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Friday, May 01, 2009

Genuine privacy fears from FOI reform- or something else?

The headline "Privacy fears over FOI law reform" to Chris Merritt's article in today's Australian seems ironic given that the paper has, in the "Your right to know " campaign, urged Freedom of Information reform, and been dead against the idea of a statutory cause of action for breach of privacy, proposed as one aspect of reform of privacy laws. But the body of the report was limited to reporting the NSW Law Reform Commission's claim referred to here yesterday, that some of the recommendations put forward by the Ombudsman in his review of the NSW Freedom of Information Act "may weaken the protection of individual privacy."

The only issues specifically raised on the subject in the Commission's 27 page submission to the Attorney General are the recommendations for an Information Commissioner, to be located in the Ombudsman's office, to oversee FOI, and for consideration by the Government of transferring the Privacy Commissioner functions there. There isn't anything much to back up the claims of perceived problems arising for privacy protection, and on the last-mentioned the Commission thinks combining FOI and privacy could work- anywhere except in the Ombudsman's office:
"Provided the independence of both offices is supported by clear statutory provisions, we would not oppose a model involving some form of common oversight of privacy and FOI. A similar model was endorsed by the current federal government as part of its election commitment. The proposal was to establish an independent FOI Commissioner, preserve the existing role of the Privacy Commissioner, and create an over‐arching office to be known as an Information Commissioner, with responsibility for overseeing all aspects of data protection and information management."

Thinking through the best model would benefit from some open discussion and debate about the options- there is no one right answer- that will deliver the best result- and the lessons from experience.

Maybe for NSW the next step is an Information Commissioner, as proposed in Canberra (was any consideration given there to putting it all together in the Ombudsman's Office?) and in line with the UK, Canadian provinces such as Alberta, British Columbia, Ontario etc. Maybe its combining the two and putting the function with the Ombudsman as in New Zealand and the Canadian province of Manitoba.

There is no question that while governments in this state since 1991 ran for cover, the NSW Ombudsman's Office flew the flag vigorously for open, transparent and accountable government and for FOI law reform. It also has knowledge, experience, skills, and stature in the FOI area, public administration and complaint handling that will be hard, and take time and resources to replicate, if the Information Commissioner is established as a separate office. There are also efficiencies that present themselves in the event of combined functions. The NSWLRC and the Privacy Commissioner have run up the "downsides."

One thing that hasn't worked in NSW, in the interests of privacy protection, is a stand-alone privacy commissioner with an act full of holes; an under-resouced office; "independent of government" according to the NSWLRC, but operating as a business unit of the Attorney General's Department; lacking visibility and much clout; and responsible to successive attorneys general who appeared disinterested in the subject. Until someone raised the possibility that the function be removed to elsewhere in government? So leaving it alone, as is, makes no sense at all to me.

The Merritt article quotes Attorney General Hatzistergos (last time I looked he wasn't the minister responsible for FOI) as agreeing with the need for independent FOI oversight and saying the Government would release a draft reform bill for consultation "in coming weeks."

Hopefully the review function issues won't be in concrete, having been settled behind closed doors.

One aspect of " weakening privacy protection" in the name of FOI reform that The Australian missed, but presumably wouldn't complain about, is the Federal Government proposal that the personal information exemption in their FOI Act is to be amended to incorporate in addition to a test of unreasonability, a requirement to consider whether disclosure on balance, would be contrary to the public interest.

1 comment:

  1. Anonymous11:17 am

    The Commonwealth Ombudsman, Prof John MacMillan, was very vocal on his model for the Information Commissioner, with the two subordinates the FOI and Privacy Commissioner, to be located in the Ombudsman's Office.
    Anon in Canberra