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Friday, September 30, 2011

Information Advisory Committee appointments

Minister for Home Affairs and Justice Brendan O’Connor yesterday announced the following appointments to the Information Advisory Committee established under s 27 of the Australian Information Commissioner Act 2010, to assist and advise the Australian Information Commissioner "in matters relating to the performance of the information commissioner functions."
  • The Hon Dr John Bannon AO, Adjunct Professor of Law, University of Adelaide
  • Ms Anita Brown, Trade Marks Attorney, Philipps Ormonde Fitzpatrick
  • Ms Jenet Connell, Deputy Secretary, Department of Finance and Deregulation
  • Ms Stephanie Foster, Deputy Secretary, Department of Regional Australia, Regional Development and Local Government
  • Ms Elizabeth Kelly, Deputy Secretary, Attorney-General’s Department
  • Ms Jill Lang, Consultant
  • Mr Peter Lewis, Executive Producer, Landline ABC News Brisbane
  • Ms Roxanne Missingham, Parliamentary Librarian, Parliamentary Library
  • Mr Alan Noble, Engineering Director, Google Sydney
  • Ms Kirstie Parker, Managing Editor, Koori Mail
  • Dr Ian Reinecke, Consultant, Director of Strategies and Solutions Group
  • Mr Edward Santow, Chief Executive Officer, Public Interest Advocacy Centre
  • Mr Michael Simpson, General Manager, Policy and Advocacy, Vision Australia
The commissioner Professor McMillan who will chair the committee welcomed the appointments: "The membership brings excellent experience and credentials in all aspects of information policy.."

I'm sure they will be a helpful bunch and wish them well. Some first thoughts:

No sign of any FOI "usual suspects" from civil society, academia, the law, the media, journalism or from within government (eg from the Department of Prime Minister and Cabinet, the agency with policy responsibility for FOI) who have been around this issue for years. This may be a needed fresh start to a new information world, but confirmation I lead a sheltered existence is that I've never met any of the appointees.

However Dr Bannon was Premier when South Australia introduced the FOI act in 1991 and this year was appointed Chair of the National Archives of Australia Advisory Council; Mr Santow and his organisation have plenty of FOI user experience; and Dr Reinecke wrote the 2009 report "Information policy and e-governance in the Australian Government" that led into Gov 2.0 initiatives.

While Mr Lewis and Ms Parker aren't names from the media or journalism prominent in public discussion and debate on information related issues, I'm sure they bring useful insights to the table. Ditto Ms Brown, Ms Lang and Mr Simpson.

And Mr Noble from Google no doubt knows the information management issues and solutions inside and out and must have been very happy to be asked.

With this first step to establish a federal advisory committee including some appointments from outside government, I'm reminded that none of the states have got this far as far as I'm aware.  

Thursday, September 29, 2011

Freedom of speech imperilled or a bad day at the office for Bolt?

Lots of of coverage of yesterday's Federal Court decision by Justice Bromberg in Eatock v Bolt [2011] FCA 1103  which found Andrew Bolt in articles published in 2009 breached the Racial Discrimination Act. Of particular interest is what is being said about what the decision means for freedom of expression. A lot of overblown claims sit alongside reasoned comments about the interplay of rights and how a balance is to be achieved. With an appeal under consideration, there may be plenty of this ahead. Some of the issues that arose in the case are also relevant to the current consultation about a statutory cause of action for a serious breach of privacy.

Bolt himself leads one school with his "terrible day for free speech in this country" remarks followed by a front page lead "Silencing me threatens unity", backed up with two inside pages and an indignant  editorial in the Herald Sun this morning. More along these lines in The Australian's editorial, and from Chris Merritt in the same paper ("If the Federal Court's ruling has correctly applied the law, the entire community has a problem"). The hyperbole prize (so far) however goes to James Delingpole in The Telegraph in far away London-"Freedom of speech is dead in Australia".

But then we have the Chairman of the Australian Press Council Professor Julian Disney on ABC:
"It's fundamental, I think, to note that last point, that (the judge is) saying this area is not a no-go area, the sort of issues that Andrew Bolt referred to; it's only that in the judge's view he didn't do it in a way that complies with the Racial Discrimination Act," he said. "And I think there would be a very clear and worrying risk for free speech, and I think also to eventual social cohesion, if this issue or this case was seen as establishing a no-go area."
 Mark Dunn at Bolt's home base:
Justice Bromberg said his judgment did not ban debate on racial identity issues if it were done "reasonably and in good faith in the making or publishing of a fair comment". "Nothing in the orders I make should suggest that it is unlawful for a publication to deal with racial identification, including by challenging the genuineness of the identification of a group of people," he said. 
David Marr in Fairfax papers":
"Freedom of speech is not at stake here. Judge Mordecai Bromberg is not telling the media what we can say or where we can poke our noses. He's attacking lousy journalism."

