NSW Information and Privacy Commission Annual Report

The NSW Information and Privacy Commission Annual Report 2011-2012 details a busy year:

"This year, the Information and Privacy Commission responded to 6,380 calls and received 275,702 website page views. We finalised a total of 898 matters over the year. The Office of the Privacy Commissioner (OPC) responded to a 60% increase in request for assistance, from 1,696 requests in 2010-11 to 2,712 in 2011-12.. The OPC completed 181 internal reviews, provided 109 advices, and finalised 102 complaints. The Office of the Information Commissioner finalised 280 information access reviews, 5 investigations, and 79 complaints."

There are many other activities mentioned in the report although it is thin on the outcomes from all this effort.

Two issues of concern regarding the office, delay and powers, rated a mention:

The two main criticisms the Information Commissioner received during the reporting period were that external reviews take too long and that our recommendations are not enforceable. While positive feedback was received on almost half of our cases, due to the backlog during the year, 15% of applicants were unhappy with the delays they experienced. We have implemented process and staff changes in response to that feedback. The fact that our recommendations are not enforceable is a feature of the right to information model adopted by New South Wales. It differs from its Queensland and Commonwealth counterparts in this respect. A right of review by the ADT exists, but the Information Commissioner can only make recommendations to agencies. This is an issue that will doubtless be considered when the GIIC Act is reviewed in accordance with Section 48 of that Act.

With regard to agency performance the report refers to work undertaken in preparing the first report (for 2010-2011) under section 37 of the Government Information (Information Commissioner) Act 2009, a report on the operation of the GIPA Act generally, across all agencies. 

That report is yet to be published.  

The Information Commissioner comments that  a clear baseline against which to assess overall public sector performance under GIPA is still to be developed, but the picture from available data

shows greater requests for Information Commissioner reviews than were predicted when the office was being set up and the function transferred from the NSW Ombudsman. It also shows a high level of awareness of the legislation and its impact on agency information management practices as well as the vital importance of a culture in agencies of openness and service to the public. 

The foundations of the GIPA act "appear well understood by agencies, and members of the public are exercising their enforceable right to access government information."

From these comments in the Directions for 2012-13 section the commissioner seems aware of performance reporting shortcomings:

"In the year ahead, I look forward to being able to provide better data to the Parliament and to agencies on their performance measured against the GIPA Act. Now that the new administrative arrangements across the public sector have been bedded down, it is important to focus on the optimal reporting regime that will allow the Parliament and the people of New South Wales to assess the benefits of the GIPA legislation. As a core outcome of GIPA, we should expect to see simpler and more streamlined access to government-held information....
What success looks like needs to be broader than checklist compliance with a set of requirements under the legislation; it needs to reflect an improved experience of responsive service that can then lead to greater public confidence in the processes of government. It will be seen in better communication with the public, informed by and in response to public feedback. As part of my champion role, my office will focus on improving advice and guidance via our website and e-learning tools about the GIPA Act. As part of my mandate to receive complaints and requests for reviews under the Act, we will continue to focus on
improving our timeliness and responsiveness in line with our service targets.

In the meantime the following extracts suggest significant weaknesses and problems still to be addressed in information access in many/some NSW agencies:

Leveson lands, rhetoric set to soar

The Leveson report runs to 1987 pages, one million words and includes 92 recommendations.  

The Executive Summary is 46 pages.

The Spectator has a useful six point guide on "regulation."

Expect waves of instant punditry, including plenty of gloom and doom on the "press freedom" front here with Lord Leveson due in Australia next week.

Keep an eye out for how often you see or hear:
That the Report stresses it is not proposing "statutory regulation of the press" and
"The proposed legislation would not give any rights to parliament, to government, or any other body to prevent newspapers from publishing anything they wanted."

Lines taken from the Huffington Post summary.

(Update: For some dispassionate local comment see The Conversation including these observations from the Chair of the Australian Press Council Professor Julian Disney, giving some of his members a touch-up :

"there are some significant things we would benefit from adopting...I think the statutory underpinning for the privileges has considerable strengths....On the argument about statutory regulation, the media has to do a lot better in its analysis of that proposal. A lot of it is riddled with misrepresentation, overstatement and lack of perception. If it is feared this very minor form of government involvement risks the independence of the body, what does it say then for a body that is totally funded by the publishers? How is a body of that kind going to be able to convince people that it is independent?

There’s a fair amount of hypocrisy here. The media wants statutory privileges. They want statutory intervention when it suits them but not on any conditions. All this is saying is if you want these privileges, you have to sign up to this body. If you don’t want the privileges – and in the case of the arbitrator services, it’s a new privilege – then don’t sign up.

