Privacy and media self regulation

I also have a piece in Crikey today-subscriber only but a free trial available-on a lesser known recommendation in the ALRC 2008 privacy report, that the media lift its game on self regulation measures to ensure adequate protection of privacy. Those arrangements form the basis for the exemption media organisations enjoy from the Privacy Act for journalistic activities. There have been plenty of other criticisms that go further than the ALRC by experienced media hands and academics and former prime minister Paul Keating in this speech last year. Neither the government nor the media industry has said much about this in recent times although chairman of the Australian Press Council Julian Disney on ABC Lateline last week expressed concern about some local media practices suggesting conduct in the print media, radio and television industries needed examination. He also questioned the sectoral approach that underpins current self regulatory (for print) and co-regulatory (for broadcast, television etc) arrangements, indicating a preference for an industry wide approach that would better reflect the convergence that is blurring distinctions between print and online publication.

Privacy rights: The Merritt watch

I've fallen behind-tied up with other things-but The Australian's Legal Affairs Editor Chris Merritt hasn't, reaching more thunderous conclusions in the last two days about the evils of any statutory cause of action for a serious and unwarranted breach of privacy. I'm afraid in the light of today's column it sounds like he won't be any help at all to News Director of Corporate Affairs Greg Baxter who just the other day saw no reason why we shouldn't have "a very healthy debate about privacy, or a very healthy debate about the role of media in a democracy." The headline "Tort a hate-filled strike on liberal democracy" says it all really about Merritt's campaign to bring discussion to an end. A continuation in fact of a three year (and counting) campaign in which he admits to just one error:

On August 12, 2008, the day after the Australian Law Reform Commission launched its report on privacy law, I described its proposal for a statutory tort of privacy as one of the most hare-brained ideas to emerge from a proud institution. After the debate on privacy that has unfolded in the past couple of weeks, it is now clear that this was inaccurate. The push for a privacy tort is not one of the commission's most hare-brained ideas -- it is THE most hare-brained idea.

Merritt's capacity to reach the "one of most" conclusion within 24 hours of reading the report demonstrated either unique analytical skills or a closed mind already made up. His criticisms in the last two weeks suggest the latter. And that the time for reflection in the period in between hasn't been well spent. I've pointed out some errors and omissions in his reporting, none of which have caused pause or acknowledgement, but are trotted out again today. All this before release of an issues paper designed to stimulate discussion about a general right to privacy protection.

Merritt hasn't mentioned what he thinks those who experience serious and unwarranted invasion of their privacy from other than media intrusions should do. Presumably try their luck in the courts to try to persuade a judge the common law should extend further. I trust he won't find himself in such a predicament while a gap in the law remains.

Yesterday in "State uproar over Gillard plan to expose all public agencies to civil suits" Merritt discovered that consideration of a statutory cause of action for serious and unwarranted breach of privacy raises some complexities regarding federal and state laws and how to ensure nationally consistent rights in our traditionally hard to manage federation.That's no secret. His breathless reporting of what he portrayed as a government intention that federal legislation would cover state government agencies included (emphasis added)

The prospect of a wave of litigation triggered by Canberra's planned privacy tort led to furious protests by the states yesterday. 

The wave of litigation to one side, the furious protests amounted to predictable comments from two state attorney generals on a hypothetical.

Transparency and the exercise of power and influence

WikiMedia Commons Lucas

An aspect of the UK Murdoch scandals, the closeness of contacts between media bosses, government ministers and senior officials, and related transparency issues hasn't had much attention locally but it may arise in the context of the mooted parliamentary inquiry into the media flagged by Greens senator Bob Brown. If it comes to pass.  Australian practices regarding disclosure of information about meetings between government and those who seek favours or influence are weak. We could take a leaf out of the UK book. And have a rethink about the benefit to good government of requiring more transparency concerning the activities of lobbyists of all stripes, not just media moguls.

