Melbourne next Tuesday.Three and a half hours will almost certainly not be sufficient to resolve issues that have been raised in the submissions particularly the adequacy of the protections proposed; and the case for singling the media and journalists out for special professional confidence protections. On this last point there are important issues regarding definitions (none in the bill) of the media and journalists, further complicated by the growth of non-mainstream disseminators of information and opinion; and the absence of those attributes such as mandatory qualifications and enforcable standards of conduct usually associated with a profession. Then there is the prospect of lack of uniformity with different laws applying to state and territory matters - who said operating within a federal system was easy? (No-one actually).

The submissions by Dr Fernandez of the School of Journalism at Curtin University and the Public Interest Advocacy Centre (written by Mark Polden formerly a long time in-house legal adviser at Fairfax) are well worth a read. Both are on the witness list on Tuesday. But not an attorney general to be seen?

Federal agency privacy concerns.

If you weren't relaxed and comfortable after reading last week that doctors "will be forced to hand over patient medical files to Medicare to prove they have performed the services they have claimed, in a move the Government says will save taxpayers about $148 million over four years," you won't feel any better, and maybe a bit worse, after seeing the front page story in today's Australian Financial Review,"ATO lashed over privacy breaches"( no link available), summarised in Business Spectator.

The AFR report was the result of a six-month investigation, aided by a series of Freedom of Information applications, and a consultant's report that raised serious concerns about mismanagement and inappropriate collusion between the Australian Taxation Office, the Australian Crime Commission and the Australian Federal Police.

RSS subscribers.

If you keep up to date with postings on this blog with an RSS feed, just a note to say that the settings have been altered to provide from now on the full text, rather than the first few lines.

2020 vision suffers from near-sightedness

Reaction to the Government's response to the Final Report on last year's 2020 Summit seems to be somewhere between "underwhelmed" and "disappointed" as illustrated in these articles in Fairfax papers and The Australian, the Oz editorial and Mike Steketee's comments.

The response (The future of Australian governance - PDF 99KB) to the Governance chapter of the report includes a lot of the waffle Steketee refers to, not surprising, given the fact that much of the chapter lacked coherence, was repetitive, and included a lot of ideas that were trite and bordered on laughable as 2020 objectives.(See comments in June 2008).

Plans for moving on what the Report listed as the five priority themes for governance- the constitution, rights and responsibilities (an Australian Republic); a modern federation; collaborative governance; revolutionising the ways government and communities interact; parliamentary reform; and open and accountable government-vary from doing nothing (the Republic), to improving the way COAG works and a series of other small steps, and making a start on others, for example on Freedom of Information reform and discussion of a charter of rights. Some ideas- for example a culture change on disclosure, hardly a 2020 goal (I hope)- could have started a year or more ago if the Government had chosen to act.

The following, about community interaction and participation was a positive, but the wheels have been spinning in the Australian Government Information Management Office and elsewhere in government for years on e-governance, without much traction. Now the Prime Minister's Department is to have a go, but you hardly feel any sense of urgency:

" ..the Government is committed to developing practical initiatives in e-governance that increase communities’ ability to interact with the Parliament and the policy development processes of government. The Government is committed to making extensive information about policy issues available on-line to the community. The Government will develop better ways to increase interactive consultative processes using new technologies to communicate and hear from people. Some aspects of this work will be guided by the statutory Information Commissioner position (comment: sometime in 2010), which the Government will be establishing as part of its Open Government reform agenda. As a first step, the Department of the Prime Minister and Cabinet has sought expert advice(emphasis added) on the enhancement of information and access to Commonwealth information and policy and a whole-of-government approach to the development of an e-governance strategy. The Government is also considering (emphasis added) holding a set of forums that will bring together experts, business and community representatives and others with a strong interest in a number of topics to promote a collaborative approach to challenging issues and better inform government decision making."

Mayor of Gosford flunks accountability 101

On ABC 7.30 Report last night, Matt Peacock interviewed the Mayor of Gosford about $40 million in write-downs on Council's investments in collateralised debt obligations. A local business group has asked the Council questions as to exactly what funds have been invested in what schemes.

MATT PEACOCK: The council's answer was that it receives a monthly assessment and update of the investment portfolio from Structured Credit Research and Advisory on a commercial in confidence basis. It's also receiving advice on the possible unwinding and early redemption of investments, and that advice, too, is commercial in confidence.

MAYOR CHRIS HOLSTEIN: The councillors are given a regular update, councillors are briefed on where they are sitting and what's the position on all of those and how they are currently rating and where we're going.

MATT PEACOCK: And what about the public?

MAYOR CHRIS HOLSTEIN: Well, we put it out to the public. I'll have 170,000 financial experts will tell me, "You should have gone this and you should have done that."