And on the transparency front, some observations relevant to all influence peddling:

There’s a very interesting and good recommendation by Leveson that senior executives and editors of newspapers should have to record or announce all unofficial meetings with senior politicians. I agree with that completely. These meetings are not about a particular story. Not what was discussed but the fact that they met. We don’t have that problem as badly in Australia but it’s not a bad principle

(Partial) privacy reform just makes it before end of year close down

Attorney General Nicola Roxon announced that the Privacy Amendment (Enhancing Privacy Protection) Amendment Bill 2012 passed parliament today-stage one in action on a process that started with a reference to the Australian Law Reform Commission in 2006, led to the commission's final report in 2008, and was followed by four years of back, forward and sideways by the government until -bingo on the last day of sittings for the year.

In the Senate yesterday the Government moved 40 amendments to the bill following recommendations that came from the Legal and Constitutional Affairs Legislation Committee including some from Opposition senators in a dissenting report. Much of the discussion concerned credit providers. The amendments have the effect of extending the commencement period of the bill to 15 months after royal assent.

Those amendments must have sailed through the House of Representatives today. 

Thus endeth stage one-with 15 months or so now to thrash around the regulations. 

(Update: Here's the take from Australian Privacy Commissioner Timothy Pilgrim.)

I'll leave the final analysis to others.

No one dared mention stage 2.

Tale of two conferences

I've been remiss in not publicising this free search conference organised by Accountability Roundtable in Melbourne next Tuesday 4 December "Integrity in Government - A Work in Progress" with a stellar cast of speakers. Disappointed I can't make it but get along if you can. Keynote Speaker Senator John Faulkner might have time to explain the whys and where-fors of his announcement as Special Minister of State in 2009 that the Australian Law Reform Commission was to be asked to examine whether the Freedom of Information Act should be extended to the private sector, an idea that disappeared along with him when he went on later that year to become Minister for Defence.

Not free ($950) but also of interest The Privacy in the 21st Century Conference organised by the Communications Law Centre in Sydney on Friday 7 December featuring Lord Leveson, Malcolm Turnbull and plenty of others.

Attorney General said let's join OGP but what happened next?

A document from the Attorney General's Department released today in response to a request made via Right to Know a month ago reveals the Attorney General directed the Department to write to the Prime Minister and Minister for Foreign Affairs last May proposing Australia join the Open Government Partnership. But whether the letter was sent, and what has happened since isn't apparent. 

The signs were very positive in May. It still makes sense, even as Canberra starts to grind to the end of year halt.

Hat tip to Attorney General's for the decision, but what wasn't clear about the application in the first place is a mystery. And a good first day for Right to Know.

The Freedom of Information request was for the latest document held that included an assessment of the arguments for and against the Australian Government applying for membership of the Open Government Partnership. 

The document released is a briefing note in May 2012 to the Attorney General supportive of a decision to join, but recommending that the Australian Information Commissioner be asked to consult other government departments to develop a whole of government position, including whether Australia should join, and if so, which agency should take the lead. 

A handwritten annotation presumably from Attorney General Roxon reads "Just write straight to Minister (sic) proposing we join "and directing that the matter be discussed with two staff in her office. The wheels may have fallen off in that discussion or somewhere else.

The US Secretary of State had invited Australia to join in a letter to the Minister for Foreign Affairs (at the time Kevin Rudd) on 18 August 2011. There is no mention of any reply.

The question of joining the OGP was considered by the Minister for Privacy and Freedom of Information (then Brendan O'Connor, the position has since been abolished) in November 2011 in the context of President Obama's visit to Australia. "The Minister did not agree to pursue joining the OGP at that time" is all we know from the brief.

The only concern voiced anywhere in the document is that some agencies thought the OGP would duplicate the work of other international bodies, particularly those focused on anti-corruption initiatives-not a big problem for many others driving that agenda who are among the 59 member countries.

The Department notes the issue is relevant to the Government's ongoing commitment to openness and transparency.

I made a similar but later request to the Department of Foreign Affairs and Trade.

As you can see anything but straightforward there.

Maybe in the course of digging out the document the policy boffins in DFAT might read my compelling case for membership, based in part on foreign policy grounds.

Memory lane and present and future challenges feature at FOI anniversary

The 30 year Anniversary event organised by the Office of Australian Information Commissioner in Canberra yesterday was an interesting walk down memory lane, and a look at today and the future.  

Commissioner Professor McMillan can take you back to his pre-FOI activist days, Dr David Solomon found FOI in his in-tray while working for Prime Minister Whitlam, AGS CEO Ian Govey's first job in AGD was with the task force developing legislation, and Alan Rose was a member of that group while at PM&C, and later president of the ALRC at the time of the Open Government report in the mid nineties.

(While on memory lane I was at the Australian Embassy in Washington from 1973 to 1976 when US experience with FOI, pre and post Watergate, was something Canberra wanted to know more about as it wrestled with the unknown beast.)

