Tobacco companies request for government legal advice on packaging sent packing

WikiCommons Media

Along with the war of words and threatened court action by the industry in recent weeks following release of the draft plain packaging for cigarettes bill, came this related Administrative Appeals Tribunal decision by Deputy President Forgie and Senior Member O'Loughlin concerning  a Freedom of Information application by Philip Morris and British Tobacco for advice obtained by the Health department from Attorney General's in 1995 on "the legal and constitutional barriers to generic packaging."

The Tribunal upheld the agency decision to refuse access on legal professional privilege grounds, importantly concluding no waiver of privilege had resulted from the circulation of summaries of the advice in years past to members of two working parties of government and private sector members.

Jared Owens writing about the decision in The Australian said "(t)he tribunal also found the advice was protected by the Parliamentary Privilege (sic) Act, since the 1997 summary formed part of "proceedings in parliament." This seemed to suggest that the PPA provided other grounds for refusal of access.That's not exactly what the Tribunal decided.

The Tribunal found that the Government Response to a Senate committee report, tabled in Parliament and incorporated in Hansard that included a short summary of the advice came within the description of “proceedings in Parliament” in s 16 of the PPA. Section 16(3) prohibits evidence in a court or tribunal concerning proceedings in Parliament in certain circumstances including for the purpose of drawing, or inviting the drawing of, inferences or conclusions wholly or partly from anything forming part of those proceedings. The Tribunal ruled this precluded consideration of whether information about the advice in the Government Response to a Senate committee report in 1997 constituted a waiver of legal professional privilege. The reason was that this would require drawing an inference or conclusion that a judgment was made at the time to behave inconsistently with the confidentiality expected when seeking to maintain the privilege.(See DP Forgie at [194-196] and SM O'Loughlin at [214-219]).

$50000 a high water FOI mark

A freedom of information request by The Sun-Herald to the Department of Immigration and Citizenship to release a video showing guards removing asylum seekers from the Villawood detention centre in preparation for their return to Christmas Island after attending funerals for victims of the December boat tragedy has been granted - providing the paper pays $53,093.

The spluttering passed and the Sun Herald has lodged an appeal arguing that in the public interest the cost should be substantially reduced, if not waived. There might be a question also that the charge has been wrongly assessed, if as the paper points out it has someone who could pixelate and edit the video for privacy for $7500 compared to the Department's $38000 charge for this task.

Those involved will be thumbing through OAIC Guideline Part 4 – Charges for providing access PDF and the decision by Freedom of Information Commissioner Popple last month in Besser and Department of Infrastructure and Transport [2011] AICmr 2 (17 March 2011) PDF. Besser, a Sydney Morning Herald journalist succeeded in having charges for an application for a number of internal audit reports reduced by 50% after Commissioner Popple found the giving of access to the documents was in the general public interest.

Important considerations that swayed the decision in this case were that the disclosure of the documents sought would add to information that is already publicly known [16] and

"the content of the documents and the context of their release. I have not examined the 12 documents in question, but the schedule of documents reveals that a number of them are reports of audits of the Department’s internal operations (eg ‘Review of Corporate Credit Cards’ and ‘Review of Cash Withdrawals from Corporate Credit Cards’) and its external operations (eg ‘Airport Curfew Dispensation’, ‘Review of Better Regions’ and ‘Review of Nation Building — Economic Stimulus Plan programs’). These... have the potential to reveal important information about whether the Department is using Commonwealth resources consistently with its obligations under the FMA Act (such as the requirement to manage its affairs in a way that promotes the efficient, effective, economical and ethical use of Commonwealth resources)[25].