Voices for privacy but some stick to familiar tune

Peter van Onselen continues to focus attention on the exemption political parties enjoy from the Privacy Act in The Australian today reporting that Independent Senator Nick Xenophon is to move to axe this when parliament resumes, with Independent Andrew Wilkie, The Greens and former privacy commissioner Malcolm Crompton giving voice to the case for change. (Other exemptions for small business and the media in the conduct of journalism would have to get a mention in any debate, the latter conditional and dependent on the existence of a self regulatory scheme for print for which the ALRC recommended  improvements that no one is talking about so far.) Van Onselen in a separate article provides background and analysis on the issue. Milanda Rout reports Privacy Commissioner Timothy Pilgrim said the community is concerned about what is happening to personal information.

 Elsewhere in the paper Legal Editor Chris Merritt again finds "Justin Quill of Kelly Hazell Quill"(no disclosure of close links with News) and media lawyer Nic Pullen helpful with end of the world quotes about the dangers of a statutory cause of action, this time "the chilling effect" it could have on freedom of speech. Having discovered yesterday that the public interest in publication and freedom of expression are certain to be part of the mix Merritt reports the unhappy news that Mr Pullen and Mr Quill "both dismissed the significance of the defence." Apparently they can tell even at this stage that judges won't get this right regardless of any parliamentary intent. "Mr Pullen said the track record of the judiciary on free speech suggested that the defence was unlikely to be effective."

In Fairfax publications Michael Pearce SC lays out the problem caused by the many and far-reaching intrusions into privacy wrought by recent technological and other innovations, the reasons why a legislative response is the best solution and why the ALRC's recommendation deserves serious consideration and support.

"The self-interested complaints of media organisations should not drown out the important policy issues behind this proposed reform."

Amen to that.

The Australian campaign continued

Last night's ABC Media Watch "The politics of privacy" was devoted entirely to examination of the issue ( informative and fair with examples of the media problem) and today's The Australian again elevates privacy (this time about political parties and their exemption from the Privacy Act) to front page lead status. This doesn't quite gel with the paper's editorial "ALP out of touch on privacy" that dismisses the "privacy frolic" as having "the hallmarks of being conjured up by ministerial advisers who have no understanding of the priorities of working families. Instead of focusing on the serious issues confronting government.."And that line doesn't gel with News management view, brought to attention last night when Jonathan Holmes quoted Director Corporate Affairs Greg Baxter on ABC local radio in Perth last week:

The debate about privacy, in our view, has been coming for a long time ...
... the government has chosen right now to bring it back, I think there's no doubt that that's politically opportunistic ...

But I don't think that it means that we shouldn't have a very healthy debate about privacy, or a very healthy debate about the role of media in a democracy.

I don't recall those (cautious in Holmes description) remarks being reported in News publications. "Cautious"(or welcoming) aren't words that come to mind in reading their coverage to date.

But the front page was just a lead in to coverage of privacy elswhere in The Australian today:

Hares running replace chickens yelling in privacy non debate.

On the subject of addressing uncertainty in Australian law regarding legal recourse for a serious and unwarranted breach of privacy, as we were. If you were thinking after reading News reports of the last few days that the consequences couldn't be more dire if a yet to commence public consultation, based on a yet to be released issues paper, leads to yet to be drafted legislation that then goes to parliament, and passes (phew), think again.

Legal Editor at The Australian Chris Merritt today tops previous efforts with "Privacy plan:journos facing jail." This beat up appears alongside Mark Day's more considered reflections in the same paper. While the subbies continue on song ("Privacy move threatens to muzzle critics"), Day concludes:

I think it is likely a law will be framed at some stage to protect against "serious" breaches of privacy, however that may turn out to be defined. The courts have been moving that way for years with common law torts. It would be better if the media worked with government to help propose a reasonable law, with robust mechanisms to allow for the full and proper protection of the public interest.

Common sense to one side (more of it in subscription only articles in Crikey by Dr Denis Muller of Swinburne University, and  Michael Smith former editor of The Age), and back to the Merritt article.

