New government, same story on access to incoming government brief in Victoria

A newish government in Victoria but nothing seems to have changed regarding access to the incoming minister briefs.

The Age reports "Labor fails to meet its own freedom of information test" that a request by the shadow health minister was refused by the Department of Health on the grounds that "the document could be characterised as a cabinet document."

Re-run of 2010?
Following the 2010 election Melissa Fyfe of The Age unsuccessfully pursued the Departmental Status Report (DSR) and the Policy Implementation Action Plan (PIAP) prepared by the Department of Sustainability & Environment for the incoming Baillieu government all the way to the Victorian Civil and Administrative Tribunal. 

Along similar lines to what was done in NSW and South Australia to protect these types of documents, the grounds for refusal were set in place when the Department of Premier and Cabinet issued guidelines to agencies before the election that stated the purpose for which they were to be created included to brief the Premier on an issue to be considered by cabinet.

I expect it's the same situation this time around.

According to The Age, in opposition "Labor repeatedly demanded the former Baillieu and Napthine governments "lift the veil of secrecy" and release the briefs."

Discretion to disclose
Of course the Premier and ministers then and now have a discretion to disclose such documents outside the confines of the FOI act. In the same way the Premier released 9000 pages of documents in December on the East West Link that the previous government argued could not be disclosed because they were cabinet documents.

Premier's Department Guidelines that came to light in the Fyfe case in 2012 described the documents then in dispute:

"DSR.. sets out for the information of the Premier the current status of the department. The Premier may also provide the DSR to the relevant minister. ... The DSRs are prepared in confidence for the consideration of the Cabinet and will be presented to Cabinet by the incoming Premier ... preparation of DSRs ... should be in strict accordance with guidelines for document and information security relating to Cabinet in confidence information. ... If the Coalition is elected to government, the incoming premier and ministers are given the Blue Books. PIAPs provide advice to the incoming premier on how a particular policy can be implemented. .."

Public interest
While any government may want to withhold PIAPs and their equivalents unless compelled to disclose, why DSRs need to be locked away from public scrutiny for years is less clear. Information about structure and functions of a department, key personnel, facts and statistics, and upcoming events isn't sensitive. 

In addition the public interest factors that favour disclosure in order to inform discussion and debate are arguably strong where the information concerns the state of the state or slices of it, relevant trends, work underway in the department and the challenges facing the new government. Unfortunately such considerations are given no weight if a document satisfies the cabinet document exemption. They came into play in this Commonwealth decision 
last year but not enough to tip the balance in favour of disclosure.

The South Australian Ombudsman nailed it with this comment in 2011urging exercise of a discretion available there to disclose:

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.

NSW next in line
With an election on 28 March it remains to be seen what transpires in NSW

In 2011 the door shut as a result of the cabinet document exemption, but the Information Commissioner took a look and recommended factual material at least could be released. 

Some interesting insights emerged as a result of a later follow up GIPA application regarding briefs to the Premier on the need for secrecy.

Parts of four volumes of the folders eventually appeared on the Premier's department Disclosure Log following release, with one observer commenting:

"So, what has now been released is an amalgam of mission statements, corporate plans, handbooks and guidelines along with a seeming dump of the combined contents of departmental Outlook Contacts and Appointments: more “Bland Books” than “Blue Books”.)

Not surprised by the headline in The Mandarin "Red and blue books best kept secret say mandarins."

Sir Humphrey lives on.

(Addendum: And in Queensland where another new government is settling in, Schedule 3, section 4 of the RTI Act provides this exemption but a minister or agency has a discretion to disclose. Let me know of developments there.

• Information briefing incoming Minister
  • 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.

The search for supporters of democratic values in NSW election

The St James Ethics Centre and The Sydney Morning Herald have launched the Politicians Pledge campaign to coincide with the New South Wales 2015 State Election.They are encouraging all candidates  to consider taking the pledge – a copy of which is included below and here to download.

"Those contending for election will seek to distinguish themselves from their opponents by focusing on contentious issues of party, ideology and policy. Our aim will be to do what we can to draw community attention to those things held in common that underpin the quality of our democracy."

In the pursuit of power, I will:

• Act in good conscience;
• Enable informed decision-making by my fellow citizens;
• Respect the intrinsic dignity of all;
• Refrain from exploiting my rivals' private failings for political gain; and
• Act so as to merit the trust and respect of the community.