Mayor, that's the whole point. Citizens are entitled to ask and be told what you are doing with their money, and entitled to tell you what they think about it all. It's called transparent, responsible and accountable government. I'd be amazed if the claims of "commercial in confidence" for information about where Council money is invested, and the current value of those investments, would stand up to scrutiny in any Freedom of Information challenge.

NSW Supreme Court on "disclosure to the world"

Justice Smart in the NSW Supreme Court in Gene Simring v Commissioner of Police, NSW Police[2009] NSWSC 270 considered the applicability of the Victorian Court of Appeal decision (in Marke) that disclosure to a Freedom of Information applicant was not necessarily disclosure to the world at large, and that an applicant's purpose in seeking access can be relevant when making an assessment under the Freedom of Information Act that disclosure of information about the personal affairs of another would be unreasonable :

" After the argument had concluded, my attention was drawn by the Crown Solicitor to the decision of the Victorian Court of Appeal in Victorian Police v Marke [2008] VSCA 218 delivered on 5 November 2008. Both parties were invited to make submissions and did so. That decision involved a detailed consideration of the Victorian Freedom of Information Act, many of the provisions of which have counterparts in the NSW FOI Act. In Marke the three judges delivered separate judgments. All Members of the Court of Appeal considered that it was wrong for a decision maker to proceed on the basis that a disclosure under the FOI Act was a disclosure to the world at large. Weinberg JA and Pagone AJA considered that the applicant’s purpose in seeking access to the documents was relevant. This may have been conceded by the parties. The majority thought it was permissible but not mandatory for a decision maker to have regard to the extent to which documents released under the Vic FOI Act might be further disseminated by the applicant. Both thought that a decision maker was not able to place restrictions on further dissemination of documents released under the FOI Act."[70]

Justice Smart [71] said "I would hesitate before not following the majority view of the Victorian Court of Appeal on legislation which has so many similarities to the NSW FOI Act", but concluded that no error of law had occurred in the Tribunal in this case in which the applicant sought access for the purposes of an appeal against a criminal conviction. The applicant had failed to provide sufficient evidence on how the documents would assist him:

" If the plaintiff wishes to rely on the ground stated (setting aside an unsafe conviction) and the public interest in the administration of justice including challenges to unsafe convictions it is not sufficient for him to state that he wants to access allegedly exempt documents as an aid to challenging and setting aside his convictions. If it appeared that the documents could arguably assist in showing that the convictions were unsafe that would be a powerful reason for granting access.[79]

After examining whether more generally the right of access under the Act justified disclosure in this case, Justice Smart concluded:

"While the judgments in Marke constitute important discussions of the FOI Act (Vic) and much of what is said is applicable to similar provisions in the NSW FOI Act I am of the opinion that there was no relevant error of law on the part of the Tribunal or Appeal Panel having regard to the way each approached the matter and the findings made."[83]

There is enough in Justice Smart's observations to suggest that the next time this issue arises there are good grounds to argue that Marke should apply in NSW. Here is what the ADT Appeal panel had to say on the matter in a recent decision:

"56 We have not found it necessary in reaching these conclusions to examine the difference between views expressed in this Tribunal (see for example, Saleam -v- Director General, Department of Community Services and Ors [2002] NSWADT 41 at [58]-[60]); upheld on appeal, Saleam -v- Director General, Department of Community Services and Ors [2002] NSWADTAP 30; and Cheney v Sydney West Area Health Service [2008] NSWADTAP 29) and the Victorian Court of Appeal in Marke’s case, esp at [104] ff per Pagone AJA. The debate relates to whether the unconditional nature of release under the FOI Act (i.e. disclosure ‘to the world’) operates to exclude absolutely consideration of the claims personal to an individual applicant for release of the requested documents. We acknowledge the force of the concerns that Ms Howell has raised as to the benefits that she would receive from having these documents released. However, in our view as explained, the public interest factors to which we have referred clearly outweigh the gains that she might obtain from release of the documents we consider to be exempt."

My comments on the law and policy considerations are here.

Government round-table on FOI Reform bills.

The Department of the Prime Minister and Cabinet will host a forum for interested persons to discuss the exposure draft Freedom of Information reform bills in Canberra on Thursday 7 May, from 2.30-4.30. To attend email foiconsultation@pmc.gov.au or telephone Maia Ablett on 6271 5245 by 5 May 2009. I hope to be there, but a trip to Canberra for two hours, meant to include an overview of the proposed reform measures, and discussion of the draft bills-are they sure they can spare the time? It sounds as if discussion of other ideas that go beyond the drafts is also out of the question.

