FOI for the private sector an interesting idea one year, dead duck the next

Whether a government owned monopoly such as NBN Co, so vital to our future as the government says, should be outside the scope of the Freedom of Information Act is a topic that has excited recent interest and it's not finished yet.


But what about transparency standards and the right of access to information held by private sector organisations, where there are equally important bodies who hold information of great potential impact on the community as a whole? Should those corporations whose functions, size, or potential or actual effect on the well being of the rest of us, be subject to something along the lines of the disclosure regime imposed on government related entities?


Almost two years ago the Rudd Government stated publicly these questions should be asked, and answered by the Australian Law Reform Commission.


But they were never put to the Commission then or since.


An attempt to find out what this was all about, using the FOI act, suggests the idea owed much to the initiative of then Special Minister of State John Faulkner, and that it languished within government for the next year during which time Faulkner moved to Defence.  According to documents released to Open and Shut the Attorney General's Department in April last year recommended other references take priority, given the long and unexplained delay in finalising the reference as announced by Senator Faulkner a year earlier.


There's plenty to suggest this remains an important issue. But  with Senator Faulkner no longer in the cabinet or ministry, unless someone within the system picks it up and argues the case  for further inquiry,  it seems to be a dead duck.

Good intentions... again.

Things I meant to do before heading off overseas, but won't get around to:

Tell you that Christmas came and went and still not a word about the Belcher Report on entitlements for federal parliamentarians, that hopefully addresses transparency issues. The Government has had the report since last April.

Comment before submissions closed on 14 January, on the NSW Information Commissioner's consultation paper on the privacy issues arising from the GIPA requirement for online publication of submissions and objections to a local council on development applications. I would have said that submissions and objections are attempts to influence decion making, should as a general rule be available for public inspection, and that publication on the internet facilitates public engagement, discussion and debate. However publication of personal details-signature, home address for example-on the web is unnecessary and inappropriate. And there should always be scope for individuals to submit, for reasons they need to outline, that their name shouldn't be published either. The same rules should apply to any submission to any agency seeking input on policy or regarding the exercise of decision making powers.

Comment before 1 March on the Australian Information Commissioner's issues paper setting out ten draft principles on open public sector information.They all sound pretty good to me. Not only should every agency have a senior information champion, the agency should have a plan on what it will do to promote and achieve more open access to information. And the Commissioner should establish how performance will be measured.

Draw attention to the Guidelines issued by the Australian Information Commissioner under s 93A that an agency must have regard to when they are performing a function or exercising a power under the FOI Act. ("Must have regard to" seems to mean something along the lines of "can't be ignored" but short of "must act in accordance with.") Nothing yet published on the crucial issue of the application of the public interest test in conditional exemptions which now have a more pro-disclosure flavour.

Try to catch up on a raft of interesting decisions handed down in December including by Justice Emmett in the Federal Court in Secretary Department of Health and Ageing v iNova Pharmaceuticals (Australia) Pty Limited; Judge Brebner in the South Australian District Court in Ekaton Corporation Pty Ltd v Chapman& Department of Health; the Western Australian Information Commissioner in Australia First Party Inc v Department of Commerce , and Apache Northwest Pty Ltd v Department of Mines and Petroleu; the Administrative Appeals Tribunal in Petroulias and Commissioner of Taxation and Snell and Civil Aviation Safety Authority

As it's now seven months since the end of the 2009-2010 year, have a look at the annual report of the NSW Administrative Decisions Tribunal (but the link on that page to reports doesn't work) and Privacy NSW (but the report didn't make it onto that website before it folded into the Information and Privacy Commission in January and isn't on the Commission website either.)

Good intentions...

National Information Law Conference Canberra March 2011

Information law, a topic probably still not taught as such in many Australian law schools, has arrived with the National Information Law Conference organised by Australian Government Solicitors' to be held in Canberra in March. It's a good thing that the field now gets this recognition and the program of Australian and overseas speakers sounds interesting and attractive. But spread over three week days and at $1500 per head (plus $100 for the Conference Dinner) there are limits on who has the time and money to share the wisdom beyond the public services and others who can get three days off work, with an employer prepared to foot the bill (plus travel and accommodation for those who don't live there.) I don't expect there will be too many self employed, community activists, NGOs, journalists and academics on tight budgets (other than the couple listed to speak) or just interested citizens in attendance.