Alan Rose said the culture change recognised as necessary since 1982 is still to arrive.
He evidenced this with a number of examples of personal experience and drew attention to   the refusal of access to plans claimed to justify a grant to a car manufacturer, and what was put to the government by lobbyists. Rose emphasised that the object advanced in the 1995 ALRC report that government information is a national resource must be taken seriously. Census material for example. More creative minds could do more with it. Real time access was essential. The closed period for government information should be reduced to something like five years to let our Bill Gates and Steve Jobs see what they could do to fully utilise government information for the benefit of all.

FOI Commissioner Dr Popple gave a generally positive account of how things are working-access was easier and cheaper, most agencies were doing reasonably well and "people are generally aware of their rights." (It turns out this is a "feeling" not based on anything more that frequent references in the media-I don't think government has done anything on the demand side for yonks.) However issues concerning delay and the OAIC model both require attention. The OAIC has received 4194 applications from agencies for extension of time, and 285 complaints and 872 review applications, all far in excess of what was anticipated.

Former Queensland Information Commissioner Julie Kinross provided a global perspective, noting in particular the rights focus clearly driving developments elsewhere, but barely heard here, and other forces at work promoting transparency including anti-corruption, environmental concerns, accountability and development assistance, and technology. Kinross highlighted the absence of any regional Asia Pacific right to information activity of the kind obvious in Europe, Latin America and other regions. Australia was well placed to play a role in this. (Why was I thinking about the OGP at this stage?)

Professor McMillan spoke of the broadening information agenda and the need for a new open government policy framework. Roxanne Missingham, the former Parliamentary Librarian now in a similar position at ANU provided reasons for some urgency in this citing the dramatic decline in government publications listed in the National Bibliographic Database, and the limited retention of history (including government policy documents over time) on the National Library's Pandora system. She gave a spirited account of why leaving agencies to their own devices in this area was a grave error. And gave short shrift to copyright laws created in another era that are holding us back.

As to me, I had 10 minutes for Leading Cases?

Stephanie Forgie and Michael McKinnon should know I was only joking.

My notes, should you be interested-and it's not a list of leading cases.

FOI swings into fourth decade with a spring in the step

Congratulations to the Open Australia Foundation for the launch today of the Right to Know

Freedom of Information application website intended to encourage and ease the way to seek access to non-personal information under the Commonwealth Freedom of Information Act. The site will also publish the paper trail between applicants and agencies and information released (or not as the case may be) as a result of the request.

Two of the key players, Matthew Landeur and Henare Deegan provide an overview of the initiative in this Youtube clip.

Markus Mannheim provides this coverage today in The Canberra Times.

(Update: and this from Stilgherrian in Crikey.)

This is an Australian adaptation of the UK MySociety Whatdotheyknow website, utilising open source software from Avaleteli and fits into a global picture described here last year by Toby McIntosh. This is the NZ version. In this first step the Australian tool is limited to Commonwealth ministers and agencies.

I've commented previously that at about 5000 requests for non-personal information in the last year (a significant increase) use of the FOI act for accountability or participation in government purposes at the national level is pathetically low. Right to Know may change this by removing some of the mystique. It's the first "demand side" initiative in decades.

Three of the requests during a pre-launch trial in recent weeks are from me.

Agencies already feeling under pressure may not appreciate this boost for the exercise of  information access rights. But as the Prime Minister remarked back in 2010, "let the sun shine in."

Australian FOI at 30 years

I'm in Canberra tomorrow Tuesday at the event to mark the 30 year anniversary of the commencement of the Commonwealth Freedom of Information Act. With 10 minutes on the program on the topic "FOI-leading cases?" even I'll be interested in what I have to say. That question mark might come in handy.

Some short videos including tips from faces behind the names on many FOI decision letters is on YouTube and worth a look.

Open Australia acts to fill the gap

Henare Deegan one of the forces behind the Open Australia Foundation has created a scraper for submissions to the Hawke FOI review (one submission, 13 days to go) and an RSS feed for those interested in keeping up with what others are saying-one of those 13 unanswered questions Rick Snell raised a week ago with the powers that be.

Burma/ Myanmar to join OGP; Australia maintains silence

President Obama in a speech at the University of Yangon in Rangoon last week welcomed another entrant from the region seeking to join the OGP. They may have a fair way to go to meet the criteria. We on the other hand don't. We just need a little mettle.  

You would have to think that Australia's non-decision about joining has come up at least once in the many recent top-level meetings between our two governments.

