Tell the world or dud the journalist FOI applicant

In a submission to the Australian Information Commissioner on the Discussion Paper, Disclosure Logs, Professor Rick Snell has a suggestion for addressing the concern of journalists over potentially losing exclusive rights to material released in response to a freedom of information application when an agency simultaneously posts in the disclosure log at exactly the same time documents are released to the applicant:

"I would suggest the Information Commissioner adopt a guideline whereby the applicant can make a request on whether any released information be delayed from general release up to the 10 day maximum period. The applicant making this request should justify where it is in the public interest for the Agency to delay updating the Log for this specified period. Some applicants will be happy with immediate release, other applicants such as journalists, researchers or members of parliament or NGOs may have good reasons to have a period of exclusive access. Where applicants do not specify a grace period then the Agency is free to publish at its discretion."

He disagrees things simply should be left entirely to an agency or minister

"I would reject the suggestion that “Agencies and ministers could invite applicants to propose or negotiate the date of publication, provided this occurred within the ten working days stipulated in s 11C. The discretion would remain with the agency or minister to decide the actual date, but they would better understand any special concern of the applicant.” This option gives too much discretion to agencies and does nothing to prevent the manipulation of the timing to disadvantage particular applicants including, but not exclusively, journalists. The alternative of allowing the applicant to nominate the grace period rewards and protects certain users and adds little extra burden or restrictions on agencies."

This makes sense-if any Commissioner guideline can be made to stick. I've mentioned previously that a guideline to which an agency "must have regard" might fall short if and when push comes to shove, and won't necessarily guarantee a uniform approach across government.

Conrad Poirier WikiMedia Commons

Michael McKinnon of the 7 Network told the National Information Law Conference last week of several instances of Treasury going out of its way to provide other journalists with information sought in applications by him, presenting them with the story on a plate with exquisite timing, and leaving him with not much at all.  While acknowledging the point also made at the Conference by Professor McMillan that governments always have the right to release information whenever they like, when this is done to spite the applicant and for no legitimate public purpose it sounds unethical to me.

NSW Incoming government briefs "cabinet documents"

Oh dear, who dreamed this up?

Matthew Moore in the Sydney Morning Herald:

Barry O'Farrell must decide whether to release the ''blue books'' prepared by government officials to brief his administration on key issues after the former government told departments to prepare these documents for an ''incoming cabinet''. Telling departmental heads these briefs are prepared for cabinet has ensured agencies are refusing requests for access to them on the grounds they are cabinet documents and not accessible under the new state freedom of information law called GIPAA - Government Information (Public Access) Act.

Protection from disclosure of a document prepared for consideration by Cabinet is watertight, not a matter for the exercise of discretion, under the GIPA act Schedule 1 Clause 2.

(1)  It is to be conclusively presumed that there is an overriding public interest against disclosure of information contained in...:

(b)  a document prepared for the dominant purpose of its being submitted to Cabinet for Cabinet’s consideration (whether or not the document is actually submitted to Cabinet),

There might be a few factual issues when it comes to dealing with GIPA applications- the nature of the instruction, was submission to cabinet the dominant purpose etc.

But ministers retain a general discretion to release information outside the act, so over to the Premier and his ministerial colleagues to start telling the news....

President Obama open to open government community

As you do:

"(M)embers of the openness community today met with President Obama to discuss a range of transparency issues."

Well it wasn't that routine or unremarkable:

"The Oval Office meeting — during which the president was given an award for his work thus far in encouraging agencies to release information to the public — was the first time that longtime open government advocates in Washington recalled a sitting president meeting with them to discuss government transparency."

More about the meeting here.

Those who attended were Lucy A. Dalglish Executive Director Reporters Committee for Freedom of the Press: Gary Bass, executive director of OMB Watch; Tom Blanton, executive director of The National Security Archive at George Washington University; Danielle Brian, executive director of the Project on Government Oversight; and Patrice McDermott, director of OpenTheGovernment.org.

Dalglish, Blanton and McDemott were generous in slotting me in for a chat during my visit to Washington last month.

Who knows-if we had an identifiable openness community, prime ministers and premiers might also be interested in an occasional exchange of views?

Secrecy still trumps, mostly, for E Timor Sitreps 35 years on

The subbie who wrote the headline"Secrets of E Timor invasion to be revealed" to the report of an Administrative Appeals Tribunal decision in today's Sydney Morning Herald was way ahead of the game.  President Downes in Clinton Fernandes and National Archives of Australia [2011] AATA 202 found 250 lines spread across 42  documents, all 35 years old, were not exempt as claimed under s 33 of the Archives Act. However as the Herald report revealed, even the applicant is yet to see those parts of the documents now to be released, so whether they amount to much despite the attempt to keep them secret remains to be seen. As President Downes [18] said: 

The passages which can be released are substantially passages which contain material which is not inherently confidential, where disclosure will not incidentally disclose anything that is.

Radio Australia carried the only other report today under the more accurate "New intelligence files may shed light on Balibo killings". Maybe, maybe not. According to RA

The Defence Department says 95 per cent of its claim was upheld and that it won't be appealing the decision.

The decision 

Kessing conviction shakier by the week

Chris Merritt in The Australian on Friday wrote these articles that will bring you up to speed on ongoing revelations that cast doubt on the soundness of the conviction of Allan Kessing: AFP under fire  and Inquiry needed. 

A week earlier  Kessing's barrister Peter Lowe also wrote about the Prosecution's failure to bring relevant material to attention, identifying a broader issue:

The problem with disclosure of material in the possession of the CDPP (including AFP and Customs) is that there is no statutory basis in the federal sphere requiring disclosure.The CDPP has a Statement of Prosecution Disclosure, but it is only a guideline. It has no teeth. A breach of the guidelines is met with the feeble excuse: "We didn't know, because we weren't told about it." That is just not good enough. So where to from here? In June 2000, the standing committee of attorneys-general published a report about criminal trial reform and one of its proposals was that there should be no statutory basis requiring disclosure. Wisely, neither Western Australia nor Victoria followed that proposal and introduced laws requiring such disclosure. NSW followed suit, but its legislation is lame compared with the other two states. The commonwealth must introduce a statutory basis requiring disclosure. There should be no more excuses. A statutory basis requiring disclosure will minimise the potential for current and future miscarriages of justice. The time for the commonwealth to act is now.