In the exercise of power, I will:

• Give effect to the ideals of democratic government and represent the interests of my electorate as a whole;
• Abide by the letter and spirit of the Constitution and uphold the rule of law;
• Advance the public interest before any personal, sectional or partisan interest;
• Hold myself accountable for conduct for which I am responsible; and
• Exercise the privileges and discharge the duties of public office with dignity, care and honour.

Like the Fizgerald Principles that received attention in Queensland, they appear remarkably unchallenging.

See the list (and the Moir cartoon) of those who have signed so far- mostly independents, Greens and one Liberal Party candidate.

Hopefully a companion piece soon listing those that refuse?

My local sitting member, and a champion for transparency Alex Greenwich (Sydney) has signed.

Putting the NSW Parliament's Interest Register under scrutiny

With an election to be held on 28 March, Nick Evershed and Todd Moore at Guardian Australia are looking for help to create a searchable, machine-readable database of the NSW Parliament Interests Register. 

Surprised this sort of information isn't already up there in lights?

I've lost the link but made a note years ago that ICAC made this recommendation in a report in 2003:

 "That the register of pecuniary interests be established as an electronic database that can be accessed via the Internet by Members of Parliament and members of the public."

Disgraced former minister Eddie Obeid got away with a micro version of the real thing for a decade probably because the register, conveniently was available for inspection in Macquarie during business hours on weekdays by those who took the trouble and few bothered.

More eyeballs might make a difference.


As Evershed and Moore explain half "the pecuniary interests register in NSW has never been viewable online by the public, and the other half is hard to find. All of the declarations are only available as scanned PDFs, sometimes handwritten, which makes it difficult to properly scrutinise the register."

They provide the pdfs and want help transcribing the register and flagging entries that are worth investigating further.

As they say this "can be used in conjunction with other datasets, such as records of donations, contracts, and travel expenses to improve political transparency in NSW."

Parliamentarians expenses and entitlements largely go under the radar in NSW, with annual total spend reported at year end in an appendix in the Assembly (pdf page 60) and Council (pdf page104) annual reports.

NSW is not alone-things are much the same in the other states.





 

Amid the stench of political donations, a whiff of reform

 Well in some places at least.

You may have missed the final report delivered to NSW Premier Baird on 24 December on options for long term reform of political donations by a panel chaired by Dr Kerry Schott.

By Martin Kingsley from Melbourne, Australia (Cashmoney) [CC BY 2.0 (http://creativecommons.org/licenses/by/2.0)], via Wikimedia Commons

NSW already has the strictest election funding laws in Australia, but the report puts forward 50 recommendations for legislative change and a new more vigorous approach to implementation of the law and oversight by the regulator.

 Nicole Hasham in the Sydney Morning Herald said the report revealed 

"a political donations system riven with loopholes, weaknesses and corruption opportunities. ...The panel ... found "systemic failures" in laws that govern electoral funding disclosure, spending, caps and bans. It called for an immediate review. The archaic, paper-based system of delayed donation disclosures should be replaced by an online system where disclosures were made in real time, allowing meaningful scrutiny of potential relationships between donations and government decisions, the panel said.

No media release from the Premier accompanied publication but Hasham reports Premier Baird said "the government would consider the report and respond before the March election" adding that it "is understood that most recommendations will be supported."Nothing from Labor so far but NSW Greens welcomed most recommendations
 
NSW with an election on 28 March, ten Liberal members of parliament sidelined by the party because of revelations about breach of the donation rules as a result of revelations in ICAC last year, and Labor carrying the dead weight of former ministers Eddie Obeid and Ian McDonald, the integrity issue is unlikely to sink from sight in NSW as is the fate of most Christmas period releases. 

Some Schott recommendations are subject to the outcome and impact of a High Court decision later in the year in the McCloy case which is challenging an existing NSW prohibition on donations by developers.

That case has the potential to slow down national action on political donations also, something the Panel regards as essential for meaningful reform. (Alas the Federal government is yet to show a flicker of interest in this or anything else on the integrity front.)