Chicken little on privacy

Friday's The Australian had the front page lead "Privacy moves no risk to free press" quoting Minister O'Connor to this effect. But that paper, others in the News stable and some elsewhere didn't falter in presenting a different picture on Friday (nor did the radio shock jocks, rejoicing at "another Gillard government howler") and over the weekend. We've had assertions that a statutory right would constitute a new barrier to entry into the media business, strangle press freedom, stifle investigative journalism, and countless other dire consequences. And of course that any such proposal would only be aimed at the media. None of the issues referred to in this post have had a look in so far. Full marks to Tom Hyland in the West Australian for this good summary of reactions including some I hadn't seen. As to chicken little:

The case for privacy you won't read in the papers

It didn't take long-no time at all really- following the announcement of a yet to commence public consultation about a statutory cause of action for serious and unwarranted invasion of privacy, for the media, particularly but not only News publications, to respond along "the sky is falling", "stop don't go there" and "the end of the world as we know it" lines. With the promised government issues paper nowhere in sight, yet alone the precise  legislation that might emerge if things get that far, plenty of journalists commentators and editorial writers claim to know what it's really all about: a plot aimed squarely at the media to benefit politicians, the wealthy and greedy lawyers.

The government handling of the recommendations of the Australian Law Reform Commission Report on privacy since 2008 has been inept, with nothing to show in mid 2011 for an examination of laws that were thought ripe for inquiry in 2006. While a response to the mammoth report was divided up into neat parcels for attention, things are stuck at part one. The wheels keep spinning on other reforms including mandatory notification of serious privacy breaches and enhanced powers to impose penalties for certain breaches found on investigation by the Privacy Commissioner.

In grasping this nettle opportunistically at this time, having said nothing much on the subject in the three years it has sat on the ALRC recommendation, the government is wide open to criticism (here from Peter van Onselen) that it has done nothing on a similarly significant recommendation that the exemption from privacy law for political parties (and small business) should be removed.To announce the consultation without being in a position to inform discussion and debate through a prepared issues paper also wasn't a smart move. The result is a silly start that won't help sensible and informed discussion when that paper hits the deck.

Some things you wouldn't know from much of the reporting in the last few days:

Australian response to the News

A belated government led discussion of a statutory cause of action for breach of privacy shouldn't be the sum total of the response here to revelations about the way parts of the News media empire did business in the UK. Those events-still unfolding and now accompanied by a trickle of reports of questionable activities in the US-raise issues about the way that company does business generally.

Long wait but privacy cause of action gets to discussion stage

Good and welcome news, and a timely shift from the previous insistence that the government would get around to this next year-in the fullness of time and all that.

Minister for Privacy and Freedom of Information Brendan O"Connor has announced a consultation on the statutory cause of action for a serious and unwarranted breach of privacy. A public issues paper will be issued shortly, canvassing the prospect,

“Right now there is no general right to privacy in Australia, and that means there’s no certainty for anyone wanting to sue for an invasion of their privacy,” Mr O’Connor said. “The News of the World scandal and other recent mass breaches of privacy, both at home and abroad, have put the spotlight on whether there should be such a right.” “This Government strongly believes in the principle of freedom of expression and also the right to privacy. Any changes to our laws will have to strike a balance between the two ideals.” “We know that privacy is a growing concern for everyday Australians – whether it is in our dealings with individuals, businesses, government agencies or the media,” he said. “Privacy is emerging as a defining issue of the modern era, especially as new technology provides more opportunities for communication, but also new challenges to privacy.” “I’m keen to hear from everyone with a stake in the privacy debate – that includes individuals, businesses and of course the media,” Mr O’Connor said.

The majors had a heads up. Sydney Morning Herald gave it the page one lead. The Australian in an editorial that asks what all the big fuss in the UK is really about and why anyone is asking questions here (clue-it's something  to do with the power of the media, how it is exercised in the name of the public interest, who forms part of the  Fourth Estate, what if any responsibilities go with that, and how they are observed) throws the cause of action issue into the mix, describing the suggestion as "an extraordinary leap from the British phone hacking scandal to Australia, where such practices are unknown in journalism and already illegal." They would say that wouldn't they? Someone's not been following since the then government thought privacy laws needed to be looked at five years ago, leading to the ALRC report and recommendation three years ago.

Let discussion begin.

As the Australian Privacy Foundation in welcoming this development points out 

When the APF published its Policy Statement on 'Privacy and the Media' (in March 2009) it sought discussions with News Ltd, the ABC, the Press Council and Media Alliance about its proposals. It also suggested to research centres at leading universities that they run seminars on the proposals. Not one of those organisations has ever provided a constructive response.