As Commissioner Popple points out a finding that giving access to the documents was in the general public interest justifies a decision to apply the 50% rebate, but it is irrelevant to matters yet to be decided by the agency regarding access and whether disclosure on balance would be contrary to the public interest:

29. The Department has not yet made — and is not required to have made — a decision whether to give access to the documents that Mr Besser has requested. If Mr Besser agrees to pay the reduced charge, then the Department will have to make that decision. In doing so, the Department may conclude that one or more of the public interest conditional exemptions in Division 3 of Part IV of the FOI Act apply. In that event, the Department will need to apply the public interest test in s 11B. That test is different from the public interest test for the purposes of deciding to reduce or to not impose a charge, which has been considered in this review.
30. The fact that giving access to documents is in the general public interest for the purposes of reducing or not imposing a charge (under s 29(4)) does not mean that giving access to those same — conditionally exempt — documents cannot be, on balance, contrary to the public interest (under s 11A(5)).

Yes, but the law in this respect is confusing nonetheless.

NSW legislative change represents (I hope) an improvement by providing for a 50 per cent reduction if the agency is satisfied that the information applied for is of special benefit to the public generally.

A PhD on transparency and accountability in government?

Now that's to be welcomed- this from Macquarie University in Sydney. Time is tight now, maybe too tight (sorry) if you haven't heard before this-applications close 2 May:

Parliamentary entitlements reform: a case study in slow motion

CD cover

The long awaited Belcher committee report released on 24 March and the way successive governments have handled (or not handled) federal parliamentary entitlement reform hardly engenders confidence that we are about to see anytime soon the changes necessary to ensure parliamentarians are paid appropriately for what they do, provided with support facilities to do it well, and operate within a simple clear framework that ensures the highest standards of transparency and accountability. I'll leave to others comment on the substantive recommendations for change to entitlements and services intended to be fair and equitable to parliamentarians. Comments follow on the review process, and some of the transparency and accountability issues raised in the report.

Shift in thinking necessary to protect online privacy

The Senate Environment and Communications Reference Committee report on the adequacy of protections for the privacy of Australians online released last week examines issues  related to the adequacy of the existing privacy framework for protecting the privacy of Australians online; and challenges for law enforcement arising from technological advances. The Committee made a string of important recommendations (the response to the Government's plans for data retention by ISPs attracted most media interest) and also warned of dangers arising from rapid advances in technology and ingrained thinking about policy prescriptions from another era [2.85]:

..in relation to a number of emerging issues, it seems Australia's current approach to privacy regulation is applying offline thinking to online situations. The committee cautions that, as online technology continues to develop and new privacy issues emerge, it will be necessary to continually evaluate Australia's privacy framework to ensure that regulators are not simply applying old policy values and frameworks, which may be well suited to the offline contexts, to a very different online situation.

The recommendations were:

Reining in the "privacy is dead" crowd

Further proof, if any was needed, that the perception in some quarters is anything now goes with what used to be called the right to privacy, were revelations about goings on at the Australian Defence Force Academy that have Defence Minister Stephen Smith hopping mad. 

Travis Isaacs WikiMedia Commons

Perhaps part of starting to rein this in might be be a firm statement from the government that the law of the land not only says government agencies and big business organisations should respect (information) privacy, which it already does, although substantial improvements are needed. But that the law also will soon establish potential consequences for those who flagrantly commit serious breaches of reasonable community standards and expectations regarding privacy generally. 

That's what the Australian Law Reform Commission had in mind in recommending three years ago legislation to establish a statutory cause of action. I’m not suggesting suing an 18 year old ADFA cadet or cadets would necessarily get ‘Kate” anywhere. But something on the statute book about the consequences of an unwarranted serious breach of privacy instead of silence might help start to shape thinking about the importance of respect for privacy.

Up to now the government's attitude has been it will have a look at this issue maybe sometime in 2012 after we get other privacy issues arising from the ALRC report settled. In the meantime, apart from a rocket for those in charge at ADFA, and an inquiry into prevailing attitudes to women, the government remains knee deep in the detail of information privacy principles, suggesting a leisurely approach to reform and with no voice to inform and lead public debate to balance those who argue privacy is dead or not worth worrying about. 

Apart from the ALRC, and the NSW  and Victorian law reform commissions who have recommended legislative action, the Senate Environment and Communications Reference Committee in a report last week on the adequacy of protections for the privacy of Australians online expressed unanimous support [3.122] for such action.