APSAC cleaning up corruption in Brisbane

The program has been finalised for the second Australian Public Sector Anti-Corruption Conference- APSAC, sponsored by the three state commissions- to be held in Brisbane in July 2009. The four days will feature top figures in this and related fields from Australia and overseas and cover contemporary anti-corruption trends and strategies, including sessions on the media and exposing corruption, and on protection of whistleblowers.

Lobbyist registration schemes not quite all the same

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The three Australian lobbyist registration schemes are essentially the same- hired guns need to register with some exceptions; an on-line publicly available register of lobbyists and clients; ministers and public servants are not to meet unregistered lobbyists; and a failure by lobbyists to act in accordance with the code of conduct could result in loss of access altogether.In many respects the emerging Australian standard (Tasmania and Queensland have said they are going in the same direction) is a start, but a long way short of a fully transparent approach to public information about influence peddling.

In a case of spot the difference however, the Australian Government and the Western Australian on-line registers are both searchable in respect of individual lobbyists who work for any registered entity, and for the companies and organisations they represent.So finding a particular lobbyist or who represents a company in Canberra or Perth is straightforward. Simply insert a name in the search facility at the top of the page.

Not so in NSW.The register for all intents and purposes looks the same as the other two. But there is no search on the register and the site search doesn't list register entries. Trying to find a lobbyist who works for a registered entity or whether a particular company is registered involves looking separately at up to120 registrations, unless you strike what you are looking for earlier. Not only does this detract from the transparency principle that underpins the scheme, it must complicate things for those in government who want to check who is registered.(Update-thanks to David Jacobson for the additional information in a comment, that Queensland already has the same hard to search system up and running.)

As to developments elsewhere, last month on behalf of President Obama, the White House Office of Management and Budget issued interim guidance on communications with lobbyists about money available under the Recovery Act, as required by a provision in the Act: no problem in talking to a registered lobbyist about the program in general or how and where to apply for funding; nor talking to a lobbyist at a "widely attended gathering", mindful of existing ethical guidelines. But in respect of other direct approaches by lobbyists, agencies are to advise as follows:

“Under the President’s Memorandum, we cannot engage in any oral communications with Federally registered lobbyists about the use of Recovery Act funds in support of particular projects, applications, or applicants. All such communications by Federal lobbyists must be submitted in writing, and will be posted publicly on our agency’s recovery website within 3 days."(emphasis added)

Ditto for written approaches. OMBWatch provides some commentary and links to a couple of Federal agencies that have posted lobbyist communications to date.

You can imagine the frantic lobbying by lobbyists if this sort of scheme had the slightest chance of coming in our direction.

Premier Rees: "the taxpayers of NSW are entitled to know what I do day-to-day "

NSW Premier Nathan Rees has moved some way since the days of his predecessor, who following in the steps of the media meister who went before him, Bob Carr, wouldn't even put media releases on the web."Leave no footprints" was the mantra of those times. The Premier now has his media releases and articles here and those of ministers here.( If you are from elsewhere, stop that snickering-these are big steps forward hereabouts.) Some selected video of the Premier answering questions in Parliament and an opportunity to "talk" to the Premier and follow him on Twitter are available through links here. The Premier's Department website now includes some reports and studies.

Freedom of Information applications have thrown a bit of light on a couple of other related matters.This report last week says the Premier thinks your right to know what he's doing even justifies special film coverage at taxpayers' expense:

SYDNEY, April 16 AAP - NSW Premier Nathan Rees has defended the cost of his personal TV camera crew after it was revealed it cost taxpayers almost $20,000 in just two months. Documents obtained by the state opposition under Freedom of Information laws show the filming has cost $18,936 at a time when families and businesses are feeling the squeeze of the global economic downturn. "While Nathan Rees is indulging his own vanity, families are struggling to make ends meet, and businesses are contemplating laying off workers because of NSW's high taxes," opposition frontbencher Chris Hartcher said on Thursday. But Mr Rees has defended the spend on the film crew, hired to record his announcements in February and March, saying the film clips are posted on his website and allow the public to see what he is up to. "It's occasional filming; I'm not followed all day every day," Mr Rees told reporters. "It's about transparency and I believe the taxpayers of NSW are entitled to know what I do day-to-day and that's what this is all about."

But the Premier doesn't seem to be getting any mileage out of the Government's very own
TV Channel- Channel 45 on digital. Neither are the citizens. According to documents obtained through Freedom of Information by opposition frontbencher Chris Hartcher, the Government has no information on the numbers ( any?) who watch daily programming on the traffic, weather and health, and a foreign language late night movie.It's the same movie in Mandarin from April to June, so that saves money on the published program. Oh, and I left off the Lottery results. But it has cost $1million since start-up in 2003.