As long as the rules governing political donations differ across Australia, there is a risk that any NSW law will be circumvented. The evidence brought to light by the ICAC in Operation Spicer shows how the lack of regulation of political donations at the federal level can be exploited to avoid the bans and caps on political donations that apply in New South Wales. We note that the Premier has recently introduced a new anti-circumvention provision targeted at those who deliberately seek to avoid the election finance laws, as recommended by the Panel in its Interim Report. The federal structure of some political parties creates opportunities for avoiding NSW restrictions on political donations. We believe that the Premier should support greater co-ordination of election funding laws across jurisdictions. A co-ordinated approach to disclosure would be a useful start. We recommend that the Premier seek to put the issue on the agenda at COAG. We also recommend that the Premier report to the NSW Parliament on progress against implementation of our recommendations, to ensure that the current momentum for change is maintained.

Labor and others are pushing integrity and accountability issues in the Queensland campaign leading to the election there on 31 January, just prior to this conference  on the subject in Brisbane on 9 February. Plenty of big donations are being accepted by the LNP Newman government from companies pushing controversial resource developments, caps on donations have been scrapped and disclosure thresholds increased twelvefold.

Unlike NSW and Queensland, Victoria does not regulate political donations and disclosure except for a cap of $50,000 on donations from casino proprietors. But on the good news side perhaps the Andrews government includes Special Minister of State Gavin Jennings listed third in the cabinet line up who will oversee government transparency, accountability, integrity and public sector administration and reform, supported by the Department of Premier and Cabinet.

In addition, the department portfolio now includes providing support in relation to the Auditor-General, the Commissioner for Privacy and Data Protection, the Freedom of Information Commissioner, the Independent Broad-based Anti-corruption Commission, the Local Government Investigations and Compliance Inspectorate, the Public Interest Monitor, the Victorian Electoral Commission, the Victorian Competition and Efficiency Commission, and the Victorian Inspectorate.

Political donations, lobbying, getting the BACC fit for purpose, and long overdue freedom of information reform have to be in there somewhere.

NSW Premier Baird takes a step towards restoring trust

NSW, already with the toughest laws in the country regarding political donations is to go further. If the Federal and other state governments don't follow please ask why:

Legislation to be introduced into Parliament today will:

• Broadly double penalties for a range of offences under the Election Funding, Expenditure and Disclosure Act;
• Prohibit third party arrangements being used to avoid donation and expenditure caps – carrying a maximum penalty of 10 years imprisonment;
• Allow for prosecutions for all future offences to be commenced up to 10 years after the offence was committed – up from the current three years; and
• Require parties to disclose political donations received from 1 July 2014 to 1 February 2015 – this disclosure must be made within one week of the end of this period to the Electoral Funding Authority, to be made public before the election.

Mr Baird said a new, fairer public funding model will be introduced to reduce the corrosive influence of donations in the political system. Under changes to be introduced, the government will lower caps on political donations and spending caps for political parties and third party campaigners while a new model of public funding will be introduced that rewards performance rather than spending.

Update-Parliament passed the bill on 21 October. A fair bit of criticism as reported by Sean Nicholls  including late changes that do not reduce the amount of private donations able to be raised and spent by parties. On the transparency front parties will have to disclose donations received between July 2014 and March 1, 2015 before the election on March 28 next year. The initial proposal was for the disclosure period to end on February 1.

Silver Anniversary: 25 years since FOI commenced in NSW

The silver isn't without some tarnish but access to government information has come a long way since the commencement of the NSW Freedom of Information Act on 1 July 1989. 

From that day the absolute discretion exercised more frequently than not by public servants and ministers to refuse or limit access because they could, was replaced by legal, enforceable rights to know what government knows unless there are good reasons why not.

Time is testimony to the fact that opinion varies about whether that line has been drawn in the right place and whether those responsible for delivering the goods have delivered in full or left the requester empty handed or short changed.

But overall the Information Commissioner can report in 2014 that many applicants get most of what they seek most of the time; the Government's ICT Strategy proclaims: "An open, online approach to delivering services, communicating and sharing information in accordance with the principles of transparency, participation, collaboration, and innovation"; and the government has encouraged an Open Government Community of Practice.

A pity that 1 July 2014 passed apparently unnoticed in the corridors of power. With or without a cup of coffee and a biscuit discussion about this journey would have been not only of interest to many but for government would have the makings of a reasonably good story about what has been achieved since 1989, and the lessons so far.

If you are interested in the stepping stones along the way to where things are today:

NSW lobbying reforms-not quite up to ICAC standards

NSW Premier Mike Baird announced yesterday further detail of changes to lobbying rules, which he said "will immediately implement ICAC recommendations on lobbying that were ignored by NSW Labor." 