Of course confirming a right to legal action by removing the current uncertainty here won't mean intrusions won't occur. As we see In the UK where the courts acknowledge an actionable right to privacy, with Rupert Murdoch now admitting and apologising on behalf of News of the World for hacking the phones of the royal family, politicians, celebrities and sports stars, and offering to settle the claims of eight prominent individuals while two and maybe more of his journalists face criminal charges.

Opposition in Australia to a statutory cause of action for a serious breach of privacy has been led by News Ltd's The Australian, which consistently refuses to acknowledge that broader issues than privacy and the media are involved, and that the ALRC recommendation has regard to important and sometimes competing rights such as freedom of expression and the press.

It's time for moving on. 

Victoria up for a "professionals" only shield law

Attorney General Clark

Chris Merritt in The Australian reported on Friday that Victoria intends to legislate this year to create a rebuttable presumption that the identity of those who provide information to journalists will be protected by state law. Attorney General Robert Clark indicated the protection would apply in circumstances similar to those set out in the recently passed Federal law, but only for "professional" journalists. No detail provided, but in the light of what the Attorney sees as a neat distinction between professionals and amateurs, a reprise of the debate in Canberra about the scope of the privilege seems certain:

"We believe the shield should apply to journalists who receive information in the normal course of their work."... "The Greens' changes (incorporated into Federal legislation) are cast in extremely broad terms," Mr Clark said. "Simply running a blog does not make you a journalist. If you are a professional carrying on online journalism in the course of your work, electronic media journalists qualify (for protection) just as the print media does. "But if you are an amateur running a blog, in principle and practice, it is not appropriate that the privilege extend to such a person."

In Canberra Andrew Wilkie's initial attempt at defining the circumstances in which it could  apply was limited to a journalist employed and operating in the course of work. This would have excluded a free lancer not currently employed working on a story for later submission to a publisher but who could not point to an employee-employer relationship at the time the source provided the information. Or a student journalist. Or any person not currently employed who publishes and disseminates news and opinion regularly and consistently on the internet, in other words clearly a citizen journalist.

The Greens amendments incorporated into the Bill in Canberra with support from the Government and Wilkie were an attempt to address such problems. In my view the definitions don't extend the privilege to anyone who publishes anything, anywhere as claimed by Opposition Senator Brandis and his colleagues, and now reflected in the Victorian Attorney's comments:

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.

Uniformity should be the aim although "normal course of work" without references to any professional/ amateur dichotomy could be broad enough to extend privilege to those paid or unpaid engaged and active in the publication of news.

Let's hope for some sort of debate about this before we end up with the traditional mess of differing Federal and state laws reminiscent of those different rail gauges of another century.

Journalists down in the dumps about FOI document dumps

More grumbles from journalists in Tom Cowie's Crikey piece about Friday (and other day) FOI document dumps by agencies in Canberra (Treasury the worst) that some see designed to reduce their enthusiasm and interest in making applications by giving others the chance to run off with the story before the FOI applicant can make something of what has been released. I'm not aware of journalist complaints about the similar Disclosure Log system in NSW, in place since July, where there is some sort of solace perhaps as no charges apply if information sought by an applicant under the GIPA act (s 66) is made publicly available before or within three days of being released to the applicant. Journalists fancy the Queensland formula: the Right to Information Act s 78 provides nothing about a document (including a copy of the document) released may be put on a disclosure log until at least 24 hours after the applicant accesses the document- extended to three days.

The comments on the Crikey website suggest some readers need convincing we should feel sorry for journalists, although some practices aimed at deliberate dudding seem unethical to me. There were a few wry smiles in Canberra at the National Information Law conference recently when Michael McKinnon of the 7 Network said journalist FOI applicants needed time to consider documents released without time pressures to use the material immediately on the day it is made available so as to ensure quality journalism, and he makes a similar observation in response to the comments on Crikey.  We'd like to think some newsrooms consistently choose quality over the race to be first, but that might be just wishful.

(Update- more scepticism about journalists woes.)