But that kind of growth can only be created if corruption is left behind.  For investment to lead to opportunity, reform must promote budgets that are transparent and industry that is privately owned. 
To lead by example, America now insists that our companies meet high standards of openness and transparency if they're doing business here.  And we'll work with organizations like the World Bank to support small businesses and to promote an economy that allows entrepreneurs, small businesspeople to thrive and allows workers to keep what they earn.  And I very much welcome your government’s recent decision to join what we've called our Open Government Partnership, so that citizens can come to expect accountability and learn exactly how monies are spent and how your system of government operates.

Dear Dr Hawke (2)

Rick Snell posed the questions below to Dr Hawke and AGD Assistant Secretary Richard Glenn in an email to the FOI review over the weekend, prodding about visibility and public engagement in the review process. Reprinted with Rick's permission. No reply as yet and I know the feeling!-see 13 in the list.

The "no news" I'm hearing out of Canberra confirms two poor process aspects-no issues paper will be forthcoming and Dr Hawke is planning to meet some interested parties and is or about to make appointments - suggesting the old "one by one" process that is hardly conducive to creative thinking, if that's part of the challenge here.

Rick's questions:

1. What is the level of support and resources being given to the Review?

2. I assume that this is being provided by Mr Glenn's branch but that is unclear?

3. Is this in addition to the Branch's normal budget allocation or has extra resources been made available?

4. Why was the 7th of December chosen for the close of submissions?

5. Could the details of the review and the closing date be placed in a more prominent position?

6. Could other agencies be asked to bring the Review and the closing date for submissions to the notice of their staff, stakeholders and other people interested in that particular portfolio?

7. Will Dr Hawke be giving any media interviews to promote the review and to solicit submissions?

8. Will a facility be added that will alert interested parties (such as an RSS feed) when new submissions have been posted?

9. Will agencies be encouraged to make submissions well before the deadline so that other submitters have a time to consider key points made by the agencies?

10. Have you considered using a blog or other method to encourage people to float ideas/suggestions and for other people to indicate their support (or modifications to the idea/suggestion)? For instance at the National Information Law Conference held in Canberra last week a number of people who had not responded to the AIOC's discussion paper on the timing of release of requested information on government web sites nevertheless reacted positively to the suggestions of others once aware of them

11. When will the consultation with stakeholders and other interested parties begin and what form will it take?

12. Will Dr Hawke even at this late stage in the lead up to the deadline for submissions be issuing any idea/issues generators for submitters to consider or respond to?

13. Peter Timmins recently on his blog Open and Shut asked of Dr Hawke "The announced "tell us what you think and we'll go away and write whatever we think appropriate" approach may be the way they do things in AGs. But something more is generally expected in good practice consultative processes these days. Particularly in this case given the review is about the operation of legislation that has as an object the promotion of Australia's representative democracy by increasing public participation in Government processes."  Will Dr Hawke be adjusting his approach to the review of FOI to better facilitate a more effective  dialogue on FOI?

Hawke review not limited to 2010 reforms

In discussion with some taking an interest in the Hawke FOI review, the point keeps coming up that the review is about the reforms of 2010-and that it is too early. On that score there is something in it-two years after commencement there is virtually no case law, some Information Commissioner decisions, two annual reports by the OAIC, plenty of moans and groans from agencies, some indications that things are better if patchy and far from perfect, and a mixed bag of anecdotes, but that's it.

 As to timing, the review had to commence within two years of November 2010, to be completed within six months as required by law- both the FOI act (s 93B) and the Australian Information Commissioner Act (s 33) include the same provision. No ifs and buts.

The scope in both cases is "a review of the operation of this Act."  None there either.

The review of the OAIC act will obviously look at how those reforms-the office, its role, its operations, its effectiveness etc- are going, after two years. 

With regard to the FOI act however the intention in 2010 was that the review should be a comprehensive review of the operation of the act, as s 93B indicates, not simply a review of the changes made in 2009-2010. 

You mightn't pick this up from the Terms of Reference [PDF 290KB]. Although the introductory paragraph states it is a review of the operation of the acts and "the extent to which those Acts and related laws continue to provide an effective framework for access to government information", the matters listed in the TOR that the review should consider all appear to be related to the reforms. And there is no "any other matter that the review considers relevant" provision.

Despite this, I'm sure Dr Hawke realises s 93B requires the broadest possible examination of the operation of the act. Submitters should as well. 

This is important because there was much that was not looked at in 2009-2010. To recap: the government came to office in 2007 with an FOI reform agenda, proceeded to spend 18 months or so talking to itself about what it would do, with a single round of one on one short, general discussions with a few interested parties (moi included); released draft amending legislation in March 2009 (over 130 pages from memory) without any apparent prior contact with outsiders about what was in it; and throughout the following "consultation" process, largely stuck to the line that anything that went beyond what it had put on the table was not on the table. 

Submissions that raised other issues attracted little or no interest. When the same issues were raised with a Senate committee after the bills were introduced, the committee threw up its hands saying submissions raised a lot of issues, views varied, it didn't have the resources to look into it all, and the government bills were essentially OK.

