NSW Premier lauds whistleblowers, and ups the ante on protection reform.

In contrast to the "in the fullness of time" approach to integrity of government and associated reforms adopted by Victorian Premier Baillieu, NSW Premier O'Farrell is moving right along on some fronts at least, introducing in Parliament this week foreshadowed changes to whistleblower protection law and to the Independent Commission Against Corruption. During his speech the Premier made specific mention of several whistleblowers including Gillian Sneddon whose actions in speaking up led to the jailing of the former Labor Minister for Aboriginal Affairs:

Her case is symptomatic of Labor's treatment of whistleblowers, whether it be the nurses who exposed problems at Camden and Campbelltown hospitals or the brave Bimla Chand, who exposed systematic bullying at RailCorp. Labor's treatment of people who stood up for the public good, who stood up for their beliefs, was nothing short of shameful and every single member of the Labor Party in this place ought to hang their heads in shame.

Ms Chand has been a self-represented litigant in cases against Railcorp in various courts and tribunals in recent years, most recently two weeks ago losing an appeal on a freedom of information matter in the NSW Court of Appeal, with costs awarded against her. Earlier in the year the Court of Appeal dismissed an appeal by her against an Administrative Decisions Tribunal decision that certain claims of sexual harassment and victimisation were not within jurisdiction, and others were not substantiated. An appeal against the  decision of the ADT Appeal Panel to award costs against her in the same matter was also dismissed by the Court of Appeal- with costs awarded against her. In another ADT Appeal Panel decision President O'Connor gave this history:

Ms Chand was employed by the agency between 2000 and 2005. Around 2001 she made internal complaints relating to the conduct of other employees that she considered involved corrupt practices. Later she took leave on medical advice. The agency terminated her employment in 2005 on medical grounds.
3 Ms Chand has brought various proceedings against the agency. She contested her termination in the Australian Industrial Relations Commission. In this Tribunal’s Equal Opportunity Division she sued the agency over alleged sexual harassment by fellow employees during her employment and over alleged victimisation for making those complaints. As to these matters, see Chand v State Rail Authority of NSW [2007] AIRC 911 (21 November 2007), and Chand v Rail Corporation of NSW (No 2) [2009] NSWADTAP 27 (30 April 2009). There is also a reference in the agency’s material to proceedings before the Transport Appeals Board.

After this long and expensive run, Ms Chand now appears to have a sympathetic supporter in high places.

As the Premier outlined, the Public Interest Disclosures Amendment Bill 2011

• expands the type of disclosures that can be made to the Chief Executive, Local Government, in the Department of Premier and Cabinet regarding wrongdoing by local councils. Currently the Act only permits public interest disclosures to be made directly to the chief executive in relation to serious and substantial waste of local government money. As the Division of Local Government can investigate a range of other conduct by local councils, the Government considers that public officials should be able to disclose a wider range of wrongdoing directly to the head of that division and receive the protections under the Act. To implement this, the bill will also allow the chief executive to receive disclosures about corrupt conduct, maladministration, breaches of pecuniary interest obligations under the Local Government Act and a failure to exercise functions properly in accordance with the Government Information (Public Access) Act 2009 by councils.
• imposes express statutory obligations on the heads of public authorities. These include responsibility for ensuring that the public authority has a public interest disclosure policy, that staff are aware of the policy and the protections of the Act, and that the public authority complies with the policy and its obligations under the Act. Placing these obligations in legislation will assist in emphasising the importance of top-down support for public officials who make public interest disclosures. It is also proposed to empower the Ombudsman to assist in resolving certain disputes that might arise as a result of a public official making a public interest disclosure. New regulation-making powers have been included in the bill for this purpose. 
• will also improve the feedback from agencies to whistleblowers about their concerns. Public authorities will be required to send a copy of the agency's policy to a person who has made a public interest disclosure and to acknowledge receipt of a disclosure within 45 days. This requirement will need to be included in the public authority's public interest disclosures policy.

The bill also provides for the Information Commissioner to be a member of  the Public Interest Disclosures Steering Committe, as public interest disclosures can be made to the Information Commissioner regarding a failure to exercise functions properly in accordance with the Government Information (Public Access) Act 2009. Current  members are the Ombudsman, as chairperson, the Director General of the Department of Premier and Cabinet, the Auditor-General, the Commissioner of the Independent Commission Against Corruption, the Commissioner for the Police Integrity Commission, the Chief Executive, Local Government, and the Commissioner of Police. The role of the steering committee is to provide the Premier with advice on the operation of the Act and recommendations for reform.

Among a number of changes to the ICAC, the Independent Commission Against Corruption Amendment Bill 2011 will  permit reports and findings of the Inspector of the Independent Commission Against Corruption to be published more broadly. The Premier said the amendments will clarify that the inspector may communicate his findings and recommendations to the ICAC commissioner, ICAC officers, complainants and any other affected parties for the purpose of resolving a complaint or dealing with a matter. The inspector will also have broader powers to report on his activities to Parliament. 

(Update: Parliament passed the bills in September 2011.)

Weekly cabinet report and open gov website-maybe more-for ACT

ACT Chief Minister Katy Gallagher received another run in the Canberra Times for her open government plans with this report based on a media release of 23 June that followed her earlier comment she was going to make an announcement.The media statement commences:

ACT Chief Minister Katy Gallagher, will make public access to information the default position of her Government as the first step in increasing openness of Government. Measures include release of a weekly summary of Cabinet issues and decisions and creation of an Open Government Website, which will be used to release government background reports and reviews; provide public access to material released through Freedom of Information; and access to submissions made during public consultation.The plans outlined in a Ministerial Statement to the Assembly today, are set to make the ACT Cabinet the most open in the nation and include a commitment to hold a Virtual Community Cabinet on Twitter next month.