FOI can cost a packet, so fine print on discounts warrants a close look

Aussie Legend WikiMedia Commons

Access to government information under right to information laws can involve more than a brass razoo, except in Tasmania where an application fee but no other charges apply. So circumstances where waiver, reduction or rebate may be available are of particular interest to those who use the acts. In NSW the now repealed Freedom of Information (Fees and Charges Order) 1989 relating to circumstances in which a rebate could be given on "public interest" grounds gave rise to problems, suggesting as it did that the issue came down to whether there was a public interest in disclosure of requested documents. Clause 6 provided (emphasis added):

The fees and charges payable by-
...
(e) an applicant whose application relates to information that it is in the public interest to make available are to be half the fees and charges that would otherwise be payable in respect of that application."

The replacement Government Information (Public Access) Act, reflecting recommendations in the Ombudsman's 2009 Report, took a different approach, clearly distinguishing the decision on a rebate on charges from a decision concerning access to the requested information. S 66 provides:

Discounted processing charge—special public benefit

(1) An applicant is entitled to a 50 per cent reduction in a processing charge imposed by an agency if the agency is satisfied that the information applied for is of special benefit to the public generally...

(3) The Information Commissioner may, for the assistance of agencies, publish guidelines about reductions in processing charges under this section.

The NSW Information Commissioner has released Guideline 2: discounting charges – special benefit to the public generally.  Overall useful and less legalistic than other schemes, but two issues worthy of comment, and a query about whether FOI charge systems are worth all the effort.

Tribunal upholds decision on emergency department death reviews

The Courier Mail today reports detail from reviews of deaths in emergency departments at three hospitals in Queensland based on documents released after QCAT upheld (in a decision yet to be posted) the decision of the Right to Information Commissioner that the documents were not exempt from disclosure. (Update: the paper doesn't hold back in the editorial "When right to information is a sick joke."
(Further update-the QCAT decision.)

Reflections on truth and justice by Allan Kessing

If you have 50 minutes, Richard Fidler's conversation today with Allan Kessing is compelling. Kessing says he is relaxed and "over it." The rest of us shouldn't be.

Review of deaths in emergency departments raise public interest issues

  Drop off rate of interest

An editorial  in The Courier Mail on 30 March (no link but extracts below) gives the paper's point of view about a decision by Right to Information Commissioner Smith against Queensland Health (QH) that the agency has now taken to QCAT, a review right available on error of law grounds. The decision, that documents that detail reviews of in-unit deaths in emergency departments at specified hospitals during a defined period (excluding identifying particulars of patients and medical staff), are not exempt from disclosure, will be of interest to those in the health sector in Queensland and beyond.

RTI Commissioner Smith found that QH's Death Review Process was a system or procedure for the protection of persons [26], but that "there is no reasonable basis to expect that disclosure of the Information in Issue could prejudice" that system or procedure, the grounds necessary for an exemption claim under Schedule 3 section10(1)(i) [ 42]; and disclosure on balance would not be contrary to the public interest [43-63]. On this point the Commissioner said disclosure could be expected to promote open discussion of public affairs and enhance the Government’s accountability:

• "to the extent that information reviewing the quality and safety of emergency care in Queensland public hospitals contributes to open discussion about QH’s service delivery, in accordance with proper professional standards and its timeliness, access to such information is important "[46]

• "disclosing the details of the reviews of specific emergency department incidents where a death occurred will enhance the accountability of QH. Disclosure will reveal actions taken and factors relevant when delivering emergency public health care, and the precise steps taken when evaluating those actions and factors following a death in an emergency department. Such disclosure enhances QH’s accountability because it demonstrates the practical operation of the Death Review Process and sheds light on critical issues arising in emergency departments and how those critical issues are managed"[47]

• "Disclosure of the Information in Issue will provide details of the type and scope of review of specific emergency department incidents. It will better inform the public about review practices when deaths occur in public hospitals and contribute to debate on the performance of QH emergency departments. In this regard I note that the word ‘positive’ is construed broadly in the context of access to information legislation and encompasses various effects that disclosure might have including enlivening public debate, generating criticism or leading to legal process" [48]

The Courier Mail made these observations about the long drawn out process:

Some SA standards best left behind

The new director general of the NSW Department of Premier and Cabinet Chris Eccles has a big job on his hands as he starts today. We wish him well. Fresh from South Australia where he headed the Premier's Department for the last two years, Mr Eccles will find many things different in NSW. One of the few on the plus side is a more modern legal framework regarding government transparency. The new government he is to serve also says its into better governance, with promises that include more open and accountable government. As previously noted here, on the freedom of information front, SA seems firmly stuck in pre-reform mode.

