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Tuesday, June 29, 2010

Queenslanders take to right to information laws

Government agencies in NSW and Tasmania, gearing up for the commencement of new right to information laws later this week, and Commonwealth agencies readying for change in November, will be interested in (concerned about?) the report by Patrick Lion in The Courier Mail last week (Rush for right to know, 24 June-no link available). Lion says Queenslanders have embraced the new Right to Information laws, operating there since July last year, with some larger departments  experiencing up to a threefold increase in new RTI and privacy applications compared with workloads under the old freedom of information legislation.

Queensland Health has received 743 RTI and privacy applications since July, compared with 220 requests for the final year of the old law. Lion reported that Information Commissioner Julie Kinross also warned of delays in finalising appeals of department decisions after a 60 per cent increase in external review applications since applicants could bypass internal agency reviews.

Premier Bligh said the popularity, reflected in a 10-20 per cent workload increase across departments, was due to her Government's greater openness and accountability."It shows there is a genuine interest in the community and that our Government is now releasing more information than ever before," Ms Bligh said."That's not only part of being a healthy democracy, but being the most open and accountable government in the country." Ms Kinross said the convenience of online applications and people being more confident in using the new laws had sparked the wave of applications."I'm anticipating our end-of-year figures for applications for external review will be up by 60 per cent," she said. "We have had a distinct rise in applications for external review from the media and members of parliament. The additional workload will affect the timeframes."

Monday, June 28, 2010

Rudd's modest at best legacy on open government

There are plenty of post mortems out there on the demise of the Rudd government, so I won't add much beyond these brief reminders of the big talk and slow and mostly modest delivery on openness and transparency over the last two and a half years. Getting Gov 2.0 to the stage of a warm endorsement and a touch beyond deserves a tick.

Rudd tells the National Press Club the days of secrecy are over.

Prime Minister Rudd volunteers to Kerry O'Brien on the ABC 7.30 Report, that he plans to make a difference with Freedom of Information reform: "...I'm determined that we can actually do better with some decency in the standards of government. I also know, it's very easy to say those things before an election, then you become a government and you think well it's all a bit difficult now. But let me just give you one core example. I'm determined to do something about freedom of information. This is notoriously seen as something that executive governments don't like because it causes information to go out which might be embarrassing. I'd like to, by contrast, encourage a culture of disclosure within government departments."

Governance gets a guernsey at the 2020 Summit, but interest in governing differently didn't last long."The response to the Governance chapter of the (2020 Summit) 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."

One year into government: "The Weekend Australian included a scorecard for many ministers ranging from 9/10 for Julia Gillard and Lindsay Tanner to 5/10 for Steve Conroy but didn't even bother to assess John Faulkner the minister responsible for integrity issues.We've said it before Faulkner has some runs on the board, but no there is no excuse for the pathetically slow pace of Freedom of Information reform which is still to get to first base. Even if we accept the proposed two stage reform process, just what is the hard part associated with abolishing conclusive certificates that means 12 months on, no legislation to achieve this has found its way into Parliament? As to the "changing the culture" intentions, don't start me....My assessment for Faulkner overall would be 7/10 but on the FOI front nothing to justify a pass and "needs to do much better."
"The Rudd Government has started to deliver on one element of its Freedom of Information reform commitments with the introduction into Parliament today of legislation to abolish entirely conclusive ministerial certificates.It's a welcome move, and goes further than recommended 13 years ago by the Australian Law Reform Commission, but took a year to eventuate and is nowhere near the top of most lists of urgently needed changes. On that front we are now told the Government "will release exposure draft legislation for public comment addressing broader reform measures aimed at promoting a pro-disclosure culture, as early as practicable in 2009." 

November 2009
The Exposure Draft appeared in March 2009.On the last day of scheduled sittings for the year, the Government introduced FOI Reform legislation into Parliament where it was sent off to a Senate committee for report in March 2010. it was good and welcome but a long way short of comprehensive reform, with many missed opportunities to go for gold.

Mid 2010
The Reform legislation passed and received assent in June 2010. Professor John McMillan had earlier been appointed Information Commissioner Designate. The legislation will  generally come into effect in November - three years after that Press Club speech - with new publication requirements to commence in May 2011. As to how a government obsessed with micro management of information flows addressed the challenge to "end secrecy" and "promote a pro-disclosure culture" Professor McMillan said a few weeks before Mr Rudd's departure "it is underway."

Prime Minister Gillard, fresh from the battle to force more transparency in the education system, needs to play a part to get this on track, through personal commitment backed up by example, as well as addressing her many other pressing priorities.

NSW Information and Privacy Commission coming..after August.

The NSW Government introduced into Parliament on 24 June the Privacy and Government Information Legislation Amendment Bill to bring the Information Commissioner and the Privacy Commissioner together into a single executive body, the Information and Privacy Commission, "creating a unified administrative hub, a one-stop shop for information management in New South Wales." The separate and distinct statutory roles of Information Commissioner and Privacy Commissioner will remain, the Government choosing to reject some NSW Law Reform Commission recommendations regarding the structure of the Office and the respective roles of the commissioners.