Andrew Dodd, also in the "concern about free speech" implications camp gave a thoughtful analysis on The Drum.  And Margaret Simons (.."making “irresponsible” journalism illegal? You don’t have to like Andrew Bolt to find that notion worrying") and Charles Richardson (subscriber only) in Crikey respectively take the view that the Racial Discrimination Act should be modified or repealed in the interests of freedom of expression. Similarly Sinclair Davidson of RMIT suggests market forces should sort out where we draw the line ("Bolt is guilty but the law is wrong"). Bridget Griffen-Foley of Macquarie University doesn't like to see legal action taken against the media but "can understand why a group of Aborigines would be grossly offended by the claim that they had chosen to identify themselves as “Aboriginal” in order to win grants, prizes and career advancement" (Bolt loses in court but will condemnation follow"). As to the decision itself..

Wednesday, September 28, 2011

Right to know events promote awareness of important rights

It's Right to Know Day in Queensland with Dr Nicholas Gruen delivering the Solomon Lecture last night on "Government in the age of Web 2.0: Connect, Engage, Innovate" and leading a panel discussion this morning. But the day/week is passing without moment elsewhere around the country in contrast to many other countries where events and gatherings this week highlight the importance of access to government information and promote awareness of information rights. Canada shows what can be done with a co-ordinated effort for Right to Know week, with bodies such as Newspapers Canada timing the release of the sixth annual National Freedom of Information Audit which tests the openness of governments across the country. We are missing in action on these fronts. Any Aussie takers?

Monday, September 26, 2011

FOI delivers persuasive evidence of the need for anti corruption watchdog

Linton Besser in the Sydney Morning Herald added to reports last week from his successful Freedom of Information access to internal audit reports with articles in the last few days on documents released by Foreign Affairs and Trade (more than 100 corruption and misconduct allegations secretly investigated by the government in the past three years) and the Attorney General's Department (instances of rorting overtime claims and obtaining financial benefits by deception.)

WikiMedia Commons-Nast 1878
My earlier comment that the audit reports are snapshots at a particular time going back a couple of years and don't necessarily present the full or current picture still stands, but Besser's overview article at the weekend showed he has uncovered more than this- a veritable album bulging with instances of possible wrong doing in government agencies.
These reports should heighten interest in the fact we don't have an independent federal anti-corruption watchdog. However as Besser points out, neither major party so far supports a Greens bill to introduce such a body. From the overview:
Last year, in 10 agencies, there were 21 cases of alleged corruption, 65 conflicts of interest, and 247 cases of fraud. The public has heard about none of these, and many, on the evidence seen by the Herald, appear to have been handled discreetly to avoid public embarrassment. Indeed, there were only 11 referrals to the federal police by the entire Commonwealth government last year. The internal audit files obtained by the Herald also show widespread corruption risks - poorly-managed procurements worth many millions of dollars, shoddy information security measures such as passwords which are never expunged and a culture of rorting travel benefits, salary entitlements or department credit cards....
 ... almost 1800 misconduct cases were handled inside just 5 per cent of the agencies that make up the federal government. In the past six years, more than 3200 investigations have been conducted inside the Department of Defence alone. Almost one-fifth of Australian Customs and Border Protection's workforce has been investigated since 2007 for offences including bribery and ''prohibited imports'
The graphic compiled by the Herald includes reference also to over 100 investigations into "Disclosure of information", about the same number as the intriguing "Abuse of power."

Besser highlighted weaknesses in the anti-corruption system in this article on 4 October.

The Australian's unique insight into privacy issues paper

Media reports on the weekend concerning the issues paper released on Friday on a statutory cause of action for breach of privacy were reasonably straight down the line. Except...

Chris Merritt Legal Affairs Editor at The Australian quickly skipped the 19 questions posed in the paper and in less than 24 hours after release was able to offer advice that the minister should "spike this flawed plan." (Hmm- in the same period, like most I imagine, I only managed a cursory read, and haven't got much further since.) Merritt sees business as the sacrificial lamb in government's dastardly plot to muzzle the press. Really.

