Records on private devices could be subject to FOI-but are they kept?

Yes, a WhatsApp message could be subject to FOI – but you'd have to find it first

Moira Paterson, Monash University
 
Secure messaging services like WhatsApp often feature in the news in the context of their potential use by terrorists.

But paradoxically they are now used increasingly by Commonwealth government ministers and other senior officials.

This raises important issues in terms of record-keeping, and whether messages on these services are accessible via Freedom of Information (FOI).

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Read more: Banning MPs from private messaging apps is a simplistic response to a complex problem

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What is FOI and what documents does it apply to?

FOI laws are designed to make governments more open and accountable by providing access to documents that shed light on their activities.

The Commonwealth FOI Act applies to the individuals and bodies that make up the Commonwealth government sector, although it excludes some specific bodies and documents.

The Act provides access to information held in documents, including electronic documents, as well as pictures, videos and more. To be accessible a document must be in the possession of a government agency or a Minister. It must also exist in material form, although there is also scope for the creation of a document from a database using a computer.

The right of access under the Act does not extend to exempt documents. The Act contains 18 exemption provisions designed to protect the interest of agencies, third parties as well as broader governmental interests. For example, a document is exempt if it qualifies as a Cabinet document or it reveals internal decision-making processes contrary to the public interest.

Agencies and ministers are permitted to withhold documents, or parts of documents, if they qualify for exemption. They may also refuse requests for access on workload grounds or because the documents requested cannot be found.

Applicants who are refused access are able to apply for review by the Australian Information Commissioner. The Act also provides for further review by the Administrative Appeal Tribunal and appeals on questions of law to the Federal Court of Australia.

To what extent can FOI be used to obtain access to ministerial documents?

Journalists who want to investigate a Minister’s conduct may be able to obtain the information required from a government agency within the Minister’s portfolio. They are also able to obtain access to documents held by Ministers in their official capacity.

For example, journalist Sean Parnell used the Act to obtain access to documents sent to then Prime Minister Julia Gillard conveying an earlier Prime Minister’s views on matters of government policy.

He also obtained access to personal character references provided by then Minister Anthony Albanese. Parnell was granted access to these documents because they related to governmental matters – that is, receipt of input to official policy-making and the use of official government letterhead for a reference.

In contrast, Parnell was refused access to diary entries for Julia Gillard’s meetings with business leaders at an ALP conference. The meetings were part of a party political event and did not relate to the affairs of any government agency.

What is the position of messages sent via WhatsApp?

WhatApp messages are encrypted while in transit. However, they exist in material form and it is possible to access and export them from the phones on which they are located.

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Read more: When is 'not a backdoor' just a backdoor? Australia's struggle with encryption

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There is therefore a strong case for arguing that they are subject to the FOI Act in the same way as email and others forms of text messages.

As stated by the former Australian Information Commissioner Timothy Pilgrim, the Act is applicable to any document within its scope irrespective of how that document is stored, including on a messaging app or non-government server. This is consistent with the approach taken in Ireland and the UK.

However, that does not mean that the use of WhatsApp is unproblematic from the perspective of FOI. If the FOI Act is to operate effectively, WhatsApp messages must be filed in such a way that they can readily be searched and retrieved. They must also be preserved consistently with the retention requirements in the Archives Act. It is unlikely that current practice is fully consistent with these requirements.

If WhatsApp messages do exist, can be found and are stored in searchable form they are potentially accessible via FOI. But to call them up could involve huge workload requirements.




Moira Paterson, Professor of Law, Monash University

This article is republished from The Conversation under a Creative Commons license. Read the original article.

I wrote about this issue and the Australian angle in 2015 when the Hillary Clinton private server  matter was attracting attention

Vale Judge Kevin O'Connor AM

Nice and deserved tributes in today's Sydney Morning Herald in an obituary by former NSW Solicitor General Michael Sexton for Kevin O'Connor who died in September

Kevin's full and rich life detailed there, was Australia's first federal privacy commissioner and the foundation president of the NSW Administrative Decisions Tribunal and later Deputy President of the NSW Civil and Administrative Tribunal. And brought plenty of knowledge and experience to those jobs.

Kevin had been head of research at the Australian Law Reform Commission 1976-1979 when one of its references was the ALRC's first on privacy. And Director of Policy and Research Victorian Attorney General's Department 1983-1985 when Victoria was the first state in Australia to introduce freedom of information legislation.

And much, much more

Kevin was a warm, friendly fellow with a lively glint in his eyes every time you encountered him.

Sad to hear of his passing.

Condolences to his family.