In an answer to a question the day before, Attorney General John Hatzistergos said the Law Reform Commission proposal for the Information Commissioner to have some privacy related functions and for Privacy Commissioner to be Deputy Information Commissioner "amounted to a demotion of the importance of the Privacy Commissioner." Given the government's  history of an unsuccessful attempt to abolish Privacy NSW some years ago, long periods when the Commission had no permanent commissioner, its decade as a business unit of the Attorney General's Department, and underfunding since the office was established, this emphasis on the importance and independence of the office, while welcome, produced a few wry smiles.

The Bill got no further in Parliament than this "in principle speech"LA Privacy.pdf in the Legislative Assembly before Parliament rose until the end of August, so the changes will lag commencement of the GIPA act on 1 July. The two bodies in any event are now co-located.

The Bill also amends the Privacy and Personal Information Protection Act  by removing the amendment of personal information provisions transferred from the Freedom of Information Act by the Government Information (Public Access) Act, and related legislation. As a result amendment applications will be processed in accordance with the pre -existing provisions of the privacy act, amended to include for the first time a right to amend information held by a minister.  The transfer of provisions from the FOI act had created two different rights to amend in the same act.

The Government may be right about the superiority of this model but it's worth noting that this is the third variation in Australia on how to manage combined privacy and right to information oversight, at three tries. Queensland has adopted the sole authority model, creating an information commissioner responsible for both privacy and Right to Information, with the appointment of statutorily created deputy or assistant privacy or RTI commissioners. The Information Commissioner has full responsibility, but may delegate and give instructions to the Privacy Commissioner regarding the exercise of delegated functions.The Commonwealth has adopted a shared responsibilities model where there are three independent statutory office holders within a single office. Each office holder has designated responsibilities and functions. However, particular functions overlap or are interchangeable. In NSW the Government has decided there will be one office with two commissioners of equal status, where statutory functions are separated although there is a requirement for consultation where there is overlap, for example, in issuing guidelines relevant to privacy protection and the right to access.The Information Commissioner will have additional administrative responsibilities as head of the commission.

Whether the differences in the models amount to much, and importantly, which office holders make their model work best, time will tell. But it's a new look for NSW to be out in front in ensuring nothing is done that demotes the importance of privacy.

Friday, June 25, 2010

Freedom of Information: High Court Osland decision

The High Court in Osland v Secretary to the Department of Justice [2010] HCA 24 decided that the Victorian Court of Appeal had failed to do what the High Court in an earlier decision had ordered, and stepped in to do the job itself. In a unanimous decision ( three separate judgments) the six judges found there was no error of law in the decision of the President of the Victorian Civil and Administrative Tribunal Justice Morris in August 2005 that the differences between the advices from senior counsel to the Victorian Attorney General whether to grant a petition of mercy on behalf of Mrs Osland provided the "powerful reasons" for requiring access to the documents in the public interest. In the circumstances of this case, the Court decided public interest considerations overrode the valid claim of legal professional privilege, and granted access to the 300 pages of advice received by the Attorney General from all sources . The decision is an important precedent on how factors particular to the applicant can be highly relevant to the public interest in disclosure, and on the interpretation and application of the almost unique override discretion conferred on VCAT by s 50(4) of the Victorian Freedom of Information Act. "Almost" because the NSW Administrative Decisions Tribunal has some capacity to override an exemption in dealing with FOI matters, but not in respect of legal privilege, and the GIPA act to commence this week will have the effect of winding back the the discretion in some respects as well.

Since Justice Morris made his decision five years ago this matter has been the subject of a Court of Appeal decision, a High Court decision, a further Court of Appeal decision and finally this decision in favour of Mrs Osland. There is an interesting question about what all this cost the Victorian taxpayer, also stuck with an order to pay her costs in the High Court. She will now get to see, nine years after her Freedom of Information application, that there was more to the advice received by the Attorney General than indicated in this media statement in 2001:
"On July 5, 1999, Mrs Osland submitted a petition for mercy to the then-Attorney General, Jan Wade. That petition set out six grounds on which the petition should be granted.  Following consultation with the State Opposition, I appointed a panel of three senior counsel, Susan Crennan QC, Jack Rush QC and Paul Holdenson QC, to consider Mrs Osland's petition.This week I received a memorandum of joint advice from the panel in relation to the petition. The joint advice recommends on every ground that the petition should be denied.  After carefully considering the joint advice, I have recommended to the Premier that the Governor be advised to deny the petition.  The Governor has accepted this advice and denied the petition."
While not mentioned in the release, advice had been received from the Victorian Government Solicitor, and a senior counsel, Robert Redlich QC, among others, in addition to the three counsel referred to in the statement. Differences between advices, the basis of the decision by Justice Morris, turned out to be a crucial point in the case in the High Court.

Crennan QC, now Justice Crennan of the High Court did not sit in proceedings for obvious reasons.

Thursday, June 24, 2010

High Court orders release of Osland advice

Here is The  Age report on yesterday's decision in the Osland case, a great win and of wider significance in Victoria at least. I'll have something to say when I get the chance to read the decision itself.

Wednesday, June 23, 2010

NSW GIPA down to the nitty gritty

With the 1 July start date for the NSW Government Information (Public Access) Act looming, the Office of Information Commissioner has released guidelines on a contentious issue that has raised concerns in the local government sector, and publicised a regulation that covers some important issues relevant to all agencies. Details and a few comments follow.