From Merritt's "Policy really an assault on the media" (no emphasis added) :
IT is now clear that the Gillard government is preparing to expose business to a wave of class actions in order to step up its vendetta against the media. The media barely rates a mention in the issues paper on privacy law that was made public yesterday. But that fools nobody. This privacy plan, like the federal inquiry into the media, is another part of the government's hamfisted attempt to bring the media to heel. From the government's perspective, the privacy plan would have the great advantage of imposing a chilling effect on the press. It confirms that federal Labor is no longer the party of free speech.
And Lauren Wilson in an otherwise mostly factual account in The Australian of issues raised for discussion was only able to find one source for a quote. No prizes for guessing (emphasis added):
But media lawyer Justin Quill, director of Kelly Hazell Quill Lawyers, which represents News Limited (publisher of The Australian) and other media organisations, said a statutory right to privacy would "certainly lessen free speech in Australia". "Claiming we need a statutory right to privacy is just wrong. Australia already has an enormous number of laws that protect people's privacy," Mr Quill said. "Introducing a statutory right to privacy will affect the balance the law currently strikes between protecting people's privacy and freedom of speech."
The Australian also ran this editorial on Saturday in the same vein as the Merritt piece. Both  refer to "alternatives to a tort" that would still protect privacy "put forward" recently by Timothy Pilgrim, the Australian Privacy Commissioner. Perhaps some confusion evident here- Mr Pilgrim can speak for himself of course, but my guess is he like most would think a cause of action is no panacea, simply one of a number of mechanisms that need consideration in seeking to afford privacy appropriate protection. On Friday he welcomed the issues paper and said "the OAIC will make a submission outlining its views." The issues paper quotes from a 2007 submission by the office that stated "...a dedicated privacy based cause of action could serve to complement the already existing legislative based protections afforded to individuals and address some gaps that exist both in the common law and legislation."

Contrary to Merritt's assertion, the issues paper does refer to alternatives including leaving it to the common law. As to other possibilities, I'm assuming criminal laws and sanctions for imprisonment won't sound any more attractive to business or "the real targets",  the media:
Other legal remedies or mechanisms may provide more appropriate methods to protect privacy or influence behaviour than a civil mechanism such as the proposed cause of action. For example, criminal laws (and sanctions such as imprisonment), or data protection laws (and sanctions such as monetary fines), may be more appropriate to deter particular types of conduct than a civil cause of action.(P24)
Presumably with Merritt dismissing the need for any further discussion, that's it for the OZ Legal Affairs coverage at least. But wait... Nick Leys in today's Australian Media section thinks some colleagues may have scored an own goal last week: "..instances of the media behaving badly could not have come at a worse time for those fighting a tightening of privacy laws." Oh dear.

Friday, September 23, 2011

Issues paper on right to sue for invasion of privacy

Minister for Privacy and Freedom of Information Brendan O'Connor today released the Issues Paper A Commonwealth Statutory Cause of Action for Serious Invasion of Privacy. I haven't had a close look but it appears to pull together ground covered in the three law reform commission reports that recommended legislation. The commissions had their own consultative processes before reaching that conclusion, so it's ground hog day for those who take an interest. Contrary to what you might soon read in some coverage the media is not the central focus. Responses are invited by 4 November to 19 questions. Law degrees are not meant to be a mandatory requirement for participation.

FOI access to internal audit reports

WikiMedia Commons-John Groseclose
Linton Besser in the Sydney Morning Herald has written in the last week about internal audit reports obtained from the Department of Agriculture Fisheries and Forests, the Department of Infrastructure and Transport and the Department of Broadband, Communications and the Digital Economy all released in full or part in response to freedom of information applications. There may be more to come:
"A Fairfax Media investigation has obtained access to hundreds of pages of internal government audit reports that have exposed systemic weaknesses in the financial controls exercised by Commonwealth agencies. Such flaws are widely recognised as corruption risks for governments, but there is no agency specifically charged with investigating graft in Australia's largest civil service."
Besser reports today on the Government announcement that $700,000 is to be spent on a ''National Anti-Corruption Plan." A parliamentary integrity commissioner by September 2011 was part of the Government -Greens deal a year ago but is yet to transpire.

The release of internal audit reports raises some interesting FOI issues. The reforms of last year have narrowed the scope for what amounted to broad class exemption claims for these types of documents. As to what makes news once information of this kind is released, good reports unfortunately don't cut it. And a snapshot in time of the situation in an agency two or three years ago won't necessarily convey the full or current picture.

Wednesday, September 21, 2011

Draconian criminal penalties for unauthorised disclosures of all stripes

A decision last week by the Western Australian Court of Appeal in a case involving former premier Brian Burke is a reminder that the law in some states is just as draconian as s 70 of the Commonwealth Crimes Act in creating a criminal catch all offence for unauthorised disclosure of information by a government employee. Putting to one side what is also alleged to be corrupt conduct in the case in question, the decision contains a message that public servants and ministerial officers in WA should be ultra cautious about what they say about work related matters to anyone outside the loop. The decision suggests release of information about the business of a Western Australian government agency contained in an "official paper" or document to an unauthorised person by a person not lawfully authorised to disclose the information could see the discloser run the risk of up to three years in jail.

