China bound

I'm in China and Hong Kong for the next couple of weeks so attention to the blogoshere will be a bit more sporadic than usual.

Parliamentary integrity awards still up for grabs

The deadline for nominations for the Federal Parliamentary Integrity Awards sponsored by the Accountability Round Table has been extended to 20 April. A recent convivial exchange over a glass or two with a few friends saw some support for Minister Faulkner for the Button front bencher award and a mention for Deputy Prime Minister Gillard for talking up transparency in the education system and My School, and Parliamentary Secretary Bob McMullan, more a lifetime contribution, but no Opposition frontbenchers; and a wider field for the backbencher Missen including Melissa Parke, Mark Dreyfus and Senator Kate Lundy from the Government, Petro Georgio and Senators Russell Trood and Judith Troeth from the Opposition, Senators Bob Brown and Scott Ludlam from the Greens and independent Senator Nick Xenophon.

What if, on balance, the public interest always determined the outcome?

There's plenty of scope for "what if" thinking about government openness and transparency. John Hartigan, chairman and chief executive of News Limited, writes in What if? edited by Peta Seaton to be published on 16 April, about cabinet documents and the blanket secrecy afforded them under our freedom of information laws. I'm afraid it's all over red rover on this sort of idea in the current round of FOI reforms, and "what if all exemptions included a public interest test" is an even better question. In this Weekend Australian article on the book by Michael  Stutchbury, Hartigan concedes

"that cabinet should be a safe place where ministers can frankly and secretly speak their minds. But he also says there is no excuse for Australia's blanket cabinet secrecy. Until recently in Queensland, bureaucrats could routinely wheel trolley-loads of documents into the cabinet room just to exempt them from Freedom of Information laws. Hartigan says the public's right to know should trump cabinet secrecy in cases such as this newspaper's publication of leaked documents revealing security weaknesses at Australian airports. The solution, he suggests, is provided by New Zealand's Official Information Act, which has encouraged cabinet papers and minutes to be routinely released unless there is a good reason, such as national security, not to. "While the New Zealand model presumes openness from the outset, ours still presumes that cabinet information is always secret. It's subtle, but it's the wrong way round," Hartigan writes.

Four years hard labor on Court Information Bill

Attorney General Hatzistergos in The Australian explains how the NSW Court Information Bill reflects the various interests that go towards public confidence in the justice system and why the government is confident it has struck the right balance, while Susannah Moran elsewhere in the paper claims the bill is far more restrictive in some respects than a proposal put by Chief Justice Spigelman. The Attorney is right about the long gestation period "as the government conducted exhaustive consultations with a range of stakeholders, including media organisations, the courts, the legal profession, privacy advocates and victims groups." Four years since a discussion paper was issued on the subject. Whether  the result, still to come before the Legislative Council, delivers fully on open justice only qualified by necessary restrictions on access and publication of information, I'll leave it to experts.

More open government needs more than black letter lawyering

Pushing for agency compliance with the law is an important element in seeking to achieve the worthy objects spelled out in access to information laws, and we are seeing a bit more of this in guidance issued by the NSW Office of Information Commissioner this week on what is required regarding publication of open access information.  But something more- promoting thinking about what can be done that goes beyond the strict letter of the law- is also necessary if the spirit and intent of more open government is to take hold in the corridors of power.

The release in the US of Open Government Plans designed to increase transparency and collaboration by cabinet level agencies with the public is an example and one those leading the effort here should emulate.  Release coincided with a deadline under the Open Government Directive requiring government agencies to take a deep look at and plot out an open government strategy. A drop of 46,000 Freedom of Information applications is attributed to initiatives already taken. The Plans take things further. OMB Watch highlights some impressive efforts noting agencies see the plans a first step or version 1.0 of their open government efforts, with plans to collect reactions and input and update the plans regularly. Agency progress is being tracked-one of the measures is what has been done to ask the public what information should be more readily available. OMB Watch concludes the plans "represent strong positive steps toward a government that is open and honest with the public about its actions and performance on critical issues." 

The White House emphasises "Open government is not the work of any single office.  The entire Obama Administration is moving forward to translate the values of openness into lasting improvements in the way government makes decisions, solves problems, and addresses national challenges."

These are the sort of messages our leaders need to make loud and clear as well. Black letter law has its place in this but it's not anywhere near the full story.

Rider in FOI determination doesn't give rise to review or amendment rights

Throwing in a few words in a notice of determination that have little to do with the decision to release or not release the requested documents did not render the decision void, voidable or otherwise invalid, and was not a matter within Tribunal jurisdiction ruled Judicial Member Malony of the NSW Administrative Decisions Tribunal in GA v University of Sydney [2010] NSWADT 76, a matter that clearly has plenty of history.

The issue argued by the FOI applicant was the inclusion of the words "The University does not admit any assumption made or implied in your FOI application" in the original decision and internal review determination. Senior Member Malony said:

"The issue for the Tribunal on external review is whether or not GA should have access to the documents requested, not whether or not the rider is or is not authorised by the Act."[38]

Another aspect of the matter concerned a decision by the Tribunal Registrar to refuse to amend the record by redacting the same words from documents lodged in proceedings. Judicial Member Malony said the decision was correct  because the sentence in a document containing the applicant' name was not information about GA’s personal affairs for the purpose of the amendment provisions of the FOI act [58].

Finally the Tribunal had no jurisdiction to consider a claim for review under the Privacy and Personal Information Protection Act concerning the inclusion of these words in documents held by the University because the sentence did not contain personal information about GA - that is, information or opinion about him [71].