The review requirement came out of concerns during this process in 2010 by The Greens, particularly Senator Scott Ludlam that other issues notably the blanket exclusion of intelligence agencies from the act had not been considered during the 2009-2010 reform process. The government agreed to legislate for a general review after Senator Ludlam's amendments concerning intelligence agencies including an amendment that would have made it mandatory to spell out this issue in the review terms of reference were voted down.

This post in 2010 recounted some of the story-How the reform bills became non-controversial. 

Back to those submissions!

Little cause for celebration from preliminary Victorian ruling relating to executive privilege

Victorian Greens MLC Greg Barber claimed a Round One victory following the Supreme Court decision this week rejecting the government's bid to summarily dismiss his application for a declaration that the parliament has power to order production of documents prepared outside Cabinet and considered by Cabinet or prepared by an independent contractor and considered by Cabinet. Justice Emerton said [34]:

"I could not be satisfied that the proceeding had no real prospect of success, or that it disclosed no cause of action or constituted an abuse of process based simply on the principle of comity and deference, or on the proposition that the courts may only determine the existence of a privilege as an incident of a controversy arising under general law."

But I'd hold the bubbly. The best that can be said is it isn't over..yet.

Justice Emerton [36-44] went on to list the significant obstacles that Mr Barber will have to overcome if he is to succeed on the substantive issues.

36. In my view, the principal difficulty faced by Mr Barber is that, on the facts presently before the Court, there appears to be no dispute between the Legislative Council and the Treasurer about whether the Treasurer was entitled to withhold the Deloitte report from the Council. The Legislative Council has passed a motion calling for the production of documents fitting the description of the Deloitte report; the Treasurer has responded to the Legislative Council by confirming the existence of the Deloitte report but asserting that on grounds of privilege, he is not bound to produce it to the Council as requested; the Legislative Council has taken no action to require the Treasurer to substantiate the claim for privilege or to compel the production of the Deloitte report. It might be inferred that the Legislative Council has accepted the claim for privilege and agreed to let the matter lie.

Justice Emerton decided [45] that although Mr Barber’s prospects of success appear to be poor on what has been presented to date, he couldn't rule he had ‘no real prospect of success’, let alone that the application for a declaration ‘would necessarily fail’.  With Mr Barber taking some comfort from this final observation:

"Nor am I persuaded at this stage that the proceeding discloses no cause of action or constitutes an abuse of process. It is appropriate that the issues be fully ventilated. Given the complexity of the issues of jurisdiction and justiciability and the limited context in which they were argued, even if I were satisfied that the proceeding had no real prospect of success, it would not be in the interests of justice to dismiss the proceeding summarily."

Queensland developments

Premier Newman has no intention of winding back or scrapping the RTI Act despite comments at the weekend by Attorney-General Jarrod Bleijie that too much public scrutiny was scaring away future politicians-we all knew he was kidding, didn't we? But who knew about the statutory review of the RTI act? It escaped me until the Attorney mentioned it. This report says it began in July last year. From a quick browse it seems to have escaped those responsible for the Department of Justice website and the OIC website as well. Public consultation and engagement part of the process? (I think I did see a reference to an issues paper coming soon.) 

The Premier will publish his appointments diary next week to be followed in this by ministers next year. And in what will be a welcome first for Australia but a step in the right direction, publication of agency lobbyist registers which record contact with lobbyists is also coming by the sound of it-with the government giving it a political twist, why not dig out Labor's old ones as well?

FOI leading cases by citation frequency

Those thinking (!!!) about my request for input on leading freedom of information cases might be interested in these decisions from high up in the Citation Frequency list on Austlii. 

Some rate highly for a number of reasons including they simply go back a long way. Some deal with aspects of the law no longer relevant because of legislative changes. 

Of course not all fit the criterion in any event: significant contribution to FOI/RTI etc jurisprudence, and in extending as far as possible the right of access to information. Some in fact might qualify for the lemon list by representing a significant setback to that objective.
 
Thoughts by 25 November in the form of a comment on this blog or by email to peter.timmins1@gmail.com, with the case name, url if available and a short statement of the reasons for your nomination or nominations. Thanks in anticipation.

NSW parliament disclosures fine-by 1689 standards

The Sydney Morning Herald published my letter today (scan down to "Publish MP disclosures online") with an edit that makes the final reference to 1689 even more obscure. Here's the text as submitted, with links. The letter was in response to Linton Besser and Kate McClymont at the weekend" Inquiry opens Pandora's box of extensive dealings"
about Eddie Obeid which kicks off " He is not the man his bare pecuniary interest register has depicted."