NSW Information Commissioner finds fault with police compliance

Scotland Yard is under the hammer in the UK, some Victorian and NSW police are accused in front page stories here of leaking information to bikie gangs, and to top "things police" off, the  Information Commissioner Deirdre O'Donnell has released a report of an investigation into the NSW Police Force’s compliance with state right to information laws, making 17 recommendations. “After a thorough investigation, it is clear that the NSW Police Force does not currently meet all of its obligations under the Act,” Ms O’Donnell said.

Appendix 3-the response to the draft recommendations-lists four where the police disagree and six that were only accepted in part.

Perhaps indicative of the police running something close to their own race is that one rejected recommendation-to discontinue use of materials relevant to the now repealed Freedom of Information Act- prompted the surprising comment that "the basic principles have not changed from the FOI to the GIPA Act." (In important respects they have.) The report also includes five OIC "observations" about improving processing requests for information, only one of which was fully accepted.

One disagreement was over the need for compliance with the GIPA act requirement to publish on the web Police Force policy documents-in a draft given to police in April the OIC set a deadline of 1 July. The  Police Force responded that a number of policy documents were on the police website (hard to see any here). However it "possesses a large number of policy documents and the Performance Improvement and Planning Command is currently coordinating the review of all documents that may fit the requirements of the Act, to determine which need to be published on the internet."

This is a bit rich. The FOI act 1989 required these documents to be listed in a statement of affairs brought up to date and published every six months, so to that extent the GIPA requirement is nothing new. Then the Police Force and other agencies had 12 months to prepare for the GIPA obligation to publish current documents on the web when the act commenced on 1 July last year. A year on they are still looking to see what they have.

Policy documents are defined in the act (s 23) as those used in connection with the exercise of  functions "that affect or are likely to affect rights, privileges or other benefits, or obligations, penalties or other detriments, to which members of the public are or may become entitled, eligible, liable or subject.." Given the nature of police functions their policy documents are of great significance to the citizenry. Who knows whether non compliance has or could be argued in defence or mitigation in some circumstances people given s 24:

(1) A person is not to be subjected to any prejudice because of the application of the provisions of an agency’s policy document to any act or omission of the person if, at the time of the act or omission:

(a) the policy document was not publicly available as required by this Act, and

(b) the person was not aware of those provisions, and

(c) the person could lawfully have avoided the prejudice had the person been aware of those provisions.

NSW Police featured prominently and often in Ombudsman annual reports regarding FOI complaints, perhaps unsurprisingly given it was always the top agency for applications consistently in the 8000 per year range.

Dr Muller's 2005 media prescriptions worth another look

In the reporting and commentary over the last few days about an Australian response to the News of the World and related Murdoch developments I'm yet to see any mention of Dr Denis Muller Lecturer in Journalism at Swinburne University of Technology whose 2005 doctoral thesis "Media Accountability in a Liberal Democracy" includes the results of rare research on the awareness and observance of ethical standards among journalists in Australia, as well as some prescriptions for improving the unsatisfactory state of accountability and transparency in media organisations. Dr Muller's views, based on his own career as a journalist and on the research, are relevant to the current debate, including that those who give the orders not just journalists should be bound to standards of conduct as part of an effective media accountability system. The following are extracts from his concluding chapter.

Why no action to fix mandatory notification and penalty gaps in privacy law?

 No not about the media-for a moment at least.

I'm sure the Privacy Commissioner is set to investigate the latest home town privacy failing to hit the news, this time by Medvet, Australia's largest provider of drug and alcohol testing in the workplace.The Weekend Australian reported Medvet's online store left accessible by Google, complete home and work addresses of customers and others who ordered paternity test kits, drug and alcohol test kits and other products this year and last year.  According to The Australian today the cached pages were still there 24 hours later despite the company stating on Friday that it was doing everything possible to overcome the privacy breach.

Apart from drawing attention to the lax standards that have allowed public access to potentially sensitive information of this kind, the incident also reminds of two big holes (there are others) in privacy law that the government says it intends-sometime- to fix: mandatory notification to those potentially affected by disclosure of personal information, and powers to seek penalties when significant breaches of privacy law are uncovered in the course of privacy commissioner own-motion investigations. These should be fixed promptly without more hand wringing or wheel spinning or waiting for the outcome of what is proving to be the long running saga of getting the redrafted Australian Privacy Principles through the Parliament.