States and territories have improved integrity measures, but Commonwealth lags far behind

This article was first published on The Conversation

Voters want their governments – local, state, and federal – to clean up their act and put integrity reforms high on the agenda. AAP/Mick Tsikas

Danielle Wood, Grattan Institute; Carmela Chivers, Grattan Institute, and Kate Griffiths, Grattan Institute
This week we’re exploring the state of nine different policy areas across Australia’s states, as detailed in Grattan Institute’s State Orange Book 2018. Read the other articles in the series here.

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When it comes to cleaning up Australian politics, some states are doing much better than others – and almost all are showing up the Commonwealth government.
Grattan Institute’s State Orange Book 2018, released this week, compares the states and territories on the strength of their political institutions and checks and balances (among other things). Queensland and NSW received an A grade from Grattan for political transparency and accountability. Both have stronger rules than other states on lobbying and political donations.
Western Australia, once a leader after introducing lobbying reforms in the mid-2000s, is now only middle of the pack. Tasmania and the Northern Territory are the poorest performers – both get an E for transparency of their political dealings. The Commonwealth government sits with them at the back of the pack.

Some states are highly transparent

Some states and territories have made political lobbying much more open to the public gaze. NSW, Queensland and the ACT now publish ministerial diaries, so voters can see who is trying to influence whom, and when. All jurisdictions except the Northern Territory have a lobbyists’ register, and Queensland and South Australia require lobbyists to publish details on which ministers and shadow ministers they meet with.
Most states have also introduced reforms to help voters “follow the money” in politics. NSW, Victoria, Queensland and the ACT require donations of $1,000 or more to be publicly declared. Only Tasmania has the same high threshold as the Commonwealth government ($13,800). Most states and territories require political parties to aggregate small donations from the same donor and declare them once the sum is more than the disclosure threshold. But Tasmania, the Northern Territory and the Commonwealth have left this loophole gaping.

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Read more: Influence in Australian politics needs an urgent overhaul – here's how to do it

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The disclosure threshold for donations should be no higher than $5,000 in all states and territories, and at the federal level. And donations should be disclosed quickly – preferably within seven days during election campaigns, as now happens in Queensland, South Australia and the ACT, or at least within 21 days, as in NSW and Victoria. Tasmania, and the Commonwealth, still leave us waiting up to 19 months to find out who donated to political parties during elections.

State governments are becoming more accountable

Almost all states have improved their level of accountability to voters in recent years. All states and territories now have a ministerial code of conduct, setting out standards of ethical behaviour, including rules on accepting gifts and hospitality. And all have introduced a similar code for other parliamentarians, or are close to adopting one. The Commonwealth has a code only for ministers.
But enforcement of the codes is typically weak, meaning the codes are more like guidelines than rules. In most states, the premier or the parliament ultimately determine sanctions for misconduct. Enforcement can easily become political.
NSW and Queensland have independent oversight of their codes of conduct. The other states and territories should follow. And there should be meaningful sanctions for misconduct and for breaching disclosure rules – such as large fines or jail time, as applies in NSW.

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Read more: Australians think our politicians are corrupt, but where is the evidence?

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The states have also made progress in exposing and tackling corruption. All states and the NT now have dedicated anti-corruption or integrity agencies that provide some reassurance to the public that serious issues will be confronted. There is one on the way in the ACT.
Only the Commonwealth lags in this area. It would be naïve to assume that corruption at the federal level is less prevalent or serious than at state level. Establishing an equivalent agency at the federal level should be a priority for the Commonwealth.

All states and the Commonwealth can do better

The appearance, and sometimes reality, of political decisions favouring special interests or politicians’ self-interest has contributed to voter disillusionment and falling trust in government. Voters want their governments – local, state, and federal – to clean up their act and put integrity reforms high on the agenda. Reforming political institutions is both good politics and good policy.
Every state and territory could do better by looking at best practice around the country. States and territories should fill the gaps we have identified in their transparency and accountability frameworks. They should also introduce a cap on political advertising expenditure during election campaigns, to help reduce the power of individual donors and free-up parliamentarians to do their jobs instead of chasing dollars.

Most of all, our laggard Commonwealth government needs to lift its game. Federal ministers should be required to publish their diaries. A list of all lobbyists with security passes to federal Parliament House should be made public and kept up-to-date. Big donations to federal political parties should be disclosed in close to “real time”. And voters should have confidence that misconduct by federal MPs will be independently investigated and punished.
Otherwise, the crisis of trust in Australian politics will only grow.




Danielle Wood, Program Director, Budget Policy and Institutional Reform, Grattan Institute; Carmela Chivers, Associate, Grattan Institute, and Kate Griffiths, Senior Associate, Grattan Institute
This article is republished from The Conversation under a Creative Commons license. Read the original article.