NSW speaks up for a return to integrity in public life

No one would be surprised that "restoring integrity to public life" was fourth (8%) in the top five issues listed as the highest priority for government after Saturday's election in NSW, according to the print version of this article (p 8) about results of a Herald/Neilsen Poll. Premier O'Farrell fresh from the most comprehensive election victory in memory seems certain to heed this message. The only questions are how vigorously and when. Action would have more dramatic effect than walking around with a sign saying "I'm not them."

The Liberal Party pre election commitments on transparency and accountability included all the expected headings, but the specifics on issues such as lobbyists fall far short of expectations and the recommendations of the ICAC, and on access to government information are out of date in some respects. Action on a range of fronts should be taken promptly to convey and sustain the message that this government is and will remain different in the way it governs.

For starters on the transparency front, and there are other areas just as pressing:

• instructions for prompt public release of those parts of the incoming government briefs prepared for ministers that outline the state of things in NSW;
• a letter to the Liberal and National parties urging/insisting disclosure as soon as practicable of donations received prior to 26 March and voluntary adoption of something close to real time disclosure from now on, with legislative changes along these lines to follow;
• order immediate review by each agency of any GIPA matters before the Information Commissioner, the Administrative Decisions Tribunal or the courts with a view to speedy resolution;
• ask the Information Commissioner for a report on issues that have arisen in the first nine months of operations, to identify agencies that appear to be lagging in fully embracing the open government principles underpinning the GIPA act, and to bring to attention any proposed changes in legislation that may be necessary, for example regarding IC powers, to give full effect to the scheme; and
• put parliamentarians on notice that changes coming to arrangements for allowance and support payments will include publication of details of payments online.

Then there are broader issues raised in Ombudsman Bruce Barbour's call last year for an overhaul of the integrity structure.

The Premier should manage the integrity action agenda himself unless he has a "john faulkner" type who can be given a very senior cabinet slot that extends to responsibility for this and related matters such as public sector reform. And while Greg Smith, in line for Attorney General, seems impressive, a law related portfolio isn't the best home for these things.

Belcher report makes it onto the table

The Belcher Report on Parliamentarians entitlements was tabled in Parliament yesterday, close to a year after it was completed, when Special Minister of State introduced legislation to address some recommendations, with a fair bit of flourish about the importance of greater transparency. I haven't had a chance to look at the detail but this is what the report says under this heading. More in due course.

"The committee’s terms of reference require it to address issues such as “improving transparency in the use of taxpayer-funded entitlements”. The committee noted the announcement by the Special Minister of State (the minister) at his press conference of 8 September 2009 that as soon as practical, a complete reporting regime for all Finance expenditure on entitlements for or connected with senators and members or former parliamentarians would be developed. The committee considered that there should be a legislative basis for the reporting regime.

The committee considered that broadening the range of information disclosed on entitlements and expenditure and improving public access were significant steps towards making the parliamentary entitlements framework more transparent.  The committee recommends an additional measure requiring all senators and members to provide a link on their official parliamentary websites to their own expenditure reports on the Finance website.  This measure would give constituents easy access to information about a particular parliamentarian’s expenditure.

The committee also considered that the Remuneration Tribunal should publish reasons for its decisions when publishing determinations of parliamentary remuneration.

The committee noted the financial information provided by the chamber departments in their annual reports about the services provided to senators and members.  The reports offer high level information that does not attribute expenditure to individual senators and members.  In the interests of greater transparency, the committee recommends that the presiding officers be encouraged to provide regular public reporting of expenditure on services provided to individual senators and members wherever possible.

Recommendation 11

1. That the government’s decision to publish details of all expenditure on parliamentary entitlements administered by the Department of Finance and Deregulation be underpinned with a legislative basis.
2. That all senators and members be required to provide a link on their official parliamentary websites (at www.aph.gov.au) to their individual expenditure reports on the Finance website.
3. That the presiding officers be encouraged to publish on a regular basis details of expenditure on services and facilities provided to individual senators and members by the chamber departments.

Federal shield law done and dusted

The House of Representatives accepted the Senate amendments to the Evidence Amendment (Journalists‘ Privilege) Bill 2010 in a 72-70 vote on Monday, with the Opposition voting against. (House Hansard 21 March p 23) Front bencher Michael Keenan stuck to the "rue the day" line adopted in the Senate by Shadow Attorney General Senator Brandis:

If these amendments from the Australian Greens were to be adopted, the whole purpose of this bill would be massively expanded beyond its original conception, which is to protect journalists‘ sources in defined circumstances. It would not merely protect journalists, and it would not merely protect news media. It would be carte blanche for anyone who wanted to publish anything anywhere that might be considered news.

For good measure Senator Brandis reiterated all this in The Australian today.

While it remains to be seen how the term journalist, defined as "a person who is engaged and active in the publication of news", is interpreted, "anyone, anything, anywhere" seems over the top to me. And to Andrew Wilkie and Attorney General McClelland who spoke in favour, the latter finding merit in the whole process despite previous government resistance to reform along the lines now adopted:

In conclusion, this bill is an excellent example of how all sides of politics can work together in this parliament towards a common goal. I again thank the member for Denison and also Senator Xenophon for introducing this bill and for their willingness to work with the government on this important issue.

Welcome news but limited to matters in Federal courts and Commonwealth laws. State laws don't provide the same protection so still messy times ahead, including in circumstances such as this in NSW.