Murdoch's UK woes bring Australian debate centre stage

The debate about ethics, responsibilities and journalism standards and broader issues concerning the media that seemed a long way off a week ago is now well under way, and unlikely to stop anytime soon. As Richard Ackland in the Sydney Morning Herald says

This story is unravelling so fast that it's impossible to predict all the ramifications. Nick Davies, the Guardian journalist who has done so much to crack open this scandal, says Murdoch has lost control of the outcome. It now has a life of its own and to a very large extent markets, not oligarchs, will determine what happens.

Transparency instead of cosy chats between government and media bosses

The BBC  reports on an idea that shouldn't get lost in the current melee:

In his statement to MPs later, (Prime Minister Cameron) said he would consult Cabinet Secretary Sir Gus O'Donnell about amending the ministerial code "to require ministers to record all meetings with newspaper and other media proprietors, senior editors and executives - regardless of the nature of the meeting". Top civil servants and special advisers would also have to record such meetings - and the information would be published quarterly. Mr Miliband said he welcomed the proposal but added: "I hope and expect he will ensure that that proposal is implemented in a retrospective way back to the last general election."

Queensland two years into reform:"getting there" not done yet

Queensland Information Commissioner Julie Kinross reflects on two years of oversight of the operation of the Right to Information and Information Privacy acts. And she's still able to smile. "All in all, the reforms have made a real impact in agencies with some further work to do. We are not there yet, but we have made significant progress to getting there." Her assessment is that agencies, departments in particular, "have done more than at any previous time to open up the Queensland government and public authorities."

One area in which Queensland clearly leads the field is attention to the complex issue of measures of performance. In this report the Commissioner adds to previously published information by outlining the challenges of measurement of "open government", providing some further information on aspects of performance that are quantifiable, and foreshadowing release soon of indicators of culture change: a report of surveys of public servants and households conducted by the Office of Economical and Statistical Research already presented to the Chair of the Parliamentary Committee to be publicly released in August after tabling in the Legislative Assembly; and a report on media analysis undertaken by the University of Queensland to be completed and released later this year.

With regard to the Office itself the Commissioner reports the biggest challenge has been the significant increase in applications for external review- approximately 60%.

NSW disclosure logs update

The NSW Government Information (Public Access) Act requires each agency to publish on its website as open access information a disclosure log that records access applications that resulted in provision of access to information that may be of interest to other members of the public. Unless publication in this way would be contrary to the public interest.

A quick and far from comprehensive survey last November, five months after the publication requirement commenced, showed many NSW agencies at that stage had posted little or nothing on their disclosure logs. I then had people telling me I had no idea about the lack of resources and their other start up woes, messages received with some but not a lot of sympathy. In this second year of operation Information Commissioner O'Donnell is to take a look at this area of compliance according to the latest OIC news.

In the meantime a recent scan of a sample of agency websites shows things have changed in some instances. The experience confirms NSW lacks the uniformity and ease of access to disclosure logs achieved across federal agencies through adoption of the Australian Information Commissioner's logos scheme on many federal agency home pages.

While this is no competition based on numbers, congratulations to the Department of  Education and Training on the score of being up to date, although a quibble that all information can only be accessed by email request and nothing is posted online. I'd include Police for a commendation as well except you need investigation qualifications to find the log on their website, and if you want any of the released information you have to to fill in and lodge a form. Hardly leading edge.

As to reasons for what amount to nil returns over many months in some other agencies I'm all ears, acknowledging there can be valid lawful reasons for having nothing to post.

Hands up journalists who heard about ACMA's public interest and privacy propositions?

I was away when the Australian Communications and Media Authority published its finding in February that the Seven Network had not breached standards in outing the NSW Transport minister at the time leaving a gay club, as there was a public interest served, simply picking up on media reports, for example by Richard Ackland critical of what seemed to him (and me) muddle headed thinking.

