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Friday, December 23, 2011

Christmas and other greetings

Photo by DAVID ILIFF. License: CC-BY-SA 3.0
That's about it for the moment. Quite a few things still piled up in my "to do" box, so will sort wheat from chaff in the course of the next week or so. In the meantime, thanks for the interest and encouragement during the year, celebrate well whatever you celebrate around now, and best wishes for good health and happiness in 2012.

Thursday, December 22, 2011

Indian cricket not just tested on Australian pitches

Wikimedia Commons Ricky212.
Unlike Australia's access to information laws, the Indian Right to Information Act (s 2(h) may be extended to cover any non-government organisation substantially financed (directly or indirectly) by funds provided by the national or a state government. While Cricket Australia only has to worry about winning the cricket, its Indian counterpart is facing an off-field challenge-that it should be made subject to the RTI act. The Times of India reports:
"Ignoring objections raised by the Board of Control for Cricket in India (BCCI), the government said there were reasonable grounds for bringing the organisation under the Right to Information Act. In a seven-page written statement submitted before the Central Information Commission, the sports ministry said although there was no direct funding of BCCI, it got "substantial indirect funding" from the government in the form of revenue foregone like "concessions in income tax, customs duty" and land at concessional rates for stadiums.

The ministry also argued that BCCI performed functions akin to state and 'public duties' by selecting national teams and representing India in international events. Citing the Emblems and Names (Prevention of Improper Use) Act, the ministry said, "Since the name Board of Control for Cricket in India suggests patronage of the government, the BCCI may have to drop the name 'India' from its name in case they continue to act as 'private body'."

It added, "In view of the above, the present position of the government of India in this regard is that there exists just and reason
able grounds for BCCI to be declared as a 'public authority' under the Right to Information Act, 2005." 
Cricket Australia and many other sports and other groups in Australia receive direct government funding, some very large amounts, but are not subject to freedom of information laws, as (to paraphrase and generalise) the laws don't extend beyond documents/information held by a government agency or a contractor carrying out a service to the public on behalf of an agency. Government funding doesn't do the trick.

Except in Tasmania. The Right to Information Act  (s 8) provides:

Wednesday, December 21, 2011

Queensland agencies warned of dangers of "briefing up" on RTI requests.

Following the post last week about the Daily Telegraph's excitement concerning "secret tip-offs" to the NSW Premier about freedom of information applications, and my comment regarding fortnightly reports to the premier's department regarding applications on hand, a Queensland reader wrote that in 2010 a proposal was floated there to introduce a similar reporting requirement. The proposal encountered resistance from government agencies particularly over privacy concerns and was jettisoned pretty quickly. Someone has since made a request under the Right to Information Act for relevant documents. Some posted here on the premier's department disclosure log include comments along these lines from several agencies. Both the Solomon Committee and the Information Commissioner while acknowledging others need to be kept informed, also have drawn attention to the dangers of "briefing up" about FOI applications, particularly any express or implied invitation to the minister's office or senior echelons to become involved in decision making required by law to be made in an other's name.

Tuesday, December 13, 2011

Should ministers be in the know about access applications?

Sydney's Daily Telegraph at the weekend under the headline"Barry O'Farrell's secret Freedom of Information warnings" reported that NSW Premier in one of his first acts in power following the March election, set up a system "to ensure secret tip-offs about public efforts to access embarrassing government information" and potentially more seriously, that his department suggest he lie if asked about the system in parliament.
"Documents obtained under FOI have shown the Office of the Premier installed a system on May 19 to receive weekly status reports from his department on requests from the media, opposition and general public."

I don't know what system Premier O'Farrell set up, but for many years, the Premier's department has required each agency to provide a fortnightly report on FOI applications on hand, and I would be surprised if this in some form doesn't form part of a regular briefing for each minister concerning portfolio agencies and to the Premier overall.

On a side issue, I'm not aware agencies refer to this possible use or disclosure of personal information in any privacy notice in their GIPA material, as they should where the applicant is an individual. It would be better still not to include personal information in any such report if a minister insists on continuing the practice. Let's hope this close ministerial interest extends to whether their agencies are living up to the spirit and intent of the law. And that applications by journalists and the opposition once identified aren't singled out for differential slow and tougher decisions as Alisdair Roberts discovered a few years ago in Canada. (Is there a double standard on access to information?)

The Telegraph seems to be confusing communication with a minister's office about the status of access applications, with communication inviting, encouraging or allowing the minister or staff to influence or direct a decision to be made in an agency officer's name. The "lie" claim reflects this confusion.

Back to the future for Commonwealth FOI and Privacy

The Prime Minister in unveiling widespread changes to the ministry yesterday announced that Minister for Privacy and Freedom of Information Brendan O'Connor is to be appointed  Minister for Human Services and Minister Assisting for School Education. And Nicola Roxon "will be appointed as the nation’s first female Attorney-General. The Attorney-General will take on additional responsibility for Privacy and Freedom of Information."

Thus endeth a 15 month experiment with a separate minister carrying the privacy and FOI title. Hard to see from the outside that it all amounted to much. Privacy reform is still to happen with deadlines about the only things that have passed since the  Australian Law Reform Commission recommended action in 2008 and then Special Minister of State Joe Ludwig in 2009 accepted many and announced a two stage timetable for action. Wheels are still spinning on these issues.  Minister O'Connor was there for the start up of changes in FOI in November last year, but it's hard to recall any public contribution that inspired or went beyond safe grounds.