A big law conference like this and the yawning gap in the Australian conference calendar of non-legal events about  the lie of the land regarding public information, open government, information rights, relations between government and the populace, public participation etc demonstrates one of our problems in the FOI area: that it is seen too frequently inside government and out as lawyers' business.

The different beast we don't see here (yet, he says hopefully) is something along the lines of the one day 13th annual National Freedom of Information Day Conference  that will be held in Washington DC a week earlier than the Canberra gathering:

"Hosted each year by the First Amendment Center, the conference brings together open records advocates, government officials, judges, lawyers, librarians, journalists, educators and others to discuss timely issues related to transparency in government and public access to official records. The program is conducted in partnership with the American Library Association, The Reporters Committee for Freedom of the Press, OMB Watch, OpenTheGovernment.org, and The National Security Archive at George Washington University; and in cooperation with the annual "Sunshine Week" initiative sponsored by the American Society of News Editors."

The conference is a full day of panel discussions and presentations-and here' the rub: there is no charge to attend.

We have a lot to learn about how to to build and sustain a community of interest around the  topic.

The Red Book publishing phenomenon

I haven't done any more Red Book sleuthing so don't know if others have popped up recently but the following are extracts from an article by John Ross of Campus Review (subscription) who wrote extensively about the brief provided to the incoming government by Department of Education Employment and Workplace relations, and the encouraging release of other incoming government briefs:

Company structure shouldn't shade NBN Co from sun shining in

 Business Spectator:

The National Broadband Network Co (NBN) will be exempt from freedom of information laws, unlike other federal government agencies, according to a report by the Australian Financial Review (AFR)...The NBN's exemption, on the basis that it is an incorporated company according to NBN chief legal counsel Justin Forsell, is in contrast to the precedent applied to Telstra prior to its privatisation when the telecommunications company was subject to FOI laws.

Technically Mr Forsell is right, but whether that's the end of the matter is another question.  The Government claims to be committed to openness and transparency, suffered some political pain because of its patchy record and foot dragging approach to disclosures concerning the NBN, and doesn't have the numbers in Parliament.The Prime Minister
brushed it off this morning saying it's the result of "the ordinary operation of the Freedom of Information Act." The Opposition and The Greens foreshadow a challenge when the Senate resumes.

The definitions in Section 4 of the Freedom of Information Act  scope its application. An agency is a Department or prescribed authority. Prescribed authority includes a body corporate, or an unincorporated body, established for a public purpose by, or in accordance with the provisions of, an enactment or an Order‑in‑Council, other than  an incorporated company.... Mr Forsell's point.

However other elements of the definition open the door to extending the act to NBN Co. The definition of prescribed authority goes on to include "any other body, whether incorporated or unincorporated, declared by the regulations to be a prescribed authority for the purposes of this Act, being...(i) a body established by the Governor‑General or by a Minister; or (ii)  an incorporated company...over which the Commonwealth is in a position to exercise control.."

The broader issue of what bodies are, are not and should be covered by the act, was not addressed in the Rudd Government's 2009-2010 reforms, and hasn't been the subject of serious debate and analysis since the act was drafted in the 70's and 80's. There has been a lot of privatisation and engagement by private sector players in what used to be exclusively government business in those days. 

Definitional issues to one side, the act also includes a list of bodies exempt in respect of all or some functions. That needs re-examination as well. Sensitive commercial information is well protected by normal exemptions and doesn't require that the agency be excluded from the act.

The NBN issue is the tip of a large iceberg. 

There is a strong case for applying the highest standards of accountability and transparency to bodies carrying out essential and critical community service roles-like a national broadband network- regardless of structure or ownership.