"The O'Farrell government took action in parliament recently to legislate to remove doubt as to the ability of the ICAC to consider and make findings in relation to the Registers of Disclosures of Members of Parliament. Entries in the name Obeid and Macdonald are now proving interesting and illuminating.

The President of the Legislative Council had queried whether parliamentary privilege, "by operation of the 1689 Bill of Rights," applied to the registers. As the Premier explained, the legislation was necessary to allow the registers to be accessed and utilised by the ICAC "even though they are already publicly available and open to public scrutiny."

The registers are available for inspection between 10 am and 4 pm if you find yourself in Macquarie St on a weekday, but not otherwise. A few journalists occasionally bring some entries to the attention of a wider audience.

Premier O'Farrell told parliament that scrutiny of the registers by ICAC "will not impact adversely on the business of Parliament. It will not inhibit debate. It will not undermine freedom of speech. It will not impede any activities that members of Parliament undertake in the exercise of their representative and parliamentary duties. To the contrary, what it will do is to enhance the integrity and standing of this place. It will further reinforce why it is important for all members to make full and proper disclosure in accordance with the 1983 constitution regulation."

True. But that applies in spades if the registers were to be published on-line, close to real time. With the potential added bonus that more eyeballs might ensure we are aware of sources of gifts and income from second jobs as well as the mysteries and discrepancies.

The same applies to payments of allowances and entitlements and other expenditure by the parliament for and on behalf of members. At present the global amount paid to each is published but buried away in appendices to the annual reports of the departments of the Legislative Assembly and Legislative Council. No details of payments made are provided and the reports can relate to expenditure incurred up to 12 months previously.

The payments are a small part of the $139 million allocated to the parliament in the 2012-13 budget. Parliament is not subject to right to information legislation that applies to state government agencies. The then presiding officers waved off the Rees government when it made an initial inquiry about taking such a step in 2009.

Time for change, Premier.

After all it's 2012 not 1689.

Peter Timmins.

As readers will know the Commonwealth parliamentary departments are subject to FOI - for the moment at least.

Whistleblowing not for the faint-hearted.

One of the developments that influenced the decision to establish a Royal Commission into child abuse was the decision by Inspector Peter Fox of NSW Police to speak up and out  last week about a cover-up in the Hunter Valley of NSW. Dr Suelette Dreyfus of the University of Melbourne writing on Global Mail picked up on his remark that this decision marked the end of his police career- culture in the police force is such that someone like him would never be let back into the fold. Dr Dreyfus lists the five phases of whistleblowing, all familiar and distressing reminders of what happens to those who like Fox take a stand on what happens within, and comments about the failure of the Commonwealth government to enact comprehensive whistleblower protection legislation. NSW has had legislation that covers public servants including NSW police officers since 1994. Global Mail has published my comment that the fact Inspector Fox, in talking to a journalist about a cover up or derailed investigation, exhibited no confidence in the protections comes as no surprise. But it is a sad reflection on the state of the law, attitudes tolerated in the police service, and the way the law is implemented.

A couple of days out of town and look what happens..

You go off to the National Information Law Conference in Canberra, an otherwise good and useful gathering that FOI reviewer Dr Hawke apparently was too busy to attend, and where it was hard to escape the chill wind of FOI blow-back, in the corridors at least. And, mostly "worst fears" type news emerges while you're pre-occupied:

• integrity failings that came to light in Queensland and led to the resignation of the Minister for Housing include that the minister, his son and the minister's chief of staff were communicating on official matters using private email addresses; the minister's register of contact with lobbyists released during a Budget estimates committee hearing that he declared"very accurate" did not list extensive contact with his lobbyist son on a range of issues; and according to the opposition the minister's ministerial and electorate diary released under Right to Information laws had been doctored to hide the fact he was continuing as a GP to see patients. "A series of Wednesday afternoons at his Morayfield clinic seeing patients was allegedly erased and replaced with 'electorate office' work...the section on electorate office work was redacted because it was outside the scope of the application."
• at the end of the week the Courier Mail reported the Attorney General spoke of a hitherto unpublicised review of the RTI act underway as necessary "because too much public scrutiny is scaring people away from becoming politicians." Hold your sides as you read that it is highly unlikely they'll abolish the RTI act, but most of any information anyone will want will be available on the open government website. The extracts from the article are repeated here in case the archive becomes hard to find in future: "Mr Bleijie denied the use of private emails was a tactic to avoid having them released under the RTI Act, but said he used private email at home because he didn't have access to his work email. "I wouldn't envisage that's a systemic problem, no," he said. "Everyone should be careful what they put in writing no matter what communication you use." Mr Bleijie said abolishing the Right to Information Act, which was introduced in 2009 by former premier Anna Bligh, was "highly unlikely" but changes would be introduced as part of his review. Mr Bleijie said Premier Campbell Newman's plan for an open government website posting all non-confidential documents would greatly reduce the need for RTI. He said he also was investigating the cost and scope of the RTI Act, and extending it to capture information within the Office of the Opposition. A discussion paper will be publicly released for comment. "We'll certainly be canvassing the options of whether the current Act in its form can actually be broadened with the open government and, rather than using an RTI for basis, people can go straight on to government website and get the information themselves," he said. "We're intending that most of the information will be available on the government website. "Some of the information, if it's not statistics per se, there might have to be the mechanism remaining that people can still access that information."
• Bill de Maria formerly of the University of Queensland and a long time sceptic about commitments to transparency took off from there to say FOI laws are useless unless political leaders are fully committed to them. "The best laws aren't worth a row of beans unless..." And there's something in that.
• with the 30th anniversary of the commencement of the Commonwealth Freedom of Information Act on 1 December days away, Jack Waterford of The Canberra Times received a response to a Freedom of Information application 29 years, 11 months and about two weeks after it had first been submitted on 2 December 1982. The application had been deferred, but never heard of again and Waterford subsequently applied in August 2011.  This time PM&C took 18 months to release in full the appendix of a 1981 Royal Commission into a beef substitution racket. "How they fed us donkey burgers"is one thing; how they fed Jack something else in dealing with his FOI application is another. The Canberra Times editorial  draws on what amounts to thirty years in the deep freeze to comment generally on the FOI runaround, delay and impact on citizens and the media of either under-resourcing the function or opposition in most government agencies to releasing information in response to legitimate requests.
• and in the Sunday Age Farrah Tomazin with an almost audible sigh, welcomes the inaugural, confident and optimistic Victorian Freedom of Information Commissioner who has been given just a couple of weeks to get organised from 1 December to conduct reviews of decisions in place of the agency internal review function, investigate complaints and lead ministers and the public service into a new era of open and transparent government. Tomazin (and Open and Shut) wish her well. From everything credible we see, turning this ship around will be a monumental task. Experience elsewhere suggests it will be resource intensive, and require clout and a combination of carrot and stick that she doesn't appear to have in the tool kit. Ministers in Victoria show no sign of public recognition that in this area they and Ms Bertolini are administering a thirty year old act that is no longer fit for purpose, against a backdrop of the nation's most conservative jurisprudence in some respects, with a well developed capacity at middle and senior public service ranks to distinguish what ministers say and what they really mean. The former Victorian Premier John Cain added "monumental" political interference to the mix.

Crunching the data on Federal FOI

Fairfax Media provides a new, well different take on agency performance in dealing with freedom of information applications using data from the Annual Report of the Australian Information Commissioner- in a bit more lively fashion than my summary of high/low points last month.

The Rum Corps alive and well in NSW

I guess there is chortling across the nation at claims by counsel assisting the ICAC that corruption arising from conduct of ministers in the former Labor government in NSW was ''unexceeded since the days of the Rum Corps." True to typecast, the rest of you might be saying.

 But as this editorial in the Sydney Morning Herald notes:

This scandal came to light only because of investigations by Fairfax Media and the continuing concerns of residents of Bylong who believed something was awry. NSW public servants and the probity auditor failed to raise the alarm.

Regardless, apparently of the existence of whistleblower protection legislation or right to information law that frames transparency as an anti-corruption measure.

This inquiry has a long way to run.

Will it in due course reveal that no-one ever asked for the relevant documents that would if released hint at or show one minister was helping another make $100 million?

Or that requests for information that would shine light on what was going on were refused on legitimate (technically legal) or illegitimate (refusal of access based on ministerial directives or the result of public servants themselves being overly responsive to the need to protect the government of the day) grounds?

The inquiry should provide either an insight into the adequacy of the law, or reveal attitudes on the part of some public servants when it comes to implementation of the law.

Taxpayers in NSW aren't chortling-mostly they're saying "told you so."

OGP co-chair in Australia

Haven't seen mention in the media but hear Francis Maude UK Minister for the Cabinet Office is in Australia this week. One of a number of hats he wears is Co-Chair of the Open Government Partnership (with Minister Kuntoro Mangkusubroto of Indonesia, Head of President's Delivery Unit for Development Monitoring and Oversight). Presumably a few moments sometime for a word with policy influencers in Canberra about why Australia should move on from just "considering" signing up?

The OGP now has 58 governments on board, Argentina the latest to join.

Dear Dr Hawke...

Congratulations on your appointment to review the operation of the Commonwealth freedom of information and information commissioner acts. The Attorney General obviously has confidence in you, as do others in government who have appointed you to undertake various inquiries in the past, drawing on your long and successful career and many years in the top echelon of the public service.

However those of us on the outside know that FOI, despite being a backdrop to public administration for 30 years, and a basic element in the accountability system, hasn't been uniformly or enthusiastically embraced by the mandarin class. 