With the decision in October to move the public service policy function from the Prime Minister's department to Attorney General's, the circle is complete. Down come the neon lights and privacy and FOI are back where they always were prior to the election of the Rudd government in 2007.

Nicola Roxon is not new to these issues having shown interest while Shadow Attorney General before then, and since in the Health portfolio where transparency  and privacy issues loom large. She has a strong law background including as an associate to then High Court judge Mary Gaudron.

The Prime Minister also announced some administrative changes including that responsibility "for the National Archives will move from my portfolio to the new Department of Regional Australia, Local Government, Arts and Sport."  A shift  from the center of government to an agency likely to be known as RALGAS is unlikely to excite the troops at NAA I imagine.

No mention of the bundle of integrity and related issues or the minister responsible Gary Gray -presumably no change.
 

Monday, December 12, 2011

Victorian FOI commissioner bill no joke, worth at least a grin

Wikimedia Commons Vigneron
Victoria's proposed freedom of information commissioner scheme is under the hammer in today's Herald Sun dismissed as " a joke" in this editorial and as a "toothless tiger" in an accompanying report by Peter Rolfe who quotes Rick Snell describing the legislation as
"a patchwork job on an existing dodgy framework legislated in the early 1980s on 1960s principles"."It's a further step backwards and a further authorisation of management and top-level executives in the decision-making process," he said.
Rick Snell is right about what amounts to a bandaid over a slerotric artery. The underlying Victorian FOI act reflects thinking circa 30 years ago about getting the balance right between the private space necessary for good government on the one hand and and public access to government information on the other. Things have moved on apace since then particularly in recent years in Australia and the "dodgy framework" badly needs attention in Victoria as well.

No mention of this bigger reform landscape in Minister McIntosh's Media Release or speech to Parliament (Assembly Hansard 8 December 60-64)-no one else spoke and debate was adjourned until 22 December.

The weaknesses in the commissioner bill cited in the Rolfe article are significant-review by the commissioner will not extend to cabinet documents or documents denied access on national security grounds, or in respect of any decision by a minister on a request for a minister's documents or on a request to an agency any decision by the principal officer-and unjustified. However not mentioned in the Herald Sun is that these and other matters not subject to review such as the adequacy of search for documents and third party objections not acted upon by an agency, can be the subject of a complaint to the commissioner. A complaint is different from a review application- after any investigation the commissioner in these cases only has recommendatory powers-see Complaints below.)

While not a complete zero the case for the carve-outs is weak or in the case of the last mentioned simply not made.

But "joke" and "step backward" for the whole shebang are too strong. The bill is worth a grin at least while muttering "could do better" at the same time. Despite the limited scope of reform and some weaknesses there are positives in what is being proposed.

If passed, the bill's provision come into force no later than 1 December 2012 but the search for a commissioner is still ongoing, and the budget allocation for 2011-2012 for the office is $1 million a small proportion of the four year figure of $7.9 million much trumpeted by the government. FOI applicants in Victoria may have a while to wait before the turn for the better.

Thursday, December 08, 2011

Victoria unveils Freedom of Information Commissioner legislation

The Victorian Freedom of Information Amendment (Freedom of Information Commissioner) Bill 2011 is before the Parliament. The main purposes are
  • to amend the Freedom of Information Act 1982 to establish a Freedom of Information Commissioner; and to improve the operation of that Act;
  • to amend the Parliamentary Committees Act 2003 to establish an Accountability and Oversight Committee of the Parliament; 
  • and to make related and consequential amendments to other Acts.
The Minister's Media release provides a summary of the main points. Hard to argue with this:
Minister responsible for the establishment of an anti-corruption commission Andrew McIntosh said this was the most significant change to Victoria's Freedom of Information laws since their introduction almost 30 years ago.  
It's a good and welcome development, delivering after a year on a pre-election commitment.

 More on the model when I get through the detail.
  
However despite the reference in purposes to improving the operation of the FOI act, the bill is focused squarely on the commissioner's position, functions, powers and related matters and doesn't address the many weaknesses and outdated provisions in the act itself compared to reforms elsewhere.

NSW Information Commissioner powers too limited

The NSW Information Commissioner has published three reports of reviews under the Government Information (Public Access) Act, the first since the act commenced on 1 July last year. One report is about access to the incoming state government briefs from March this year, the others are local council cases of broader significance, one (Clarke) concerning access to performance review information about the general manager, the other (Beale) to a report prepared for the ICAC.

The absence of published reports of this kind till now has been a surprising gap in the materials made available by the commissioner, as users of the act and agencies need and benefit ( well, theoretically sometimes) from guidance on the commissioner's approach to interpretation and application of the act in practical circumstances.

The published reports also highlight a weakness in the NSW model that is unique in the Australian context-the commissioner's powers are limited to making a recommendation and are not binding on the agency or reviewable. All three published reports are favourable to the applicant to some degree and recommend the agency concerned make a fresh determination.The agencies may or may not act in accordance with the recommendations, which are also open ended as to time. None of the three published reports include any indication of the agency response.

Commonwealth FOI statistics reveal busy first year

The 2010-2011 Annual Report on agencies and the operation of the Commonwealth Freedom of Information released last Friday covers the four months leading up to the commencement of changes to the law in November and the period to 30 June.

The Australian Information Commissioner, Professor John McMillan and Freedom of Information Commissioner Dr James Popple report progress.
"(W)e have seen a marked shift in agencies’ attitudes towards releasing government information, under FOI and through proactive disclosure" Dr Popple said.
Applications overall were up 9.3%- personal information requests by 3.6% and "other" requests by 48.4%. Off a very low base as noted by Dr Popple:
“The numbers of requests in the last two years have been the lowest in more than 20 years, largely due to proactive steps that some agencies have taken to release information outside of the FOI regime.”
Hopefully that's the reason as increased participation in government is one of the objects of the act.

Other details from the report include:

Monday, December 05, 2011

Your photocopier may be a treasure trove of personal information

Wikimedia commons Juan de Vojníkov
Oh brother-no free advertisement or aspersions intended.

Since CBS (US) News broadcast a wake up call in April 2010 about the stored information in digital photocopiers and the data security dangers when photocopiers are sold or discarded with images on the integrated hard drive intact, regulators and others have been flagging this as an important issue that deserves attention. The Australian Privacy Commissioner draws attention to the privacy principles regarding disclosure of personal information. In addition, because digital photocopiers and multi function printers save and store scanned images created in the process of making copies, scanning documents, emailing or sending faxes, businesses that offer photocopying or scanning services may be inadvertently collecting large amounts of personal information from their clients and any agency or organisation whose employees use office facilities to scan or copy personal information may be inadvertently accumulating and storing that information:
"Agencies and organisations that collect personal information, deliberately or inadvertently, may be subject to obligations under the Privacy Act in respect of the handling of that information."

Annual report lost in transmission-two years in a row.

Last year the Attorney General tabled his annual report on the operation of the Queensland Freedom of Information Act for the year ending 30 June 2009 on 23 August 2010 (no, not a misprint). You wouldn't think Premier Anna Bligh, responsible for the replacement Right to Information Act, could do worse. Think again. She tabled her annual report on the RTI act and Information Privacy Act for the year ending 30 June 2010-the first year of operation for both-on 2 December 2011. There is no indication of when the Premier signed off on the report.
   
The report is here (pdf) through a link on the Tabled Papers Register (6125) and will no doubt appear in due course on the Premier's department and Information Commissioner's websites. Nothing will change the fact it will still be a snapshot of the picture 18 months ago, and largely of historical interest. Pity because the report contains a lot of information particularly about use of the act and agency initiatives on the disclosure front that go beyond mandatory requirements.

This practice of release 14-18 months after the event must be a great morale booster for those in agencies who put together the statistical reports that form the basis for the annual report!

Well spotted by a Queensland reader-thanks.

Sunday, December 04, 2011

Victorian FOI reform to inch forward

Reform worth the name will take more than just the welcome appointment of a freedom of information commissioner. Both these reports over the weekend could  be true:
Victoria to legislate for FOI commissioner this week according to The Age.
FOI in Victoria hits a brick wall according to the Herald Sun.


Friday, December 02, 2011

Definition of journalism

Oops.

In two recent posts, now corrected, I mistakenly said the Commonwealth Evidence Amendment (Journalist Privilege) Act 2011 included a definition of "journalism." It doesn't. I was alerted to the possible error by Kate Stowell an Australian completing LL.M studies at the University of Edinburgh who has just submitted her thesis on 'Journalist source protection in Europe and Australia: a study in human rights and evidence law'. Thanks Kate-more of her below.

The error of my ways
In December 2010  Senator Scott Ludlam in a senate report on the bill said The Greens would seek to amend definitions to include:
"journalism means the reporting in a news medium of facts which are, to the best knowledge of the person reporting those facts, fair, true and accurate, and includes incidental processes such as the gathering of information for that purpose."
 
When the issue came on for Senate debate Senator Ludlam referred to earlier negotiations to win Government support for Green amendments. While not mentioned the definition of journalism appears to have been a casualty and was not put. Other Green amendments passed.

The bill as passed by the Senate went through the House unchanged.

My memory was playing tricks in November 2011 when I went looking for definitions in commenting on shield law developments- I copied Senator Ludlam's comment from the committee report, thinking wrongly that the definition along with other Green amendments
had made it into the law as passed. Update 8 December-I did the same thing with the definition of journalist initially posting the Ludlam foreshadowed amendments in both cases not the words used in the act as passed. For the purposes of clarity (at last) the definitions in the Commonwealth act are:
informant means a person who gives information to a journalist in the normal course of the journalist’s work in the expectation that the information may be published in a news medium.
journalist means a person who is engaged and active in the publication of news and who may be given information by an informant in the expectation that the information may be published in a news medium.
news medium means any medium for the dissemination to the public or a section of the public of news and observations on news.
Thanks to Stilgherrian for correcting me on this one.)



Kate Stowell in Edinburgh spots it
Kate is a University of Sydney law graduate who has worked as a radio journalist for ABC and SBS, and has recently picked up some contract work with the BBC. Earlier this week she presented her findings at the Reuters Institute for Journalism at Oxford, where she tells me, there was great interest from the audience in the Australian source protection 'dilemma'....

Kate hopes to use her thesis to branch into the world of written/online publishing...If anyone out there is looking for a likely candidate, who knows plenty about shield law related issues and has a great eye for detail, I can put you in touch.