I know you shouldn't even try to stand between a premier and a good news story but what ever happened after Premier Rees issued an instruction in October last year to ministers to look into more pro-active disclosure of information on government agency websites? The Ombudsman in a report in February found that public servants at working level contend with ministers and CEOs who would not countenance pro-active disclosure of documents regardless of the sensibility of such a move.I won't even mention -well hardly- some examples of failure to make widely available on the web important reports tabled in Parliament.

Maybe the Premier could squeeze in a six month update?

Remember 2020?

Michelle Grattan seems to have been on the receiving end of a good leak in reporting about the Government's response to ideas put forward at last year's 2020 Summit- to be revealed in detail next week, long after the original commitment to respond by the end of last year. The score for the Governance Group's 184 ideas is " 90 taken forward, 43 considered further." The detail to come on Wednesday.

What's in a name?

A lot depends on the context, as two recent NSW Administrative Decisions Tribunal Freedom of Information cases involving NSW Police illustrate.

Details of a victim/witness named in a report of an incident, as you would expect are likely to be unavailable unless there are special and unusual circumstances.In Chirita v NSW Police Force (2009) NSWADT 69, the Tribunal upheld the Police determination that the date of birth, home telephone number, mobile telephone number and home address of the victim/witness named in a Police Report was information concerning the personal affairs of that person and disclosure would be unreasonable, even though the applicant, the person responsible for the incident, knew his name. And that the public interest override-still alive and well in NSW (cf Victoria)-did not warrant disclosure in this instance.

But the names of police officers carrying out their duties is another matter. In Vella v NSW Police Force(2009) NSWADT 68 the Police argued that the names of three officers who sat on an assessment panel to consider Mr Vella's application to join the Force was information that if disclosed could reasonably be expected to have a substantial adverse effect on the effective performance by the agency of its functions, and would, on balance, be contrary to the public interest. The Tribunal [36] gave this short shrift, particularly as the panel members would have introduced themselves by name to Mr Vella at the time, and because of the absence of evidence to support the claim of adverse effects from disclosure.The Tribunal had previously rejected [29-35] Police arguments that some parts of notes of his interview with the panel should also be withheld from Mr Vella for the same reasons, the Police in this instance citing possible impact on candour and frankness in future.

It's 16 years since the NSW Court of Appeal rejected an earlier argument by the NSW Police that the names of officers carrying out official functions was exempt, on that occassion on personal affairs grounds. (Commissioner of Police v District Court of New South Wales (1993) 31 NSWLR 606-Perrin's case; no link available.)

However details such as date of birth, home telephone number, mobile telephone number and home address of members of the Police Force are also likely to be well and appropriately protected against unwarranted disclosure.

New NSWADT cost powers get first workout.

In January in "Long lost review sort of surfaces, four years late" I commented on the statutory review report on the NSW Administrative Decisions Tribunal Act tabled with so little fanfare in Parliament years late by the Attorney General that the President of the Tribunal appeared to not notice; that the review was then (and still) yet to be published on the Attorney General's website, so few will have seen it; and that the report had been the basis for some changes to the Act that received scant attention during parliamentary debate.

The only reference in Parliament to one change-to the Tribunal's powers to order costs in proceedings-was this from the Attorney General in the Second Reading Speech in the Legislative Council on 27 October;

"(The Bill) amends section 88 to confirm that the parties in the tribunal are to bear their own costs unless the tribunal orders otherwise, and incorporates an expanded range of matters to be considered in the making of an award of costs. The provision is modelled on the provision contained in the Victorian Civil and Administrative Tribunal Act 1997."

I missed this at the time-hands up who didn't?- so was surprised when a new provision was used recently by the Tribunal, apparently for the first time in a privacy or Freedom of information matter, to impose a cost order on a complainant/applicant.

In BE v University of Technology Sydney(2009) NSWADTAP 22 the President sitting as the Appeal Panel decided that the lodgement of a late application for review of an earlier Tribunal decision concerning a privacy complaint was in this case a strong basis for a costs application [29]. And costs were awarded because the appeal in the context of this much litigated complaint, bordered on the vexatious [31-32].

The new powers are a far cry from the extremely limited "special circumstances" provision for costs prior to the amendment of the Act, and put FOI and privacy applicants, and yes, government agencies appearing before the Tribunal on notice that a wide range of matters-including "any other matter the Tribunal considers relevant"- can now be taken into account regarding cost orders. And will be, as BE has now found, with no doubt others to follow. Section 88 of the ADT Act now reads:

‘88 Costs

(1) Each party to proceedings before the Tribunal is to bear the party’s own costs in the proceedings, except as provided by this section.