We have no idea what you bring in the way of baggage, scars, or on the other hand, positive experience in enhancing our wonderful democracy through information access.

Of course you were a middle ranking manager, later an agency head in the dark FOI days of the 80s through to the noughties, and must have some interesting first hand experience. Hopefully not along the lines of that referred to by your former colleague Andrew Podger who on leaving the service said "some senior public servants are too concerned to please and serve partisan government interests by failing to keep proper notes, destroying diaries and ratcheting up security classification of documents." Podger's comments about public servants and confidentiality are worth reading as well.

I know you were in Wellington as High Commissioner in 2004, the year, according to Podger's reflections (the Role Of Departmental Secretaries) when a meeting of heads of departments talked through how best to thwart FOI requests while staying just within the law. Some of this might be borderline by my reckoning. Hopefully you weren't involved in these sort of high jinks. Another former agency head colleague of both you and Podger, Rob Cornall then of AGs, now retired and providing advice to Immigration about FOI processing was present, according to Podger's account. 

But to the job at hand.

It would be great to hear what you think are the key issues and your approach to the review.

Of course the terms of reference scope your task. They have a real 'insiders" ring to them by my reading. No "how to make these laws work better for the public", or how to steer towards world's best, rhetoric of a kind that rolls out easily for Special Minister of State Gary Gray when speaking of the APS and integrity generally. And the Attorney General made sure in her media release that you got the message about reducing cost. Not much there that opens up the issue of the adequacy of resources generally, something the Australian Information Commissioner and some agencies have raised.

I have no idea if you or anyone outside the Attorney General's office or department were consulted in the course of drafting the terms. I'm sure The Greens Senator Scott Ludlam who forced  s93B on a reluctant government in 2010 would have something to contribute.

Framing the review into the operation of the legislation around the extent to which "the Acts and related laws continue to provide an effective framework for access to government information" is hardly a clear and direct invitation to look at the big information picture, re-examine the objects of the act, ascertain why use of the act is low, and look for the best contemporary FOI ideas and practices.  Hopefully you'll be able to find a way to look at information access in the digital age- just one of many pressures on a 1982 act based on access to "documents."

It would be of great interest to hear what research you have commissioned or intend to commission.

That reference to "related laws" in the terms might form the basis for at least asking what ever happened to the ALRC 2009 report Secrecy and Open Government that identified 506 secrecy provisions in 176 pieces of legislation, including 358 distinct criminal offences, one of which is the draconian s 70 of the Crimes Act. The "chilling" effect and all that.

Whistleblower protection might be a bit of a squeeze though. The government has all but guaranteed the talk since 2007 will come to an end when it gets around to legislating that one next year. That's a relief.

As to approach to the job, you have plenty of experience in running these things. But the announcement that the review will be serviced by the Business and Information Law Branch of the Attorney General's Department, inviting submissions by 7 December, suggests, well a dry as dust old-style consultation. We know from this that your report deadline is 30 April 2013 and that it will be tabled in Parliament. Full stop.

No issues paper or thought-starters apparently, no blog to toss ideas into the ether to see what others can do to comment and build upon them, etc, etc.

And no outline of any other planned process beyond inviting a submission from anyone so moved to write one after they find the invitation. It's not going to encourage much sharing of experience, and how things might be improved. I'm sure nevertheless that you have innovative ideas on how to get dialogue going- like maybe sitting around with a few people with relevant experience, and not just the usual suspects?

Agencies of course won't need much encouragement to bring certain matters to your attention. 

The announced "tell us what you think and we'll go away and write whatever we think appropriate" approach may be the way they do things in AGs. But something more is generally expected in good practice consultative processes these days. Particularly in this case given the review is about the operation of legislation that has as an object the promotion of Australia's representative democracy by increasing public participation in Government processes

I'll be throwing some thoughts into the ring. Some ideas floated way back in 2009 can be put on the table again, augmented by thoughts and observations since. Others who take this issue seriously are sure to do the same. Last time we had no response to our efforts. The government wasn't interested in a wholesale review of the law, just the things it had decided upon in advance before going through a consultative process. When we all ran the same submissions up to a parliamentary committee, the committee said there were so many different issues and ideas put forward it didn't have the resources to look more closely and waved the government bill through. Back to the grindstone!

Last thing-while there is room for argument about the detail, and about the ranking (48 in a field of 93-how could they do such a thing?) and all the while acknowledging that proof of the pudding is in performance and results, the Commonwealth FOI act is in the fair average quality range at best, by international comparison.

Sorry to have been so windy, but good luck-hopes are riding on you for a comprehensive report a la David Solomon, Queensland, 2008.

If you are dropping into the Information Law Conference in Canberra later this week, may see you there.

Cheers.
 
Peter Timmins.