But then this extraordinary call within two days of the passage of the bill by Robin Speed of the Rule of Law Institute of Australia, for the legislation to be amended immediately to provide that disclosure should only be ordered where national security is at stake. Some points that Mr Speed seems to miss:

• the debate about this has been on for years. There will be little interest or enthusiasm in reopening it now
•  the bill provides for a rebuttable presumption against disclosure of the identity of a journalist's source-non-disclosure is the starting point
• it applies in matters concerning Commonwealth laws or heard in federal courts
• it is what media interests sought
• the onus in seeking to force disclosure rests on the party who seeks disclosure to establish that other public interests justify disclosure
• the protection of national security should be grounds for a consideration of an override but  other public interests for example justice to an individual should not be excluded
• the problem at the centre of his concerns is a matter for NSW state law and nothing to do with this bill.
• all of us should be worried about the opaque operations of the NSW Crime Commission but this is nothing to do with the legislation passed in Canberra this we  

(Update: this discussion between Chris Merritt of the Australian and Veronica Scott of Minter Ellison.)

An exchange with NSW Greens Dr John Kaye, MLC, about disclosure of political donations in NSW.

Email 13 March 2011.

Dr Kaye,
Last November when changes were passed to the NSW laws regarding political donations I emailed you asking why the disclosure requirements, previously every six months had now become a 12 month obligation, and why we weren’t within a bull’s roar of real time disclosure. I never received a reply. Can you tell me how this fits with  a commitment in The Greens platform to “prompt and transparent disclosure of all donations on a public website maintained by the electoral office.”  To jog your memory here is what I wrote at the time:
http://foi-privacy.blogspot.com/2010/11/nsw-makes-welcome-start-on-political.html

Peter Timmins.

Reply 22 March 2011

Hi Peter,

I located your email from November and I am sorry that I did not reply. It was a hectic end to the year.

You are right about the reduction of  donations disclosures from twice yearly to once a year. The Greens still support continuous disclosure by political parties and candidates on the internet and our party will be disclosing its reportable donations on the web prior to the election.

There were extensive negotiations with Labor over the bill and we were keen to achieve some donations and electoral funding reform rather than lose the whole bill by failing to reach agreement. I acknowledge that the reversion to yearly disclosure was a step backwards and in supporting the bill we did compromise to the Labor party's position on that point. Our view was that it was more important to implement the bans on tobacco and for profit gambling and alcohol industry political donations and limit the size of other donations. The caps on election expenditure were also a step forward.

Its our understanding that donations disclosure for the period in the lead up to the fixed March state election date, when the bulk of state election donations are made, will remain the same. There will however be a delay in public access from Election Funding Authority records for federal and state election related donations made in the July to December period of each year.

We are hopeful that there will be further electoral funding reform under an expected Coaliton Government. We will endeavour to hold Barry O'Farrell to his promise of a complete ban on corporate political donations and end their corrupting influence.

The Greens are willing to move amendments to the Election Funding, Expenditure and Disclosure Act for real time disclosure of reportable donations and as a fall back position revert to six monthly disclosure.

Thanks for raising the issue.

Regards,

John

 

Tasmania, the quietest reform state

The Australian Information Commissioner, Queensland Information Commissioner and NSW Information Commissioner are maintaining variable but reasonable flows of information about implementation of access to information reform activities, and their respective review functions. Communication after all is an essential part of the leadership required to promote the objects of legislation and the needed culture change within agencies. And some outside government are interested observers as well.

But things are quiet in the other reform state, Tasmania, at least from a distance.The Ombudsman has the same or similar functions there under the Right to Information Act. Perhaps there is a lot going on that doesn't rate a mention publicly, maybe it's a resource issue, maybe softly, really softly, is the way to go down there, but...

The Ombudsman’s website has no published review decisions, no information about complaints or review applications received, no other statistics, no audit or investigation reports, no performance measures that agencies will be held to or that apply to the Ombudsman's review functions, no speeches on RTI-or any other RTI-related information since the publication of guidelines and a manual last year, and the announcement of half day workshops once a month.

Comments from Tassie, or elsewhere, welcome.

Correction-thanks to the Queensland reader who tracked down these decisions on review. 
Update- decisions in January and February 2011 have also been posted

 

See you in Canberra, maybe?

I will be in Canberra for the next three days at the National Information Law Conference 2011, courtesy of the organisers, Australian Government Solicitors', so look forward to catching up with any of you who are there. Good to see that the Queensland Information Commissioner has snaffled Deputy UK Information Commissioner Graham Smith for a couple of sessions in Brisbane for agency officers. Not sure if any of the other visiting luminaries are off to other capitals while they are here.

Views sought on Publication Scheme and Disclosure logs

The Office of Australian Information Commissioner has two papers out for comment by 28 March, both on aspects of the FOI reforms to commence on 1 May: a Publication Scheme draft using that office as the model, and a Discussion Paper, Disclosure Log.

Bradford District Care Trust (UK)

The Publication Scheme draft (p 8) commendably indicates the OAIC intends to go beyond the mandatory publication requirement to publish additional information about priorities, finances, lists including agency contracts, grants and appointments, and links to data sets, submissions to other bodies, and policies.These (mostly) are the headings used in the UK/ Queensland/Tasmanian publication schemes. An unexplained mystery is why the government chose not to legislate or mandate something along these lines.

The Disclosure Log paper provides guidance on the requirement from 1 May to publish a register of information that has been released under the FOI Act.

"The purpose of the disclosure log is to provide the public with ready access to information that has already been publicly released by an agency or minister. This advances in a practical way the open government objective of the FOI Act. Disclosure logs, together with the Information Publication Scheme that also commences on 1 May 2011, will facilitate a pro-disclosure culture across government."