The WA law and similar laws in some other states tend to fly under the radar compared to s 70 which has seen the much publicised conviction of Allan Kessing and others. That  provision attracted attention in the Australian Law Reform Commission December 2009 Report on Australia's secrecy laws- along with 500 other secrecy provisions in 176 pieces of legislation, including 358 distinct criminal offences. And that was 18 years after a committee chaired by former High Court chief justice Sir Harry Gibbs concluded
"It is undesirable that the sanctions and machinery of the criminal law should be applied in relation to the unauthorised disclosure of all forms of official information and this should be avoided if possible." [ALRC Report 1.10]
One of the principles underpinning the ALRC recommendations is
criminal sanctions should only be imposed where they are warranted—when the disclosure of government information is likely to cause harm to essential public interests—and where this is not the case, the unauthorised disclosure of information is more appropriately dealt with by the imposition of administrative penalties or the pursuit of contractual remedies.
In line with this, the commission recommended repeal of s 70 and replacement with a general provision that would apply a criminal penalty only where disclosure caused harm to an identifiable public interest. The government, 21 months later is yet to respond to this and other recommendations.

 Queensland, Western Australia, Tasmania, the Australian Capital Territory and the Northern Territory all have laws that contain broadly framed offences for the unauthorised disclosure of information by public officials and impose criminal sanctions similar to s 70. ( Cited in the ALRC report: Criminal Code (Qld) s 85; Criminal Code (WA) s 81; Criminal Code (Tas) s 110; Crimes Act 1900 (ACT) s 153; Criminal Code Act 1983 (NT) s 76).

These laws  have their origins in 19th century United Kingdom law. They should have no place in their current form in Australia in the 21st.

Australia missing from Open Government Partnership

No mention of Australia (or New Zealand) at the launch of the Open Government Partnership in New York yesterday by President Obama that saw 46 countries represented, some at head of state and head of government level. Foreign Minister Rudd was in New York but seems to have passed up the opportunity to line up internationally in the name of open government.

OGP founding governments  (Brazil, Indonesia, Mexico, Norway, the Philippines, South Africa, the United Kingdom, and the United States) were joined by 38 others (Albania, Azerbaijan, Bulgaria, Canada, Chile, Colombia, Croatia, the Czech Republic, the Dominican Republic, El Salvador, Estonia, Georgia, Ghana, Guatemala, Honduras, Israel, Italy, Jordan, Kenya, Latvia, Liberia, Lithuania, Macedonia, Malta, Moldova, Mongolia, Montenegro, Netherlands, Peru, the Republic of Korea, Romania, Slovak Republic, Spain, Sweden, Tanzania, Turkey, Ukraine, and Uruguay).
 "The Open Government Partnership is a new multilateral initiative that aims to secure concrete commitments from governments to promote transparency, empower citizens, fight corruption, and harness new technologies to strengthen governance. In the spirit of multi-stakeholder collaboration. OGP is overseen by a steering committee of governments and civil society organizations. To become a member of OGP, participating countries must embrace a high-level Open Government Declaration; deliver a country action plan developed with public consultation; and commit to independent reporting on their progress going forward."

Australia should be willing and proud to commit as required by the Declaration to:
Increase the availability of information about governmental activities.
Support civic participation
Implement the highest standards of professional integrity throughout our administrations. 
Increase access to new technologies for openness and accountability.
And enthusiastic about agreeing
"to espouse these principles in our international engagement, and work to foster a global culture of open government that empowers and delivers for citizens, and advances the ideals of open and participatory 21st century government." 
The invitation is there for Australia and others to get on board in Brazil in March 2012.

C'mon guys!

Monday, September 19, 2011

Open Australia phoenix stirs

Some Open Australia volunteers have had a busy few days- service has resumed with Hansard for Tuesday 13 September posted, and an email alert received this morning. Hopefully a restart for this outstanding initiative. Not sure if anything can be done to fill the March-September gap. Thanks to all involved for this true public service.
(Update: September 13 must have been a trial, as it was a one off. Live in hope for resumption by the time Parliament sits again on 10 October.)

Thursday, September 15, 2011

Vale Open Australia?

Well not the entire concept-but what ever happened to the wonderful Open Australia, the great volunteer initiative to follow Federal Parliament doings, which has ground to a halt with no postings of parliamentary debate since March. I sure miss the daily Hansard alert service. No response to an email to founder Matthew Landaeur a few weeks ago.

Information Policy Conference

Have a look at what's on offer at the Australian Information Commissioner's 2011 Information Policy Conference in Canberra in November, an opportunity to:
  • find out about the progress of the open government reforms
  • contribute to the development of a National Information Policy for Australia
  • consider issues around the proactive publication of public sector information
  • share best practice case studies
  • learn about the OAIC's Principles on open public sector information
  • discover how technology provides new opportunities for information management and exchange.