Yes, they have been sitting, unattended in someone's in-tray for three and a half years.

But the changes, welcome as they might be, don't quite follow the ICAC recommendations summarised here in 2010 when the report was released.

The Premier said the package will increase transparency and enhance regulation of lobbying by:
. Establishing the Electoral Commission as an independent regulator of lobbyists;
. Applying a set of ethical standards to all third-party lobbyists and other organisations that lobby government;
. Empowering the independent regulator to investigate alleged breaches and impose sanctions, which could result in lobbying firms being removed from the Lobbyist Register and other organisations placed on a Watch List and their access to government restricted.   . Requiring Ministers to publish quarterly diary summaries of scheduled meetings with external organisations on portfolio-related activities; and
. Approving a recommendation from ICAC that the Ministerial Code of Conduct become applicable under the ICAC Act, giving the watchdog the power to investigate and make findings on a Minister’s compliance with the Code.  
(The Media Release is reproduced in full below-the new Premier doesn't appear to have a website for such things yet.)  

The ICAC Report proposed that an independent entity such as the Information Commissioner should maintain, monitor and enforce the rules ( Recommendation 8, and Chapter 9). Just why the Electoral Commission is a better choice hasn't been explained.

Other ICAC recommendations that seem to have been, ahem, overlooked include:
 • establish a public sector meeting protocol for the conduct of meetings with lobbyists, for the minuting of these meetings and relevant telephone calls, and for the retention of records of Lobbying Activity in accordance with the State Records Act 1998 (Recommendations 2 and 3, and Chapter 7)

• amend the Government Information (Public Access) Act 2009 (“the GIPA Act”) to include records of Lobbying Activity in the definition of “open access information”, for which there is no overriding public interest against disclosure. Under the GIPA Act, open access information held by an agency must be made publicly available, including on a website maintained by the agency ( Recommendation 4, and Chapter 7)
• the Lobbyists Register should  disclose the month and year in which they engaged in Lobbying Activity, the identity of the government department, agency or ministry lobbied, the name of any Senior Government Representative lobbied, and, in the case of Third Party Lobbyists, the name of the client or clients for whom the lobbying occurred and the name of any entity related to the client the interests of which did derive or would have derived a benefit from a successful outcome of the lobbying (see Recommendation 7, and Chapter 9)
• enable an interested person to use the information disclosed on the proposed Lobbyists Register, in relation to the date of lobbying and who was lobbied, in order to seek access to further information from the relevant public sector agency through the various mechanisms set out in the GIPA Act ( Chapter 9)
• impose restrictions on former ministers, parliamentary secretaries, their staff and senior government officers from acting as lobbyists ( Recommendation 10, and Chapter 10)

There were separate recommendations (13-17) for a new regime for local councils as well.

Alas, still a long way to go on the journey towards high standards of integrity in public life. 
Maybe more to come Premier?

But NSW is moving more than a tad ahead of Canberra and most other states - not before time of course.

More transparency, just a start

NSW shame revealed. All you can say is some of it bubbled to the surface- eventually.

From today's Sydney Morning Herald-the paper (and its journalists) that deserves enormous credit for pursuing these issues for years.  The editorial reminding it has lessons for the here and now:

No matter which political party is in power, the public deserves to know public administration pays heed to their interests over individual or party ones.
Facing a much-weakened Labor opposition, the O'Farrell government has fallen short on transparency of major projects such as the casino for Packer interests at Barangaroo. But ICAC has put O'Farrell on notice that more is needed to prevent corruption, suggesting it will release reports later this month drawing on failures of process under Macdonald's watch......

• Ian Macdonald and a prostitute called Tiffanie
• The car deal too good to be true
• The reports: Operation Jasper | Operation Indus | Operation Jarilo
• As it happened: ICAC find Obeid and Macdonald acted corruptly

"Corruption findings have been made and criminal charges flagged against Eddie Obeid, the former ALP powerbroker, and his sons, as well as the state's former resources minister Ian Macdonald, and a host of businessmen - including an accused murderer - after the most significant graft inquiry in NSW history.


Three reports by the Independent Commission Against Corruption were tabled on Wednesday morning in the NSW Parliament, following almost three years of secret investigation by the commission, and almost six months of public hearings that concluded earlier this year.


In two of the reports, Mr Macdonald was slapped with a corruption finding - including for accepting a night in a luxury hotel room with a prostitute named "Tiffanie".