Some in media circles are concerned about the legislative requirement that information is to be posted to the disclosure log online within ten working days after the FOI applicant was given access to a document, raising the prospect that a journalist applicant having done the hard yards to gain access could be scooped by a competitor who simply crawls the logs. A bigger concern is where an agency or minister publishes information at the same time that it is given to a journalist in response to an FOI request. The suggestion is a delay of at least a few days (the Queensland act gives  at least three days exclusivity to the applicant) would enable the journalist applicant time to analyse the information and possibly write a story for publication.

The paper (pp 14-16) outlines the issue:

Governments argue for narrow interpretation of Lange freedom of communication principles

In the recent High Court decision in Hogan v Hinch [2007 2011] HCA 4 our rather thin right to freedom of political communication received an airing, with the Commonwealth and the states putting some views about the interpretation of the Lange principles.The case concerned Victorian court suppression orders and whether the act under which they were issued contravened the implied right to freedom of political communication as enunciated in Lange. The Court unanimously rejected all grounds relied upon by Hinch.

Those involved more closely than me in free speech issues may have been aware of argument that the Lange freedoms were potentially limited to communications concerning Commonwealth politics or government. (Although this 1998 article by Professor Sally Walker, now I think at Deakin University, drew this from the Lange decision: "the High Court re-affirmed that not only federal legislation, but also State and Territory legislation and the common law must conform to the freedom of political communication which is an "indispensable incident" of the system of government created by the federal Constitution.") 

In any event I was surprised to find that the Commonwealth (an intervener) argued in the Hinch case for the limitation of Lange freedoms to communications concerning Commonwealth politics or government. And that NSW and Queensland (all the states also intervened) contended any exercise of executive or judicial authority under the Victorian act "was well removed from any 'federal issue' and thus from the scope of the Lange implication."

Beyond surprise about the potential significant limitations on an already tightly drawn right to freedom of communication came relief to find that Chief Justice French rejected the Commonwealth submission, concluding [49]:

"The range of matters that may be characterised as "governmental and political matters" for the purpose of the implied freedom is broad. They are not limited to matters concerning the current functioning of government. They arguably include social and economic features of Australian society. For these are, at the very least, matters potentially within the purview of government."

By implication the Chief Justice did not accept the NSW and Queensland argument. In their joint judgment, Justices Gummow, Heydon, Crennan, Keifel, and Bell [99] did not refer to the Commonwealth submission and said it was unnecessary to pursue the NSW and Queensland question.

Whether the decision leaves open scope for further argument at some stage by the Commonwealth and the states for narrowing the application of the Lange principles remains to be seen.

"In relation to in respect of" NBN commercial activities before Senate this week

NBN Co legislation that addresses a range of issues including bringing the company under the Freedom of Information Act (to some degree) is before the Senate this week. The legislation was the subject of this report by the Environment and Communications Legislation Committee last week. The FOI issue didn't attract attention in submissions-not surprising as they closed before the Bandt amendment in the House- or in the two committee hearings. The majority report [3.67-3.68] simply notes and supports the amendment, while coalition senators argue for full coverage for NBN Co as a prescribed authority. Issues concerning the uncertainty, canvassed here, about the scope and interpretation of the provision that would exclude the company from the act in "relation to documents in respect of" commercial activities may get a run in consideration of the bill in the Senate.


Coincidentally another Schedule 2 issue, the exclusion of the ABC from the FOI act "in relation to documents in respect of" program material surfaced in the news today in this Herald Sun report. The exclusion was relied upon to reject an application for information about the cost of the set re-design for the 7.30 program. As noted previously a Federal Court decision generously interpreted this provision in a way that even Managing Director Mark Scott admitted justified re-consideration in 2009-that interest appears to have waned.


Schedule 2 of the act and the blanket exclusions it confers was ripe for re-examination when the Australian Law Reform Commission recommended [76] 16 years ago. It wasn't then or during the recent FOI reforms. It's a long haul-the two year review of the act due in 2013 is the next best chance.

FOI 101: read the act and Guidelines urges Commissioner.

The Australian Information Commissioner, as reported by Sean Parnell in The Australian today:

"The message of cultural change has certainly got across, including at the highest levels in government," Professor McMillan said. "But I'm also struck by the number of instances in which officials making decisions have just not adequately read the new act or the guidelines. "They've made decisions that clearly show they're not up to date with the detail of the new law." Professor McMillan said the mistakes were not deliberate -- "simply ignorance" -- but would be reflected in decisions by his office."

I haven't been through the Commissioner's Guidelines in any detail. Of particular interest is Part 4 on conditional exemptions and the application of the public interest test. But one user of the act, on reading those relating to charges (Part 6) told me yesterday:

"You'd need to be a lawyer with a retinue of lackeys to be able to remember all the exceptions and convoluted reasoning behind all that crap. No wonder lawyers charge like the proverbial. It is mind-numbing stuff."

There is also the question of what meaning to attach to the legislative requirement that an agency "must have regard to" the Guidelines in performing a function or exercising a power under the FOI Act (s 93A(2)). That's something short of "must act in accordance with" or similar words that would give them binding character. They mean "can't be ignored" but....

I'd be interested in any views on this.

With regard to charges, there is still plenty of room for distress and dismay on the part of applicants when faced with the bill for an application for non-personal documents, and for argument about the equity of the charges regime. Parnell refers to one aspect, in the context of the public release of documents:

We have sunshine, but no Sunshine Week

 Sunshine Week this week in the US, the annual national initiative led by the American Society of Newspaper Editors to promote a dialogue about the importance of open government and freedom of information. Participants include news media, civic groups, libraries, nonprofits, schools and others interested in the public's right to know. Here is a sample of the coverage and events.The Department of Justice got on board launching FOIA.gov with government wide data on FOI processing, including agencies with the biggest backlogs. The Knight Open Government Survey undertaken by the National Security Archives revealed a glass half full on implementation of President Obama's day one openness commitment and subsequent directive.