Tuesday, June 22, 2010

The past as prelude, at the movies

Judith Ehrlich, the Timmins, Professor David Weisbrot
The terrific documentary The Most Dangerous Man In America is a must see for those who remember the Vietnam war era. But it will be an eye opener for those who have never heard of Daniel Ellsberg and the Pentagon Papers but who listen with some scepticism to what we are being told 40 years later about current wars in which the US, Australia and other countries find ourselves. I saw it at the weekend and by happenstance had the opportunity to meet Judith Ehrlich the co director who had been in town for the screening at the Sydney Film Festival where it won the Audience Prize. That's now added to a string of others including an Academy award nomination earlier in the year. The documentary is screening at the Chauvel in Paddington, Sydney for the next two weeks. Keep your eyes peeled elsewhere. And by the by, tonight's Foreign Correspondent on (Australian) ABC  features interviews with Ellsberg and Wikileaks' Assange, something of a modern counterpart, in the program USA/Iceland - Truth or Dare.

Some personal ancient history, folks.

Iceland hot on information freedom

Wikileaks founder, Australian Julian Assange, thought to be sitting on a pile of unpublished classified material about Iraq and Afghanistan, has good reason to avoid the US according to the Washington Post, but spoke to a conference this week in Brussels, and has spent large chunks of time in Iceland recently.

Where Iceland's parliament, the Altingi, voted last week to task government with finding ways to increase information freedom and to make Iceland a leader in freedom of expression.The detail (in English) of what passed is a bit hard to come by but the Icelandic Modern Media Initiative, or IMMI is "intended to make Iceland an attractive environment for the registration and operation of international press organizations, new media start-ups, human rights groups and internet data centers. It promises to strengthen our democracy through the power of transparency and to promote the nation's international standing and economy."

Here is the summary of what was proposed which includes protection of journalist sources, whistleblower protection, communications protection, limiting prior restraint on publication, what they call process protection, history protection, and libel tourism protection, and the creation of the Icelandic Prize for Freedom of Expression. And bringing Iceland's Freedom of Information Act into line with the Council of Europe convention and "good and modern elements in the FOI laws of Estonia, Scotland, the UK and Norway." Some of this sounds as if they are coming from behind, but here's the FOI plan:

Monday, June 21, 2010

Some dark corners for Operation Sunlight.

Ross Gittins
Operation Sunlight-the Federal Government's "reform agenda to improve the openness and transparency of public sector budgetary and financial management" has been mentioned here a couple of times, including this good self report card from Minister Tanner and an earlier comment that there hasn't been much reporting on or analysis of the Government's claims. So interested in this in the column by Ross Gittins  in the Sydney Morning Herald today on the annual report on the  Defence budget by the acknowledged expert Dr Mark Thomson of the Australian Strategic Policy Institute.
When Lindsay Tanner was shadow finance minister before the 2007 election, he invited various worthies (including yours truly) to offer suggestions on ways the budget papers could be made more transparent and informative. These suggestions were developed into the Operation Sunlight policy Labor took to the election and has implemented now it is in government. But Thomson complains of newly darkened corners in the defence budget. He says the government ceased disclosing funding deferrals in its first budget. And this year, ''in a marked departure from previous years, the budget papers do not list the projects planned for approval in the coming 12 months''. I confess I had hoped for better from that nice Mr Rudd.
The paper version of the column has Thomson pointing to the only available list of projects that may be funded in the next two to three years, and  criticism by Gittins of selective and unexplained shifts by the Government from accrual ("French") to cash ("English") accounting in different areas when it suits, hardly designed to encourage full understanding of the figures, even by people like him.

Cabinet confidentiality breached-sun still rising

The claim is often made that cabinet confidentiality and solidarity is at the heart of the Westminster system of government. It's a fairly watertight exemption in all our freedom of information laws-none of our governments will have a bar of adding a public interest test to this category of documents. It's said to be essential for 30 (on the way to being reduced progressively to 20) years to protect collective decision making and full and frank exchange of views and opinion. But the highly selective approach taken on the issue was apparent in these three recent developments, two of which involved government decisions to release cabinet details. The third represents apparently, someone acting self interestedly or who on this occasion thought we should know the details. I'm sure the sun rose this morning and the earth continues to turn on its axis, despite dire prediction of consequences of this magnitude if we ever were to know what happens in the cabinet room.

The Australian 30 May: "Senator Ludwig released cabinet documents showing that Wayne Swan first sought his approval for an exemption of normal rules for the RSPT commercials on May 10 -- after the Minerals Council of Australia had begun funding anti-RSPT ads."

Herald Sun 28 May: "Newly declassified Cabinet documents show the minister responsible for the scheme, Peter Garrett, told the Prime Minister of "unacceptably high occupational health and safety risks" last year." The Government tabled letters in the Senate yesterday in response to a Senate order.