But in the course of looking at media/privacy issues in the context of the demise of the News of the World, I came across this answer by the Minister for Broadband, Communications and the Digital Economy to a question on notice about the ACMA determination by Senator Ludlam. While the public interest reasoning still seems as wacky as ever-the Authority advised the Minister "the public interest justification for the broadcast was very limited and, in the particular circumstances of the case, arose solely on the ground that it explained the Minister's sudden resignation"- ACMA affirmed important propositions about the public interest that seem of enduring importance to the media generally, particularly in the light of current circumstances.

News of the World raises Australian questions

The ramifications of the News of the World shame and closure for the farther reaches of the Murdoch empire including here are unknown. News Australian Chief Executive (and leader of Australia's Right to Know) John Hartigan (pdf) on Friday attempted to distance the local operations from the scandals:

I know, and I believe everyone here at News Limited knows that the events in the UK in no way reflect who we are, what we do and what we believe in as a media organisation. We have obligations to do the right thing by ourselves, our colleagues, our readers and advertisers, and, more broadly, to the communities we serve in an ethical and moral way. The decision to close the News of The World acknowledges that once the contract of trust between the newspaper and its readers had been breached it was damaged beyond repair. It is appropriate to remind everyone at News Limited that unethical and immoral behaviour is not tolerated. We have a Code of Professional Conduct in addition to the MEAA code. My personal belief is that adherence to these codes is the guiding principle to everything we do. I am confident that the practices that have been uncovered in the UK do not exist in Australia, at News or any other respectable media outlet. Given the wider reputational impact on all journalists as a result of the events in the UK I want to remind everyone that adherence to our ethical code is fundamental to our right to publish and a fundamental requirement of our work, every day. 

Issues raised in our neck of the woods include not only journalism ethics, responsibilities and standards, but media self regulation particularly concerning privacy; the Australian, NSW and Victorian law reform commissions separate recommendations for a statutory right to legal action for a breach of privacy on which the three governments concerned are yet to say a word; and any "fit and proper" questions that might emerge here concerning News subsidiaries. (Debate about these issues was in full swing a few days later.)

Check your Federal MP, while Belcher bounces

Reports on Parliamentarians Entitlements and study reports on overseas travel for the six months to December 2010 were tabled in Federal Parliament this week. Check your local and anyone else of interest. And Special Minister of State Gary Gray said the Remuneration Tribunal is considering the remaining recommendations of the Committee for the Review of Parliamentary Entitlements (the Belcher Report). 

You may or may not be impressed by the Minister's statement that the Government has acted on two recommendations. The first ensured the allocation of positions to the Opposition now reflects the number of Government positions at each classification grouping, not just in total numbers. The second in legislation passed this session gives the Remuneration Tribunal the power to determine parliamentary base salary and requires decisions and reasons to be made public.

Nothing has been said about any of the other recommendations some of which go to transparency issues that are for the Government and the presiding officers of the parliament to act upon, and have little or anything to do with the Remuneration Tribunal. This summary and comment  in April provides more, if you are interested.

Reminder The review of parliamentarians entitlements started in September 2009, following critical findings by the Auditor General. The Belcher Report was tabled in Parliament in March 2011, close to a year after it was completed and handed to the government. "We are committed to reform, openness and transparency to ensure that we maintain the trust and confidence of the Australian people,” Senator Ludwig, the minister then responsible said at the time the Committee was appointed. Some improvements have been made in public reporting on payments made by the Department of Finance separately from the Belcher review process, but that's just part of the picture. Minister Gray's Media Release said nothing about when the Remuneration Tribunal will complete its work or when the Government will act on the Belcher recommendations. The next election will be in 2013 if the parliament runs full term.

Citizen-centricity and some Australian stone age FOI processes

Craig Thomler on eGov AU comments about Queensland Office of the Information Commissioner's recently released  new guideline, Accessing Government Information. A step-by-step guide for the general public (PDF):

Having guides for citizens on accessing government information, while useful, represents the old world rather than the new. Employing Government 2.0 approaches we should reverse this approach. Rather than government telling citizens how to navigate agency processes to access public information, the public should be telling government how information should be presented to them. The community should write the guidelines and have agencies follow them, rather than the current position where agencies act as the authoritative bodies and citizens the applicants."