The Ministerial Statement referred to, with those details some of us love, will show up when the Assembly Hansard for 23 June is published. My two attempts to get it from the Chief Minister's Media Adviser came to nothing-she first sent me the wrong document and hasn't been able to send the right one since I brought this to her attention last week. (Update: the debate on the matter is at the Hansard p 2422. The Chief Minister spoke, took a pasting from the opposition and The Greens over her record on open government, and tabled the Ministerial Statement. But as the document doesn't appear in Hansard or anywhere else I can see online, interested parties need to toddle into Civic during business hours to see if there is anything more in it. In speaking to the Assembly the Chief Minister didn't even mention the Committee report on FOI referred to in this post.)

If you are interested in what the politicians had to say about transparency and openness in the ACT before the Chief Minister made her ministerial statement you will find the three sides of the story-Government, Greens and the Liberal Party- at page 2130 of the Assembly Hansard 21 June in a debate on the importance of open government. But only if you are really interested-it ran for an hour.

"FOI for the private sector" on the agenda at Canberra law conference

The 2011 National Administrative Law Conference will be held in Canberra on 21-22 July, with the theme "Democracy Participation and Administrative Law." I'm not going this time but a number of sessions are of interest, apart from the big picture topics: Sven Bluemmel, Western Australian Information Commissioner on Corporatisation and electronic records: on a collision course with administrative justice?; and FOI papers by Dr James Popple, Australian Freedom of Information Commissioner on Commonwealth FOI, and Avinesh Chand, Clayton Utz, Extending FOI to the private sector—accountability strikes back or a bridge too far?

I will be particularly interested in what Chand has to say about extending FOI.

Senator Faulkner’s announcement in March 2009 came as a surprise and out of the blue.

"the Government will (later this year) provide the Australian Law Reform Commission with a reference to consider whether FOI should be extended to, or another disclosure regime provided for the private sector."

While this proposal had been considered but not recommended in the Commission's 1995 Open Government Report, Senator Faulkner said

"the Government considers it timely to re-examine this issue in the context of the general reforms to freedom of information and developments on disclosure regimes in both public and private sectors."

There was no attempt then or since to explain or sell the idea. After the announcement it disappeared, apart from a couple of desultory repetitions of the intention in parliamentary debate in 2009.  

In late 2010 I made an FOI application for documents on the subject held by the departments of the Prime Minister and the Attorney General and wrote about what was revealed in January. It seems when Senator Faulkner moved to Defence later in 2009 the government dithered over what to do with an initiative approved by Cabinet but largely owned by him. Eventually in April 2010 public servants-who apparently were not involved in research or advice about the idea in the first place-recommended moving on. Attorney General McClelland was happy to approve other references to the ALRC. Nothing was said publicly that the FOI reference had effectively been ditched.

The draft terms of reference contained in documents released to Open and Shut state the subject was to be referred to the Commission 

No rush on FOI reform in Victoria

In his report on six months in office Premier Ted Baillieu said Victorians are not expecting quick fixes or spin, just steady progress as the government gets on with the job in a responsible manner. They're certainly not seeing any rush by his government to deliver on commitments to improve integrity, accountability and transparency. The failure to insist on, and act to impose new high standards and to get the message across early on means that this important first phase of the term in office passes with the status quo ante firmly in place. Change might still be coming but the first six months in office is the best time to get the message out that things are going to be done differently.

In his own six month report card the Premier listed these relevant achievements:

Dead persons' documents rise again

A request to access information about a deceased person can give rise to complex issues. Last October I wrote about the case for reform in this area and the opportunity lost when the Federal Government rejected an Australian Law Reform Commission recommendation to develop nationally consistent principles that would apply in common circumstances, particularly where family members seek access to information about a deceased relative under privacy or freedom of information laws. As those with the most direct interest aren't in a position to join the discussion, I'm not surprised I didn't see or hear a peep in response.

Recent decisions by the Freedom of Information Commissioner and the NSW Administrative Decisions Tribunal illustrate some of the issues that can arise. Elements of the cases were markedly different as were the outcomes. In the Commonwealth case, a son was refused access to information in the aged care assessment file of his deceased mother, although Commissioner Popple, bound by a precedent, seemed somewhat uncomfortable with the limitation on his powers that prevented disclosure in this case; in the NSW ADT (an FOI matter that predates commencement of the GIPA act on 1 July 2010) a mother was granted access to the hospital records of a deceased son, including names of staff involved in his treatment, the Tribunal finding insufficient evidence to support objections that disclosure could endanger their life and safety. As to complexity, read on, but be warned...

NSW Information Commissioner joins performance discussion

Readers of comments will have seen an exchange about the performance of the NSW Information Commissioner following this post, prompted by a comment by Doyle Brady who wrote a longer first piece on the subject to kick off the eyes on government blog. In a welcome development the Commissioner Deirdre O'Donnell has joined the conversation. As some who are interested may have missed this, I'm moving the discussion from comments to centre stage. Other contributions are welcome, particularly on outcomes and results of 12 months of GIPA, and the leadership and oversight by the Commissioner's office.