(1A) Subject to the rules of the Tribunal and any other Act or law, the Tribunal may award costs in relation to proceedings before it, but only if it is satisfied that it is fair to do so having regard to the following:

(a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings by conduct such as:

(i) failing to comply with an order or direction of the Tribunal without reasonable excuse, or

(ii) failing to comply with this Act, the regulations, the rules of the Tribunal or any relevant provision of the enactment under which the Tribunal has jurisdiction in relation to the proceedings, or

(iii) asking for an adjournment as a result of a failure referred to in subparagraph (i) or (ii), or

(iv) causing an adjournment, or

(v) attempting to deceive another party or the Tribunal, or

(vi) vexatiously conducting the proceedings,

(b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings,

(c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law,

(d) the nature and complexity of the proceedings,

(e) any other matter that the Tribunal considers relevant.

(2) The Tribunal may:

(a) determine by whom and to what extent costs are to be paid, and

(b) order costs to be assessed on a basis set out in Division 11 of Part 3.2 of the Legal Profession Act 2004 or on any other basis.

(3) …

(4) In this section, costs includes:

(a) costs of or incidental to proceedings in the Tribunal, and

(b) the costs of or incidental to the proceedings giving rise to the application, as well as the costs of or incidental to the application.’

As to the NSW Government making sure we all know about changes in the rules, that's another story.

Fairly "radical" initiatives regarding private sector disclosure.

http://stephenyears.com/blog/

"Radical transparency" according to an entry on Wikipedia is "a management approach in which (ideally) all decision making is carried out publicly." You can see why the "radical" tag fits. Last month Daniel Roth in Wired ran it up as part of the solution to the current crisis in financial regulation around the world (and in other sectors as well), a theme picked up on Sunday in ABC Radio National's Background Briefing on Zombie banks. One of the speakers said we need to seriously question bank claims to confidentiality for information that goes to the management of risk, our money, and potentially involving high cost to the taxpayer in the form of government support.

The Leaders Statement in London following the G20 and the accompanying Declaration on Strengthening the Financial System steered clear of the word "radical" but had plenty to say about the need for greater transparency in the operations and regulation of financial institutions.

Could all this have any connection with two aspects of Minister Faulkner's Federal Freedom of Information reform package, neither of which have had much in the way of public explanation from the Government to date, that indicate more than a passing interest in a couple of big changes with implications for the private sector ?

One, the announcement that "the Government will (later this year) provide the Australian Law Reform Commission with a reference to consider whether FOI should be extended to, or another disclosure regime provided for the private sector." While this proposal had been considered but not recommended in the Commission's 1995 Open Government Report, Senator Faulkner said "the Government considers it timely to re-examine this issue in the context of the general reforms to freedom of information and developments on disclosure regimes in both public and private sectors." By the by, this has emerged as an issue in several countries including Ireland where the finance regulator is not subject to the FOI Act, with a call also for "banks that have been nationalised or guaranteed by the government (to) come under Freedom of Information legislation." In the US , not only are the banks not covered, but it has emerged that large parts of the Federal Reserve system that has lent trillions to banks is not subject to the FOI Act either.

Two, the proposed changes to the business affairs exemption in the Freedom of Information Act.The current exemption ( Section 43) which has worked effectively to deny access to important information in government hands about private sector entities regardless of any community interest or impact, and with which the business community grudgingly accepted way back in 1982, is to be amended. For the first time, two categories of information-the disclosure of trade secrets, and disclosure of information that has a commercial value that could be destroyed or diminished by disclosure- will only be exempt where in addition, release on balance is contrary to the public interest. In addition an " on balance contrary to the public interest " test is to be ( somewhat clumsily) grafted onto that part of the exemption that protects information concerning business, commercial or financial affairs information where disclosure would have an unreasonable adverse effect.

Radical transparency, as defined, maybe not. But a potential shake-up to some cozy notions concerning the need for secrecy and confidentiality about information that goes to public well-being held by government about private sector bodies. And a serious look later in the year at whether the private sector should have a more onerous obligation regarding direct disclosure of information as well.Interesting times.

Not much sizzle yet, to open government sausage.

I wonder if thinkers in government here about how to enhance transparency in the Google age are keeping up with action elsewhere to give practical effect to ideas such as developments referred to by Nick Troiano in Realizing Transparency 2.0 Through Social Media . In a few words:"In this era of transparency 2.0, no longer will placing a window between the people and their government suffice. That glass needs to be removed. The people ought to be able to reach inside and fiddle around. Our expectations of transparency in government, which were once limited to observation, have expanded to include participation."

In what might well be a welcome first, or at least first for a long, long time, Minister Faulkner as the minister responsible for Freedom of Information spoke in Canberra recently to the FOI Practitioners Forum, those government officials who deal with FOI issues everyday. The speech is a good summary of the legislative proposals, and recommended, particularly if you haven't ploughed through the Draft Bill. The Minister also peppered the summary with strong, positive statements:

"Information is.. the lifeblood of democracy. It makes informed commentary, debate and discussion of government policies possible. It lets people know what their government is doing, and why. It is fundamental to openness in government, that cornerstone of government integrity. And achieving more openness in government is the Government’s goal."