Some cabinet papers still too sensitive after 30 years

National Archives of Australia released the cabinet papers of 1980 under the 30 year rule on 1 January. Archives are moving towards open access after 20 years, but NAA didn't have resources to release the 1981 records, as required in what would have been the first step in this transition. Over 3000 documents were released, with about 25, around the same number as last year, withheld, three entirely including the subject, and parts of others.

Information and Privacy Commission in NSW operative from 1 January.

The Information and Privacy Commission in NSW is formally up and running from 1 January, bringing together the existing Office of the Information Commissioner and Privacy New South Wales (media release).

Here is an earlier post on the legislation that Parliament passed in September. 

The  Privacy and Government Information Legislation Amendment Act 2010 No 71  also

• establishes formal consultation arrangements between the information and privacy commissioners, 

• broadens existing oversight of the Information Commissioner by a parliamentary committee to the Privacy Commissioner, 

• brings procedures for the appointment and dismissal of the Privacy Commissioner in line with those relating to the Information Commissioner,

•  addresses a previous oversight in the GIPA act that meant there were two different schemes for applications to amend personal information, and

•  creates an advisory committee to both commissioners.

Whistleblowing and leaks

Someone at Fairfax seems to have had a better thought about the headline to a report on the investigation of Commonwealth government leaks, after the SMH paper edition conflated whistleblowers and leaks thus: "War on whistleblowers: Labor uses a bigger stick to keep its secrets safe."( Well no, it is online as well.) The story on-line, taken from The Age and modified in other respects is headed "Rudd witch-hunts cost police, money."

An interesting report that points out that leaks referred for investigation "overwhelmingly concerned cases of political embarrassment rather than security breaches." An unnamed police source (in the SMH) and unnamed former senior Federal police source (online) said " both Labor and Liberal and everyone in between gets the shits when their policies are undermined or their big announcements appear on the front page of the newspapers 24 hours before they announce it.''

The media love leaks, and love even more details of futile attempts to find leakers.

But the SMH headline suggests all leakers are whistleblowers, people by definition who seek to have wrongdoing addressed and need and deserve protection against retribution. They aren't. While many leaks cause no real harm no organisation, government or otherwise, can operate effectively where any employee can do what they wish with information that comes their way. Sensible laws and policies are needed. We don't have this right at present.

"Confidential" legal settlements involving alleged government wrongdoing.

Insisting on the "confidentiality" of settlement terms of legal proceedings is no doubt Standard Operating Procedure for lawyers acting for a defendant, on the basis that it involves no admission of liability or of wrongdoing that can be admitted in evidence in any future court proceedings, and the amount involved doesn't sit as a public benchmark for anyone else inclined to take similar action. But can anyone (lawyers excluded) enlighten me on why this should be the accepted norm in cases where government wrongdoing is allegedly involved, in particular why it should extend to the amount of public money that might form part of the settlement?

I somehow doubt if it's in your interests or mine.

As for example, the case of Dr Haneef, below, where action against the Federal Government and former Minister Andrews was settled on agreed confidential terms without apology. And that of Mahmdoud Habib, right, where  a suit alleging government involvement in some way with treatment while he was held by US authorities was settled for an undisclosed amount without admissions. Former Foreign Minister Alexander Downer thought this "an appalling waste of public money" but he would say that wouldn't he?

Mr Habib said the government made him sign a confidentiality clause. "I can't discuss the price with anybody," he said, according to The Australian.

Confidential settlements of this kind fail Accountabilty and the Public Right to Know 101.The fact that such provisions form part of the agreement in each case mean a Freedom of Information application for the terms of settlement would almost certainly fail.

The Prime Minister's call to "let the sun shine in" sounded good to me. 

Then again actions speak louder than words.

Intelligence services review won't go into accountability and transparency either

BBC series

Accountability and transparency issues don't feature in the terms of reference for the independent review of Australia's intelligence services to be conducted by Robert Cornall, former head of the Attorney General's Department, and Associate Professor Rufus Black announced by the Prime Minister just before Christmas. Unless it could be worked into examination of "arrangements and practices within the intelligence community for collaborative work, including legislative arrangements." Seems a stretch.