Would we had a philanthropist like the Knight Foundation to fund, and a coalition like the one behind Sunshine Week to support, a similar initiative here.

Public interest chestnuts and the impact of the amended FOI act

A decision in February by Senior Member Professor Creyke of the Administrative Appeals Tribunal in Gilligan and Australian Securities and Investment Commission [2011] AATA 104 reminds why some of us hope that aspects of the jurisprudence on the Freedom of Information Act  as it was before 1 November will be displaced by decisions of the Australian Information/ Freedom of information Commissioner, the AAT and the courts, in proceedings based on the law as amended from that date.

The case concerned parts of a document prepared in 2008 concerning the use of calculators or projections for the purpose of forecasting levels of individual’s superannuation savings. It formed part of a wider project to enable an accurate forecast of the likely balance of superannuation benefits of a person on retirement. The Tribunal accepted the document qualified as an internal working document (s 36) [23-29] A final decision on the substantive issue under consideration by ASIC was still to be announced at the time of the AAT decision.

The public interest considerations against disclosure discussed and accepted by the Tribunal were: 

Minister's Gov 2.0 invitation-take our data, and multiply

General applause for the new Australian Government data.gov.au website launched by this blog post from Special Minister of State Gary Gray, with the invitation "to explore, access and reuse the data available on the site." Stephen Collins in commenting says" Hooray! Not before time." 

The Department of Finance and Deregulation incoming government brief that the Minister had in September last year, in bringing him up to speed on the Declaration of Open Government, listed under "Action required in 2010" the suggestion that Mr Gray endorse the Declaration's principles "possibly via an opening post on the AGIMO blog." Better late than ever. But Minister Gray's post six months after assuming responsibility for the function hardly positions open government as an important whole of government priority with the needed leadership from the top. The Gov 2.0 Task Force report for good reason recommended that endorsement come in the first place from the Prime Minister, only to see the retiring Minister for Finance release the Declaration the day before the election was called last year. The cause of open government will need more, constant and stronger nurturing. 

Meanwhile with more than 200 datasets available and an invitation to suggest others, hackers are in from the cold. Any local into something like What We Pay For?

Queensland Information Commissioner delivers a "could do better" report on publication schemes

WikiMedia Commons-Acf

The Queensland Information Commissioner has published this report on desk top audits of 81 agency websites for compliance with publishing requirements of the Right to information Act and the notification principles under the Information Privacy Act, during the period 1 January-31 December 2010. The Commissioner overall is encouraged "by the commitment shown by agencies in implementing publication schemes and disclosure logs" and the general positive approach "to meeting their legislative requirements under the RTI and IP acts." However "(i)mprovement opportunities were noted across all the..agencies reviewed", meaning all could do better and sounding close to a C+; state government agencies are ahead in compliance compared to those in the local government and university sectors; and some unnamed agencies have significant compliance weaknesses.

A surprising fact disclosed in the report is that while the RTI act and Ministerial Guidelines that have mandatory effect require certain information in seven classes to be posted on the web, the "act does not specifically require agencies to publish publication schemes and disclosure logs electronically." They should fix that.

Only two of the 81 agencies, the Department of Education and Training and the University of Southern Queensland, had what could be expected in each of the seven classes of information required to be published to deserve a commendation.The type of information most commonly absent  was information about budgets, tendering procurement and contract information. Ten of 13 departments and all seven universities whose websites were audited didn't comply with the privacy requirement to provide information in on-line RTI forms about the use of collected personal information.

The Commissioner says a tougher approach to compliance generally is coming. This time the 79 agencies that didn't rate a commendation including even the most non-compliant escape mention by name. Publication of names and performance details, good bad and indifferent, is a spur to improved performance in any field.This should be a must next time.

The only media coverage of the report I've seen was The Gold Coast Bulletin (Act's judge and jury says it works fine 9 March-no link available) which took the opportunity to make a few general observations about the RTI act, its implementation, and public sector culture. Comments from Queensland readers welcome:

South Australia stuck in pre-reform FOI era

If anyone can get beyond this page to the South Australian Hansard they might give me the link to debate in the state parliament on 10 March on an unsuccessful Opposition move to allow five hours free processing for journalist Freedom of Information applications. The Advertiser (no link available) reported next day:

Australian Information Commissioner on the first quarter

In a welcome development the Australian Information Commissioner has put information on the record about the first three months of operation of the new Freedom of Information regime and the operation of his office. Whether applicants and users of the act fully subscribe to this sentiment remains to be seen

The Australian Information Commissioner, Professor John McMillan, said he is impressed by how Australian Government agencies have embraced the notion of government information as a national resource. "I'm delighted that Australian Government agencies are increasingly adopting a pro-disclosure culture," Professor McMillan said. 

I'd agree (putting aside a recent DFAT experience on a matter of minor significance, and a few wails of distress/hilarity that continue to reach me) that there appears to have been a move in the right direction in some agencies at least. But there's no substitute for meaningful measures of performance and change and it would be great to hear the Commissioner's thinking and plans in this respect.

The Commissioner's conclusion after the first three months of operation of his office also strikes me as full of hope and optimism, rather than based on evidence.  Fifteen requests for FOI review now that internal review is optional, is a small number capable of various possible explanations; 256 requests for additional time tells us more about agencies and the long enduring problem of non- compliance with reasonably generous time limits rather than Australians and their attitudes. It would also be interesting to know how many were granted and refused and where most came from, and the Commissioner's time target for dealing with complaints and reviews.

In the three months to 31 January 2011, the Office responded to 5,542 phone enquiries and 673 written enquiries. It received 290 privacy complaints, 22 FOI complaints, 15 requests for FOI decisions to be reviewed and 256 requests for extensions of time to process FOI requests. "These statistics show that Australians care about, and are willing to enforce, their information rights," Professor McMillan said.