Minister Faulkner clearly sees legislative change as the first and major step to achieving more openness. But it's still all future tense-things that are to follow once the legislation passes Parliament.

I'm afraid there is no sign yet, in this speech or elsewhere, of innovative thinking about what may emerge from the wonderfully bureaucratic sounding "Information Publication Schemes" that may start to roll out from Federal Government agencies, if all goes well, sometime in 2010.

As to "doing things differently", the Minister is getting closer to spelling out to the public service that the government is serious in its commitment to open government:

"I will be writing to the heads of all agencies seeking their commitment and support in carrying out this objective, as I mentioned when I launched the package last week."

And the Minister made it clear to the FOI practitioners that the Government will want their help when the law changes:

"I also seek your support today. Those of you handling or advising on FOI applications have a vital role to play in ensuring that changes in FOI law are carried through to changes in FOI practice. We will be relying on you to ensure that these reforms actually deliver more open and more accountable government. I do know that this will not always be easy. It is often a very difficult job to weigh the competing and complex demands of transparency and confidentiality. I know too that where there is not a clear answer to the issues raised by a FOI request, it will always seem easier and safer to say ‘no’ rather than ‘yes’, to chose caution and withhold the document rather than take what may seem to be a risk and release it. It is our hope that these proposed changes will deliver the statutory structure and the processes to make it easier for you, as the decision makers ‘at the coal-face’ of FOI, to weigh these different factors, and to deliver FOI outcomes that reflect the public interest – and the government’s policies – of openness, transparency, and informed discussion and debate."

Meanwhile, back at the farm........

Credit grade for Faulkner.

You might be interested in this assessment of the Federal Freedom of Information Reform proposals by Ken Parish,writing for Club Troppo. Ken gives the package a credit grade, and thinks I have been a little unfair. I'll leave it to you, dear reader.

Ken Parish is a Darwin-based lawyer and former Labor member of the Northern Territory Legislative Assembly. He now teaches (mostly public law subjects) at Charles Darwin University, where he founded Australia's first fully online external law degree program. Ken is no longer associated with any political party, describing himself as a "committed sceptic."

Secrecy unveiled at Spy Museum.

What a nice invitation from Washington’s Spy Museum in the mail today:

Dear Peter,

We’d be delighted to have you as our guest at the Spy Museum’s upcoming event about freedom of information and government secrecy. The event is taking place tomorrow, Tuesday April 14, at 6:30 pm at the International Spy Museum, 800 F Street, NW Washington, DC 20004.”

As I said in reply, all the combined skills of many spooks would be needed to beam me up from Sydney and into Washington in time, but I appreciated the thought.

However if you are reading this from the Washington vicinity and can get there,it sounds like a very interesting discussion:America on a need- to know- basis:Secrecy in a Free Society. Buy a ticket here. Details as follows.

"Government secrecy—necessary evil, essential protection, ready cover-up, or useful bureaucratic measure? Americans wrestle with the concept of government secrecy, but tend to find it more acceptable when they feel threatened. But how much secrecy is too much and when does classification become control without bounds? Moderator Shelby Coffey III, senior fellow of the Freedom Forum and former editor and executive vice president of the Los Angeles Times, will engage a panel of experts in an exploration of these crucial questions. Join Thomas S. Blanton, executive director of the National Security Archive; Peter Earnest, former chief of the CIA office responsible for FOIA, privacy, and litigation issues in the clandestine service; Ronald Goldfarb, author of In Confidence: When to Protect Secrecy and When to Require Disclosure; and Mike Levin, former chief of information policy at the National Security Agency; for a lively exchange of views on the inherent tension between the public’s right to knowledge and the government’s duty to safeguard vital national security information.”

Maybe next time.

Government by the people,for the people,and accountable..to Parliament.

A significant aspect of the Victorian Court of Appeal decision in the Osland case (apart from apparently putting an end to Mrs Osland's legal attempts to find out more about the decision to refuse her petition for mercy) was the Court's finding that the Freedom of Information Act does not bring anything new to, or enlarge, traditional notions of ministerial accountability. If the Court is right,Victoria (where FOI reform is yet to reappear on the Government's agenda) should consider a leaf from the current Federal reform proposals to include in the objects of the Act "increasing scrutiny, discussion, comment and review of the Government’s activities", and specifying a public interest in disclosure to promote those objects.