Evidence gathered by the corruption fighters about Mr Macdonald will now be referred to the Director of Public Prosecutions for potential criminal charges, including corruptly receiving a benefit and misconduct in public office.
The offences carries a maximum penalty of seven years in jail.


Criminal charges may also be laid against one the nation's richest men, Travers Duncan, merchant banker Richard Poole, John McGuigan and John Atkinson, both former partners of law firm Baker & McKenzie, and former RAMS Home Loans founder John Kinghorn.


They were part of a consortium of investors in Cascade Coal, which won the right to explore for coal at Mount Penny, in the Bylong Valley near Mudgee - an area in which the Obeids had bought up land by exploiting inside knowledge courtesy of Mr Macdonald....."

NSW cabinet documents

Sean Nicholls in Fairfax papers on Saturday reminded NSW Premier O'Farrell of freedom of information commitments made in Opposition that haven't been heard of again in the two years since the government was elected:

... the ''proactive'' release of contemporary cabinet documents was a recommendation of a 2009 Ombudsman's inquiry into freedom of information laws. O'Farrell, as opposition leader, told parliament: ''The Coalition will implement the Ombudsman's recommendations regarding the proactive release of certain cabinet information.'' He also said: ''We believe that the quarantine period on cabinet documents should be reduced to the completion of two terms of Parliament - that is, eight years. In other words, we strongly believe that cabinet information should be out of the public domain for only eight years.''

NSW was first to put a 10 year limit on the application of the FOI act to cabinet documents way back in 1989. There things have stayed while Queensland, the ACT and South Australia have nudged a little further.

Privacy no hindrance to CCTV camera go-ahead for NSW local councils

Filling the "loophole" that NSW Premier Barry O'Farrell and Attorney General Smith discovered as a result of the ADT decision that the operation of Shoalhaven Council's CCTV cameras breached aspects of privacy legislation turned into a reasonable size excavation instead. 

The Privacy and Personal Information Protection Amendment(CCTV) Regulation 2013 introduced to fix "the problem" digs another pothole in legislation riddled with them.

The Regulation exempts local councils from provisions of the Privacy and Personal Information Protection Act 1998 relating to:

• the collection of personal information, by using a CCTV camera installed for the purpose of filming in a public place if the camera is positioned so no other land is filmed (unless it is not reasonably practicable to avoid filming the other land when filming the public place)-Section 11; and
• the disclosure to the NSW Police Force of that information by way of live transmission-Section 18.

Local councils no longer have to take such steps as are reasonable in the circumstances to ensure the personal information collected in this way is relevant to the purpose of collection, is not excessive, but accurate, up to date and complete. Or worry at all about providing a live feed to the Police - who are not subject to the privacy act except in the exercise of their administrative and educative functions, and in the Shoalhaven case were shown not to comply with their own rules regarding access to the computer that received the feed at the local station.

The Greens unsuccessfully moved a disallowance motion in the Legislative Council yesterday (the hour long debate starts at page 5 of Hansard). 

Government and opposition speakers were heavy on the law enforcement and crime prevention benefits from allowing councils to operate CCTV largely unhindered by privacy act obligations. The Greens pointed to the absence of evidence, and the finding to this effect by the ADT, citing in support a letter from Parliamentary Secretary for Justice, David Clarke on behalf of the Attorney General recounting that the government had refused to fund cameras for a local council because "there is limited evidence to support CCTV as an effective crime prevention tool." 

David Shoebridge's concluding remarks captured it pretty well:

Of course there are circumstances where closed-circuit television is useful. For example, out the front of a licensed hotel where there have been instances of assault is a great spot to put high-quality closed-circuit television to identify miscreants. If people know they are going to be recorded closed-circuit television can be a deterrent but it can also assist police to gather evidence to nail people for crimes of violence in particular. It is also entirely appropriate to have them out the front of automatic teller machines if there has been a spate of violence or a robbery. High-quality closed-circuit television monitoring hot spots can have a valid use in fighting crime.