Stilgherrian is, well Stilgherrian

Wednesday, November 30, 2011

Privacy cause of action attracts 70 submissions, and notable absentees

Brendan O'Connor Minister for Privacy and Freedom of Information opened the Australia and New Zealand International Association of Privacy Professionals annual conference in Melbourne today-read the Media Release and the speech (when someone fixes the link). Apart from telling us there were more than 70 submissions in response to the Issues Paper on a proposed statutory cause of action for serious invasion of privacy, that submitters have various views, and the importance and complications in getting the balance right (all from the media release) there isn't much in this.

By my count of the more than 70 submissions received only 43 have been published-most twice, some more than that. Presumably not for publication are some submissions by individuals that detail what are alleged to be serious invasions of privacy. That's fair enough.


But how to explain no published submission to date-the extended cut off was last Friday- from the media coalition Australia's Right to Know, or members News Ltd or Fairfax Media?
(See the update below before making anything of this.)

Chris Merritt wrote last Friday in The Australian (behind this paywall) about a News submission that argued there is no need for a new way to sue for privacy, predicted unintended consequences if a statute emerges, and claimed two key supporters, the Australian Law Reform Commission and the Victorian Law Reform Commission, misinterpreted a leading case on privacy law to support the case for action. But no link there to the submission and nothing on the submissions page either. Surely an explanation ( late? a stuff up?) other than that they (and other media organisations missing from the list so far) lodged a confidential submission?

Update:a raft of new submissions have been posted since Wednesday- now up to 59 including a submission from News Limited, a separate joint News/SBS submission, and a submission by the Media Entertainment and Arts Alliance 

Efficiency dividend blunderbuss to hit accountability agencies

Wikimedia Commons MZOPW
The across the board extra 2.5% efficiency dividend for 2012-13 (on top of the existing 1.5%, an increase this year from 1.25%, planned to be "temporary" and in place for two years) announced as part of yesterday's budget cuts won't apply to a number of "smaller agencies" including courts and tribunals such as the Administrative Appeals Tribunal. But other agencies that play an important transparency and accountabilty role- notably Office of Australian Information Commissioner, Ombudsman and Auditor General-didn't make the exception list. The savings won't be achieved by cutting back on the tea and bikkies, now long gone, and seem certain to impact negatively on capacity. The Government turned down last year a parliamentary committee recommendation made two years previously that would exempt the first $50 million of appropriations thus shielding small agencies such as these from automatic cuts. And gave the Opposition stick in April for proposing a 2% efficiency dividend.

Tuesday, November 29, 2011

No bar to disclosure of public servant's routine work information

Public access to information about work related matters concerning a public servant and the extent to which this raises exemption or grounds for refusal issues concerning disclosure of  personal information is always a freedom of information matter of interest-well, mainly to public servants of course.

These issues arose in a recent Queensland Right to Information Act review by Assistant Information Commissioner Henry (The Amanda Flynn Charity Ltd and the Crime and Misconduct Commission). The precise nature of the information in dispute is unclear other than it concerned a person's employment in the public sector. 

Assistant Information Commissioner Henry decided the information was not exempt  and disclosure would not be contrary to the public interest, drawing a distinction between routine and non routine personal work information:

Monday, November 28, 2011

Walkleys for WikiLeaks and outstanding investigative journalists

Congratulations to all winners of 2011 Walkley Awards for Excellence in Journalism. The award for Most outstanding contribution to journalism to WikiLeaks (and the response from Julian Assange via video bucketing the Prime Minister) is attracting plenty of attention here and around the world as debate continues about whether what WikiLeaks does is journalism.The Gold to Sarah Ferguson and colleagues at ABC Four Corners for the program "A bloody business" recognises the big impact of this story. The award for Investigative journalism to Richard Baker and Nick McKenzie of The Age who utilised Freedom of Information among other means to expose an international network of corruption involving a subsidiary of the Reserve Bank of Australia deserves special mention. 

WikiLeaks and journalism
The Walkley Foundation and the Media Entertainment and Arts Alliance have no doubt that WikiLeaks is journalism:
This year’s winner has shown a courageous and controversial commitment to the finest traditions of journalism: justice through transparency... This innovation could just as easily have been developed and nurtured by any of the world’s major publishers – but it wasn’t. Yet so many eagerly took advantage of the secret cables to create more scoops in a year than most journalists could imagine in a lifetime. While not without flaws, the Walkley Trustees believe that by designing and constructing a means to encourage whistleblowers, WikiLeaks and its editor-in-chief Julian Assange took a brave, determined and independent stand for freedom of speech and transparency that has empowered people all over the world. And in the process, they have triggered a robust debate inside and outside the media about official secrecy, the public’s right to know, and the future of journalism.
This is likely to play into the current debate in Australia about a range of media related. issues. NSW Attorney General Greg Smith who showed himself to be an old media man in recently questioning whether even Crikey is engaged in journalism may have choked on his rice bubbles when he saw this. His NSW shield law (nor that proposed by WA) doesn't define "journalism" thus leaving it to the courts the testing of meaning in the contemporary context.

Commonwealth shield law defines journalism and journalist in broad terms likely to cover WikiLeaks and Assange in the event of interest in an Australian source. (Correction 1 December 2011: it defines journalist and news medium but not journalism.) Whether this law would enable him protect a source of the kind of information published is perhaps moot if the sources are truly anonymous.There is a public interest exception unlikely to protect identity where information of national security significance is involved. And plenty of criminal law relevant to such a source but virtually no whistleblower protection at the Commonwealth level despite years of promises.

On the broader front all sorts of other words have been used to describe WikiLeaks. After initial over the top and prejudicial comments by the Prime Minister and Federal Attorney General McClelland referred to by Assange last night, the attorney confirmed no crime had been committed at that stage but “the Government remains extremely concerned about the unauthorised and irresponsible distribution of classified material.” 

Further afield US Vice President Joe Biden last year called Assange a "high tech terrorist" while Republican presidential candidate Newt Gingrich preferred "enemy combatant."

However even in the US where differences prevail the weight of considered opinion seems to be that WikiLeaks is a journalistic entity or an instrument of journalism and part of the reality of the media these days. John Naughton writing recently in The (UK) Observer cites a paper by Professor Benkler of Harvard that supports this view, criticising denial by some that "in the end, WikiLeaks and traditional news organisations are in the same business – namely publishing, in the public interest, information that powerful agencies in society wish to keep secret."

Investigative journalism
Richard Baker and Nick McKenzie of The Age were rewarded with the Walkley for producing "more than 60 exclusive reports on Australia’s first case of foreign bribery, a story they originally broke in May 2009 when they revealed that Securency, a subsidiary of the Reserve Bank of Australia (RBA), had paid million-dollar commissions to win global banknote contracts.. Baker and McKenzie’s investigation has involved extensive source cultivation, Freedom of Information requests and the painstaking uncovering of a complex money trail which spans Asia, Europe and Africa. Their reporting has sparked raids, arrests and contributed to charges."

FOI may have been a friend but was also a frustration at some stages of their journey.

Commiserations to those nominees who missed out in this category including last year's winner Linton Besser of the Sydney Morning Herald who continues to use FOI to advantage.

Friday, November 25, 2011

Putting in the slipper

 Don't laugh this is serious.
The task of ensuring appropriate standards of transparency and accountability apply to the Australian Parliament has been duck shoved for years but is now in the hands, in part at least, of Speaker Peter Slipper. The comments in response to an article in his home town daily about his new well remunerated job are instructive.

He last featured here a year ago when Bill Hoffman of the said Sunshine Coast Daily was trying without success to get information about an investigation into his use of entitlements. Tony Wright in the SMH today provides some high (?) points:
Last year he was forced to repay $14,000 for wrongful use of entitlements, including travel for his family. In 2003, the Finance Department demanded he repay $7785.67 for breaching the family travel entitlement. His phone bill alone for half of 2009 was $14,764, which was more than that of Kevin Rudd, who was prime minister at the time. His cabs cost $16,000 over just six months, plus $8600 on private-plate cars (it was later revealed his son was spending time driving the taxpayer-funded car). All up, in the last six months of 2009 - a period that caught the eye of the Finance Department - Slipper's upkeep as a humble backbencher, including the running of his electoral office, cost the public $640,562. Slipper's expenditure rolled along last year, when he attracted notice for spending $30,000 on family travel, and also when he took a 43-day overseas tour, which he explained was on parliamentary business."
(Update: More today in The Weekend Australian including reference to a police investigation.)

Parliamentary entitlements
A broad range of concerns regarding transparency and accountability for entitlements and expenditure for and on behalf of members and senators were canvassed at length here last year.

The Belcher committee recommendations addressed some of these issues. Two were acted upon, the rest shipped off to the Remuneration Tribunal and have not been heard of since.
Minister Gary Gray whose responsibilities include parliamentary integrity hasn't said a word on the subject since passing the parcel to the Remuneration Tribunal. Update: This recommendation from the committee has been kicking around somewhere out there unaddressed since the committee concluded its work in April 2010:
That the Special Minister of State, on the advice of the Department of Finance and Deregulation, table in the parliament: (i) the name of any sitting or former senator or member who has not substantially complied with a request for information about an alleged entitlement misuse within a reasonable time (for example, 28 days) (ii) the outcome of the investigation into the complaint, and (iii) regular reports setting out each senator’s and member’s compliance with the requirement for certification that entitlements have been accessed in accordance with the relevant legislation, including any justification given by the senator or member for non-compliance with the requirement.

Wednesday, November 23, 2011

National Information Policy Conference

The National Information Policy Conference in Canberra last week drew a sell out crowd of 270 and had an interesting vibe as well as some interesting presentations. Overall the tone of discussion about  access to information issues, the duty to treat information as a national resource and examples of some government agencies being responsive in a variety of ways, with Freedom of Information just part of the bigger picture, was a far cry from the FOI-secrecy battleground of just a few years ago. Not that that battle is entirely a thing of the past.

Some of the papers and presentations have been posted on the Australian Information Commissioner's website. One of those, Senator Faulkner's reflections on the Freedom of Information reforms had some listeners hearing what they thought was a little stepping back from the open government gusto of 2008-2009. In fact his remarks then and now simply reflect the inherent tensions in balancing openness and other public interests. Another of interest was the presentation by David Glynne Jones of DJG Consulting on Information Governance-an idea whose time in the public sector has surely arrived. 

At the same session and right in this groove Tony Corcoran Asssistant Secretary Freedom of Information and Information Management gave a  terrific run down (not yet posted) on (relatively) new thinking in Defence that brings together various information management and disclosure threads including FOI in a service context. In answer to a question about the result of this branch assuming responsibility for FOI from a legal area, Corcoran said compliance with statutory time frames had gone from 12% previously to 100% currently, reinforcing my view that Legal should provide advice when required, not control and manage the FOI function these days.

Ann Steward Australian Government Chief Information Officer, AGIMO  gave a positive and  encouraging account of progress on Gov 2.0 implementation (not yet posted). The best practice examples (ditto) from the Australian National Data Service (until now not known to me) and others in the final session were also eye openers.

The lack of time for questions and discussion at several sessions was disappointing. Tom Burton of the Australian Media and Communications Authority, poacher turned gamekeeper, on Engaging the Public gave a spinner's razamataz version, rather than what  engagement really should involve (link to presentation). And surprisingly Senator Kate Lundy's presentation on Public Sphere which should have been a good story had just a touch of cruel and unusual punishment for this listener at least.

The only oversell was that the conference "would be an opportunity to contribute to... the development of a National Information Policy for Australia", which it wasn't. But on all other fronts an enjoyable and interesting first for what is likely to be an annual event.

A last minor gripe - the name tag with name only. In the absence of detail whence we came and an attendance list the scope for instant recognition or passing interest was limited. If it reflected concern about privacy it was a step too far, and easily addressed by ticking a box on the registration form.

I attended at the invitation of the Office of Australian Information Commissioner and was grateful for that opportunity. And got out of town just ahead of President Obama's caravan-he still doesn't know what he missed.

Federation as usual as shield laws don coat of different colours

Three Liberal party state governments are taking a different line from the Commonwealth on important aspects of shield law protection for journalist sources, the most recent instance in Western Australia where Attorney General Christian Porter has introduced the Evidence and Public Interest Disclosure Legislation Amendment Bill. The bill will amend the Evidence Act 1906 to include shield law provisions and the Public Interest Disclosure Act 2003. The whistleblower changes would extend protection to those who go public as a last resort and have been welcomed by the leading expert Professor AJ Brown of Griffith University. WA is set set to join NSW and Queensland by including this element in the whistleblowing regime.

On shield law protection, a key point of claimed difference between the Commonwealth and the states is what constitutes journalism and who qualifies as a journalist, although the extent of the difference in a practical sense is unclear. Provisions in the WA bill follow to some extent the NSW Evidence Amendment (Journalist Privilege) Act which received assent in June.

Both states eschew the approach taken in the Commonwealth Evidence Amendment (Journalists‘ Privilege) Act 2010, rejecting its Greens sponsored/ALP supported broad definitions and seeking to confine the protections to professionals, leaving uncertainty about what journalist and journalism mean to the courts.

The Victorian Government foreshadowed similar moves in March but is yet to introduce legislation.The issue was in the news there last week with Cameron Stewart of The Australian in the witness box being asked about the identity of sources regarding details given to him about an AFP terrorist raid- sources unlikely to be protected by the privilege because of a national security exception, even when a shield law is passed.

In addition to the scope issue, the Western Australian bill would create a number of other exceptions to the general right to claim journalist privilege. One is where disclosure would be an offence under another law. This brings into play the draconian s 81 of the WA Criminal Code which creates a crime for the broad and general offence of unauthorised disclosure of information. The government says the exception is necessary in order to protect "sensitive information" and the bill narrows the effect of s 81 for the purposes of shield law protection to information regarding matters of serious misconduct that would justify a public interest disclosure. (Just as well as the Court of Appeal ruled recently that s 81 imposed a duty not to make a disclosure to unauthorised persons of information relating to the business of a government department or the contents of any official papers including internal reports or documents of that department-decision at 180)

WikiMedia Commons Liftarn
 A journalist  however won't enjoy the benefit of the privilege where s 81 as modified by the bill applies, unless the confider has, prior to disclosing to the journalist, previously disclosed the information to the chief executive or other designated public authority in accordance with the Public interest Disclosure Act.

In WA journalists (whoever they are) and those in government who talk to them (they know who they are) will need to do their homework before celebrating the passage of this legislation-or claiming to be clear about what it covers.

A pity the opportunity isn't being taken to do something about s 81, limiting the offence to circumstances where an unauthorised disclosure is likely to cause harm to a serious identified public interest. (As recommended by the ALRC to the Federal government almost two years ago in respect of s 70 of the Crimes Act -on which not a word since.)

Another exception to journalist privilege proposed for WA is where there have been unnecessary and unwarranted invasions of privacy by journalists or other persons who provide information to journalists. Is that the sound of some jumping from the building in Holt St?

Read on if you are really interested. You have been warned...

Acknowledgement of FOI improvement brings out nutjobs

There is nothing necessarily sinister or untoward in the Delimiter story reported by Renai LeMay under the headline (Commonwealth) "Govt delays multiple tech FOI  requests", although LeMay is sceptical about the need for consultation before disclosure, concluding:
The Freedom of Information reforms enacted by the Gillard Government have unlocked the public sector’s war chest of secrets a little further. But the Federal Government still has a long, long way to go before it could, in any sense, be described as transparent. I’d like to see a bigger effort made here. The Government should not withhold information from the public just because it’s potentially embarassing. If the information concerned was so commercially sensitive, it would probably not have been disclosed to the Government in the first place.Conroy’s department and his office have generally been reasonably transparent over the time that I have dealt with them as a journalist. However, over the past half-decade, I have found it increasingly difficult to obtain information directly from the AFP or the Attorney-General’s Department about sensitive matters. I would not go so far as to say there is a culture of secrecy at these organisations; there are many reasons for them to be wary when dealing with the press. But at the moment, they definitely need to open the kimono a little further on matters of public interest, in my opinion.
WikiMedia Commons Alethe
Prompting the following comment from "Dessy" also claiming to speak from experience. I'm sure some FOI applicants test more than just the patience of those on the other side, but this supports LeMay's suggestion that the culture change program still needs a kick along:
FOI is a big hassle/ administrative cost for the Govt. Sure, the occasional request uncovers something semi-interesting, but from my experience, FOI is an area dominated by nutjob conspiracy theorists asking stupid time consuming questions that actually end up costing the taxpayer a huge amount of wasted money for all the resources that are spent in administering the FOI Act. Also by journos wanting stuff yesterday, so they can twist information into commercial property. All that said, Australia has one of the most open Governments in the westernised world.

Monday, November 21, 2011

Surprise-parts of NSW incoming government brief "entirely factual"

Followers of blue/red book disclosures will be interested to see the NSW Information Commmissioner has informed the Sydney Morning Herald, as the complainant, that parts of the brief prepared for the incoming O' Farrell government last May consist of "entirely factual material" and are therefore outside the scope of information prepared for cabinet, the disclosure of which would be contrary to the public interest. The government is yet to respond to what amounts to a recommendation from the commissioner that the information be released.  Yes, poor form for a government that claimed to be interested in improving transparency.

Friday, November 18, 2011

AP tests the information access promise

AP-Associated Press- has released a report after testing the freedom of information promise in over 100 countries including Australia. It appears that the requests for responses to The Questions  about terrorism arrests and convictions were not submitted as formal FOI applications. AP put them here to the Attorney-General's Department, Australian Federal Police, and Commonwealth Director of Public Prosecutions. Answers  in writing with a list of names, dates, cases and outcomes were forthcoming after 83 days. As an aside, an FOI applicant couldn't expect requested information like this to be provided in the neat spreadsheet that AP posted here as the original response. More's the pity.

In the spirit of transparency AP has made the story  available to anyone, along with all the data, videos, interactive, and related coverage. "For the first time in our 150 year history we’re putting everything up on a Facebook page for anyone to use."

There's a terrorism related story in this for Australian newshounds. Thanks to Martha Mendoza of AP for the heads up.   

From AP's world wide assessment:
"The promise is magnificent: More than 5.3 billion people in more than 100 countries now have the right - on paper - to know the truth about what their government is doing behind closed doors. Such laws have spread rapidly over the past decade, and when they work, they present a powerful way to engage citizens and expose corruption.
... In a single week in January, AP reporters submitted questions about terrorism arrests and convictions, vetted by experts, to the European Union and the 105 countries with right-to-know laws or constitutional provisions. AP also interviewed more than 100 experts worldwide and reviewed hundreds of studies.
Among its findings:
- Only 14 countries answered in full within their legal deadline. Another 38 countries eventually answered most questions.
- Newer democracies were in general more responsive than some developed ones. Guatemala sent all documents in 10 days, and Turkey in seven. By comparison, Canada asked for a 200-day extension, and the FBI in the United States responded six months late with a single sheet with four dates, two words and a large blanked section.
- More than half the countries did not release anything, and three out of 10 did not even acknowledge the request.
- Dozens of countries adopted their laws at least in part because of financial incentives, and so are more likely to ignore or limit them. China changed its laws to join the World Trade Organization in 2001, and later expanded them beyond trade. Pakistan adopted its 2002 ordinance in return for $1.4 billion from the International Monetary Fund. Neither country responded to the AP's test.
"Having a law that's not being obeyed is almost worse than not having a law at all," says Daniel Metcalf, the leading U.S. Freedom of Information authority at the Justice Department for the past 25 years, now a law professor at American University. "The entire credibility of a government is at stake."

Monday, November 14, 2011

Fees and charges for FOI access

The Australian and NSW information commissioners both have discussion papers out for comment in connection with current reviews of charges for (Commonwealth) FOI and fees and charges for (NSW) GIPA access applications. The Commonwealth abolished application fees from 1 November 2010, and with some exceptions retains the charge regime unchanged for many years. NSW in essence retained the application fee ($30) and charges at the level set in 1989.

The OAIC paper reflects the Minister's terms of reference and provides comprehensive background and comparative information. Some might see the discussion being framed to some extent as a close examination of the case for an increase in charges and by how much. The first points as they appear in the Executive Summary are all about cost and revenue:
  • The scale of charges set in the Freedom of Information (Charges) Regulations 1982 (the Charges Regulations) is not subject to indexation and has not increased since November 1986.
  • Between the commencement of the FOI Act on 1 December 1982 and 30 June 2011, Australian Government agencies have reported a total cost of $498,364,739 to process the 906,639 FOI requests received during that period. The majority of requests are for documents containing personal information: in 2010–11, requests for personal information accounted for 82.63% of all requests.
  • Since 1997–98, the cost of administering the FOI Act has steadily increased. However, the total amount of fees and charges collected has consistently been less than 5% of the yearly cost of administering the FOI Act, ranging from 0.33 % (1982–83) to 4.91% (1994–95) with the yearly average at approximately 2%.
  • The volume of charges collected has decreased significantly from 78.72% of the charges notified in 1991–92 to 9.60% in 2009–10.
The closing date for comment is 21 November. Professor McMillan will be conducting public and agency consultations.

The focus of the NSW Consultation Paper is "on learning how government agencies apply the fees and charges provisions in practice, whether they consider the provisions to be working effectively, and inviting suggestions for improvement, keeping in mind the objects of the GIPA Act." The OIC has released a separate survey for members of the public, the media and non-government agencies.

I don't see a reference in the paper to the Premier's pre-election commitment (among others) to abolish application fees. Submissions close 31 December 2012.

Both reviews hopefully will look at  related matters such as whether the cost of dealing with requests by an individual for his/her personal information-a key element of privacy law- should be counted by agencies as an FOI cost. And other issues such as
  • whether the administrative cost of keeping track of time and managing a complex array of charges is justified by the return, or other reasons,

  • the cost/ benefit of maintaining or in the Commonwealth's case reimposing an application fee and abolishing charges, following a Tasmanian lead,

  • ways to reduce cost through more pro-active disclosure.

  • efficiencies in processing including through more and better the use of technology, and

  • how poor/overly defensive decision making that results in high cost review applications can be improved.

Friday, November 11, 2011

Serco contract disclosure illustrates some FOI progress

And some way to go as well.

New Matilda has published details from the 2009 Department of Immigration and Citizenship (DIAC) contract with British multinational Serco, obtained through an FOI request by London based freelance journalist and blogger Paul Farrell. Parts of the contract as executed have been withheld including some parts that the decision maker apparently considers should be released, but can't be released at this stage as Serco objects and has rights of review. (The decision notice is unclear about what is in this category.)

Courtesy of New Matilda 
View the FOI officer’s decision and a list of the folios withheld.

New Matilda separately has published what it says is a leaked version of the contract, providing an opportunity for some interesting analysis of the FOI decision by those with the time and interest. However that copy is marked throughout as "Public Release Version" so it may be incomplete in some respects.

Again courtesy of New Matilda see the leaked version of the contract here.

The pages of the executed contract released under FOI are all marked "Commercial in Confidence."

While acknowledging the Freedom of Information request raised some complex issues, the application was dated 14 December 2010, the response 2 September 2011. Some aspects are still to be determined. Presumably the absence of any reference to charges was because the request was not dealt with within time, or additional time granted by the Australian Information Commissioner. And some of the following claims are at least open to question.
 
The DIAC decision maker claimed exemption for information:

Wednesday, November 09, 2011

Frank and candid rule in Victorian jurisprudence

Victorian Civil and Administrative Tribunal Deputy President Judge Hampel in Friends of Mallacoota Inc. v Department of Planning and Community Development (General) [2011] VCAT 1876 decided the documents in dispute were internal working documents and disclosure would be contrary to the public interest. Refusal of access was necessary in order to protect the independence and quality of advice of public servants. The automatic acceptance and weight given to this argument, and some principles listed in the decision as accepted parts of the law in Victoria illustrate the "old style" FOI practiced in that state. Some of this just wouldn't fly elsewhere particularly in the FOI reform jurisdictions.

At the risk of repetition, Victorian FOI could do with a major legislative overhaul.

Monday, November 07, 2011

Some gems as NSW Ombudsman empties the FOI in-tray

The NSW Ombudsman has transitioned over the last year from the leading role of many years in dealing with Freedom of Information complaints, to cleaning up those on hand on 1 July 2010, or new, concerning FOI applications made before commencement of the replacement Government Information (Public Access) Act . The Information Commissioner is responsible for complaint investigation and external review for applications under the new act.

The Ombudsman's 2010-2011 Annual Report  (45-46) includes four case studies from investigations during the year, two concerning complaints by the then opposition leader, now Premier, regarding decisions by the premier's department to refuse access to ministerial advisers' salary and redundancy payments. The approaches displayed are (hopefully) now somewhat ancient history.

We have this glimpse of spinner's spinning:
During our investigation of the complaint, one of the media advisors argued that the release of her salary details would have an adverse impact on her spouse’s financial affairs. She maintained that if the details of her salary became known, it would hamper her spouse’s ability to ask for increased rent from tenants at their investment properties. Another media advisor argued that because she directed senior staff of a government agency, the release of her salary would be embarrassing to her. We expressed concern to the department about ministerial media advisors directing agency staff.
And this example of poor appreciation of the public interest.
The department refused to provide specific information about redundancies paid to staff previously employed in a ministerial office, who were then re-employed with either the same or a different Minister.
"The department provided an aggregate figure of $705,734 representing redundancies paid to 19 staff between 2005 and 2010, but refused to provide the amounts of individual redundancies, stating this would be an unreasonable disclosure of the staff’s personal affairs...In our view there was an overriding public interest in the disclosure of the details of all individual payments of public funds, particularly in the several cases where a ministerial employee was re-employed by the same office or re-employed in another ministerial office not long after receiving a redundancy payment. As a general principle, it seemed to us that information about the remuneration paid to a public official should not be treated as if it were a matter of complete secrecy
Presumably the Premier has had a quiet word about these world views since assuming office in March.

Manly Council's "concerning" FOI practices also attracted the Ombudsman's attention (47).

The Annual Report (47-50) includes a summary of the Ombudsman's expanded role under Public Interest Disclosures Act.