The Court stated that it is "the accountability of a Minister to Parliament which has been recognised as the defining feature of responsible government."[38]. In addition, ministers can be held to account through questions and criticism by journalists and citizens. But in giving consideration to the public interest override (Section 50(4) of the Act) in the context of the Victorian Freedom of Information Act, to documents claimed exempt on legal privilege grounds, the Court had to operate within the legislative context [40]: "at the level of general policy, the Act itself has already struck a balance between the public interest in the maintenance of legal professional privilege, on the one hand, and the public interest in access to documents relevant to executive decision-making, on the other."

Therefore,[41] "(i)t is.. outside the scope of s50(4) for this Court to decide, as a matter of generality, whether there should be public scrutiny of legal advices received by a Minister in connection with the making of an executive decision. That is so whether the public interest is said to reside in greater transparency or in greater accountability… Whether ministerial accountability entails the production of legal advices relied on by ministers in making decisions, and if so in what circumstances, is a policy question which will fall to be considered, if and when it arises, by the executive or by the legislature."

The effect of this is that the Government can choose whether and in what detail it discloses information about legal advice received. And until the Parliament more explicitly legislates circumstances that require disclosure of legal advice, Section 50(4) won't provide the basis for forcing government to disclose relevant documents.This seems to involve significant reading down of 50(4):

" On the hearing of an application for review the Tribunal shall have, in addition to any other power, the same powers as an agency or a Minister in respect of a request, including power to decide that access should be granted to an exempt document (not being a document referred to in section 28, section 29A, section 31(3), or in section 33) where the Tribunal is of opinion that the public interest requires that access to the document should be granted under this Act."

In the Tribunal decision way back in 2005 the President Justice Morris [54] concluded that the arguments in this case for disclosure "are unique and powerful. Being unique, there is no reason why the provision of access should create any general precedent in relation to legal advice concerning petitions of mercy generally. Being powerful, they not only outweigh, but override, the factors that confer, and are relevant to the conferral of, exempt status on the documents.”

President Morris concluded the public interest required disclosure because citizens will be in a position assess the merits of the government’s decision to deny the petition of mercy.[34] He attached importance to “a public interest in information being freely available to enable members of the public to intelligently consider and discuss decisions of the executive branch of government. Democracy demands no less.”

He continued[49]:

”There is a particular public interest in relation to the operation of the criminal justice system. Public confidence in the system is likely to be enhanced if decisions, which affect legal rights, are made in a transparent manner. The exercise of the prerogative of mercy – or the grant of a pardon – in circumstances which are not transparent or beyond question have the potential to undermine public confidence in the justice system. In circumstances where a government decision is made in relation to a petition of mercy, relying upon particular advice which is specifically referred to, there will be a strong public interest in also making available any other advice that has been obtained in relation to the same question. If a decision maker obtains advice from two sources and receives different advice, the public might be misled if it is told that a decision has been made on the basis of advice (specifying the advice) without reference to the fact that there was also different advice. If only one advice is specified in such circumstances an impression may be created that the decision maker really had no choice; whereas if the two different advices are specified the public might think that there was a choice to be made by the decision maker and wish to know why a particular choice was made.”

The Court of Appeal concluded there had been no misleading in the Minister’s media release, that normal and proper processes of administration had been followed, that nothing in the content of the documents required disclosure of anything more than the Government had chosen to reveal, and that President Morris in considering the public interest in full disclosure of advice received was going beyond the scope of Section 50(4).

I’ll be interested to see what the Victorian FOI commentariat make of this.

Osland bid for advice on pardon fails in Victorian Court of Appeal.

The Victorian Court of Appeal in a unanimous joint decision has ruled in the Osland case that the Civil and Administrative Tribunal had been wrong in finding that the public interest required the grant of access to legal opinions provided to the Attorney General in connection with the decision to refuse her petition for mercy following conviction for murder of her husband.

The High Court had remitted the matter to the Court for reconsideration in August last year, finding the Court of Appeal had erred in failing to read the documents in reaching the same conclusion on an earlier occasion. Four of the five High Court judges in the majority had said it was not ‘legally impossible’ that there might be such differences between the advices as might require disclosure in the public interest. The Court of Appeal [18] put paid to speculation on the matter, confirming there were material differences of opinion in the various advices to the Attorney. It decided it was unnecessary to say more about the nature or extent of the differences, and ruled there was nothing in the revealed differences that attracted the override discretion in Section 50(4) of the Victorian Freedom of Information Act--to order release of documents where required in the public interest.

The Court of Appeal rejected the argument that the public interest required disclosure because a press release issued by the Attorney General about the decision to reject the petition "created the misleading impression that the only legal advice (a joint opinion of three eminent counsel).. obtained .. had advised (him) to deny the petition." While the release made no reference to the fact that a number of advices had been obtained, or to any differences, the Court found [31]:

"There was nothing in the language of the press release, or in the surrounding circumstances, which would warrant this Court finding – as a fact – that the Attorney-General had thereby represented to the public either that the joint advice was the only advice he had received on the topic or that he had received no advice to the contrary. On a fair reading, the announcement was not intended to enable – and did not invite – members of the public to make an assessment of whether the Minister had made the right decision. It was not a statement of reasons for the decision. The announcement was intended to convey – and in fact conveyed – no more than that the decision had been based on, and accorded with, independent legal advice from eminent counsel."