Senate committee sends Australian Privacy Principles back to the drawing board

The Senate Finance and Public Administration Committee Report on the Exposure Draft of the Australian Privacy Principles puts the first phase of privacy reform back in the government's court. The committee's 29 recommendations call for another go at drafting clear, simple principles that are understandable and accessible, not just by legal and privacy practitioners; re-consideration of some principles to ensure that privacy protections are not diminished; relocation of agency specific matters included in the draft to portfolio legislation; and re-examination of and/or elaboration on a range of general (the proposed definition of personal information, the meaning of consent in the context of the legislation) and specific issues arising from the 13 draft principles. More than just some simple drafting, I expect. Exemptions for small business, political parties etc don't feature and are firmly parked for consideration in phase two, to commence when phase one is complete.  My gloomy observations about the pace of reform haven't changed.
The Committee's recommendations are:

More sunlight the best medicine for TGA

The Therapeutic Goods Administration has operated with a reputation for excessive secrecy so those who follow it closely would not have been surprised by reports that the US Food and Drug Administration publicised a list of deficiencies and inadequacies identified in audits of CSL at its Melbourne laboratory, leaving the TGA to admit belatedly that it also had sent the company letters detailing problems uncovered in its own audits but had not informed the public. Not mentioned in local reports of these developments was the Transparency Review commissioned by the government last November, chaired by former ombudsman and former chairman of the Australian Press Council Professor Dennis Pearce, and due to report on 30 June. Plenty of submissions and lively hearings around the country support the decision to establish the review because of "community concern about the lack of information made available by the TGA." The professor seems certain to prescribe more sunlight.

New privacy reform reports join the logjam

Wikimedia Commons Niklas Bildhauer

Reports recommending action on privacy issues keep piling up, the latest the Federal Parliament's Joint Select Committee on Cyber-Safety report High-wire act: Cyber-safety and the young - Interim Report.

 Itnews focuses on the committee recommendation to remove the small business exemption from the Privacy Act, as recommended by the Australian Law Reform Commission in 2008. In fact Chapter 5 contains nine recommendations mostly supporting those made in April by the Senate Environment and Communications Reference Committee. Apart from removal of the small business exemption, the committee calls for action to ensure more clarity about consent in the online context, regulation by Australian law of any collection of personal information from Australia, tighter rules for transfer of personal information overseas, and for a "Do not track"model.

Some recommendations are relevant to consideration by a senate committee of the government's exposure draft of the Australian Privacy Principles.That process has been underway since June 2010 and the committee is due to report in September.(Correction-the Committee reported on 15 June with 29 recommendations for consideration. As a result the rest of what follows, written before I became aware of this, might appear to have been unduly pessimistic about the timetable. However given the committee's view that some fundamental redrafting is required, I'd be surprised if this is smooth and straight sailing from here. See this later post for details.) After that, if you allow time for a government response, then for parliament to act on a bill, finalisation in 2011-mid year was the original aim- is starting to look unlikely. As for phase 2 and such knotty issues as ALRC recommendations for change to media self regulation rules, removal of the political party exemption, mandatory breach notification, and a statutory cause of action for a serious and unwarranted breach of privacy-all in the government's in-tray for years- finalisation in 2012 will be a stretch.

The government ambition of 2009 to work with the states and territories to harmonise privacy law across the nation is looking a little forlorn as well.

Queensland reform snapshot from a little while back

What was said nine months ago is almost ancient history I know. But having just caught up with evidence given by Queensland Information Commissioner Julie Kinross to the ACT Standing Committee on Justice and Safety on 29 October last year, about implementation of the Queensland Right to Information Act, I thought these bits were still worth sharing.

FOI Unit-more conciege than gatekeeper

Typical FOI/RTI staffer?

Ms Kinross: FOI units were frequently used by departments as a filter, so any request for information would just be sent straight to the FOI unit, so it became an immediate barrier for people to get information. Then the FOI unit basically saw itself as the gatekeeper, that they would stop. This is one of the things that Solomon was critical about, this culture of stopping the release of information. Nevertheless, within that they came to a settlement about what the agency would tolerate around release of information. So at one level they did understand what could be released and what could not be released in the context of their own agency. Now, really what has happened is that the idea that the FOI unit is a gatekeeper has changed. It has not changed in practice yet, but the concept has changed. It is more like a concierge; it is there to help people get information out of the agency.

The second part of that is that the FOI unit was often left alone to make those decisions, uninformed by the program area. That role, that definition of the concept of its role, also needs to change. Sure, it is there to do the administration, but to make good decisions it has to engage with the program area and get proper input from them.

Improved access to information.

Ms Kinross: Three areas stand out for me. One is health information, where sometimes separated parents are refused access to children’s medical records or people are refused access to dead people’s information: your mother has died in hospital and you cannot get access to the medical records. Some of the thinking around that is changing, where the accountability of the health service is given a higher weighting than the protection of the privacy of the deceased person. So there is some change in what information people can get access to there. Again, with communities, kids in care, accessing their old case files, there are also some changes that the agencies are not necessarily comfortable with. My view is that, if you have been in care and the state has intervened and taken away your family relationships, part of understanding your identity and who you are is about understanding who your family is and the only way you can do that is by accessing information.

MS HUNTER: Absolutely.

Ms Kinross: So there are some changes there. Probably the last area where there are some changes in the information people are getting access to is the breaches of regulation. So, in health people previously had difficulties in getting access to, say, the butcher shop that had been busted by the health inspectors numerous times and it was all kept quiet. But really consumers should have the information to decide where they buy their produce from. We get changes in workplace health and safety, where consumers should really understand which business entities are running safe infrastructure for consumers. All of that information has been kept confidential. So there are shifts happening across a range of different program areas in what information consumers and the public can get access to.

Information warriors

Radio Australia correspondent Murali Krishnan in a report on the murder of an investigative journalist in India helps us keep developments here in perspective:

its not journalists alone who have been in the line of fire. Civil society groups and concerned citizens in India have been protesting against the targeting of people who use powerful transparency laws to expose corruption. Last year nearly 15 information warriors, as they are popularly known, were killed and many more threatened. The Right to Information Act has become a powerful tool that has been used to expose the connections between corrupt officials, politicians and even the mafia.

ACT about to join the FOI reform movement

The Canberra Times reports ACT Chief Minister Katy Gallagher is planning to demystify the cabinet process and overhaul the territory's freedom of information regime as part of a new era of accountability reform to be revealed in the ACT Legislative Assembly this week.