Media inquiry and privacy issues

The media inquiry in due course will work out where its terms of reference take it but pundits in the meantime are having their own go, with Mark Day in The Australian and Alison Carrabine on ABC Radio (for two) commenting today that the inquiry excludes privacy. Que? Sure the media issue (correction The Australian's issue) of the month-the merits of moving to a statutory cause of action for a serious and unwarranted invasion of privacy-is outside the terms of reference.  But any examinanation of
"the effectiveness of the current media codes of practice in Australia... (w)ays of substantially strengthening the independence and effectiveness of the Australian Press Council....with particular reference to the handling of complaints;  (and a)ny related issues pertaining to the ability of the media to operate according to regulations and codes of practice, and in the public interest" 
will take in media standards, practice and enforcement relating to privacy obligations.. 

The Australian Law Reform Commission in 2008 had this to say on the media and privacy:
" organisations are subject to a range of voluntary industry standards (for example, those developed by the Australian Press Council (APC) for the print media) and regulations made under law (such as those promulgated by ACMA in respect of the broadcast media). Such sanctions for breach as exist provide few, if any, real remedies for individuals whose privacy rights have been seriously affected. With the exception of the broadcast media, nor, arguably, do they provide significant disincentives for further breaches. [42.24]

The Commission recommended continuation of a journalism exemption from the Privacy Act subject to media organisations committing to self/ co- regulated schemes that provide adequate privacy standards in ways that go beyond the current  lip service.

These and other aspects of the codes of practice as they relate to privacy and the print and online media are within the terms of reference of the media inquiry.  Enforcement powers including the need for own motion investigations, and meaningful penalties should also get a run, as I argued in Crikey in July.

In the meantime discussion of the separate issue of a statutory cause of action-not primarily  a media matter- awaits the promised government issues paper. 

Wednesday, September 14, 2011

Inquiry to examine media's ability to serve the public interest

Wikimedia Commons-Ravic
The terms of reference for the independent inquiry into the Australian media by former Justice of the Federal Court of Australia, Ray Finkelstein QC, and the highly respected former journalist and Professor of Journalism at Canberra University, Dr Matthew Ricketson, won't fit the narrative of those who portrayed it in advance as a threat to press freedom and to the very existence of the Australian Murdoch empire, as well as to life, liberty and the pursuit of happiness. The inquiry which could turn out to be more friend than foe, has a catch all public interest focus, and is to report by February 2012 on:
a) The effectiveness of the current media codes of practice in Australia, particularly in light of technological change that is leading to the migration of print media to digital and online platforms;
b) The impact of this technological change on the business model that has supported the investment by traditional media organisations in quality journalism and the production of news, and how such activities can be supported, and diversity enhanced, in the changed media environment;
c) Ways of substantially strengthening the independence and effectiveness of the Australian Press Council, including in relation to on-line publications, and with particular reference to the handling of complaints;
d) Any related issues pertaining to the ability of the media to operate according to regulations and codes of practice, and in the public interest.

FOI search processes short of exemplary

The Department of Immigration and Citizenship is always under FOI pressure, with a continuing large stream of applications, so the department may take some momentary comfort from this Administrative Appeals Tribunal ruling that all reasonable steps had been taken to identify relevant documents in a Freedom of Information case. Until it gets to the last paragraph of the decision where Member Webb comments about the processes that led to discovery of additional documents well after the initial search of the four relevant (of 138!) departmental systems:
34. Before concluding it remains to observe that the manner of the Department’s response to Mr Zhang’s request, and the thoroughness of the initial searches that were conducted, is less than exemplary. One can understand Mr Zhang’s frustration at the initial results he obtained from the Department. No good reason has been advanced why only one file was identified in the initial searches that were conducted. Similarly, no reasonable explanation has been provided why the subsequent searches conducted by Ms Selvadoss and others in the Freedom of Information Access Team failed to identify documents that were within the Department’s ExecCorro system. These are matters of concern for the Department to consider in relation to the management of its obligations and responsibilities under the Act. It should not be necessary for a dispute under the Act to come before the Tribunal before adequate searches are conducted.
Three years ago, then Ombudsman Professor McMillan made some observations about systemic problems in FOI processing in the department.

Tuesday, September 13, 2011

Panel concludes we need a right to privacy, but, but and but...

Last night's forum in Sydney, attended by plenty of students (good) but few from the government, corporate, civil society, media or privacy law world (not good) was somewhat disappointing. No one on the panel- Richard Ackland, Chris Merritt, Associate Professor David Rolph, Professor Barbara McDonald, Tom Blackburn SC and Andrew Stone as chair-outlined or made the case for a statutory cause of action.I don't think the words "International Covenant on Civil and Political Rights" passed anyone's lips till question time. Ditto for developments in peer group countries other than the UK. It was a pity the panel didn't include some of the eminent lawyers involved in what amounts to years of research behind the ALRC and NSW LRC reports on the subject who could have provided this starting point for discussion.

