Black letter law approach at Victoria's Planning Department

You would expect notes taken by an officer during a meeting between a planning minister and the proponent of a development would not record anything other than what was said during the meeting, certainly nothing of a personal nature about the note taker, and that there would be no question notes would be covered by the freedom of information act. If not there's a big hole in the legislative scheme.

So it appears, in Victoria, from a decision by the Victorian Department of Planning on a Freedom of Information decision reported by The Age (Meeting notes on Hotel Windsor redevelopment withheld) this week. It involved a black letter but questionable approach by the Department in dealing with an application for notes of a meeting between Minister Madden and the developer behind a controversial proposal: "No file notes were recorded. A personal note was made by one of the officers. However, this note only had personal meaning to that officer and was not used in any decision-making process. These kinds of personal notes do not meet the definition of a document of an agency under the FOI Act.''

The Victorian (and Commonwealth) FOI acts, Australia's first, going back to the early 80's, apply to a document held by an agency and both define the term in the same way, to mean a document in the possession of an agency whether created or received in the agency. Official guidance provided to Victorian government agencies makes no mention of circumstances when a document held by an individual officer may be a document of an agency, even where not incorporated in those systems. Regardless, asking the officer to hand it over would be a reasonable direction, thus giving rise to "constructive possession" or an immediate right of access to the notes by the department in any event.

The Commonwealth FOI Guidelines (Fundamental Principles 3.19) in addressing the issue of interpretation and application of the same words, clearly state that documents are to be taken to be documents of an agency if created by officers as a part of their duties.

Later FOI laws, for example those enacted in Queensland and NSW cleared up any doubt by providing explicitly that a document held by an agency encompasses a document in the possession or under the control of an officer in the officer's official capacity.The recent reform laws in both jurisdictions contain the same wording.

The Department of Planning approach wouldn't wash in these states, and would go against official guidance in the Commonwealth arena.

I'm not sure whether the issue has cropped up previously in the Victorian Civil and Administrative Tribunal, but there are some good grounds for challenge, and for legislative action if this proves necessary.

Queensland in the lead with RTI day plans

The Office of the Queensland Information Commissioner has announced the program for the 2010 Right to Information Day in Brisbane, including the second annual Solomon Lecture on 27 September, and a Forum the next day featuring a range of speakers including Beth Noveck (Leader of President Obama's open government reforms), Dr Nicholas Gruen (Chair of Government 2.0 Taskforce) and others in what will be a good program and important event. Let's hope commissioners and other interested parties around the country pick up on opportunities to promote awareness of information rights in this way.  We need more public space and fora to encourage discussion and debate about what works and isn't working in the pursuit of open and accountable government.

Afghanistan papers put Wikileaks, maybe more, centre stage

Will we see take-up here of the merits of the war in an election campaign dubbed last week as "the Battle of the Bland"? Given Australia's support, heightened by the fact 17 Australian soldiers have been killed, six in a little over a month and that Julian Assange of Wikileaks is one of our own, the leak of 75000 classified Afghanistan documents (with more to come) should mean Afghanistan receives more attention during the  campaign than what we have had so far - a virtual one line unity ticket that "we're there to see the mission" and "the just cause" through. Political leaders here are probably just relieved Assange has moved off home turf to a bigger canvas. And will an interest in whistleblowing generally heighten awareness of the issue of a pardon for Allan Kessing - including some questions of Transport Minister Albanese - in light of the Director of Public Prosecutions advice against, as reported by Chris Merritt in The Australian last Friday?

Last gasp for "confusion and unneccessary debate" argument?

Well there may be others still to come, but the clock is ticking down to 1 November when changes to the Freedom of Information Act should see this claim as a public interest against disclosure under the Commonwealth act despatched to the bin. In the meantime as reported by Ben Grubb in the Sydney Morning Herald it gets a prominent run arising from an application to the Attorney General's Department for documents distributed to representatives of the internet industry during consultations in March on a proposal that would require ISPs to store certain internet activities of all Australians - regardless of whether they have been suspected of wrongdoing - for law-enforcement agencies to access. The application resulted in lots of black ink but not much else. All parties to the consultations have been sworn to secrecy. The SMH link provides access to what was released and the notice of decision.