No further detail in the CT but it looks as if Territorians are about to hear a response to recommendations in the Legislative Assembly Standing Committee on Justice and Community Safety report on Freedom of Information completed in March this year.  The report was a long time coming-the Assembly commissioned the inquiry in December 2008. Once the inquiry got going (I last looked in February 2010 when nothing had happened) it seems to have proceeded ever so quietly: a total of just six public submissions, and three committee hearings in September/October of a few hours each, one with an all government line up consisting of the Attorney General and government staff, the others with the Australian Information and Privacy commissioners together, and the Queensland Information Commissioner separately. (Not a user of the act, an outside government type, or one of the few submitters in sight.)

The report proposes legislative reform to incorporate the key features of the 2009/2010 Commonwealth reforms including the "push model" but with some ground breaking variations in the approach to exemptions; the establishment of an ACT Ombudsman/Freedom of Information Commissioner/Privacy Commissioner replacing services provided to date by the Commonwealth; and ACT privacy legislation to replace the Commonwealth Privacy Act 1988 currently in force.

The significant FOI exemption features that would differ from Commonwealth law include:

Cabinet documents

[13] ACT legislation should follow the example of the New Zealand Official Information Act 1982. The report notes:  "The Act does not list any categorical exemptions for cabinet documents and, in fact, does not use the word ‘cabinet’ at all."The act should "provide a clear basis, upon which cabinet documents may be released or made exempt from release under the provisions of the Acts."

Exemptions generally

[14] All other exemptions be re-cast so that they are subject to a single consistent public interest test that is subject to merits review.

Deliberative documents

[17]: An exemption on grounds that release may reveal the decision-making processes of government agencies should no longer apply in the ACT.

What the Gallagher government makes of all this should be clear later in the week-and what might have been remains for another post.

The full list of Committee recommendations follow.

NSW Premier ticking some of many available boxes on integrity

NSW Premier Barry O'Farrell on Friday outlined Measures to restore integrity to Government by "strengthening the powers of the Independent Commission Against Corruption (ICAC), restoring integrity to government advertising, and introducing new protections for whistleblowers," perhaps to get over the line with some "first 100 days" commitments. There is still plenty to do on the "restore integrity" front-here are some of the things on integrity Mr O'Farrell said were important before the election.

In now foreshadowing legislation for whistleblower changes, the Premier made no mention of the substantial amendments, most to commence on 1 July, that were passed late last year under the Labor Government, the effect of which are summarised on the Ombudsman's website. While there was a good point to be made about the years it took Labor to act in 2010 on some ICAC, parliamentary committee and other recommendations for change that go back a long way, the Premier was stretching it just a little in claiming “We are doing more to protect whistleblowers in our first 100 days than Labor did in 16 years."

The proposed changes that the Premier said came from the Ombudsman will

• require public authorities to report back to those making disclosures within 45 days;

• require each public authority to have a designated officer to receive information from whistleblowers; and

• require public authorities to report the number of disclosures made by whistleblowers each quarter

This post last October provides some of the legislative history of the Public Interest Disclosures (Amendment) Act. 

One of the provisions, unique in Australia as far as I can tell, is that "government information contravention", defined as "conduct of a kind that constitutes a failure to exercise functions in accordance with any provision of the Government Information (Public Access) Act 2009", has been added to corrupt conduct, maladministration, and serious and substantial waste as a subject of a protected disclosure.

NSW Information Commissioner reports on awareness workshops

Wikimedia Commons Alan Murray-Rust

I commended the NSW Office of Information Commissioner last year for initiatives to raise awareness about changes to the law through the introduction of the Government Information (Public Access) Act and for publishing its review of regional workshops conducted to this end. Those workshops were followed by others aimed at government employees and members of the public in Sydney and surrounds between October 2010 and March 2011, and a second review report has now been published.

The workshops have helped spread the word about change to government employees at state and local level. But the record to date proves, if proof was necessary, that engaging the public on this topic is a challenging task. The second report reveals 12 workshops in metropolitan Sydney were attended by 411 government employees and 104 members of the public- only five saw public attendance in double figures. A 13th workshop, in the Sydney CBD, was a better story-126 government and 64 public attendees. The overall low level of public attendance was much the same as at workshops outside the metropolitan area reviewed in the first report. I commented at the time:

Getting citizens interested in their rights, and participation in government processes is a tough gig, and requires a range of ongoing initiatives. I wonder if government agencies did anything to bring the briefings to the attention of locals? That might have helped spread the word. And whether scheduling sessions for business hours on weekdays necessarily excluded a segment of those who might be interested

There is no commentary in the review report about this aspect of the workshops. The main lesson was the need for more specific and higher order content for an ongoing series of seminars for government employees-a good idea now reflected in plans for a two-hour seminar to be held every two months, due to begin in late July and run into 2012.

As to public awareness it will be a long slow haul I'm afraid. "Roll up during office hours to hear about the Right to Information Act" probably doesn't cut it for many in a busy world, although some especially interested such as librarians, lawyers, journalists, and community activists of all stripes (see below) should be targeted. Websites, mailouts with routine correspondence, brochures etc in government offices can also help.

Information access rights need to be linked to user needs and given a purpose. Agencies should be encouraged to do their bit by seeking input on information needs from users and from stakeholders who don't show up in their statistics, and providing those groups with information about how things have or are improving. They should be inviting stakeholders in to show how more open government can lift public participation and engagement and promote debate and discussion of important issues relevant to the local community, and to health, education, the environment, business etc. And how access, use and reuse of government information can promote community improvement and development, generally and in specific fields. 

And the Information Commissioner's work in this area will never be done either. But encouraging to see that the Office has a Community engagement commitment to "develop, maintain and strengthen relationships with a diverse range of community groups," and someone on board to manage this.

A tick again for the office for publishing the review report.