Tom Blackburn and Professor Rolph expressed support for the general idea but focused on the difficulties (such as the effect of injunctions on free speech) in developing a workable proposal. Professor McDonald said there are lots of laws already that have a privacy component and would prefer a common law response to legislative action because the historical record of unintended consequences shows the executive and parliament won't get the law right (judges will?). Professor McDonald sees a stronger case for legislation if freedom of speech rights are enshrined as well. Richard Ackland thinks a cause of action is coming one way or another. Chris Merritt agreed there is a right to privacy but a cause of action for a serious invasion (which he characterised as "emotively phrased") is "too vague and nebulous." Merrittt suggested other ways to address the issue particularly giving the Privacy Commissioner more powers and extending jurisdiction. I think he had corporate invaders in mind but made no mention of the fact that the media in the conduct of journalism is outside the jurisdiction of the commissioner while the current exemption from the Privacy Act continues, and that the media's self/co regulatory schemes to protect privacy are weak and largely ineffectual. Borne out by everyone on the panel agreeing that the outing of David Campbell and ACMA's finding that the 7 Network had a public interest excuse was a disgrace and indefensible.

The only news regarding the Government's issues paper, promised almost two months ago, is it is coming "soon." Unfortunately not soon enough to inform last night's discussion.

(Update: here is Chris Merritt's account of the Forum published on 16 September "Concerns over privacy tort starting to spread".Buried away you find some agreement in principle as per my summary.  After headlines on his articles over the last month or so that included the over-hyped and misleading "Tort a hate-filled strike on liberal democracy", "Privacy plan: journos facing jail", and "State uproar over Gillard plan to expose all public agencies to civil suits" Merritt modestly claims no credit.)

For the record, NBN Co not completely excluded from FoI

Lisa Martin in the Sydney Morning Herald
Liberal senator Ian Macdonald said NBN Co....had escaped scrutiny following "extraordinary exemptions from parliamentary regulatory oversight". He said the government had exempted NBN Co from scrutiny from the public works committee, limited the Australian Competition and Consumer Commission's (ACCC) oversight and excluded it from freedom of information laws.
Without going into the broader accountability and transparency issues, the FOI reference is clearly off the mark. Senator Macdonald/Lisa Martin forgot/ missed this footnote to the mention in the opposition's dissenting report (Report p 60):
"An amendment passed by the Greens ensured the NBN is subject to the FOI Act with a targeted exemption to protect the confidentiality of its commercial activities. See revised Explanatory Memorandum, National Broadband Network Companies Bill 2010 and Telecommunications Legislation Amendment (National Broadband Network Measures—Access Arrangements) Bill 2010, p. 15. House of Representatives Hansard, 1 March 2011, pp1915-1917."
This post from April has more about the FOI exemption, for 12 months at least, for NBN Co "in relation to documents in respect of its commercial activities."

Monday, September 12, 2011

Saved from a reprise of Christmas Island anguish

None who saw the dramatic and tragic loss of life as an asylum seekers' boat crashed onto the rocks at Christmas Island last December will quickly forget. Few would wish to hear  recordings of what must have been desperate calls to the Western Australian Police for assistance. Whether the  recordings were exempt from disclosure under the Freedom of Information Act was an issue recently considered by the Information Commissioner. The Nine Network had applied in December, just after the incident, for access to the recordings of calls made at " 6.59am, 7.03am & 7.09am" on the day in question. The Commissioner found the recordings  exempt, despite the fact that they were played in open court in May, and their content published by major media outlets, because the Coroner had written to the Commissioner of Police giving what the Information Commissioner says amounted to a direction regarding all evidence obtained in respect of deaths. Given the powers in the Coroners Act to receive evidence on oath, the recordings were exempt (Schedule 1 Clause 4 (b)) because disclosure would contravene an order or direction of a person or body having such power.

The Police had not claimed this exemption at the time, arguing disclosure would "prejudice an investigation of any contravention or possible contravention of the law in a particular case, whether or not any prosecution or disciplinary proceedings have resulted" (Clause 5(1)(b); and would "prejudice the fair trial of any person or the impartial adjudication of any case or hearing of disciplinary proceedings" (Clause 5(1)(d)). As the Commissioner "stands in the shoes" of the decision maker he was free to rely upon an exemption that hadn't been raised previously.

FOI amendment rights extend to accuracy not necessarily truth

A rare South Australian District Court action (Jotanovic v Housing SA [2011] SADC 138) was brought by a tenant of Housing SA, aggrieved by a decision made by the Ombudsman refusing her application for amendment of  records concerning her personal affairs. She claimed that the information contained in the records was “incomplete, incorrect, out-of-date or misleading” (Freedom of Information Act s 30) because what she said were untrue allegations had been made in a petition that was circulated amongst fellow tenants. The Ombudsman had concluded that the opinions of signatories had not been discredited, despite Ms Jotanovic’s strong denial. He had not been persuaded that the opinions were formed on the basis of incorrect factual evidence or that there was no basis for them at all. Judge Davey upheld the Ombudsman's decision:
11. I respectfully agree with the determination of the Ombudsman that the records are not incomplete, incorrect, out of date or misleading because they are not records of Mrs Jotanovic’s behaviour, they are only records of what certain people have asserted has been Mrs Jotanovic’s behaviour.
12. The interpretation of the FOIA made by the Ombudsman is supported by the existence of s 37 of the FOIA which provides for “Notations” to be added to records when a person claims that matters contained in the records are incomplete, incorrect, out-of-date or misleading. The intention of s 37 of FOIA is to provide a means for the record to show that, for example, an allegation is disputed. I note that in this case Housing SA has offered to further confer with Mrs Jotanovic as to the nature and scope of notations on the records that she thinks will indicate that there is a dispute as to the matters recorded therein.
I think the outcome would be the same in a similar situation in other jurisdictions.

"Do we need a right to privacy?"

Late notice, but this forum sponsored by the University of Sydney and Australian Lawyers Alliance at the University of Sydney Old Law School 173-175 Phillip St Sydney this evening 5.30-7pm should be worthwhile. Free, no registration required. The panel includes Journalist, Media Commentator and Lawyer, Richard Ackland - The Australian newspaper’s Legal Editor, Chris Merritt - Sydney Law School Associate Professor, David Rolph- Australian Lawyers Alliance Director and Barrister, Andrew Stone.

Wednesday, September 07, 2011

Steady budget allocation for NSW Information and Privacy

Wikimedia Commons Cimexus
The NSW Information and Privacy Commission received an allocation of $5.4 million in the 2011-2012 Budget yesterday (Budget Paper 3 Attorney General and Justice pages 2-62 to 2-68) for the first full year of operations for the combined entity. Last year the Information Commissioner received a total of $4.5 million.The allocation for Privacy NSW, then a business unit of the Department Justice and Attorney General, was not mentioned separately but buried somewhere in departmental accounts. The Privacy NSW Annual Report for 2009-2010 suggests annual expenditure of around $1 million, so in a tight budget Treasury no doubt would see $5.4 million for both in 2011-2012 as reasonable, although privacy has been skinny on resources for years and won't get any big boost out of this.

The comparison with the two offices that currently combine these functions elsewhere are Office of Australian Information Commissioner $12.6 million, and Queensland Information Commissioner $5.9 million

The "intermediate results" the commission is working towards, like last year, raise some interesting challenges for measurement:
This  service group contributes to protection and advocacy of rights in the community, and an open and accountable government, by working towards a range of intermediate results that include:
▪ privacy rights and rights to access information understood by the public
▪ increased access to information
▪ improved protection of personal information
▪ fewer complaints over conduct of government agencies in releasing information
▪ fewer formal applications for access to information
▪ fewer people seeking review of agency decisions
▪ improved information management by agencies
▪ effective stakeholder relationships.
The published performance information, essentially a few outputs (page 2-64), throws little light on the most important milestones on this journey.

The commission has a staff of 32 (33 in 2011-2012) and in the last 12 months undertook 302 reviews compared to the forecast 100, investigated 60 complaints (100), had 438,000 hits on its website (120,000) and received 419 privacy complaints. Only three agency audits were undertaken as against a forecast 10, with only three planned in the year ahead. Not anywhere near enough to my mind to keep agencies on their toes.

Battleship skills for FOI users

In a UK Guardian blog post Martin Robbins Editor of the Lay Scientist laments the lack of open access to university research papers, and sparked lively comment about Freedom of Information rights, peer review, who pays, and the high cost of access to journal articles. I assume the situation is the same here although academics and others will know more than me. Robbins description of the FOI process will strike a chord with some users and processors regardless of where they are:
Freedom of Information requests are slow, tedious, and as a means of gathering information roughly equal in efficiency to the game Battleships. You fire off a formal request, wait a month for a reply telling you your request was rubbish and off-target, move two squares to the left and fire again, and repeat until you get what you were after, or you've given up, or you've died of old age. Apply this to research data and there's a good chance that even if it's available it may be unintelligible, or in a proprietary format, or undocumented.
I don't want to get into a three-month formal e-mail exchange just so I can see some data for a paper. The only request I want to submit is an HTTP request. I want to be able to look up a paper on the internet, read it for free, and then click a button next to it to download the data that was used (where appropriate) in a standard format so I can have a play with it. It seems like a pretty basic thing to ask. 

ACT FOI to align with Commonwealth reforms

Action foreshadowed by the ACT Government in the response to a Legislative Assembly report recommending Freedom of Information changes will bring the ACT into line generally with the Commonwealth reforms of 2010, although why (response to Recommendation 15) the ACT is to "retain conclusive certificates for national security purposes" while the Commonwealth and other reform jurisdictions rescinded powers to issue certificates entirely seems odd. Given its combination of state type and municipal functions it's tempting to suggest the ACT government should align more closely with disclosure models for local rather than national government, for example the publishing requirement for NSW local councils in Schedule 1 of the GIPA regulation 2009.(The largest NSW council by population, Blacktown, has around 300,000 compared to around 360,000 in the ACT.)

The response includes a welcome commitment to more open government generally, but rejects at this stage at least the establishment of an ACT combined Ombudsman, privacy and FOI commissioner, legislation for an ACT privacy act, and some "bold" ideas such as a public interest test for all FOI exemptions other than cabinet documents.

Monday, September 05, 2011

The unhappy state of incoming state government briefs

Most Commonwealth government agencies broke new ground in publishing, or releasing in response to Freedom of Information applications, some information provided to the Gillard government in incoming government briefs in 2010, a welcome development that to varying degrees encouraged and informed discussion and debate on matters of importance. But it was mostly the more familiar story at state government level in the states that have held elections since. NSW and Victoria appear to have locked up completely. In recent decisions the SA Ombudsman decided documents that didn't qualify as cabinet documents should be released in the few instances when public interest considerations were relevant. However the Ombudsman made clear what he really thought about the importance of fuller disclosure:
In my view, there are reasons why the agencies might give access to parts of the portfolio briefs and other briefing documents, notwithstanding that they are exempt.....I consider that there is a strong public interest in members of the public being aware of policy initiatives and other issues that the agencies consider important to South Australia. In my view, access to such information would enhance public participation in discussions about South Australia’s future, and would be consistent with the objects of the FOI Act of promoting openness and accountability, as well as the principles of administration. I consider these public interest factors to be strongest with respect to generic documents, that is documents prepared with either a returning Labor or an incoming Liberal government in mind
Queensland is the next state to go to an election sometime next year. Don't hold your breath about disclosure of incoming government briefs there.The Right to Information Act uniquely provides: "Information is exempt information for 10 years after the appointment of a Minister for a department if the information is brought into existence by the department to brief an incoming Minister about the department." 

Friday, September 02, 2011

Familiar FOI and other themes-Victorian Ombudsman repeats and repeats

The Age
The Annual Report 2011 by Victorian Ombudsman George Brouwer was also tabled in Parliament this week.It seems to go with the territory that these reports inevitably take on a somewhat weary tone- as in the extracts below on Freedom of Information and some other topics  followed here.

The Ombudsman doesn't say this but the Baillieu government so far identifies with a familiar pattern on FOI-make a fuss and score lots of points while in opposition, go real slow to do anything about it when elected to office. Neither the Ombudsman (understandably because it's beyond his territory) nor the government say anything about the antiquated nature of the 1982 Victorian act when compared to recent better practice legislative changes elsewhere around the country.

Victorian Police don't cop criticism but bear it

There will be some unhappy faces in Victoria Police, from Acting Chief Commissioner down to the FOI and legal officers involved in handling the application for the Safe Streets reports the subject of the investigation report by Victorian Ombudsman George Brouwer tabled in Parliament 1 September 2011. The report notes their disagreement with aspects of his findings and criticisms. Notwithstanding, the Acting Chief Commissioner accepted the recommendations-for an apology to Michael McKinnon of Seven Metwork for what had happened in processing the application, for some changes in approach to processing requests in Victoria Police, and for additional training concerning the conduct of internal review, and the Model Litigant Guidelines.

Some of the Ombudsman's observations about process generally and in this case in particular have relevance beyond the police, and beyond Victoria.

Victoria in the news

Three stories running today:
The Ombudsman critical of Victorian Police for jumping to politically convenient Freedom of Information exemptions in dealing with a Michael McKinnon application in the lead in to last year's election.

Legitimate criticism of the Baillieu government over the failure to date to deliver on Freedom of Information reform commitments, but the criticism is off the mark in seeing something wrong with requests for the Premier's documents being handled by his office. It would be a different matter if requests for departmental documents were handled in this way.

Vice President Judge Hampel in the Victorian Civil and Administrative Tribunal decided the evidence did not support a decision that draft media plans of the previous government were documents that had nothing to do with the affairs of a government agency, finding they were minister's documents for the purposes of the act. A global decision under s 25 that all the documents appeared to be exempt and that it was impractical to edit exempt matter out was also not supported by the evidence. She remitted the matter to the Office of the Premier for a decision to be made on the status of each document. The applicant at the time the application was made was in opposition and is now a minister. And the Office of the Premier is a different office as a result of an election in the meantime. As The Age reports the documents may have gone out the door following the election raising some interesting issues concerning what happens now. From an FOI perspective it's straightforward- are the documents held by the Office of the Premier, if not and they are held elsewhere, does the Office have a right of access? If neither, the documents aren't held and access could be refused on that basis.  But life is rarely that simple. (Update: Davis and the Office of the Premier [2011] VCAT 1629)