Appropriate protection of sensitive information about intelligence services is necessary and important. Blanket secrecy goes too far.

The Government indicated at the time FOI reform was before the Parliament last year that a review two years after the commencement of the reforms "will also need to include a consideration of whether the exclusion of agencies, including intelligence agencies, from the application of the Act is still appropriate and necessary. Naturally, such a consideration would require reference to international practice and consideration of what is in the Australian public’s interest."

The current review would have provided a better context to at least make a start on this, as it is to make international comparisons with the operations of intelligence agencies in other respects (the US and New Zealand haven't found blanket exclusions from information access laws necessary), and would have ensured more timely consideration of this hole in our transparency framework.

The aim of the review is to address these six issues:

1. how well the intelligence community is positioned to support Australia’s national interests, now and into the future;
2. development of the intelligence community over the last decade, including implementation of intelligence-related reforms;
3. working arrangements and relationships between the intelligence agencies and policy and operational areas of government;
4. working arrangements and relationships between the intelligence agencies and their international partners;
5. arrangements and practices within the intelligence community for collaborative work, including legislative arrangements; and
6. level of resourcing dedicated to the intelligence community and apportionment of resources across the community, noting that any future proposals would need to be offset consistent with the Government’s overall fiscal strategy.

Australian foreign aid review should explore accountability and transparency issues

Hollway is Review Panel Chair

The terms of reference for the review announced late last year of Australia's foreign aid program include no specific mention of transparency and accountability, although examination of "the effectiveness and efficiency of the Australian aid program" including performance of the program and lessons learned, the appropriateness of current arrangements for review and evaluation, and the management of fraud and risk are wide enough to encompass such issues, should the panel wish to go there.

A year ago the Auditor General in the Performance Audit Report AUSAID's Management of the Expanding Australian Aid Program identified the need for further improvement in transparency and accountability, particularly for better performance information and detailed program running costs, and the publication of review studies.

Australia did reasonably on transparency in the Quality of Aid Report last year and again in the recently released first global survey of aid transparency by the UK based Publish What You Fund, in the Moderate category, with a score of 65% and eighth overall of 30 major donor countries. However we were behind the Netherlands (score 85%) by a long way, and the UK , EC, Ireland, Asia Development Bank and Sweden. The Assessment compares aid transparency across seven weighted indicators that fall into three categories:

• Commitment to Aid Transparency
• Transparency of Aid to Recipient Government
• Transparency of Aid to Civil Society Organisations

Presumably AUSAID's incoming government brief, now six months old, is buried away and hidden from public access in the Department of Foreign Affairs brief stamped SECRET and AUSTEO, despite what it might do to promote understanding and public debate of aid issues.

There has been criticism over insufficient transparency and public disclosure for example concerning aid to Afghanistan.

And on a related note, many countries we assist aren't transparent themselves. Another recent survey revealed countries that receive significant Australian aid and fail to meet accepted transparency standards in their own budgets include Papua New Guinea, Philippines, Indonesia, and Thailand. Malaysia, Pakistan,Timor-Leste and Afghanistan are  worse. Cambodia, Vietnam and China are worst of all.

Film maker James Ricketson wrote last week in the Sydney Morning Herald about his difficulties in trying to get information on aspects of the $60 million in Australian aid spent in Cambodia. A small issue in the scheme of things perhaps, but culture usually shines through.
(Update: transparency issues featured in Crikey's Hot Topics reports last year on Who profits from our foreign aid.)

The Panel should interpret the terms of reference broadly and make sure accountability and transparency in the aid program at home, and in recipient countries, gets some attention. Submissions close 2 February.

(Further update: for more on issues relevant to the review see the Lowy Institute Blog)

Red book 12: FOI turns up Immigration's brief. And Environment makes 13

The Australian has a version of the incoming government brief from the Department of Immigration and Citizenship, released on Tuesday under the Freedom of Information Act.The document doesn't appear on the Department's website so far as I can see. The Australian is enjoying the exclusivity of the release, with these five articles referring to information in the brief in the last day or so:
PR trumps policy 

Firms most worried about wages: ACCI 

'System in crisis' as influx continues

X-ray age-check tool inaccurate 

Sponsored skilled migrants face visa wait.