In February, South Australian Ombudsman Richard Bingham in Lucas and Department of Premier and Cabinet overturned a Freedom of Information decision by Mr Eccles on internal review, that parts of documents held by the Premier's Department containing names of persons and organisations they represented who attended functions hosted by SA Progressive Business (SAPB), the fund-raising arm of the South Australian branch of the Australian Labor Party (ALP), were exempt.  The Ombudsman was critical of the six months it took the Department to make the original determination, commenting

"(i)t is incumbent on the agency to ensure that it is adequately resourced to deal with applications in accordance with the FOI Act."

In his decision, Mr Eccles relied on Section 7(1)(c) to claim the exemptions- information of commercial value that if disclosed would have an adverse effect on business affairs or prejudice future supply of information, and disclosure would on balance be contrary to the public interest. During the Ombudsman's review, some of the third parties supported this argument and raised other exemption issues including separate aspects of  business affairs, and confidentiality. The Ombudsman rejected the submissions and ordered disclosure.

On the s 7(1)(c) claim the Department submitted [43]:

The attendance of persons from private sector organisations at SA Progressive Business functions is commercial information attaching to those organisations, is not made public, and is often information those organisations would not wish competitors in their industries to know. I therefore consider that the disclosure of this material could be reasonably expected to have an adverse effect on those person’s business affairs.

The Ombudsman said [42]:

On the facts of this case however, I am not satisfied that the identities of the third parties, or the organisations they are associated with, constitute information concerning the business affairs of the individuals or the organisations in the context of the relevant documents. Much of the information concerns, in essence, individuals scheduled to attend a function, and reveals the organisations they were associated with at the relevant time.

In respect of related arguments put on behalf of some third parties, the Ombudsman said [45]:

I am not persuaded that it could reasonably be expected to follow that the third parties, or organisations they represented, would be adversely affected by release of the relevant documents. In saying this I note that it is commonly understood that organisations lobby the government and the opposition alike, and that this does not necessarily mean an affiliation exists with a particular political party. Such an approach is thought to demonstrate common business practice. Furthermore, as I have previously indicated, a significant amount of information demonstrating links between SAPB or the ALP and named individuals and/or organisations is publicly available, or has previously been released to the applicant.

While it had nothing to do with the Department or Eccles, a submission put to the Ombudsman on behalf of one of the objecting third parties [47] is, well, quaint to say the least:

Third party 10 claims that the relevant documents contain ‘commercially sensitive trade secrets which are of commercial value’ to the company they are associated with and another company (the other company), and information concerning the commercial affairs of those companies. Third party 10 considers the fact of their attendance at an SAPB function, among other things, to be exempt, because it may inform competitors of their ‘confidential marketing activities, business strategy and business dealings’, which may in turn adversely affect the company and the future supply of the information to the agency.

The Ombudsman rejected the arguments against and ordered all documents in dispute to be released in their entirety.

NBN Co and applicants given 12 month FOI good behaviour bond

The result of last week's final steps in the passage of legislation that included extension of the Freedom of Information Act to NBN Co is that the company is to be subject to the act except, as a result of the Bandt amendment previously approved by the House, in relation to documents in respect of its commercial activities. And the Minister administering the FOI act is to arrange a review of NBN Co FOI experience after 12 months and table the report, as a result of an amendment in the Senate moved by The Greens Senator Ludlam. This review is separate from the two year review of the act due in 2013. And the six month review of fees and charges that must be starting to loom.(Correction: getting ahead of myself-the Australian Information Commissioner is to undertake the review of fees and charges within 12 months of appointment-presumably by 1 November.)