A DFAT FOI case study- in excessive caution

In commenting on Fergus Hanson's paper about e-diplomacy last November I opined  that Australia's approach to transparency in the management of foreign policy and the conduct of international relations was marked by excessive secrecy and an abundance of caution. Let me share a small relevant case study, not significant in itself but perhaps an indicator of first instincts in the Department of Foreign Affairs and Trade.

Victoria-breaking the culture of secrecy, not, well not yet anyway

Victorian Premier Ted Baillieu has defended himself from charges he moved too slowly on reform in the first 100 days in office but it's true little has been said or done publicly regarding integrity issues in that time. Meanwhile on transparency it's business as usual in some agencies at least. As reported in The Age:

Days after the election of the Baillieu government last November, the Department of Business and Innovation received an application for access to its so-called blue books - the briefings prepared for incoming ministers. It took the department two months to respond, and when it did, the reasons it gave for rejecting the application point to deep cultural flaws in the administration of Victoria's FOI laws. The department's FOI manager said one of the blue books contained information on proposed projects ''which are still at feasibility phase and may or may not proceed''. ''If this information were disclosed, it could create a false expectation that these projects had received approval to proceed … This would jeopardise the public's perception of the government's ability to administer public moneys in a fiscally responsible manner should these projects not proceed.'' That raises concerns on at least two levels: it underestimates the intelligence of the Victorian public, and it suggests that potential damage to a government's standing is a factor in determining whether to release information.

 

The reasons a second blue book, on the state economy, was deemed exempt from disclosure were still more disturbing. ''The release of this information is contrary to the public interest because it would put into the public domain information which is based on estimates, assumptions and options that do not necessarily reflect the views of the government about the state of the Victorian economy,'' the FOI manager ruled. ''The content of this document may mislead the public and cause unnecessary confusion and debate on the government's views on the economy.'' Unnecessary debate about the government's views on the economy? As University of Tasmania law lecturer and FOI authority Rick Snell told The Age yesterday, that response is straight out of the British TV political satire Yes Minister.

A well connected friend in Victoria asked me in December for suggestions regarding the Baillieu commitment to FOI reform. I don't know if they were passed on or where they went, but there's no sign of them in the first 100 days. A couple  of suggestions were directed at avoiding the Blue Book knockback and reasons for refusal on patently silly "unnecessary confusion and debate" grounds mentioned above. Here's a summary:

NeHTA not a FOIer

When posing the question the other day about what other government related entities, like NBN Co (until amending legislation passes), are outside the scope of the Commonwealth Freedom of Information Act, I was unaware of the exchange below during the course of questioning of officers of the Office of Australian Information Commissioner in Senate Estimates. Their evidence is no one has a reliable list of who's covered and who's outside the Commonwealth act. I suspect that a similar situation applies in the states with respect to state legislation.

The confirmation that the National E-Health Transition Authority (NeHTA) is not covered by the FOI act despite the fact that annual reports on the operation of the act have for years past listed it as subject to the act, again raises the question: what other entities are out there carrying out important public functions with large amounts of public money that should be subject to the highest standards of transparency and accountability, but aren't?

NeHTA is a company limited by guarantee, established in 2005 by the Australian,State and Territory Governments, with those entities as Members.The board consists of  the CEOs of the various commonwealth and state health departments and a couple of independent directors. It clearly exists to advance public purposes and is responsible among other things, for the healthcare identification service.It received member (state and federal government) contributions of $95 million last year. The accounts are audited by a private firm not the Auditor General and refer to Corporations Act, not public sector standards.The Annual Report is not to a minister and contains no reference to any of the usual public sector reporting requirements. On a related issue as a company with turnover in excess of $3 million, it seems NeHTA itself is subject to the private sector provisions of the Federal Privacy Act, not those that relate to the public sector, which given the nature of its business might come as a surprise. The website makes no mention of what privacy regime applies, but with regard to identifiers states: "New legislation introduced by the Federal Government sets out the governance, privacy safeguards and permitted use of healthcare identifiers. In addition the current state, territory and federal privacy legislation will continue to apply."

Here is the relevant transcript ( Finance and Public Administration 21 February at 112)

NSW privacy commissioner appointment disappears in pre-election melee

Some might say just typical of the current NSW Government's form on privacy issues for much of the last decade. In October last year the aforementioned NSW Attorney General John Hatzistergos (left) sought expressions of interest by 8 November for appointment as part time commissioner for a fixed term of up to five years. Legislative changes last year also gave a parliamentary committee power to veto any appointment. Parliament was prorogued in December, over three months before the election, as the Government sought to avoid examination of the sale of some electricity assets. Who knows what stage was reached in the process then. As the Government went into caretaker mode last Friday, John McAteer continued as Acting Commissioner.

This history of the privacy commissioner position from the Australian Privacy Foundation:

NSW set for a much needed new start on integrity

I don't need to waste your time or mine on what a re-elected ALP government would do if it wins the NSW state election on 26 March. It's not even a remote possibility. Attorney General Hatzistergos speaking in the Premier's stead to the Institute of Public Administration (NSW) about the Government's vision and plans for the future of the public sector last month had  nothing about the future to say, The Attorney said the Premier's Department thought it too political to provide the usual briefing materials. Left to his own devices, he appears to have found himself up the creek without a paddle.

The Opposition on the other hand knows public sector reform and restoring professionalism, trust and integrity are urgent priorities.