There's no question lots more could be done along these lines, even modest steps that fall way short of Thomler's ideal such as agencies asking what information outsiders would find useful, and improving website searchability. But applicants for information of specific interest -and guides to help them- always will (and should) be with us.

Mercy from Wikimedia Commons.

When it comes to citizen centric procedures for using FOI laws, Queensland, Victoria Tasmania and the Federal government are to some extent in the real world, while other jurisdictions are stuck in the stone age. SA Police takes the boulder-the FOI application must be submitted in person at a police station. More broadly its snail mail only for applications under access to information law in NSW, SA and Western Australia. And cheque, money order (explain that to anyone under 35) or cash, if you don't mind, are the only acceptable ways to pay the application fee just about everywhere in those states. Here's a snapshot from around the country- I've used the respective premier's department as an example where needed. Those responsible in the laggard states should be laying down the law about electronic means of doing business with information seekers.Those under and over 35, bear with us.

The details of PIAC's six year FOI battle with Defence

The revelations about Australian knowledge of, and involvement in detention practices in Iraq and Afghanistan by the Public Interest Advocacy Centre, based on documents obtained after a six year Freedom of Information battle, raise many questions about policy, accountability and transparency going back to 2003. Congratulations to those at PIAC who stuck on with this proving the importance of FOI law, ongoing close examination of its adequacy, and the way it is being implented.

On the substantive issues, PIAC concludes there was a deliberate attempt to avoid obligations under international law through a legal fiction that those captured by Australian forces were not Australia's responsibility; that Australia had prior knowledge of illegal detention practices in Iraq including at Abu Ghraib; and that the Government misled Parliament and deliberately withheld information from the public relating to detainee mistreatment in Afghanistan and Iraq. PIAC, with support so far only from The Greens, calls for an independent inquiry to answer the range of questions that arise. The Sydney Morning Herald provides this summary and opinion-I'm sure plenty more yet to come.

As to the FOI battle Dominic O'Grady of PIAC provided Open and Shut with the summary below. Clearly complex issues arose for Defence in dealing with requests of this nature. However delays that mean some of this comes to light six years on is unacceptable. Important parts of the record have still not been released. Defence acknowledged it got it wrong on Abu Ghraib in 2004 even as it was publicly defending its actions. The contrast is marked with the US where 100,000 documents about these matters has been released publicly, and the UK where the All Party Parliamentary Group on Extraordinary Rendition (APPGER) has been looking at these issues since 2005, and has published information obtained under FOI about the UK’s involvement in extraordinary rendition. O'Grady's summary reads: 

The initial FOI request was lodged with the Department of Defence in June 2005. PIAC sought access to documents relating to Australian Defence Force operations outside Australia since 11 September 2001, involving the apprehension, detention or transfer to other military or civil authorities of individuals suspected of being terrorists. PIAC sought documents relating to detainees who were under the supervision of ADF personnel. PIAC also sought documents relating to the treatment of detainees under the control of the United States.

(Comment: broadly framed applications like this might be expected to raise the issue of substantial diversion of resources, but Defence would have to demonstrate unreasonabilty as well. Or if not diversion of resources, at least involve significant cost to the applicant, although waiver or public interest rebate may have been argued. PIAC didn't mention that either issue arose.)

The Department of Defence took more than three years to reach a decision in response to PIAC’s request. In August 2008, the Department of Defence identified 222 documents that were deemed relevant to the FOI request, from 3000 that had been reviewed. However, PIAC was given access to just 21 (one released in full, 20 with redactions) of the 222 documents. The Department of Defence claimed that 199 of the documents were fully exempt from disclosure because they affected  national security, defence or international relations.

(Comment: "affected" isn't sufficient for such an exemption claim. "Cause damage" are the words used in the act and presumably addressed in the decision. These grounds for exemption are absolute and do not involve any public interest test. We should have a think about that.)