Australian Privacy Commissioner appointed

Timothy Pilgrim, Deputy Privacy Commissioner since 1998, was appointed Australian Privacy Commissioner on 19 July, replacing Karen Curtis, and offered these thoughts on the challenges ahead.

Political donations off the record-till February 2012

While there will be plenty of argy bargy about black holes in spending plans during the course of the election campaign, Ari Sharp in the Sydney Morning Herald reminded us of another: that our weak laws do not require timely transparency of political donations, or the identity of those donating $11500 or less. The Opposition managed to see off in the Senate the Government's proposal to drop the ceiling on anonymous donations back to $1000, on the grounds of privacy. But that important right must on occasion give way to other public interests, and it's a clear cut case when those interests go to the heart of the democratic process. Neither major party has shown any interest in something akin to real time disclosure on the internet of donations as they are received.

Donations of more than $11,500 made to parties for each financial year are not disclosed until February the next year, meaning that contributions made now will not be on the public record until February 2012. And despite parties claiming tens of millions of dollars in public funding, they are able to keep their campaign spending largely secret...

'The system is structured to conceal and mislead the public about what's really going on with donations,'' said Brad Pedersen, the founder of Democracy Watch, a non-partisan group committed to curbing the influence of money on politics.''It's quite feasible for all these donations to be immediately declared on the internet, as it is in other nations. We won't know for months who's donating right at this very moment to both the major parties.''

SA travel costs-$77,000 first, please

South Australia not only seems to be stuck with Victoria as our Freedom of Information reform laggards, it also seems to be stuck in the pre-computer age when the travel costs of public servants can only be found after a search of mounds of paper records. This by Brad Crouch in The Sunday Mail:

The travel cost of rural health bureaucrats will remain a state secret after the Opposition baulked at a $77,000 bill to seek the information under Freedom of Information laws.  The Opposition's health spokesman, Duncan McFetridge, sought the information from Country Health SA for the past 12 months of travel, but was told it was contained in some 14,000 documents. The cost for processing the first 5000 documents was put at $27,624, indicating the total bill would be $77,000. Mr McFetridge's failed FoI bill now stands at $246,700, after he also unsuccessfully sought information about the business case for the new Royal Adelaide Hospital as well as the cost of the expensive medical contract dispute on Kangaroo Island. "This is all information that should be readily available to the public," Mr McFetridge said. He claimed his FoI requests were being denied on the basis of "censorship by semantics and pedantics". Health Minister John Hill did not answer inquiries on the issue.

Tasmania's "push" model needs more push

Three weeks on, Tasmania's Right to Information Act is apparently yet to produce anything from the much vaunted shift to pro-active publication of information, according to this report by David Killick in The Mercury:

"The new laws took effect on July 1, replacing the old Freedom of Information Act. Among their key tenets is encouraging the active disclosures of information by public authorities without the need for a request from the public. Freedom of information expert Rick Snell said measuring progress was difficult but it was disappointing more information was apparently not being released. "I would have had the expectation that the Government and the departments would have been able to point to early initiatives," the University of Tasmanian senior lecturer said. "The Government went to the election and, through the process, on the basis of increasing trust, improving transparency et cetera, so there ought to be an obligation on agencies to make it readily apparent where they think there has been significant improvements in terms of accessibility of information." 

One reason would seem to be that the Tasmanian act prescribes nothing that must be published, as noted in this comment on the Exposure draft last October.The RTI act simply authorises agencies to release information by way of "required" (by an act or under an agreement),"routine" (where the public may be interested in the information), or "active" (in response to requests outside the Act) disclosure, leaving "assessed" disclosure- release in response to a formal application-as a last resort. The act contains no mandatory publication requirements. Section 12 states such disclosures are authorised "subject to" guidelines issued by the Ombudsman.

Dr Haneef loses another round

In Haneef and Australian Federal Police (the Commonwealth Director of Public Prosecutions was also a respondent) [2010] AATA 514, Senior Member McCabe upheld the agencies' Freedom of Information exemption claims, with a small number of minor variations, in respect of documents withheld concerning his detention and cancellation of visa in 2007. Some documents had been previously released.

The decision is straightforward in terms of the law, but includes a long summary of the background [6-48], a couple of interesting comments about legal privilege [60-76] and affirmed the absolute nature of the exemption (section 33(1)(b)) that relates to provision of information in confidence by a foreign government [230-234].Regardless of whether the information is now in the public domain, or any other consideration if the evidence is there is an agreement between agencies, an Australian officer says the (UK) Metropolitan Police Service gave it in confidence, and the Tribunal has no grounds to doubt the claim, that's the end of the matter. No doubt in dealings with us, all foreign government agencies mark their aide-memoire accordingly.

As Senior Member McCabe said [232]:

"..the MPS is serious about protecting secrets. It is irrelevant whether that attitude is consistent, reasonable or admirable. I accept there is a risk that information from overseas might be rendered inaccessible through the simple device of channeling it through the hands of a supposedly prickly agency."

A submission from counsel for the applicant that the Memorandum was "drawn so widely that it is attended by an 'air of unreality'"  was of no relevance. Dr Haneef encountered a similar hurdle in two previous AAT FOI cases, here and here.

Open Government Declaration- just in time for next time

Overshadowed by the calling of a Federal election in the 24 hours following, Minister for Finance and Deregulation Lindsay Tanner on Friday issued The Declararation of Open Government, following through on the earlier commitment to make such a statement as recommended by the Gov 2.0 Taskforce.To have this out and on the public record is a good thing, of course:

The Australian Government now declares that, in order to promote greater participation in Australia’s democracy, it is committed to open government based on a culture of engagement, built on better access to and use of government held information, and sustained by the innovative use of technology...

The Australian Government’s support for openness and transparency in Government has three key principles:

• Informing: strengthening citizen’s rights of access to information, establishing a pro-disclosure culture across Australian Government agencies including through online innovation, and making government information more accessible and usable;
• Engaging: collaborating with citizens on policy and service delivery to enhance the processes of government and improve the outcomes sought; and
• Participating: making government more consultative and participative.

And the link to Freedom of Information reform and the Information Commissioner's central role joins important dots, although I'd suggest the claim that "FOI Reforms... establish a comprehensive Information Publication Scheme that requires agencies to publish a wide range of information" doesn't quite gel with the limited nature of the statutory obligation, and with an Explanatory Memorandum that talks of the benefits of largely leaving each agency to decide what to publish because they know best.

Unfortunately, at seconds to midnight in the government's term of office, and signed off by the Finance Minister who is not standing again, rather than the Prime Minister, it's got an air of the back rather than front door status it deserves. So too the announcement  by Health Minister Roxon of a still under development My Hospital website.

The mainstream print media are yet to mention the declaration, although  ITWire and Computerworld give it a run, and there is mostly praise in geek circles, with Stephen Collins at Acid Labs making a good point about some critics needing to see it in context. Andrea Di Maio of Gartner Research suggests it's a new international benchmark, "far more powerful" than the US Open Government Directive, "as it sets purpose and context around the machinery of government and puts its center of gravity on employees rather than citizens."

We should expect bipartisan support for open government during the election campaign from the leaders, although we all know that's the easy part, and Kevin Rudd's "I'll end secrecy" commitment in 2007 is still ringing in our ears.


Tanner and Defence Minister Faulkner, who knew the issues well, will leave large holes on the front bench wherever the ALP ends up after the election.

Hullo and goodbye to section 12 of NSW Local Government Act

The commencement of the NSW Government Information (Public Access) Act on 1 July also saw repeal of section 12 of the Local Government Act, ending for local authorities the complexity arising from dual rights of access to documents under the LGA and FOI acts. From now on GIPA  procedures apply. Perhaps fitting that this decision (Jeray v Blue Mountains City Council) was handed down last week in proceedings in the Land and Environment Court concerning an application under section 12, and the removal of documents from a file by council staff on legal privilege grounds. It's the first litigation concerning the section in my memory, and points up the unsatisfactory pre 1 July situation that FOI was subject to merits review by the ADT, while section 12 issues were matters that could only be pursued in the Land and Environment Court (and through complaint to the Ombudsman). The decision itself is of no great moment (except the Court set a high hurdle [14] for the applicant in requiring him to specify documents removed from the file that he hadn't seen) but such a rare beast, its worth a mention. Given the repeal, there's unlikely to be more.

Google thrashed with a feather over "very serious" privacy breach

The Australian in "Privacy laws get internet update" reports Special Minister of State Senator Joe Ludwig yesterday committing the Federal Government to amending the Privacy Act to introduce civil penalties - to be imposed by the Federal Court or the Federal Magistrates Court - for "serious breaches when other enforcement measures are not sufficient".

"They will be serious sanctions," he said. "It is essential we have a robust system in place to protect the privacy of individuals."

Well yes, but the Minister announced this in October last year in the Government's phase one response to the Australian Law Reform Commission's 2007 review of the Privacy Act.  This included acceptance of recommendations about enforcement of compliance following an own motion investigation by the Commissioner, and another concerning broader enforcement powers. 

The Minister's remarks had some topicality this week of course, in light of the Federal Privacy Commissioner's finding on Friday that Google had breached the Privacy Act by collecting unsecured WiFi payload data in Australia using Street View vehicles. Commissioner Curtis was satisfied that any collection of personal information by Google would have breached the Privacy Act, that this was "a very serious matter" and that "Australians should reasonably expect that private communications remain private."

But Google was thrashed with a feather.

Surveillance camera dangers concern this audience

The IQ2 debate in Sydney this week, organised by the St James Ethics Centre and sponsored by the Sydney Morning Herald on the proposition ''Better more cameras than more crime'', saw a win for those arguing, among other points, that privacy concerns should trump the rush to more and more surveillance cameras.The audience vote beforehand was 22.8% undecided; 40.4% Against; and 36.8% For. After the debate 4% undecided, 76.6% Against, and 19.4% For- the largest swing in the history of the IQ-squared debates, I'm told by one of the proud Against team.

Anyone listening in the corridors of power?

Airline safety audit reports not exempt

Expect this decision by Senior Member Taylor in the Administrative Appeals Tribunal this week  to make big news, at least in aviation circles. Michael McKinnon of the Seven Network and Mr Vasta the assistant federal secretary of the Australian Licensed Aircraft Engineers Association substantially succeeded in a Freedom of Information case against the Civil Aviation Safety Authority, winning access to CASA safety audit reports from 2006-07 concerning problems with, and standards for, maintenance of Qantas aircraft offshore.(Update-The 7 Network ran the story Flying Blind on Today Tonight on 12 July.  They promise more when they actually get the documents.)

CASA argued against disclosure, supported by submissions from Qantas and other international airlines, that detrimental effects would follow disclosure. Senior Member Taylor found many of these claims to be general and overblown, and didn't think much of what CASA's main witness had to say on some matters. Exemptions that involved prejudice to the future supply of information, adverse effect on operations and unreasonable effect on business affairs, on the evidence, were not made out, with an exception for one category of documents, Service Difficulty Reports submitted by Qantas concerning serious safety problems

CASA also came in for some criticism about the handling of the FOI applications, which go back three years, including the narrow way it had interpreted a request, and whether all relevant documents had been identified.

The Tribunal, subject to submissions from CASA, is disposed to make a rare recommendation to the Attorney General that the Government pay what would be the "substantial costs" of the applicants, but an anachronistic limitation on the need to demonstate financial hardship is probably going to get in the way here.

Await something interesting on Channel 7 once they get their hands on the documents-or if there is any error of law in the decision, and it looks sound and based on the evidence to me, news of an appeal.

Information commissioners line up

The 2010 National Administrative Law Forum will be held at the University of Sydney 22-23 July.  The theme is Delivering  Administrative Justice. Details here with a wide range of topics up for discussion. This panel session on Day 2 should be interesting- and a first, with Australia's four information commissioners sharing a stage for the first time.(Update:There is a fifth - Brenda Monaghan, Information Commissioner in the Northern Territory- and Tasmania's Ombudsman Simon Allston is commissioner in everything but title.)

Plenary session 6 Theme: Information – foundation for administrative justice.

Panel discussion: Peter Timmins, Lawyer, FOI Consultant and Blogger Professor John McMillan AO, Australian Information Commissioner Designate Deirdre O’Donnell, NSW Information Commissioner Sven Bluemmel, WA Information Commissioner Julie Kinross, Queensland Information Commissioner.

Look forward to seeing some of you there.