Speaking at a similar forum a few days earlier (use the link above) Opposition leader Barry O'Farrell reiterated a commitment to the independence and integrity of the public sector; clear and unambiguous strategic priorities and performance expectations; and the creation of a new service culture in NSW. A soon to be established public service commission will lead by

establishing and protecting public sector values and ethical standards, things that have been debased and eroded by political interference over the past decade and a half. This will include strengthening and encouraging honesty, accountability, innovation and good conduct, and ensuring there are appropriate sanctions available where there are breaches of ethical standards. Secondly it will focus on recruitment and retention. The NSW public sector must compete with other jurisdictions and the private sector, as an employer of first choice, to retain and attract the best and brightest individuals. The Commission will be tasked to develop appropriate incentives, training and career development opportunities for existing public servants and a recruitment program that highlights the benefits of a public service career. Importantly, people will work to clear and unambiguous goals, and the Commissioner will contribute to establishing management and accountability frameworks ensuring public sector performance is aligned to delivery on clear strategic priorities. And finally it will uphold the principle of merit. It will ensure that public service employment decisions are based on fair and objective assessments of ability, and that opportunities are openly advertised. Moreover we intend to move quickly to establish the Public Service Commission. We will convene an expert Working Group to develop and recommend structural, management, evaluation and compliance details to effectively implement the policy.

O'Farrell made special mention of

"attacking the unhealthy, insidious culture which has developed in recent years which has seen family members of Ministers and Labor Members being given an array of plum jobs in Ministerial offices. Government simply cannot function properly when there are all kinds of personal and family relationships between Ministers and Ministerial staff. I am determined that this nepotism must stop. If the NSW Liberals & Nationals win office on March 26, we will ensure that family members will be barred from securing jobs in Ministerial offices unless they pass the most rigorous screening tests.

O'Farrell didn't go into any of the other elements of the Liberal Party's platform on Accountability and Government Reform. All the expected topics at least get a mention there, although some proposals, for example lobbying reform (light years from what the ICAC proposed a few months back), are modest in the extreme.

On transparency issues, the Opposition policy is dated, and doesn't reflect the NSW reforms of 2009/2010, including the passage of the GIPA act and the establishment of the Information and Privacy Commission. Putting this function in the Ombudsman's office now, less than a year after establishment and months after amalgamation with Privacy, makes no sense. Abolishing application fees would be a new step, and bring NSW into line with the Commonwealth. The platform states:   

The community has the right to openness, accountability and transparency when it comes to government decision-making and information. Community scrutiny of government – including through increased access to government information – both protects the public interest and propels better public sector decision-making and performance. In government the NSW Liberals& Nationals will pursue a new era of open government. This will include reforming the Freedom of Information (FOI) process based on the following basic principles and initiatives:

• pro-active disclosure of government information;
• one-stop online shop for information from all government agencies;
• enforced public disclosure of government contracts and grants; and
• no cost for FOI applications and the establishment of mandatory deadlines.

We will also appoint a fully independent Open Government Commissioner within the Office of the NSW Ombudsman who will:

• play an independent ‘watchdog’ role and drive the information-sharing performance of government agencies toward the highest standards of openness, accountability and transparency;
• provide citizens with advice and hear complaints on FOI and other government information matters; and
• report annually on the government’s overall performance and on the comparative performance of government agencies, including total number of requests, number of requests complied with, turnaround times, number of complaints and number of complaints upheld or denied.

The people of NSW deserve open government.

It's another new start on 25 March.

Journalists crack a federal shield law

Having suggested WikiLeaks would add further complications to passage of a federal law to protect journalists' sources, I was proved wrong on Friday morning at 1.20 am when neither WikiLeaks nor the name Assange were mentioned as the Senate passed the Evidence Amendment (Journalists Privilege) Bill 2010. (For the Senate Committe's report on the legislation last year see here.)

It's a good result, but will only be relevant in court cases regarding Commonwealth laws, and it remains to be seen how the courts interpret journalist (defined by function) and circumstances where the public interest should override protection of a source. NSW is the only state with a shield law but it falls short of a rebuttable presumption of protection of identity.

In the Senate the Government supported Senator Ludlam's move to clarify that a journalist did not need to be in an employment relationship to qualify for privilege, a problem for mine  with Andrew Wilkie's House bill from the start, and to ensure neutrality regarding the medium of publication. Senator Brandis spoke against The Greens amendments arguing that they opened the door to a claim of privilege by "any citizen who by any medium publishes something that might be considered to be newsworthy." While it extends to citizen journalists-paid or unpaid- who are clearly involved in publication of news, I doubt it covers every citizen who publishes anything at all.

The resulting definitions as they emerge from this are:

journalist means a person who is engaged and active in the publication of news and 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.

These changes need to be endorsed by the House but this will be routine.

Senator Ludlam's amendment to replace "work" with "activities" in this definition failed:

informant means a person who gives information to a journalist inthe normal course of the journalist’s work in the expectation that the information may be published in a news medium.

The substantive provisions of the amendment legislation, based on NZ law, would add these sections to the Evidence Act:

FOI exclusion for NBN Co's commercial activities

Adam Bandt

The details of the agreement between the Government and The Greens to bring NBN Co in under the Commonwealth Freedom of Information Act are in a bill passed by the House of Representatives on Tuesday and which is now before a Senate committee. in the House, Adam Bandt of The Greens said the legislation achieves the purpose of subjecting NBN Co to the FOI regime but not in such a way that it would put the company at a commercial disadvantage. Opposition frontbencher Malcolm Turnbull said The Greens have been sold a pup and that the amendments won't achieve this purpose at all. 

In seeking to protect commercially sensitive information from disclosure the NBN amendment largely utilises words already used that exempt documents concerning commercial activities of other government entities such as Australia Post, Medicare and CSIRO. Turnbull didn't raise this, but they have been broadly interpreted in the courts and the AAT to mean for example any document that has a direct or indirect connection with commercial activities-in this 2007 Federal Court case for example, to put outside the scope of the FOI act as it applies to Australia Post, a list of the names and addresses of post office licensees, information you would expect to find in the telephone white pages.Some of the existing and NBN drafting is also, well clumsy-"in relation to documents in respect of"-for example.


To illustrate the lawyer's delight, AAT Deputy President Forgie in Bell and Commonwealth Scientific and Research Organisation [2007] 46 AAR 1 took 89 paragraphs [52-141] to analyse some of the terms now used for the NBN, and the case law in detail, expressing along the way some bemusement at how to apply a binding precedent in another Federal Court decision Australian Broadcasting Corporation and The University of Technology Sydney [2006] FCA 964.