(Turns out The Canberra Times also has the brief through an FOI application: "Briefing warns of action over visa delays - pressure on immigration" on 6 January (no link available.) As does the ABC. A reader who has been in touch with DIAC tells me they are working towards putting the brief on the web, but this is unlikely in the next few weeks.)

The Australian also reports on the FOI refusal by the Department of Sustainability, Environment, Water, Population and Communities to parts of its brief on Japanese whaling, because disclosure would damage international relations and "engagement with other countries and activities under the auspices of the International Whaling Commission". As the paper points out, WikiLeaks "disclosures this week have shown that senior Labor ministers had been opposed to legal action against Japan, and... suggest the decision to take Japan to the International Court of Justice was motivated by an intention to relieve political and popular pressure on the government."

The released departmental brief has been  published bringing to 13 the number of agencies who have got with the strength since Treasury started the ball rolling three months ago.

"Let the sun shine in"-in the fullness of time

Peter Van Onselen in The Australian on 22 December on the continuing mining tax stand off, partly over what this sentence in the heads of agreement between the government and the big miners means:

"All state and territory royalties will be creditable against the resources tax liability."

Van Onselen continues:

The opposition and the media can be absolved of blame for missing (this provision) because we weren't permitted to see the signed agreement until recently. The story behind that process is interesting. In the era of open and transparent government, the Prime Minister's Office repeatedly refused for five months to release the signed agreement publicly. That is, until at a Senate hearing on December 8 a BHP spokesman explicitly told senators the PMO had requested they don't make the document public: 30 minutes later a staffer brought the signed agreement to the hearing for senators to take a look. Caught out, I believe, is the appropriate terminology.

 

Those bloody Victorian removalists!

Melissa Fyfe in The Age over Christmas reported on a second sloppy clean out of Brumby government offices that left a trail of papers showing inappropriate activity including interference with the Freedom of Information process:

Adviser notes and briefings found in desk drawers in the premier's office reveal that John Brumby blocked the appointment of an FOI officer because he was advised "she has consistently interpreted requests and made decisions to our detriment". The notes are the second instalment of damaging material apparently overlooked and left behind in desks by former advisers to Mr Brumby. The first, revealed last week, was an adviser's black notebook that detailed dirt unit activities and referred to the emails of then shadow frontbencher David Davis.

In the article Fyfe quotes Minister for Corrections and Crime Prevention Andrew McIntosh reiterating the government commitment to freedom of information reforms. You would think from this that he carried over into government the responsibility for FOI that was his in opposition. However the General Order of 10 December listed the Attorney General (Robert Clark) as the minister responsible for the Freedom of Information Act. (Generally the Premier's Department website where you might expect this sort of information to be prominent seems to have been struck by some terrible malaise, still presenting to the world six weeks later, as it was prior to the election. It's not the only agency like this but at least Justice has a  warning sign that information may be dated. There is no link there to Attorney General Clark who appears not to have said a word about anything except as reported in The Australian that the Charter of Human Rights is ineffective. The only minister apart from McIntosh who seems to have mentioned transparency is Minister for Heath David Davis)

Given Premier Baillieu' strong words about integrity, accountability and transparency while in opposition you would have hoped that a senior minister would have these responsibilities up there in lights in a title that would send a clear signal that things are to be different, allocated responsibilities that pulled the threads together, and with something clear and direct to say on the topic promptly on assuming office before the government disappeared for the summer. But no it was not to be.Three ministers, the Premier, Attorney General, and Minister McIntosh (also Minister responsible for the establishment of an anti-corruption commission) at least, appear to have parts of the puzzle. And no doubt will have something to say about the integrity agenda when things return to normality in February. But it hardly has a ring of urgency or reflect the priority that seemed so obvious from the opposition benches.