Simple as ABC/BBC: Middle East reporting out of FOI bounds

Previous posts here about the exclusion from the Commonwealth Freedom of Information Act of documents held by Australia's public broadcaster the ABC (and SBS) "in relation to program materials" have mentioned what appeared to be a contrast with the situation in the UK, where the BBC enjoys an exemption for documents concerning journalism. ABC Managing Director Mark Scott last year indicated the ABC was prepared to talk to the Government about tightening the exemption to something more in line with the UK provision, although nothing seems to have come of that.

Out-Law.com reports a UK Court of Appeal decision to refuse access on the basis of the journalism exemption to a study into how the BBC covered the Middle East in 2003 and 2004. In an earlier decision the Information Tribunal ruled the report should be disclosed. The Tribunal's interpretation was the exemption required the BBC to show that journalism was the main reason for the study, when it appeared to have been undertaken for strategic and resourcing reasons as well. The High Court and the Court of Appeal disagreed: as long as one of the reasons for the report was journalism then it was covered by the FOI Act exemption.

The Australian Federal Court decision that gave the ABC exclusion from the FOI act a generous interpretation, even by Mark Scott's reckoning, also resulted in a decision to refuse access to an ABC report on complaints it received about coverage of the Middle East in 2000-2002.

NSW Police score second front page

Yesterday's Telegraph front page is followed today by Taser abuse covered up by police in the Sydney Morning Herald, with this account of the year long Freedom of Information battle to access the report. Dylan Welch says the Administrative Decisions Tribunal "quickly decided" the Herald deserved access, although in the absence of a decision on the Tribunal website, sounds like a cave-in after five preliminary conferences. Newspapers might keep the Information Commissioner busy in the light of this concluding comment:

But this success is one among dozens of defeats experienced by newspapers fighting against public officials broadly disinclined to provide the truth behind their decisions.

No news in good news

New right to information laws in NSW and Tasmania from 1 July didn't spark much coverage in major media in either state with no take up I can see on the media release  by Tasmanian Attorney General Lara Giddings welcoming the commencement of the RTI Act, or on a similar release by NSW Information Commissioner Deirdre O'Donnell. Commissioner O'Donnell gave applicants this useful quote to use in response to contiunuing run-around:

"There will no longer be any excuse for long drawn out applications for every piece of information requested by a member of the public or a journalist," she said. Under the GIPA Act, all government agencies must try to provide the requested information quickly and informally, with formal applications an absolute last resort." 

There may be more, but the only mentions of the new era in NSW that came to attention were in two local papers who understandably gave it some local flavour. Good on the Manly Daily 26 June and the Braidwood Times 30 June.

The NSW Office of Information Commissioner has a quarter page advertisement in today's Sydney papers announcing the changes and its role.If it appeared in the Daily Telegraph it makes an interesting bookend with this "Secret state" front-page screamer.

NSW agencies put best foot forward on GIPA day

NSW agencies appear to have done a good job to post Government Information (Public Access) information on the web from Day One. I can't vouch for quality, and will be particularly interested to see who goes further than the modest but useful mandatory publication requirements, but the following list of links to the relevant web page of major departments and agencies might come in handy. For comparative purposes Queensland agency links for the more extensive publication schemes required by their Right to Know Act are here.

Department of Justice and Attorney General.

Department of Premier and Cabinet.

Department of Health.
Department of Human Services

NSW Police Force

Department of Planning

Department of Environment, Climate Change and Water

Treasury- Office of Financial Management may be here somewhere.The other side of the shop-Office of State Revenue  is here
Department of Education and Training
Department of Industry and Investment
Department of Services Technology and Administration
Transport NSW
Roads and Traffic Authority

Let the new eras begin.

Image: City of Long Beach CA

Maybe the earth didn't move but new right to information laws commence today in NSW, 21 years to the day since the introduction of Freedom of Information, and Tasmania where the Ombudsman is the state information commissioner equivalent . No words of welcome in the dailies that I can see, but good luck to those on both sides of the equation looking to move things in the direction of more open and transparent government.  NSW Greens Lee Rhiannon is waiting for the new era to strike home with those within government who are arguing submissions by the NSW Government for federal Infrastructure Australia funding last year have to be guarded from public view.