The Department of Defence did not provide PIAC with copies of the 21 documents until February 2009. In April 2009, PIAC sought internal review of the Department of Defence decision not to release all the documents. As the Department of Defence did not respond, PIAC asked the Administrative Appeals Tribunal (AAT) to review the decision in June 2009. In July 2009, the Department of Defence acknowledged that it had “inadvertently overlooked” a number of documents when the original decision was made. The Department also acknowledged that its August 2008 decision did not provide sufficient detail to allow PIAC to understand the decision. Throughout 2009 and 2010, through conciliation processes, PIAC succeeded in gaining access to a significant number of documents (approximately 160), which had previously been withheld by the Department of Defence. Many of the documents, which the Department of Defence originally claimed as being exempt from release, were subsequently released to PIAC. Some parts of the documents were released to PIAC with extensive redactions. That is, the Department of Defence blacked out those parts of the documents that it believed were exempt from disclosure. These documents were subsequently re-released with the previously redacted sections revealed.The matter did not proceed to a decision by the AAT.

(Comment: Senator John Faulkner as Minister for Defence was talking up the improvements in managing FOI in the department in August 2009, around the time things were taking a turn for the better for PIAC)

 

FOI hits and misses

Busy FOI days, resulting in these significant disclosures:

Documents obtained by the Public Interest Advocacy Centre "show the Australian Government deliberately tried to avoid its obligations under international law in relation to detainees caught by the Australia Defence Force (ADF) in Afghanistan and Iraq." (The Sydney Morning Herald reports the documents were released after a five year Freedom of Information battle-I've asked PIAC for information about this.)

Documents released to the Sunday Age reveal that not one of the more than 200 asylum seeker boats that landed in Australia in the past two years has been detected by the defence radar system, raising questions about border security.

Documents released to Fairfax disclose two Australian employees of Qantas detained for six months in Vietnam were released after the airline agreed to a secret ''commercial package'' with the investment arm of the country's government. ( As to what wasn't revealed:"Fairfax sought access to 18 cables sent in June last year detailing the events that led to their release. But DFAT has declared 12 of the cables so sensitive that they should be kept secret, while the remaining six have been heavily censored. Qantas told the department it wants the cables kept secret because it believes they could damage relations with its business partners in Vietnam and other regions. DFAT cited concerns the cables could damage Australia's relations with Vietnam.")

Sydney Morning Herald Business Day obtained a copy of the expert panel's review of six proposals, including Telstra's to operate the government's broadband network, a process that led to the creation of NBN Co.

And sweet vindication for Richard Baker and Nick McKenzie of The Age for two years of sleuthing into the affairs of the Reserve Bank owned companies Securency (half) and Note Printing Australia, leading to news of charges of foreign bribery against executives and the companies. FOI has been a friend and a frustration on the journey.

On the other hand in the last week or so:

Federal whistleblower protection pushed to year end

Independent MP Andrew Wilkie didn't worry about the lack of whistleblower protection when he resigned in a blaze of publicity from the Office of National Assessments over concerns that intelligence was being misrepresented in the Howard government's case for Australian involvement in the invasion of Iraq in 2003. But the agreement for his support that enabled the formation of the Gillard government in 2010 included a commitment to the passage of whistleblower protection legislation by 30 June this year. That deadline came and went last week with no sign of a bill being introduced let alone passed. Media interest in the deadline prompted Special Minister of State Gary Gray to issue a media release stating the aim now is the end of 2011, as the legislation is being finalised "with the agreement of the independent members of parliament." No one outside government appears to be part of the process. Professor AJ Brown of Griffith University, the acknowledged expert, writing in The Australian 10 days ago didn't know the score. ABC PM last week provided a good summary of the continuing unhappy state of things. 

 

NSW Privacy investigates, but what happened to the Commissioner?

I can't recall the previous report of an own motion investigation by the NSW Privacy Commission-years perhaps?-but Acting Commissioner McAteer's report on a breach of security data at the University of Sydney (which also attracted media coverage) suggests a new and much needed willingness to take a closer look at how NSW agencies are complying with the law. I don't think there's been an audit of agency compliance in the 11 years of operation of the privacy act either. And while on the subject, it's now eight months since applications for the position of Privacy Commissioner closed. Sure it's been a tumultuous time in government in NSW since, the O'Farrell team has only been there since March, the merger of the information and privacy commission offices followed by a general public service restructure may have both  involved some upheaval, and any proposed appointment is subject to approval by a parliamentary committee. But eight months??investigation report