The Australian (newspaper's) FOI page

FOI Editor Sean Parnell at The Australian has a Freedom of Information page  that brings together articles based on FOI applications, and in some cases, released documents.

Queensland leads in reporting on open government performance

The Queensland Information Commissioner has published a report Agency Progress on Right to Information Reforms (pdf), compiling and analysing results of an electronic audit in which government agencies assessed their own progress in implementing obligations under the Right to Information and the Information Privacy acts. By any standard this is a large project- 155 of 197 agencies provided responses to 185 items (Appendix 2 pdf) concerning compliance with the acts, legislative guidelines and other requirements. It's self assessment, with all that goes with it, but overall the Commissioner concludes "considerable progress" has been made with significant variation between sectors: 94 percent full or partial implementation of the reform obligations in the government department sector, 64 percent in the local government sector, and

• strong reported performance in the initial implementation of publication schemes, and in putting in place roles, responsibilities, delegations and authority to implement the reforms,meeting privacy obligations and in engaging with applicants under the legislation

• weaker reported performance in adopting the ‘push’ model, making arrangements for information to be accessed administratively and monitoring their own progress

•  better implementation when senior governance focused on the reform process

• An identified need for further training and awareness raising.

There are insights in this report for all reform jurisdictions, particularly the importance of high level leadership, support and governance arrangements. While all state government agencies reported an SES level Information Champion is appointed, and active in the role, this in itself isn't sufficient: "actively driving and managing the reform process (by an information governance body in departments) policy development and training" has a positive impact on almost every area of the reform process.

And agencies won't immediately see the necessity to do more than the law requires by going beyond statutory requirements in pro-actively publishing, or in providing informal/administrative access.

Agencies aren't identified in the report in order to encourage "accurate self reporting, openness and cooperation, and has been appropriate to establish a baseline measure." In the next round, the Commissioner states "the report will compare performance across agencies and against the baseline, and individual agency results or non responses will be published." Agencies have been provided with comparative information about their results.

The Commissioner commends agencies for what appears to be a good start on the reforms, and for commitment to the principles behind the reform process, but says more is now required:

After the initial efforts to implement the reforms, a sustained effort by agencies is now needed to make sure the reforms are fully realised and to build community awareness and confidence in access to public sector information.

Queensland had a head start of a year in introducing FOI reform and is way out in front in publishing information about Performance Standards and Measures pdf, and reports on agency performance like this and an earlier report on compliance with publishing scheme requirements. 

NSW Court of Appeal finds no error in ADT procedures

Chand v Administrative Decisions Tribunal & Another (Railcorp) [2011]NSWCA 131 is a rare Freedom of Information case to make it to the NSW Court of Appeal but in a unanimous decision delivered by Justice Giles the Court was unable to find any error of law in the 19 grounds lodged by the applicant concerning ADT procedures. The applicant was ordered to pay Railcorp's costs. 

Gov 2.0 conference-information access for a purpose

Minister for Privacy and Freedom of Information Brendan O'Connor gave the opening address at the Frocomm Gov 2.0 Conference in Sydney yesterday providing an overview of freedom of information and open government initiatives that won't come as news to readers here. The Minister said anecdotal evidence is that FOI applications are up. Good to see Open Australia get another deserved wrap. And the reiteration of the government commitment to more open government is always a good thing with the strong emphasis in this speech on the link between information access and enhanced public participation in government affairs.This and the Street Corner report of day one that suggests quite a buzz at the conference are other slithers of evidence of the interest in more participative democracy mentioned here yesterday.

Political parties and the media both take comfort from privacy law exemption

Melbourne's Herald Sun and The Age are hard at it over the latter's access to the ALP's Eleczella voter database just before last year's state election, summarised here by George Megalogenis in The Australian, with some important issues surfacing about a stolen computer and ethics following publication of what The Age got up to.

The Age first ran with its foray into the database last November under the headline "Revealed: How the ALP keeps secret files on voters" but Peter van Onselen began writing about this ALP "secret" and the Liberal Party equivalent in 2003.

Don't expect the Privacy Commissioner to investigate the following privacy invasive searches of the millions of entries in the database as the players in this are a media organisation and a political party, both exempt from the Privacy Act. According to an internal audit The Age:

ACCESSED the database on November 18 and using two computers logged in repeatedly over the next four days, the final access being on Monday, November 22.

ENTERED a series of fake names as part of the log-in process using the password.

COPIED the names of everyone in one seat who was concerned about the issue of abortion.

TRAWLED the database to find references to the words gay, lesbian and Muslim as well as Liberals and Greens.

SEARCHED for the names of donors to the ALP.

Attempted to search the personal details of Victoria's Police Commissioner Simon Overland, 3AW's Neil Mitchell, the ABC's Jon Faine -- as well as his son Jack Faine, former Melbourne lord mayor Kevin Chamberlin and pollster Gary Morgan.

Don't worry. Megalogenis reports the senior editor at The Age as saying:

At no stage did we misuse or improperly disseminate the private details we witnessed on that database.

As to the ALP treasure trove of personal information about voters, in 2008 the Australian Law Reform Commission recommended the exemption from the Privacy Act- for collection, accuracy, use, safe storage and disclosure of personal information- enjoyed by political parties should be removed:

41.54 In the interests of promoting public confidence in the political process, those who exercise or seek power in government should adhere to the principles and practices that are required of the wider community. 

The federal government tells us this recommendation will be considered sometime in 2012. That will be four years after it was made, six years after the then government commissioned a review.

 

And what price a "courageous" decision on this one even then, given an ALP submission to the Commission that argued [4.36]

the exemption for registered political parties under the Privacy Act is essential to the conduct of election campaigns and facilitates the effective communication of the policies, ideas and visions which underpin our democratic processes.

Or on other ALRC recommendations for change to the conditions attached to privacy self regulation by media organisations, and for legislation for a statutory cause of action for a serious unwarranted breach of privacy, also down for consideration.... in 2012?