The NBN Co debate resumed on Monday 21 March with Senator Ludlam foreshadowing more robust changes later in the week:

"..we will need to open this issue up again in the committee stage when we get to it tomorrow, to have the FOI Act itself amended to make sure that, as far as NBN Co. is concerned, the presumption is that commercial information will be released unless it can be demonstrated that some harm will be caused if it is released... (W)e are going to try and find somewhere in the middle that allows commercially sensitive material, or material which would be destructive if it were released, to be withheld. Those arguments can be made and appealed..... But let us do away with this blanket of secrecy that somehow accords sacred status to commercial information just because a business is being run. I am hoping that that will satisfy the concerns of the opposition. I am hoping it meets the objectives of the government to presumably not have NBN Co. opened up to repeated hostile or malicious FOI requests, or whatever the concern is. Hopefully we will set something of a precedent in the way that the FOI Act operates as well."

Some back room discussions presumably followed. By the time the Senate got to it later in the week, politics as the art of the possible was the order of the day. With the Opposition wanting more and the Government presumably less, debate (Senate Hansard 24 March 115-119) centred on an amendment moved by Senator Ludlam and supported by Government Senators to add a new Section 100A to the bill to require a review in 12 months of what happens in the making and determination of FOI applications, and a report to be tabled in Parliament.The amendment passed 32-30.

During debate at this stage Senator Ludlam said:

We are not happy, and I suspect the coalition will not be either, with the way the Freedom of Information Act handles definitions of commercial activities. I think there is a body of case law that has built up over the last couple of years that is pointing in the direction that says it is interpreted too broadly and that it is in need of review and repair. That is not a problem for the NBN Co. per se—it is not a communications portfolio issue—but it goes a bit deeper than that, to the operation of the FOI Act itself. What we have done here is propose a couple of things. We want more or less an immediate rolling review of how the Freedom of Information Act is being used and/or abused with regard to the National Broadband Network. We want to know how it is actually working in practice. Senator Birmingham has not spoken on this one yet, but I suspect we are going to be to some degree in agreement with the fact that this could be abused. But let us be very careful here. The Freedom of Information Act can be abused in two different ways. The first thing that might happen is that NBN might say, ‘No, that is relating to our commercial activities; you can’t have it.’ We might see quite a lot of
that. This amendment will expose whether or not that behaviour is going on. The second way in which the Freedom of Information Act can be abused is if certain new organisations, or certain competitors to NBN Co., or people with a particular point of view, start firing freedom of information applications at a rate of 10 or 20 a week, to attempt to either paralyse or bog down NBN Co. That is part of life. Mr Quigley has a pretty thick skin, I guess, after a couple of years in the job. They are used to it and they can handle it. But what we are most keen to know is how it is actually working in practice. So every 12 months the FOI minister, according to clause 2 of my amendment, ‘must cause to be prepared a report of a review under subsection (1).’ I am going to invite the minister in a second to provide a little bit more detail about how this is actually going to work in practice. We want to know how the FOI Act is being used. This is the first time an entity like NBN Co. will have been brought within the ambit of the Freedom of Information Act. It is not Australia Post; it is not CSIRO. We know it is in the appropriate part of the act. The question is: will the act serve us well? That is what this amendment proposes to find out.

 Minister Conroy wasn't able to come up with anything much about how he thought it would work. Later in debate Senator Ludlam said

I think that the idea that commercial information is somehow all sacred, and that the public interest takes a back seat to the commercial interest, is a really serious usurpation that has just crept into public discourse over time—that information that is considered not even necessarily commercially sensitive but merely commercial is precluded from release.

Senator Xenophon also showed interest, seeking information about how the review might be conducted. While the Government made no commitment Senator Ludlam made it clear he has in mind a public process that will include submissions.

The Senate amendments to the Bill were considered by the House of Representatives as recorded in Hansard 24 March [at 121] (I thought it was Friday)