The Weekend Australian 19 June in this extract  How Rudd bet the house from a book by Lenore Taylor and David Uren launched today by the Prime Minister. Someone was happy to pass on the fine detail of cabinet decision making in the dark days of the GFC in 2008, including that Finance Minister Tanner was against the spending package. I'm sure they didn't just make this up:
The strategic priorities and budget committee of cabinet met in Brisbane on Tuesday, October 7, to consider the government's crisis response. There was no agenda. Rudd urged everyone, ministers and advisers, to speak their minds. (Treasury Secretary) Henry started with a chart showing how much domestic consumption, exports, housing, business investment and stocks were supposed to contribute to the economy under the current forecasts. Then he explained what could happen to each of these with the collapse in confidence already being witnessed. And he said this time the normal first lines of defence against economic downturn would not be enough to offer sufficient protection. The rise in welfare spending and the fall in the government's tax receipts would provide some cushioning, the plunging Australian dollar would help exporters, and the Reserve Bank would inevitably cut interest rates, but none of it would be sufficient to counter a downturn this big.

Swan used his own advisers' work to float the idea of a stimulus package of several billion. Henry said there was a case for a stimulus in the region of $2bn or $3bn, far less than the $10bn he had canvassed at the Lodge meeting two months earlier. Tanner argued vigorously against a spending package. The economy, he said, was still showing reasonable growth, according to the June quarter national accounts released a few weeks previously. Tanner had sweated hard to deliver $7bn in budget cuts from the 2008-09 budget and was loath to see them cast aside.
There's more in the extract if you are interested. Enjoy the sun...

Friday, June 18, 2010

More confidentiality the answer for Queensland councils?

It was the ongoing prospect of unfair media coverage that Brisbane Lord Mayor Campbell Newman said justified a "cabinet exemption" under the Right to Information Act for some documents concerning the operation of Brisbane City Council contained in the City of Brisbane Bill that passed Queensland Parliament last week. So he wouldn't be surprised by  'Death of democracy at City Hall'  as the headline in the Brisbane Times the following day in its report on parliamentary debate on the bill. A step backwards for transparency, yes, and certainly not justified for the reason claimed by the Lord Mayor in the Brisbane Times. But the "death of democracy"  a quote from a Labor Councillor is over the top.It's not dead, just somewhat unnecessarily winged in the local government department.

Thursday, June 17, 2010

Leaders urged to let us know, citizens urged to speak up

The speech by former High Court chief justice Sir Anthony Mason in presenting the Accountability Roundtable awards for Integrity was a depressing summary of the state of our democratic institutions, and citizen disengagement from the process.  You won't be thrilled to learn that "In all probability democracies can survive the indifference, even the cynicism of their peoples, though it would be a mistake to take this proposition for granted" (emphasis added). He continued:
Whether this be so or not, this indifference itself reinforces the existing political culture. If electors were more engaged with the political process, our representatives would be less inclined to take the electorate for granted or to think that public opinion was a matter to be managed by of advertising campaigns and public relations strategies. Unfortunately the price we pay for disengaging from the political process and not expressing our views is not so much that our representatives don’t listen to us but we offer nothing for them to listen to.

On openness and transparency Sir Anthony said:
Although our governments pay lip-service to the ideals of open and accountable government, including freedom of information, the reality is different. There have been, at both federal and state levels, instances of the suppression of, or failure to publish, adverse reports or material which the public has an interest in knowing. Whistleblowers have been prosecuted for disclosing information the publication of which was in the public interest but politically detrimental to the government of the day..

What, one might ask, has happened to the old democratic idea that a controversial public measure should be open to public scrutiny and debate before it is adopted? Sometimes that idea is acted upon, but at other times controversial measures are decided upon and enacted without adequate opportunity for public consideration. All too often governments are anxious to avoid public debate because it may lead to controversy. Instead they prefer to manage public opinion by advertising and public relations campaigns.

The effect of these techniques is either to stifle or manage, rather than promote public debate. Opinion polls and “talk back” programs enable politicians to say that they listen to and take account of the public’s views. But it is very much an exercise in the strategy of managing public opinion....

The popular image of the political process would be enhanced if the ideals of openness and accountability were pursued, if relevant information was made available in timely fashion to the public and if our representatives gave us the bad news as well as the good news. People would react favourably if they felt that they could rely on the accuracy of political statements. Unreliability of statements by politicians and “cover-ups” lead to lack of trust and confidence in the political process. Sometimes these statements are made carelessly for opportunistic reasons. But on other occasions the unreliability of the statements is exaggerated and then exploited by other politicians and the media for their own ends. Statements of intention are frequently elevated into “promises” even if they are obviously conditional on no change in relevant circumstances taking place.
Mason Speech- 15 June 2010 Final Web version.pdf

Wednesday, June 16, 2010

A Button and a Missen for Faulkner and Georgiou

Congratulations to Minister Faulkner and Liberal backbencher Petro Georgiou on receiving the Integrity Awards from the Accountability Roundtable. Deserved but no surprise, although the fact there were 17 nominees will give rise to some head-scratching.

Now you see it online now you don't

Then there's this strange but true story Minister backs 'error' explanation by Michael West in yesterday's Sydney Morning Herald about the Australian Securities and Investment Commission purging hundreds of exemption orders relating to filing company reports from its public database-apparently because details posted for at least seven years were not meant to be made publicly available.

While Irish eyes are prying, who's looking at the public record?
Staying in the North Atlantic and with digital information for a moment, John Lee in FOI'd again for Irish Central, details the exploits of Gavin Sheridan who is using FOI and the internet to open up to scrutiny and publicise aspects of Irish government operations that haven't seen much of the light of day. Sheridan and colleague Mark Coughlan, as their The Story website proclaims, are "dedicated to sharing documents, combing and combining data and promoting transparency in public life: an experiment in journalism and crowdsourcing hoping to shed light on the government. If you’re spending the Irish taxpayers’ money, you’re on the radar." And they're making a dollar somehow as well.

Journalists everywhere obviously trawl the public record and find newsworthy bits as government agencies at all levels use the internet to publish more information than ever-Anna Patty's front pager today based on information from the government's Building the Education Revolution website is a case in point. However the mind set in some quarters is still that there's no story if information isn't secret or confidential, and of course it's true governments aren't in the habit of (intentionally) volunteering bad or embarassing news. The "citizen journalist" out there in the Blogosphere helps uncover some gems in many areas as well.  Open Australia has done a great job to bring debate in our Federal Parliament into more sunlight, and recently in getting an updated version of the Register of Interests online. Gov 2.0  may deliver on its promise of much more of this.

Even before Tasmania, NSW and the Commonwealth follow Queensland into the mandatory proactive publication era, who knows what a forensic eye like Sheridan's might bring to light after, for starters, close examination of:

The above mentioned Open Australia Register of Interests of Federal Parliamentarians.

Anything still to be gleaned from My School.

The Queensland Cabinet Documents webpage.

Queensland Government agency  registers of gifts or benefits of more than $150 which must be published as part of an agency’s publication scheme each quarter.  Here's the Department of the Premier and Cabinet  Register-for others see these publication schemes.

South Australian members of parliament travel reports.
Commonwealth Government Grants.

While I'm told we have a long way to go in this area, the Therapeutic Goods Administration AusPAR website, which says it "provides information about the evaluation of a prescription medicine and the considerations that led the TGA to approve or not approve an application."

Despite a good going over already of Defence contracts by Linton Besser of the Sydney Morning Herald, contract notes of other agencies published on the Austender website.

NSW Food Authority Penalty Notice list of eateries issued with a breach notice for failure to comply with food hygiene standards.

NSW Department of Health Monthly Hospital Performance Reports.

I'm sure there are plenty of other underexplored caches out there, so happy to add to this list - even happier if some of you sift all this to find the bits the rest of us deserve to know.

Tuesday, June 15, 2010

Digital age calls for removal of digital impediments

An article by Jane Fae Ozimek in The (UK) Register Commons slapped for FOI fastidiousness raises issues about access to digital information that we may see play out in Australia. The question: would a request for digital information to be sent to an email address that will automatically publish the response be a valid application, and produce an eventual positive ruling, albeit after a two year battle, from the equivalent of the Information Commissioner here?

Much deserved recognition for AustLII

Congratulations to the Australasian Legal Information Institute on winning the award from the Internet domain name administrators for Australia and New Zealand for the best openness initiative for Austlii , the online legal public library service.  AustLII won on the basis of best practice for free access, high usage- close to a million hits a day- and for being a model adopted by others. It's an invaluable resource, in my case for legislation and court and tribunal decisions.

Friday, June 11, 2010

Nine words have powerful effect on Ombudsman

NSW Ombudsman Bruce Barbour has followed up with a special report to Parliament Removing nine words - Legal professional privilege and the NSW Ombudsman , his so far futile attempts and those of a parliamentary committee to have removed unique limitations in legislation that give an agency power to refuse his office access to information on this ground in the course of an investigation. The report includes case studies on problems encountered with the RTA, the Board of Studies and an unnamed local council during the course of an  Ombudsman investigation into the handling of Freedom of Information applications. The attitude in some cases was the agency claimed privilege and refused to provide the Ombudsman with information for the simple reason it could.

That's probably the situation with many FOI refusals on legal privilege grounds as well. Come 1 July and the commencement of the GIPA act, legal privilege will be a conclusive public interest factor against disclosure-no other test is required-although the agency must in each case give consideration to waiving privilege. The claim of privilege will be reviewable but not the refusal to waive. The Information Commissioner will not be as constrained as the Ombudsman in accessing information in the course of an investigation.

MacDonald report out, but hard to find

Today's papers reveal more about the MacDonald saga in NSW and "a Dubai connection" following his resignation as minister and member of parliament last week over travel expenses, with the Premier yesterday tabling a report (without attachments which the Premier said contain personal information about individuals) by the Director General of her department. The report has gone to the Independent Commission Against Corruption. Want to see it yourself? Sorry, it will take a trip to Macquarie St. in business hours. Papers tabled in Parliament don't go up on its website, the Premier's newsroom doesn't mention the matter, and the latest news on the Department of Premier and Cabinet  is about the clasification of Research Scientist positions in the public service.

Come 1 July and the commencement of the GIPA act, "information about the agency contained in any document tabled in Parliament by or on behalf of the agency" will be open access information in NSW and is to be published on the internet. Would a report by the Director General about a minister's expenses contain "information about the agency" I wonder?

Thursday, June 10, 2010

NSW Information Commissioner on target with $4 million

The Office of NSW Information Commissioner was allocated $4 million for 2010-2011, the figure committed by then Premier Rees a year ago, with an additional $0.5 million for capital expenditure in this week's state budget. The revised estimate of expenditure for the current start up year is $2.7 million .The Office has or will have an establishment of 24 positions. $4 million compares favourably with the $5.4 million for the first full year of operations of the Australian Information Commissioner allocated in this year's Federal Budget. Details are in Budget Paper 3- Justice and Attorney General Portfolio , see this pdf pdf

The performance information includes the Office estimate of about 1,000 contacts from the public this year, 100 investigations of complaints, depending on demand, and plans to undertake 10 agency audits. It will be working towards a range of intermediate outcomes some of which pose some interesting measurement challenges:

¨ rights to access information understood by the public
¨ increased access to information
¨ fewer complaints to OIC over conduct of government agencies in releasing information
¨ fewer formal applications for access to information
¨ fewer people seeking review of agency decisions
¨ improved information management by agencies and
¨ effective stakeholder relationships.

I'd be glad to tell you what's there for Privacy NSW, now co-located with the Office of Information Commissioner but still a separate business unit of the Attorney General's Department, if I could find any reference to it in the Budget Papers. Anyone?

Wednesday, June 09, 2010

Evidence from "Trance bought " no help in TCard public interest immunity claim

The only (unintended) light note in this judgment of Justice Einstein in the NSW Supreme Court on a public interest immunity claim by the State of New South Wales was the reference to one of the witnesses, Mr Nicholls, "currently acting as Deputy Director General of the Department of Trance bought and infrastructure" [at 38 and probably corrected by the time you get to read it.] Ah, the perils of proof reading in the age of Spellcheck... and yes I've had a few, so chin up to the Judge's Associate.Update-still there a week later so you wonder who  read the judgment.

The rest was a setback for the heavyweight legal team of Mr P Hastings QC, Ms C Spruce, Mr R Bhalla, and Mr J Mitchell, instructed by the Crown Solicitor. They argued on behalf of the State that certain documents should be withheld from discovery by the defendants in this lawsuit initiated by the Government following its decision to terminate the ERG contract for an integrated smartcard-based ticketing and fare payment system for public transport in Sydney. The issue was a claim that the documents should not be discoverable by the defendants because they related to matters of state and the public interest in producing them was outweighed by the public interest in preserving secrecy or confidentiality (Section 130(1) of the Evidence Act.

Justice Einstein was unpersuaded by the evidence of the two public servants who under cross examination [34-36 and 39-41] were shown to have not turned their minds to a principled approach to the issue, and in effect signed affidavits that were put in front of them concerning the status of the documents:
45 In truth the materials put forward by the State’s witnesses fell far short of discharging the requirement that there be some form of transparency in relation to how there had been determined from amongst the many documents discovered those to be reviewed for public interest immunity.
46 It was important for the Court to have before it from the State, evidence upon which the court could rely in order to be in a position to understand what were the criteria by reference to which it came to be contended that particular documents were described as Cabinet minutes. To my mind it became clear from the above-described cross-examination that the proponents had insufficient knowledge of that process [and insufficient knowledge of the issues in the proceedings] to satisfy the court as to what the above-described criteria were.
Justice Einstein said the State bears the onus of seeking to have the Court exercise its discretion to prevent disclosure of documents:
49 ..... In that regard the State is the person seeking to prevent the production of material documents and must demonstrate that the material documents relate to matters of state and that the balancing test favours non-production. The onus is a heavy burden requiring a proponent of the immunity who is resisting production to "establish a 'real’ rather than merely 'some' or 'any detriment to the public interest from disclosure" of the documents: cf: Cadbury Schweppes Pty Ltd v Amcor Limited [2008] FCA 88 at [25]; Somerville v ASC (1995) 60 FCR 319 at 354.

50 In any event even if a considerable number of the documents do relate to matters of State, subject to what is said below, the balancing exercise favours inspection. The defendants in these proceedings face a damages claim brought by the PTTC of $77 million for monies allegedly spent by the PTTC and the NSW Government between 2002 and 2008 supervising the Project in addition to a claim for compound interest. Many of the documents relate to briefings to the Minister or meetings referred to in the PTTC’s own evidence in support of its claim. I accept that as a matter of fairness and in the interests of the Court having all relevant evidence put before it, ITSL and ERG should be permitted to inspect the Claim Documents.
Justice Einstein was prepared to order only that " the allegedly confidential documents identified with the words ' Cabinet-In-Confidence' " be withheld but nothing else including briefings to the Minister.

Tuesday, June 08, 2010

1 November extra special this year

From PM&C :
"The Governor-General has proclaimed 1 November 2010 as the day the Australian Information Commissioner Act 2010 commences. The new Office of the Australian Information Commissioner will be established from that date and the majority of measures in the Freedom of Information Amendment (Reform) Act 2010 will also commence on 1 November 2010.  Different commencement times apply for:

·        the Information Publication Scheme (new Part II of the FOI Act) which will commence on 1 May 2011,

·        a requirement for agencies to publish information where access has been given under Part III of the FOI Act (new section 11C FOI Act) which will commence on 1 May 2011;

·        changes to bring forward the ‘open access period’ in the Archives Act 1983 for most records from 30 years to 20 years which will begin on 1 January 2011 (records created in 1980 or 1981) and will be phased in over a ten year period so that a record created in 2000 will be in the open access period on 1 January 2021; and

·        changes to bring forward the ‘open access period’ in the Archives Act for Cabinet notebooks from 50 years to 30 years which will begin on 1 January 2011 and will be phased in over a ten year period so that a Cabinet notebook created in 1990 will be in the open access period on 1 January 2021.

Professor John McMillan AO, who is the Information Commissioner Designate, will start as the first Australian Information Commissioner on 1 November 2010."

That's a lot of lead up time for the proactive publication requirements to kick in- agencies have been on notice something like this was coming since March 2009, and commencement is still 11 months away. Not sure of the practical effect and he is sure to be persuasive in the lead up in any event, but Information Commissioner Designate, Professor McMillan will have no statutory powers until 1 November.(Update: The Minister's announcement has Professor McMillan happy with arrangements, and indicating "Cultural change is under way.") 

Intelligence secrecy sacrosanct

The cone of silence that surrounds Australian intelligence organisations, in the name of national security, is in the news with a long term resident to be deported on ASIO's say so, but without being able to know and answer the allegations against him, and an academic taking on National Archives over refusal of access to assessments of the situation in East Timor 35 years ago that summarise intelligence reports during the Indonesian invasion and occupation.

Ben Saul, a barrister involved in the case, writes about the deportation of Mansour Leghaei in Condemned by faceless accusers and secret evidence in the Sydney Morning Herald, complete with uncomfortable comparisons with Kafka's The Trial. Clinton Fernandes of the Australian Defence Force Academy at the University of NSW tells his story-yet to be played out in the Administrative Appeals Tribunal in what the Government submits should be a closed hearing - to Peter Mares on ABC Radio National The National Interest. In an apparent cock-up-and according to Mares, with no involvement at all of the intelligence agencies , part of the program dropped out when originally broadcast but this version is complete.

I notice a comment on the site from Jim Dunn, Australian Consul in East Timor way, way back, and long time activist for independence and justice there:
Re the release of classified material concerning event in E Timor 35 years ago. I cannot believe that in the changed political environment in Indonesian that our national interests will be damaged. In the case of Indonesia there is a growing interest in knowing the truth about the past. Re our security, DSD (Defence Signals Directorate) operations in the past are no longer a secret so the release should not pose a danger. There are also quite a few Parliamentary research service reports that could be released. What we still desperately need is a full account of what was known, and what actions were taken. As for Gough Whitlam's role, his positive achievements will always serve to balance his contribution to our political history. Finally if our nation is to learn the lessons of history, there is no alternative to a full exposure of the past, including highly classified material.

Protecting national security is an important high priority but some of the claims in its name, blanket exclusions from transparency laws, and alleged sensitivity about what we knew 35 years ago go way beyond what is necessary and justified.

Waterford on integrity

Jack Waterford, Editor-at-Large Canberra Times, wrote a scorching piece "Rudd's race to the bottom" (published  2 June but no link available), denied a wider audience for some unknown reason as neither the Times nor Fairfax National Times posted it online. Waterford lets go on the subject of integrity, without any amateur psychoanalysis of what drives the Prime Minister, although I'm reading David Marr's Quarterly Essay on that subject with interest.  As the pioneer journalist Freedom of Information expert his ranking of the recent federal FOI reforms as "minor improvements" constitutes a lower grade than my "good and welcome but a long way short..." assessment, and a sharp contrast to effusive praise from the media coalition.

On where the Rudd Government stands after promising to govern differently, Waterford says
It's been pretty much downhill since, particularly in matters readily placeable in a moral or idealistic calculus. The environment? Too hard, sorry. Refugees? Race you to the bottom. Aborigines? Just shut them up, please. Or shut them down. Democracy and debate in the party? No time. Probity and integrity with public money? Plllllease.

A longer extract follows.

Monday, June 07, 2010

Most parliaments fail modern standards on transparency of interests and entitlements

There is plenty of gory detail around about government in NSW with two more ministerial resignations on Friday, bringing to four the number of frontbenchers to resign in the last two weeks. The Premier herself is now caught up in the saga, and three inquiries are underway, including a referral to the ICAC. According to those who claim to be counting there have been169 or 215 ministerial changes since the 2007 election.

The resignation of Regional Development and Major Events Minister Ian MacDonald followed reports by Linton Besser of the Sydney Morning Herald about $30000 in flight upgrades that were not declared on the Pecuniary Interest Register, and the final straw, courtesy of documents released to the Opposition in response to a Freedom of Information application, that the taxpayer, not as MacDonald claimed, himself, who paid $2800 for an economy airfare to Dubai in 2008. That trip took place before ministers were instructed last year to publish details about their overseas travel, the subject of this recent reminder from Premier Keneally:
Already, Ministers proactively release certain information on the Internet, including copies of all of their media releases (see M2008-18 (Availability of Ministers’ media release on NSW Government Agency Websites)) and (see M2009-10 (Release of Overseas Travel Information).
M 2009-10 to ministers was issued by former Premier Rees a year ago.

The whole area of entitlements and use of taxpayers money by ministers and members of parliament is still unacceptably opaque here. When UK Treasury Chief Secretary David Laws resigned recently over a kerfuffle about allowance payments, anyone interested could check  The Green Book, the House of Commons Guide to Members Allowances to see the rules and where Laws went astray. But when questions were raised in NSW about flight upgrades and whether they should be publicly declared,  the Premier said it was a grey area, journalists were able to quote from the handbook and advice was sought. But good luck to anyone trying to find Parliament's guidance to members on entitlements on the internet- I can't find a sign of it on NSW Parliament's  website. The Register of Members Pecuniary Interests isn't on the web either. Imre Saluzinsky in The Australian said the latest edition available for inspection is 2008-2009!

Parliamentary handbooks about entitlements and the rules that apply to payments administered by parliament are hard to find in other jurisdictions as well- I couldn't find any on a quick look, but happy to be corrected.

The South Australian Parliament seems to be ahead in publishing online an annual report on members interests and an annual reports on travel by individual members, although not even close to real time. And of course Tasmania from 1 July will be the only Australian jurisdiction where the right to information (concerning matters of an administrative nature) will extend to parliament itself.

It's an area crying out for the application of high standards of transparency. And disclosure on the internet, not by horse and buggy means.  

Thursday, June 03, 2010

Gov 2.0 a hive of activity in some places

Lots of buzz in parts of the Gov 2.0 world with the Expo in Washington last week, including a panel session on Australian developments featuring Nicholas Gruen and Senator Kate Lundy among others, which seems to have attracted a small but impressed crowd. The Senator told the audience the Federal Government will soon make a declaration of open government, a key recommendation of the Gruen Task Force.There was also the CeBit Conference in Sydney, the start up of AGIMO's blog  and plenty of twittering on the subject. Its good and welcome, with  recognition, for example in Senator Lundy's remarks of the link between what often seems techo interest and activity, and the role the Australian  Information Commissioner is to play in moving forward on open government  and FOI reform generally..

Hope the same is true at state level. Mark Elliott and Pat McCormick gave Victorian developments a good airing at the Washington Panel session .But hard to tell what is happening elsewhere around the country. News welcome!

After a flurry late last year the NSW Chief Information Officer's Information @ the center website hardly gives the impression of great activity and the announcement of a winner from the  bright ideas generated by the  Apps4NSW competition is still awaited..The NSW Office of Information Commissioner rollout  for the commencement of the GIPA act on 1 July includes guidance on compliance with the proactive publication requirements in the legislation but hard to see anything that connects compliance with the broader Gov 2.0 issues. Culture change is at the heart of both.

Wednesday, June 02, 2010

Ministers' media plans off FOI limits

Cute as it might sound, this knock back reported in The Age today of a freedom of information application for Victorian government ministerial media plans is probably well based in law:
The Office of the Premier knocked back a freedom-of-information request from The Age for the media plans, ruling that the documents are exempt because they contain material unrelated to department business. ''All of the documents requested are exempt documents on the basis that they are official documents of a minister that contain material of a political nature which does not relate to the affairs of an agency or a department,'' the decision by the Office of the Premier stated.
Whether it's a good look, in the light of developments there concerning a parliamentary inquiry into media management by one minister's office, or what should be, is another matter.

As pointed out in this post in January, and its true of just about all our freedom of information laws, documents held by a minister are only subject to FOI where they relate to the affairs of an agency - with at least one possible change in prospect come 1 July 2010 with the commencement of the NSW Government Information (Public Access) Act. It remains to be seen how the act is interpreted and applied but it applies to information held by a minister or member of the minister's personal staff "in the course of the exercise of official functions in,or for any official purpose of, or for the use of, the office of Minister of the Crown" (Schedule 4 Clause 11). On my reading no reference to the need for the information to relate to an agency's affairs.

Any rumbles of discontent about the scope of your freedom of information act are best directed to the government concerned. 

Tuesday, June 01, 2010

Oh dear...

There are plenty of potential targets on the transparency and accountability front at the moment but Alan Moir in the Sydney Morning Herald gives the puppet theme, the NSW Premier and excessive secrecy another run today.  Come 1 July cartoonists will struggle with "GIPA" which just won't have the same ring...

Drug secrecy law trumps FOI

An Administrative Appeals Tribunal decision involving an application for documents concerning the listing of the drug Strattera on the Commonwealth Government Pharmaceutical Benefits Scheme, while unremarkable in terms of the law and its interpretation and application, raises several important issues. For example the interplay between secrecy provisions in other acts and the Freedom of Information Act; how the ground can shift to exemption arguments in the AAT that haven't been raised in earlier processing of the application; and how information relevant to public health is protected from disclosure by laws that don't require showing harm from disclosure - "the law says" is enough although the Australian Law Reform Commission has recommended changes. Finally while the usual situation is for the applicant for documents who takes a matter to the AAT to end up with what he/she had before proceedings started, at least, and hopefully a little or a lot more, in this case the applicant ended up worse off-even documents the Department had agreed to release were found to be exempt.