FOI reforms an overhyped fashionable agenda says Canberra academic

Richard Mulgan, now emeritus professor at the ANU's Crawford School of Economics and Government, writing in The Canberra Times last week ("Learning to trust the sunlight will take time" 7 June-no link available) covered the Gov 2.0 and FOI reform landscape, and returned to a familiar theme-that public servants have a duty to "protect" the government. Expectations that Freedom of Information laws can change this are misplaced. Five years ago he was saying much the same thing in a Canberra Times opinion piece "The dangers of too much FOI". Now it's that some of the claims about an expanded FOI regime are "politically naive and, arguably, constitutionally unsound." The constitutional issue will remain a mystery until the professor elaborates.

As to political naivety, the problem for Professor Mulgan and ministers and public servants who might in their quieter moments share this view is that the law as passed by parliament over close to 30 years has never and doesn't now protect documents from disclosure on the basis of the political consequences that might follow. Maybe parliamentarians are the naive ones, but its not for ministers and public servants to quibble with the law as it stands.  APS Values don't accommodate public service conduct contrary to the law.

If Professor Mulgan is right when he says says "public servants still appear willing to use every possible legal device and subterfuge to avoid disclosing material that may damage their ministers politically" perhaps the answer is real leadership on more open government from ministers, and a law that reduces scope for devices and subterfuge and arms the Australian Information Commissioner with more stick to make it work. Not the status quo or a retreat to pre 1982/FOI days.

Professor Mulgan says the FOI reforms and greater emphasis on publication of government information have been overhyped. Australian Information Commissioner Professor John McMillan and others "singing the praises of transparency and internet-based dialogue with citizens" are according to him, pursuing a "fashionable agenda" but "whether it will succeed remains an open question."

I agree what constitutes success, even progress on this journey are still open questions that require definition, oversight and public reporting, but don't agree if he is suggesting we mightn't even be heading in the right direction.

Open and Shut among the top twenty law blogs

Thanks to Lawyers Weekly for alerting me to Open and Shut's appearance in a top 20 Australian law blogs list compiled by Twosteps, a legal job site. Seeing that I don't regard the blog simply as a law blog and they only listed 13, you might think there can't be many out there or the competition wasn't so hot in any event  Selflessly mind you and at risk of losing my toehold next time, below the Twosteps roll call are others who might have a claim.

FOI requests an unfortunate distraction says FIRB chairman

An upsurge in Freedom of Information requests might suggest a heightened level of interest in agency operations, raise questions about current approaches to transparency, and prompt some thinking about opportunities for more pro-active disclosure to reduce the FOI burden. But that's not how the Chairman of the Foreign Investment Review Board, John Phillips sees it, according to this report by Glenda Korporaal in The Australian:

Mr Phillips, a former deputy governor of the Reserve Bank, also rejected suggestions that the FIRB needed to be more transparent in its handling of foreign investment applications. "It is not possible for the board to go publicising applications that come before it," he said. "Those applications are commercial-in-confidence." Mr Phillips said the FIRB was currently subject to many Freedom of Information requests which were taking up the time of its staff. "We are getting so many requests from (journalists) and others under the FOI Act which is unfortunate in a way because it is taking up the time of people who ought to be dealing with applications," he said. Mr Phillips said he was "not sure how much more transparency there can be". "I have always been a fan of transparency up to a point -- the point where you start to trample on commercial-in-confidence material from the applications, or you run the risk of distorting the market by giving out information which would not otherwise be available to the market," he said.

According to the FIRB website "the Treasury manages FOI requests on behalf of the Foreign Investment Review Board" but I'm sure they take up time, another cost of business for government agencies charged with responsibility under the FOI act "to promote Australia's representative democracy by contributing towards increasing public participation in Government processes, with a view to promoting better-informed decision-making (and) increasing scrutiny, discussion, comment and review of the Government's activities"(FOI act objects s 3).

Mr Phillips views about the FIRB operating at the limit on transparency contrast with others, for example Bernard Keane in Crikey in April, writing after the Treasurer announced the decision to "block" the Singapore Stock Exchange bid for the ASX:

Despite open government reforms is FOI proving to be a lawyers' picnic ?

Gemma Jones in News Limited papers writes that documents released in response to a Freedom of Information application reveal that the Department of Broadband, Communications and the Digital Economy has spent $268,000 this year on lawyers for assistance in processing FOI applications and making decisions. One matter involved payment to a prominent law firm of $77,000 since January. These costs presumably are in addition to internal administrative costs including time of in-house lawyers. Battles over access to documents concerning the national broadband network probably occupied a prominent place in this. 

The DBCDE has some history of leaving nothing unsaid or poorly argued in setting out the case for an FOI refusal.This from a post  in March 2009 on a knockback for access to the Panel of Experts Report on the National Broadband Network that provided rare public access to detailed reasons for decision:

Thanks to Tech Wired the 17-pagenotice of determination is here. While you might think it goes on a bit, this is as good an example as you will find of a highly professional fully compliant, dot every i, cross every t determination. And why the real costs of the time involved in FOI administration are what they are. With all due respect to Nikki Vajrabukka, Acting Assistant Secretary, Corporate and Coordination Branch, this doesn't look like a document you sit down and reel off the top of the head, without some very skilled input. One pleasing factor was that the public interest factors considered and relied upon to claim the internal working document exemption [40-45] are much more compelling and realistic than those old, tired highly questionable claims of harm to frankness and candour or public confusion- a hopeful sign that the professionals within government have finally binned them?

But at $268,000 this year in direct legal costs and counting, this sort of professionalism doesn't come cheap, with the question hanging why external lawyers are needed to this degree in any event.