DFAT Red book on the other hand is SECRET AUSTEO

Despite the lead by 11 other Commonwealth agencies in releasing parts of the incoming government brief, including Defence and PM&C, and recent insights into departmental views as reported to Washington by the US Embassy Canberra, courtesy of WikiLeaks, the Department of Foreign Affairs and Trade apparently sees no scope for publishing  anything along these lines, letting pass the opportunity to contribute to informed discussion and debate. See my comment in November about the challenge of open government for DFAT. WikILeaks since has reinforced the need for more open sharing of honest assessments by the Australian Government of international developments and the manner in which it pursues Australia's interests. The idea that every last word of the brief deserves SECRET AUSTEO (Australian Eyes Only) classification is ridiculous

Senators Fielding and Trood asked separate questions of the Department about the brief at Senate estimates. Answers to questions on notice were provided to the Committee on 10 December.

Here is Q&A 14. Senator Fielding asked:

A. Did the department prepare a post-election brief for a returned Labor Government (the so-called ‘Red Book’)?

B. Can the department provide the committee with a copy of this brief?

C. If not, can the department outline its reasons for refusing to provide a copy of this brief?

D. If the department will not provide a copy of this brief because it contains confidential or sensitive information, can the department provide a redacted copy of this brief as was done by the Treasury Department?

E. Has the Minister given any instructions to the department regarding the release of this brief and if so, what were these instructions?

F. Did the department prepare a post-election brief for a newly elected Coalition Government (the ‘Blue Book’)?

G. Can the department provide the committee with a copy of this brief?

H. If not, can the department outline its reasons for refusing to provide a copy of this brief?

I. If the department will not provide a copy of this brief because it contains confidential or sensitive information, can the department provide a redacted copy of this brief as was done by the Treasury Department?

J. Has the Minister given any instructions to the department regarding the release of this brief and if so, what were these instructions?

Answer:

A. Yes.

B. No.

C. The Department of Foreign Affairs and Trade does not make public the policy advice it provides in confidence to portfolio ministers. The brief in question is classified SECRET AUSTEO.

D. No.

E. No.

F. Yes.

G. No.

H. The brief in question is classified SECRET AUSTEO.

I. No.

J. No.

Senator Trood asked a similar question (21) and received the same answer.

Red books 10 and 11 published including Prime Minister's.

Two more incoming government briefs surfaced in the lead up to Christmas, now close to six months after the government received them: Education Employment and Workplace Relations and Prime Minister and Cabinet. In terms of detail they are in sharp contrast. The PM&C brief has been heavily redacted, seemingly more so than others published to date, The brief as released won't do much to inform debate on the major issues facing the nation (Volumes A and B)  as, for the most part, only headings remain intact.The brief has been published as seven separate pdf files, making searching difficult. But not for the PM and other readers who according to the covering brief were  provided with an iPad version "in fully searchable format that is both portable and easy to use." What appears to be a complete Record of Election Commitments - PDF 3.4MB likely will prove handy, despite the fact that costings and the Department's initial assessment of each were redacted.

Looking for high notes in low key FOI annual report

Markus Mannheim in the Canberra Times seems to have been the only media mainstreamer to pick up on the release of the 2009-2010 Annual Report on the operation of the Commonwealth Freedom of Information Act, signed off by the Minister Brendan O'Connor on 31 October but released with the usual impeccable timing in Christmas week.

In a break with the past the Minister (who doesn't have a separate web presence in his Privacy and Freedom of Information capacity) doesn't appear to have bothered with a media release to accompany the report. His introduction to the report itself is very upbeat about the legislative changes that commenced on 1 November.

Wikimedia Commons- Korall

Mannheim notes the report shows the number of applications are down and costs are up. The report also confirms that citizen interest in use of the FOI act to see what government is up to is very low with applications for non-personal documents way down on the previous year (for reasons unstated and unknown). The fact that overall 93% of requests for documents are granted in full or in part tends to hide the reality that only 37% of applications for documents other than those containing the applicant's personal information were granted in full, with another 46% granted in part. And challenging decisions that don't seem to make sense is worthwhile: the applicant who seeks internal or external review of a decision to refuse access succeeds in many instances in having the decision varied, calling into question the quality of original decisions.