The Court also rejected an argument that "the public interest in accountability" required disclosure of the documents all of which were exempt on legal privilege grounds because the issue of the press release, and its reference to the joint advice enlarged the content of the Attorney-General’s obligation of accountability. Counsel for Mrs Osland submitted:

"The taking of that step (issue of the release) meant that the demands of accountability could no longer be satisfied by the Minister being questioned or criticised in Parliament or by journalists and commentators. Because he had chosen to justify himself by referring publicly to the joint advice, so it was said, he had assumed an obligation of accountability which could only be discharged by his disclosing also that he had had other, and different, advice. That disclosure not having been made, so the argument went, the public interest in political accountability required that access be given to all of the advices under s50(4)"[35].

The Court observed:

"What underpins the submission, therefore, is a proposition of a general – and potentially far-reaching – character. The proposition is that if, in announcing a government decision, a Minister states that the decision accords with legal advice which the Government has received, the Minister must – in order to be ‘properly accountable’ – disclose the existence of any advice received which is contrary to the decision arrived at and must disclose the content of all relevant advices. That is what the public interest is said to require. Translated into the language of the Freedom of information Act 1982(Vic), this means that if a ministerial decision is stated to be supported by legal advice, and contrary advice has been received by the Minister relevant to the decision but is not referred to, the public interest under s50(4) of the Act is enlivened so as to require that access be granted to all relevant advices. (As a matter of principle, the same theory of accountability would extend to advices of all kinds, whether legal or not, on which Ministers rely in arriving at their decisions.) [37]

In what is an intriguing conclusion that warrants some close analysis, the Court rejected the argument on the basis that it was

"outside the scope of s50(4) for this Court to decide, as a matter of generality, whether there should be public scrutiny of legal advices received by a Minister in connection with the making of an executive decision. That is so whether the public interest is said to reside in greater transparency or in greater accountability. (The question of principle is no different when – as here – the Minister in announcing the decision refers publicly, without waiving privilege, to the conclusions of one such advice.) Whether ministerial accountability entails the production of legal advices relied on by ministers in making decisions, and if so in what circumstances, is a policy question which will fall to be considered, if and when it arises, by the executive or by the legislature.[41]

The Court [43-49] decided there was nothing in the particular circumstances of this case that justified the exercise of the discretion to require disclosure of otherwise exempt documents.

The Bendigo Advertiser is the only media report this morning.

Clean but unofficial version of proposed Federal FOI act

John Fitzgerald is a lawyer with over 20 years experience in Administrative Law. He is currently writing a text on Freedom of Information in Australia. John has done a service with a "cut and paste" of the current Freedom of Information Act and the proposed changes, additions and deletions to produce a clean version of the entire FOI act as it would look if the proposals go forward. While it has no official status, I'm sure John has done a great job. He is happy to share the result here with readers.Sure beats trying to work your way through the released amendment bill. Thanks John.

Transparency still a struggle despite the law.

www.imagingstation.com.au

It's not clear from this report about a broader local council issue whether the Sydney Morning Herald was or wasn't sidetracked by the response from Burwood Council chief architect Albert Becerra:

"When asked for access to his pecuniary interest declaration, Mr Becerra said the Herald would have to submit a freedom-of-information request."

For the last 16 years Section 12 of the NSW Local Government Act has stipulated that"(e)veryone is entitled to inspect the current version of," among a whole raft of documents free of charge, "returns of interests of councillors, designated persons and delegates." Chief architect and other senior council staff are certain to be designated persons.

The Council's website acknowledges availability: it says all you need do to see returns is "Contact the Governance Section within Council." But nothing posted on the web. Perhaps there is scope for looking again at the level of detail of interests that need to be declared by those in local government, but in this day and age it's hard to justify the "come to the office during business hours" approach built into this and many other aspects of our supposedly transparent systems of accountability.

The issue last week was the need for an official on-line seachable register of interests of federal parliamentarians.It's the same at state government level. In the NSW Parliament the latest register of members' financial interests has just been tabled. I can find only one media report-by Brian Robins in the Sydney Morning Herald yesterday. Only the declarations of two members get a mention- Matt Brown is 99% of the story and there is a passing reference to George Souris. There are something like 140 members. Want to know about the others?- off to Macquarie St Sydney to inspect the paper records- business hours, of course. We should expect a lot better at all three levels of government.