In the year to 30 June 2010 Federal government agencies reported they spent $3.8 million on solicitors fees in dealing with FOI matters. In the era since the commencement of reforms to make government more open, it would be ironic if some lawyers may be enjoying an even greater picnic.

Thinking the DBCDE documents released would be of interest I went to the Disclosure Log- but empty as this taxpayer's wallet at this stage.

NSWADT in first GIPA decision notes important FOI changes

The NSW Administrative Decisions Tribunal has published the first decision on a review application lodged under the Government Information (Public Access) Act that commenced on 1 July last year. Judicial Member Molony in Richards v Commissioner, Department of Corrective Services [2011] NSWADT 98 overruled the Department's decision, finding the public interest favoured disclosure to the applicant of the Queensland Police Service Court Brief for charges against him that had been provided to the agency by its Queensland counterpart.

The information that had been deleted from the brief partially released to the applicant, and in dispute before the Tribunal, was names of the individual complainants and their roles in public office, and details of what they told Queensland Police about Mr Richards' harassment of them- a mixture of personal information about the complainants and Mr Richards.

The only public interest consideration referred to in the decision was disclosure would reveal an individual's personal information- the complainants' details and what they told the police- a public interest consideration against disclosure listed in the GIPA act (3(a) in the Table to s 14, to be weighed against any public interests that favoured disclosure. This is of no relevance when the information concerns the applicant, only when information of this kind concerning another or others is sought.

The evidence before the Tribunal was that the applicant had sought and been granted access to a copy of the full brief including those parts redacted, by Queensland Corrective Services under the Information Privacy Act. A significant factor in the Queensland decision had been that the brief had been relied on by the Queensland Police and the content revealed at the Southport Magistrates Court, on 13 May 2010 when Mr Richards was charged with two counts of using a carriage service to menace, harass or cause offence. In deciding to release the brief in full, QCS concluded that Mr Richards was already aware of the information "as it has been put to you by police and the court" [36].

Judicial Member Molony [37] decided that as the information already had been disclosed in open court, release under the GIPA Act could not be reasonably expected to reveal the complainant's personal information (as per 3(a)) because "reveal information" was defined (Schedule 4, Clause 1) to mean "to disclose information that has not already been publicly disclosed (otherwise than by unlawful disclosure)."

Judicial Member Molony [40] noted important changes introduced by the GIPA act where the definitions of 'government information', 'personal information', and 'reveal'  "operate on information alone, not, as was the case under the Freedom of Information Act 1989, with respect to documents. The issue for consideration is not whether the document has been publicly disclosed, but whether the information .. has been publicly disclosed."

Judicial Member Molony made no reference to 3(b) in the Table to s 14, that disclosure would contravene an information protection principle under the Privacy and Personal Information Protection Act 1998 or a Health Privacy Principle under the Health Records and Information Privacy Act 2002, presumably because the agency didn't rely on this provision or argue it in the case. On the basis of the reasoning regarding 3(a), such an argument might fail because the personal information was available in a publicly available publication (PPIPA s 4(3)(b)) -the Queensland court transcript or decision. 

The effect of the GIPA act 3(b) public interest consideration against disclosure is to import  into that act the disclosure principle from the PPIPA act. It's something of a mystery in the light of the fact that the PPIPA act s 5 states:

Government Information (Public Access) Act 2009 not affected

(1) Nothing in this Act affects the operation of the Government Information (Public Access) Act 2009 (2) In particular, this Act does not operate to lessen any obligations under the Government Information (Public Access) Act 2009 in respect of a public sector agency.

The circularity is evident. 3(b) was included at a late stage in the drafting of the act at the initiative of the then Privacy Commissioner and Acting Information Commissioner Judge Taylor, and not subject to any public discussion as far as I am aware.

Privacy the culprit again as the OZ laments NSW court information law.

NSW Courts Act 1787-long since repealed

Privacy is a problem that News Limited sees time and time again, most recently in this opinion piece by Nicola Shaver ("How privacy hobbles push for open justice")  in Legal Affairs in The Australian last Friday. Shaver asserted the yet to commence NSW Court Information Act is a paradox doomed from the start-even from getting started a year after passage through parliament- in trying to safeguard privacy while making court documents more easily accessible to the public and the press. In the first 31 paragraphs Shaver lists "all kinds of problems," inconsistencies in the act and practical issues that stand in the way of implementation that will have you thinking the worst. But paragraph 33 brings an acknowledgement that "the media will certainly be better off than currently" when the act commences. And, surprise, with all those problems seemingly incapable of resolution, in paragraph 36: a government spokesperson said the act is expected to be in force by the second half of this year.

The big problem according to Shaver is that the whole thing is misconceived (emphasis added):

"(All the steps needed to make this work involves) an expense that might easily have been spared had the legislation been properly drafted in the first place. The protection of privacy is an important objective, as is the wider access to court information. But it is nonsensical to try to contain both objectives in one instrument. The act purports to give with one hand while taking away with the other. One instrument cannot properly achieve both goals."

In fact they are perfectly reasonable goals involving principles that have to be reconciled one way or another. Getting the balance right in the law and practice is a complex business in this case and more generally. Legislation frequently (usually?) has to attempt to address and balance competing objectives as well as conflicting interests and points of view. And it's not just a challenge for the law. Other single instruments such as the Australian Press Council Statement of Principles face the same challenge. In addressing issues concerning the free press and the freedom to publish, for example, the principles also refer to privacy protection: "(n)ews and comment should be presented honestly and fairly, and with respect for the privacy and sensibilities of individuals." The devil in all such cases is in the detail.That's where we are with this legislation.

The Court Information Act establishes a broad framework for managing the issues, codifies principles to apply, categorises various types of information as open or restricted, and sets out party, non-party and media rights of access. Developing regulations, policies, rules, systems and procedures with input from those who work in and around the courts was always going to be hard going, as Richard Coleman one of many members of an advisory committee to the Attorney General's Department attests in the article. A significant period of preparation was always what was envisaged when the legislation was introduced.

I wonder if anyone other other than Shaver (and her employer?) has any serious interest in starting over again a journey towards a better system that started in 2003?

Murky aspects of Kessing's whistleblower conviction

Chris Merritt in The Australian today continues to draw attention to worrying aspects of the  prosecution and conviction of Allan Kessing, and the handling of the pardon application that has been under consideration since October 2009.There are many extraordinary aspects of the Kessing affair. All power to Merritt and The Australian for keeping on top of this, and to Senator Xenophon for leading in parliament. But shame on the Fairfax media that can't seem to find a story in any of it.

The Senate Estimates Legal and Constitutional Affairs [ pdf at 25] Committee last week saw AFP Commissioner Negus questioned about a 2005 letter leaked to Kessing this year that had not  been disclosed to the defence or in evidence at the trial in 2007. Kessing's barrister has said the facts revealed in the letter would have had a significant effect on the trial, if he had known at the time. Commissioner Negus in response to questions from Senator Xenophon said while the letter had not been disclosed to the DPP or the defence, the information had been made available to the defence one way or another.

Senator XENOPHON: But it should have been disclosed.
Mr Negus: I think, in hindsight, it would have been practical to disclose the letter, but I do not think it is material to the outcome of the investigation or the prosecution.
Senator XENOPHON: It could have been tendered in evidence though. It could have been the subject of submissions by the defence case.
Mr Negus: Look, all of those things are possible, but it is not practical for me to sit here and review a case which was investigated five years ago. Judgments were made by the prosecutors and by the police at the time. Mr Kessing was convicted, he also appealed and his appeal was overturned.

Attorney General McClelland on Australian Agenda on 22 May when asked by Merritt about the same matter was clear about the obligation of all agencies to disclose all relevant facts:

CHRIS MERRITT: Attorney, I'd just like to ask you about the prosecution policy of the Commonwealth. A document that's leaked out of the AFP makes it very clear that the prosecution of whistleblower Allan Kessing there's some questions about it. The evidence that could have supported the defence and undermined the prosecution case was never revealed by the AFP. Are you worried about that?
McCLELLAND: Certainly any litigation on behalf of the Commonwealth needs to be undertaken in accordance with the model litigant principle and that includes an obligation to disclose to all parties all relevant facts that are in possession. So I'm not sure of the full details of it but I understand it’s something that is being examined. I don't know the relevance of it, what judgment was made as to why it wasn't or the extent to which it was disclosed but…
CHRIS MERRITT: Neither do I. I've asked the AFP and they refuse to explain themselves. Does someone need to get on top of this?
McCLELLAND: [I’ve explained] the basic principle is that all agencies need to be aware. Certainly not only Government lawyers but all agencies need to be aware of that model litigant principle that applies across the Commonwealth.

During the Estimates hearing Senator Xenophon referred to Kessing's public statement in 2009 after his conviction that he had passed information about the report in 2005 to a staffer and Anthony Albanese, then shadow minister and now Minister for Transport and Infrastructure. Mr Albanese has not said anything publicly except a reported statement when the matter first arose that he was confident his office handled the matter appropriately.

The exchanges at the hearing brought  an intervention by Minister Ludwig, the minister on duty at the hearing, indicating that Mr Albanese may wish to clarify the record about what  Senator Xenophon said Kessing said in this respect. Kessing case watchers await this with great interest. For those like me in this category, the Q&A follows including contributions from Roger Wilkins Secretary of the Attorney General's department. Senator Xenophon wraps up the long exchange, with "I will leave it there for now." Good on him.

The Dutch hauling in FOI fishing expeditions

Wikimedia Commons Awd

At least in Illinois the media will have a free pass despite the crackdown on frequent users. In the Netherlands, according to DutchNews.nl the media is the problem:

Home affairs minister Piet Hein Donner is to press ahead with restricting the freedom of information laws (known as wob) because, he says, they cost too much and are being misused by journalists on fishing expeditions. The legislation gives private citizens the right to see government documents and is regularly used by journalists to find out more about government policy and decision-making. Donner says 'dozens' of civil servants are kept permanently occupied answering questions and providing documentation. 'That is the result of journalists firing off random shots in the hope of hitting something,' he said earlier this month. 'That is not an efficient use of time.' Donner plans to allow officials to turn down 'improper' requests and reduce the scope of broad information searches, in consultation with the person requesting the information.

Editors Weblog notes:

His definition of citizen is a bit puzzling, as it excludes journalists. From this perspective, it is not the press' job to be a check on the government. Only individuals not seeking to publish should have access to information. This is a surprising move from the Dutch government, as only six years ago it was ranked in first place in a press freedom index conducted by Reporters without Borders.

Heavy hand on heavy Freedom of Information users

Australian Freedom of information reforms in 2008/2009 saw the acts in three jurisdictions incorporate vexatious applicant provisions. The Commonwealth (s 89L), and Queensland (s114) conferred powers on the information commissioner, and NSW (s 110 ) on the Administrative Decisions Tribunal (restraining a person making unmeritorious applications.) 

I'm not aware of any declarations to date.

A new and different approach to use of FOI in Illinois, according to The Republic:

Government bodies could declare someone a "recurrent requester" for filing more than 50 FOIA requests in a year, 15 in a month or seven in seven days. They could take 21 business days — it's five days for others — to answer. Media, not-for-profit organizations and academics are exempt. Opponents say it hampers taxpayers' right to get public information. Gov. Pat Quinn's office did not immediately respond to a question about whether he'll sign the legislation.

When I was in the US earlier this year, one prominent member of the Washington community that keeps an eye on such things told me Illinois and Massachusetts ranked dead last on the open government scale. (Update-more here.)

Any numbers for individual heavy users on the local scene?