The amendments in effect make NBN Co subject to the act by defining it as a prescribed authority, but exempt the company "in relation to documents in respect of its commercial activities" through the addition of a provision to Schedule 2. An amendment to section 7 provides that "commercial activities" when used in relation to NBN Co means "activities carried on by NBN Co on a commercial basis" or "that may reasonably be expected in the foreseeable future to be carried on by NBN Co on a commercial basis." Turnbull's point is that the reference to the NBN in amendments to s 7, unlike the provision that applies to other entities listed in Schedule 2, is not confined to those NBN functions carried on in competition with anyone else.

The NBN Co situation raised issues about exclusions from the FOI act (what other government owned companies aren't covered?) and Schedule 2 apart from its construction, (ALRC recommendations of 1995 and for example another matter concerning the ABC and SBS) that should have but weren't addressed in last year's FOI reforms. While exempting NBN Co's commercial activities from the act in terms that apply to other entities satisfies the need for neat consistency, it won't deliver certainty and leaves plenty of room for broad blanket exemption claims that won't require any evidence of harm to the commercial interests of the company.

Over to the the Senate Committee. This is only one element of the bills.Submissions closed on 24 February (before the Bandt amendment passed the lower house) and the report date is 16 March. Who's interested? 

Kessing whistleblower conviction unsound as well as unjust

Good on Chris Merritt and The Australian for continuing to draw attention to developments concerning Allan Kessing and his conviction for a breach of section 70 of the Commonwealth Crimes Act, and again pushing the case for justice for him in these articles today. Withheld information that has now come to light casts fresh doubt on the conviction, following Kessing's admission after the trial that he leaked to a member of staff of Anthony Albanese, but not, as charged, to journalists at The Australian.

Customs letter raises questions
Allan Kessing in 'wrongful conviction'
Cracks in Kessing case illustrate why secrecy is insidious

Kessing a hero

Professor (Paul) Wilson (of Bond University) said it was clear that Mr Kessing had leaked the report "but not to The Oz". "Even assuming that he did leak to The Oz, as well as Albanese, Kessing in my view is a hero -- his motives were entirely in the public interest, may well have led to changes in airport security that saved lives and exposed a potential criminal culture among some segments of personnel working at airports. "His financial devastation for acting in the public interest and his present legal position is an appalling indictment on a government that says it respects human rights and justice," Professor Wilson said.

Merritt's wrap

So it looks like this man is simultaneously a victim of injustice and a real whistleblower who risked his liberty because it was the right thing to do. And that applies even though it meant breaching the self-serving secrecy laws that generations of federal politicians have used to hide maladministration. If anyone needs convincing about the insidious impact on the justice system of this fixation with secrecy, look no further than this case. It shows that federal law enforcement agencies appear to have concluded that government secrecy laws -- unlike laws against real crime -- can safely be applied selectively. Back in 2005 when the leak at the heart of this affair embarrassed the government of John Howard, there was almost no limit to the resources the Australian Federal Police devoted to finding someone to blame. Kessing, who at that stage had retired, was followed through the streets of Sydney and subjected to the sort of scrutiny that even career criminals rarely receive. But when he admits that he broke the same secrecy law by leaking to Albanese's staffer, the law enforcement agencies behave as if nothing has happened. Could it possibly be that the complexion of the government in Canberra is a relevant factor in the enforcement of the Commonwealth Crimes Act? This selective application of secrecy laws proves what many have long known: these laws are too easy to abuse and desperately need reform.

"Desperately need reform," yes. Merritt doesn't mention that the ALRC report on reform of secrecy laws including the draconian s 70 has been with the Attorney General for 14 months, and was tabled in Parliament a year ago. Not a word from the government in response since.

Canberra keeps the lid on names of those who don't cut it on food hygiene

The ACT is the latest battleground regarding transparency and compliance with food hygiene standards.Markus Mannheim in The Canberra Times on 26 February (Let the public digest the truth:it's not always dangerous"-no link available) recounted:

I sought access, under freedom of information law, to ACT Health's food inspection reports, not because Canberrans are succumbing to an epidemic of poisoning but because I believe information produced for the public belongs to the public. This is more than simply a matter of principle: it's the law. The (Territory) FoI Act's object is to extend "as far as possible" the community's access to information held by the Government; a right "limited only by exceptions and exemptions necessary for the protection of essential public interests and the private and business affairs" of people to whom the information relates. It is a noble object that, sadly, bureaucrats rarely live up to in practice, whether in the ACT or elsewhere in Australia. ACT Health censored the names of the businesses that failed hygiene inspections, telling me it had no "legislative authority to publicise them". This is not strictly true; the FoI Act provides all of the authority that is required. Rather, the decision to suppress the names, which was made by health protection services director John Woollard, came down to a question of discretion: he cited his power to protect businesspeople from disclosures that would "unreasonably affect" their "lawful business or professional affairs". The Canberra Times disagrees with his conclusion and has begun the process of challenging it formally. Based on feedback this newspaper and Health Minister Katy Gallagher received, it's almost certain most Canberrans disagree with Woollard, too.

These issues have been raised and fought over in a number of jurisdictions. After what seemed a long battle in NSW where arguments against FOI disclosure included a claimed breach of privacy, that government set the Australian standard by publishing details online, getting closer to best practice such as the UK Scores on Doors scheme and similar in the US and Canada for example. Research in California where I was last week showed a 13 per cent reduction in hospitalisations for two years after the introduction of a restaurant hygiene grading system in Los Angeles in 1998.Impact of Restaurant Hygiene Grade Cards on Foodborne-Disease ... Restaurants there display the latest grading on the window in a notice that states a copy of the latest inspection report is available inside on request.

Mannheim was right to point out: