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Friday, December 23, 2011

Christmas and other greetings

Photo by DAVID ILIFF. License: CC-BY-SA 3.0
That's about it for the moment. Quite a few things still piled up in my "to do" box, so will sort wheat from chaff in the course of the next week or so. In the meantime, thanks for the interest and encouragement during the year, celebrate well whatever you celebrate around now, and best wishes for good health and happiness in 2012.

Thursday, December 22, 2011

Indian cricket not just tested on Australian pitches

Wikimedia Commons Ricky212.
Unlike Australia's access to information laws, the Indian Right to Information Act (s 2(h) may be extended to cover any non-government organisation substantially financed (directly or indirectly) by funds provided by the national or a state government. While Cricket Australia only has to worry about winning the cricket, its Indian counterpart is facing an off-field challenge-that it should be made subject to the RTI act. The Times of India reports:
"Ignoring objections raised by the Board of Control for Cricket in India (BCCI), the government said there were reasonable grounds for bringing the organisation under the Right to Information Act. In a seven-page written statement submitted before the Central Information Commission, the sports ministry said although there was no direct funding of BCCI, it got "substantial indirect funding" from the government in the form of revenue foregone like "concessions in income tax, customs duty" and land at concessional rates for stadiums.

The ministry also argued that BCCI performed functions akin to state and 'public duties' by selecting national teams and representing India in international events. Citing the Emblems and Names (Prevention of Improper Use) Act, the ministry said, "Since the name Board of Control for Cricket in India suggests patronage of the government, the BCCI may have to drop the name 'India' from its name in case they continue to act as 'private body'."

It added, "In view of the above, the present position of the government of India in this regard is that there exists just and reason
able grounds for BCCI to be declared as a 'public authority' under the Right to Information Act, 2005." 
Cricket Australia and many other sports and other groups in Australia receive direct government funding, some very large amounts, but are not subject to freedom of information laws, as (to paraphrase and generalise) the laws don't extend beyond documents/information held by a government agency or a contractor carrying out a service to the public on behalf of an agency. Government funding doesn't do the trick.

Except in Tasmania. The Right to Information Act  (s 8) provides:

Wednesday, December 21, 2011

Queensland agencies warned of dangers of "briefing up" on RTI requests.

Following the post last week about the Daily Telegraph's excitement concerning "secret tip-offs" to the NSW Premier about freedom of information applications, and my comment regarding fortnightly reports to the premier's department regarding applications on hand, a Queensland reader wrote that in 2010 a proposal was floated there to introduce a similar reporting requirement. The proposal encountered resistance from government agencies particularly over privacy concerns and was jettisoned pretty quickly. Someone has since made a request under the Right to Information Act for relevant documents. Some posted here on the premier's department disclosure log include comments along these lines from several agencies. Both the Solomon Committee and the Information Commissioner while acknowledging others need to be kept informed, also have drawn attention to the dangers of "briefing up" about FOI applications, particularly any express or implied invitation to the minister's office or senior echelons to become involved in decision making required by law to be made in an other's name.

Tuesday, December 13, 2011

Should ministers be in the know about access applications?

Sydney's Daily Telegraph at the weekend under the headline"Barry O'Farrell's secret Freedom of Information warnings" reported that NSW Premier in one of his first acts in power following the March election, set up a system "to ensure secret tip-offs about public efforts to access embarrassing government information" and potentially more seriously, that his department suggest he lie if asked about the system in parliament.
"Documents obtained under FOI have shown the Office of the Premier installed a system on May 19 to receive weekly status reports from his department on requests from the media, opposition and general public."

I don't know what system Premier O'Farrell set up, but for many years, the Premier's department has required each agency to provide a fortnightly report on FOI applications on hand, and I would be surprised if this in some form doesn't form part of a regular briefing for each minister concerning portfolio agencies and to the Premier overall.

On a side issue, I'm not aware agencies refer to this possible use or disclosure of personal information in any privacy notice in their GIPA material, as they should where the applicant is an individual. It would be better still not to include personal information in any such report if a minister insists on continuing the practice. Let's hope this close ministerial interest extends to whether their agencies are living up to the spirit and intent of the law. And that applications by journalists and the opposition once identified aren't singled out for differential slow and tougher decisions as Alisdair Roberts discovered a few years ago in Canada. (Is there a double standard on access to information?)

The Telegraph seems to be confusing communication with a minister's office about the status of access applications, with communication inviting, encouraging or allowing the minister or staff to influence or direct a decision to be made in an agency officer's name. The "lie" claim reflects this confusion.

Back to the future for Commonwealth FOI and Privacy

The Prime Minister in unveiling widespread changes to the ministry yesterday announced that Minister for Privacy and Freedom of Information Brendan O'Connor is to be appointed  Minister for Human Services and Minister Assisting for School Education. And Nicola Roxon "will be appointed as the nation’s first female Attorney-General. The Attorney-General will take on additional responsibility for Privacy and Freedom of Information."

Thus endeth a 15 month experiment with a separate minister carrying the privacy and FOI title. Hard to see from the outside that it all amounted to much. Privacy reform is still to happen with deadlines about the only things that have passed since the  Australian Law Reform Commission recommended action in 2008 and then Special Minister of State Joe Ludwig in 2009 accepted many and announced a two stage timetable for action. Wheels are still spinning on these issues.  Minister O'Connor was there for the start up of changes in FOI in November last year, but it's hard to recall any public contribution that inspired or went beyond safe grounds.

With the decision in October to move the public service policy function from the Prime Minister's department to Attorney General's, the circle is complete. Down come the neon lights and privacy and FOI are back where they always were prior to the election of the Rudd government in 2007.

Nicola Roxon is not new to these issues having shown interest while Shadow Attorney General before then, and since in the Health portfolio where transparency  and privacy issues loom large. She has a strong law background including as an associate to then High Court judge Mary Gaudron.

The Prime Minister also announced some administrative changes including that responsibility "for the National Archives will move from my portfolio to the new Department of Regional Australia, Local Government, Arts and Sport."  A shift  from the center of government to an agency likely to be known as RALGAS is unlikely to excite the troops at NAA I imagine.

No mention of the bundle of integrity and related issues or the minister responsible Gary Gray -presumably no change.

Monday, December 12, 2011

Victorian FOI commissioner bill no joke, worth at least a grin

Wikimedia Commons Vigneron
Victoria's proposed freedom of information commissioner scheme is under the hammer in today's Herald Sun dismissed as " a joke" in this editorial and as a "toothless tiger" in an accompanying report by Peter Rolfe who quotes Rick Snell describing the legislation as
"a patchwork job on an existing dodgy framework legislated in the early 1980s on 1960s principles"."It's a further step backwards and a further authorisation of management and top-level executives in the decision-making process," he said.
Rick Snell is right about what amounts to a bandaid over a slerotric artery. The underlying Victorian FOI act reflects thinking circa 30 years ago about getting the balance right between the private space necessary for good government on the one hand and and public access to government information on the other. Things have moved on apace since then particularly in recent years in Australia and the "dodgy framework" badly needs attention in Victoria as well.

No mention of this bigger reform landscape in Minister McIntosh's Media Release or speech to Parliament (Assembly Hansard 8 December 60-64)-no one else spoke and debate was adjourned until 22 December.

The weaknesses in the commissioner bill cited in the Rolfe article are significant-review by the commissioner will not extend to cabinet documents or documents denied access on national security grounds, or in respect of any decision by a minister on a request for a minister's documents or on a request to an agency any decision by the principal officer-and unjustified. However not mentioned in the Herald Sun is that these and other matters not subject to review such as the adequacy of search for documents and third party objections not acted upon by an agency, can be the subject of a complaint to the commissioner. A complaint is different from a review application- after any investigation the commissioner in these cases only has recommendatory powers-see Complaints below.)

While not a complete zero the case for the carve-outs is weak or in the case of the last mentioned simply not made.

But "joke" and "step backward" for the whole shebang are too strong. The bill is worth a grin at least while muttering "could do better" at the same time. Despite the limited scope of reform and some weaknesses there are positives in what is being proposed.

If passed, the bill's provision come into force no later than 1 December 2012 but the search for a commissioner is still ongoing, and the budget allocation for 2011-2012 for the office is $1 million a small proportion of the four year figure of $7.9 million much trumpeted by the government. FOI applicants in Victoria may have a while to wait before the turn for the better.

Thursday, December 08, 2011

Victoria unveils Freedom of Information Commissioner legislation

The Victorian Freedom of Information Amendment (Freedom of Information Commissioner) Bill 2011 is before the Parliament. The main purposes are
  • to amend the Freedom of Information Act 1982 to establish a Freedom of Information Commissioner; and to improve the operation of that Act;
  • to amend the Parliamentary Committees Act 2003 to establish an Accountability and Oversight Committee of the Parliament; 
  • and to make related and consequential amendments to other Acts.
The Minister's Media release provides a summary of the main points. Hard to argue with this:
Minister responsible for the establishment of an anti-corruption commission Andrew McIntosh said this was the most significant change to Victoria's Freedom of Information laws since their introduction almost 30 years ago.  
It's a good and welcome development, delivering after a year on a pre-election commitment.

 More on the model when I get through the detail.
However despite the reference in purposes to improving the operation of the FOI act, the bill is focused squarely on the commissioner's position, functions, powers and related matters and doesn't address the many weaknesses and outdated provisions in the act itself compared to reforms elsewhere.

NSW Information Commissioner powers too limited

The NSW Information Commissioner has published three reports of reviews under the Government Information (Public Access) Act, the first since the act commenced on 1 July last year. One report is about access to the incoming state government briefs from March this year, the others are local council cases of broader significance, one (Clarke) concerning access to performance review information about the general manager, the other (Beale) to a report prepared for the ICAC.

The absence of published reports of this kind till now has been a surprising gap in the materials made available by the commissioner, as users of the act and agencies need and benefit ( well, theoretically sometimes) from guidance on the commissioner's approach to interpretation and application of the act in practical circumstances.

The published reports also highlight a weakness in the NSW model that is unique in the Australian context-the commissioner's powers are limited to making a recommendation and are not binding on the agency or reviewable. All three published reports are favourable to the applicant to some degree and recommend the agency concerned make a fresh determination.The agencies may or may not act in accordance with the recommendations, which are also open ended as to time. None of the three published reports include any indication of the agency response.

Commonwealth FOI statistics reveal busy first year

The 2010-2011 Annual Report on agencies and the operation of the Commonwealth Freedom of Information released last Friday covers the four months leading up to the commencement of changes to the law in November and the period to 30 June.

The Australian Information Commissioner, Professor John McMillan and Freedom of Information Commissioner Dr James Popple report progress.
"(W)e have seen a marked shift in agencies’ attitudes towards releasing government information, under FOI and through proactive disclosure" Dr Popple said.
Applications overall were up 9.3%- personal information requests by 3.6% and "other" requests by 48.4%. Off a very low base as noted by Dr Popple:
“The numbers of requests in the last two years have been the lowest in more than 20 years, largely due to proactive steps that some agencies have taken to release information outside of the FOI regime.”
Hopefully that's the reason as increased participation in government is one of the objects of the act.

Other details from the report include:

Monday, December 05, 2011

Your photocopier may be a treasure trove of personal information

Wikimedia commons Juan de Vojníkov
Oh brother-no free advertisement or aspersions intended.

Since CBS (US) News broadcast a wake up call in April 2010 about the stored information in digital photocopiers and the data security dangers when photocopiers are sold or discarded with images on the integrated hard drive intact, regulators and others have been flagging this as an important issue that deserves attention. The Australian Privacy Commissioner draws attention to the privacy principles regarding disclosure of personal information. In addition, because digital photocopiers and multi function printers save and store scanned images created in the process of making copies, scanning documents, emailing or sending faxes, businesses that offer photocopying or scanning services may be inadvertently collecting large amounts of personal information from their clients and any agency or organisation whose employees use office facilities to scan or copy personal information may be inadvertently accumulating and storing that information:
"Agencies and organisations that collect personal information, deliberately or inadvertently, may be subject to obligations under the Privacy Act in respect of the handling of that information."

Annual report lost in transmission-two years in a row.

Last year the Attorney General tabled his annual report on the operation of the Queensland Freedom of Information Act for the year ending 30 June 2009 on 23 August 2010 (no, not a misprint). You wouldn't think Premier Anna Bligh, responsible for the replacement Right to Information Act, could do worse. Think again. She tabled her annual report on the RTI act and Information Privacy Act for the year ending 30 June 2010-the first year of operation for both-on 2 December 2011. There is no indication of when the Premier signed off on the report.
The report is here (pdf) through a link on the Tabled Papers Register (6125) and will no doubt appear in due course on the Premier's department and Information Commissioner's websites. Nothing will change the fact it will still be a snapshot of the picture 18 months ago, and largely of historical interest. Pity because the report contains a lot of information particularly about use of the act and agency initiatives on the disclosure front that go beyond mandatory requirements.

This practice of release 14-18 months after the event must be a great morale booster for those in agencies who put together the statistical reports that form the basis for the annual report!

Well spotted by a Queensland reader-thanks.

Sunday, December 04, 2011

Victorian FOI reform to inch forward

Reform worth the name will take more than just the welcome appointment of a freedom of information commissioner. Both these reports over the weekend could  be true:
Victoria to legislate for FOI commissioner this week according to The Age.
FOI in Victoria hits a brick wall according to the Herald Sun.

Friday, December 02, 2011

Definition of journalism


In two recent posts, now corrected, I mistakenly said the Commonwealth Evidence Amendment (Journalist Privilege) Act 2011 included a definition of "journalism." It doesn't. I was alerted to the possible error by Kate Stowell an Australian completing LL.M studies at the University of Edinburgh who has just submitted her thesis on 'Journalist source protection in Europe and Australia: a study in human rights and evidence law'. Thanks Kate-more of her below.

The error of my ways
In December 2010  Senator Scott Ludlam in a senate report on the bill said The Greens would seek to amend definitions to include:
"journalism means the reporting in a news medium of facts which are, to the best knowledge of the person reporting those facts, fair, true and accurate, and includes incidental processes such as the gathering of information for that purpose."
When the issue came on for Senate debate Senator Ludlam referred to earlier negotiations to win Government support for Green amendments. While not mentioned the definition of journalism appears to have been a casualty and was not put. Other Green amendments passed.

The bill as passed by the Senate went through the House unchanged.

My memory was playing tricks in November 2011 when I went looking for definitions in commenting on shield law developments- I copied Senator Ludlam's comment from the committee report, thinking wrongly that the definition along with other Green amendments
had made it into the law as passed. Update 8 December-I did the same thing with the definition of journalist initially posting the Ludlam foreshadowed amendments in both cases not the words used in the act as passed. For the purposes of clarity (at last) the definitions in the Commonwealth act are:
informant means a person who gives information to a journalist in the normal course of the journalist’s work in the expectation that the information may be published in a news medium.
journalist means a person who is engaged and active in the publication of news and who may be given information by an informant in the expectation that the information may be published in a news medium.
news medium means any medium for the dissemination to the public or a section of the public of news and observations on news.
Thanks to Stilgherrian for correcting me on this one.)

Kate Stowell in Edinburgh spots it
Kate is a University of Sydney law graduate who has worked as a radio journalist for ABC and SBS, and has recently picked up some contract work with the BBC. Earlier this week she presented her findings at the Reuters Institute for Journalism at Oxford, where she tells me, there was great interest from the audience in the Australian source protection 'dilemma'....

Kate hopes to use her thesis to branch into the world of written/online publishing...If anyone out there is looking for a likely candidate, who knows plenty about shield law related issues and has a great eye for detail, I can put you in touch.

Stilgherrian is, well Stilgherrian