Ultimate exercise in futility

This action in the Administrative Appeals Tribunal by Garners Beach Habitat Action Group, a third party who objected to a submission made to the Department of the Environment, Water, Heritage and the Arts about a proposed development being released to the developer.

The decision-maker in the Department decided none of the exemptions in the FOI Act were applicable, and this decision was upheld on internal review. The third party elected not to appeal to the Tribunal at that point, preferring instead to complain to the Ombudsman. The appeal period in relation to the decision expired. The documents had now been released in their entirety. But the applicant decided to ask the Tribunal to rule on the question of whether the documents should have been released in any event. Senior Member McCabe accepted that the Tribunal had jurisdiction but dismissed the proceedings as frivolous under s 42B of the Administrative Appeals Tribunal Act 1975 on the basis there was no point persisting with the appeal because the documents had already been released. "As a practical matter, there is nothing left for the Tribunal to do....The decision to release the documents cannot be unmade in a practical sense." And then proceeded to explain why the third party's arguments against disclosure wouldn't have succeeded in any event.

The tax-payer was the one out of pocket here.

Wikileaks trumps FOI processes

Wikileaks posting of a video of a US army assault in Baghdad in 2007 that left 12 people dead, including two Reuters news agency employees, comes after Reuters spent 2½ years without success trying to obtain the video through the Freedom of Information Act, according to the Sydney Morning Herald. I imagine disclosure was claimed likely to damage national security or international relations. Perhaps the act itself did a lot in this regard amongst those in Iraq who heard about it in the three years since. The leaked video has now been seen more than 2 million times on YouTube. Oh and its the same Wikileaks that last year published the news that  proposed Australian legislation would ban some of its pages- for leaking information about the websites the Government proposed to ban.You've got to love them!
(Update: Richard Ackland in The Sydney Morning Herald on the same subject reminds us we live in a different world to when the Pentagon Papers made it into print after two years of court battles.)

The Age in top form on integrity failings

A terrific report by Katharine Murphy in The Age about the sidelining of the Auditor General from a role in policing money to be spent in taxpayer-funded advertising campaigns- a major integrity reform introduced by a government that had promised to be cleaner than its predecessor. Pulling the Auditor General off the job to now be undertaken by three former public servants stands in contrast to the Prime Minister's "absolute undertaking" in October 2007 "for the Auditor-General to certify whether individual advertisements contain legitimate public information or not."

The Age editorial on this and a related issue of transparency gaps in political donation laws also neatly nails a couple of Federal and Victorian government failings.

Scoring the local on food hygiene could make us all feel better

It's almost four years since the issue of transparency regarding hygiene standards in restaraunts was first mentioned here, and Matthew Moore of the Sydney Morning Herald began exposing excessive secrecy surrounding this issue, so terrific to see the NSW Government and local councils now preparing to introduce a score system that that moves things up a notch. Seems like only yesterday that some councils were arguing that release of fines imposed for breach of hygiene standards was personal information concerning the owner, among other howlers, until Blacktown and then Woollahra concils decided the public interest in disclosure trumped other considerations. The new emphasis on transparency as a spur to lift everyone's performance is a welcome shift from "name and shame" the laggards. And better public policy.

NSW Information Commissioner appointed

I haven't seen the announcement but understand that Deirdre O'Donnell, the Telecommunications Industry Ombudsman and a former Western Australian Ombudsman has been announced  nominated today as NSW Information Commisioner. We wish her well. Update. This is from the OIC announcement of the nomination now subject to Parliamentary committee endorsement:

Ms O’Donnell’s wealth of experience ensures she is well-qualified to drive right to information reforms in NSW. As Telecommunications Industry Ombudsman, she has led the TIO scheme through unprecedented growth over the past two years.

From 2002 to 2007, Ms O’Donnell was the Western Australian Ombudsman and exercised broad investigative powers, including those of the Royal Commission. Western Australia was the first state to establish an ombudsman's office in 1972, and Ms O'Donnell was the first woman to be appointed to the position.

Her other roles include serving as State Records Commissioner, a member of the Western Australian Integrity Coordinating Group, and the Energy Ombudsman Western Australia. Her outstanding contributions won Ms O’Donnell acclaim in 2008, in the form of a public service medal in the Australia Day Honours.

Ms O'Donnell has qualifications in arts, education and French, as well as an MBA and a Masters in Commercial Law from Melbourne University.

FOI in the frame sometimes

Freedom of Information did rate a mention when 19 departmental secretaries had a chat in 2008 with the Remuneration Tribunal about the challenges of the job, as summarised in a report by John Egan released this week. As did managing illegal and inappropriate directions, and delivering programs which have a political purpose and are not in the national interest. The Age reports

The position today is one of high risk. Legal actions can often be personal, freedom-of-information requests are challenging, some ministers can be hostile in their relationship with the secretary,'' the report says. ''The secretary is often required to manage illegal or inappropriate ministerial direction and … new initiatives which have not been funded in the department's budget.'' Secretaries were ''absolutely accountable … when things go 'belly up', irrespective of the source of the error''. ''Ministers don't ''fall on their swords'' any more. The secretary is accountable for protecting the minister. Secretaries have to manage conflicts between the department and the minister and the minister and the government … in the delivery of programs which have a political purpose and are not in the national interest. This is an awkward area of management.''

Awkward indeed.The Egan report is part of the Office of Secretary Report.