Its use would also be entirely appropriate in cases such as surveillance inside police cells and surveillance inside police stations where footage can be used to protect police from false claims and also to protect people from excessive violence by police. There are clearly cases where closed-circuit television has a valid use, but it is not valid to install second rate closed-circuit television cameras to cover public streets and effectively use them as a very poor sieve of people who go about their ordinary business. This issue is not about stopping councils from using closed-circuit television where it is appropriate, fit for purpose and where it serves a legitimate purpose. It is about making sure that local councils comply with the Privacy and Personal Information Protection Act, that if they roll out closed-circuit television and spend thousands and thousands of ratepayers' money, that it is fit for purpose, competent and addresses one of the core issues of local council. A merits hearing in the Administrative Decisions Tribunal determined that the cameras used by the Shoalhaven Council did none of that. Rather than improving the operation of the closed-circuit television cameras in Nowra, the Government moved to exempt all closed-circuit television operations from the Privacy and Personal Information Protection Act, which is poor public administration. It is a matter of not agreeing with the umpire's call and then changing the rules afterwards.

Lawyers Hunt & Hunt agree in this respect: 

... the Regulation was not required as the Tribunal found that Shoalhaven City Council did not comply with the PPIP Act. It failed to use the footage collected for law enforcement purposes and failed to monitor the security safeguards Shoalhaven City Council had in place to protect the personal information collected. All Shoalhaven City Council had to do was to get its own affairs in order to comply with the PPIP Act.

Privacy advocates point out that exceptions to the collection principle in s 11 are rare, and require a judgment that privacy intrusive practices are so beneficial that they should trump other considerations, with evidence lacking in this case. But are somewhat relieved the pothole isn't as big as it might have been.

As to available evidence about CCTV there is plenty out there -  case in point this from the Surveillance Studies Center at Queen's University in Canada.

CCTV cameras: Premier dumps on ADT but quick to fix loophole

NSW Premier Barry O'Farrell didn't hold back in Parliament yesterday, describing the Administrative Decisions Tribunal decision concerning privacy and CCTV cameras in Nowra as "ridiculous" (four times) and "terrible" (twice). For good measure, "the tribunal was trying to make policy" and should put the interests of the entire community ahead of the interests of the individual who had argued successfully that there had been breaches of the Privacy and Personal Information Protection Act.

 That was a little difficult to square with the Premier's announcement that the Attorney General "advised me that the decision on Friday exposed a loophole in the State's privacy legislation, and today I can announce that that loophole will be fixed" by 

"a regulation to provide appropriate exemptions under that privacy legislation to allow local councils, including Shoalhaven City Council, to use such cameras without breaching privacy laws. The regulation will allow councils to use closed-circuit television cameras in public places."

Difficult to square also with the role of the Tribunal: to review (Part 5) conduct claimed to be a contravention of an information protection principle and decide (s 53) the correct and preferable decision on the basis of factual material before it and the law as it stands at the time. 

Whether the Tribunal decision was terrible and ridiculous as the Premier asserts presumably won't now be tested at the Appeal Panel. But the loophole (a policy and legislative question) in the law at the time the Tribunal dealt with the matter will be fixed next week. 

Unlike other loopholes in NSW privacy legislation, once described as swiss cheese with more holes than cheese, that haven't attracted the same attention. 

Including to mention just three off the top of my head, that the law does not apply to ministers in the handling of personal information; state owned corporations are not subject to this or the Commonwealth Privacy Act; and uniquely, the police in NSW, whose privacy procedures were shown to be lax in the Shoalhaven case, are not subject to this law except (s 27) in connection with the exercise of educative and administrative functions, terms that a member of the Tribunal observed recently should be narrowly interpreted.

Ah dear, back to the current main game:

The New South Wales Government will introduce exemptions to ensure that local councils can continue to use closed-circuit television cameras to prevent crime. In other words, the use of closed-circuit television cameras by councils will be given an exemption through that section of the Privacy Act that was used on Friday to strike out their use in the Shoalhaven. We are drafting urgently a regulation to provide appropriate exemptions under that privacy legislation to allow local councils, including Shoalhaven City Council, to use such cameras without breaching privacy laws. The regulation will allow councils to use closed-circuit television cameras in public places.

The extract from Hansard 7 May (page 12) follows:

CCTV cameras off limits in Nowra-for the moment at least

Rarely has a NSW Administrative Decisions Tribunal decision had the Prime Minister's attention!

However the decision that CCTV cameras in the street installed and operated by a local council breached privacy legislation had the Premier, the Prime Minister and the Federal Opposition all rushing to defend the practice and promising a legislative fix if needed to solve any legal problem.

Judicial Member Montgomery in SF v Shoalhaven City Council [2013] NSWADT 94
found the Council contravened the obligation imposed on it by sections 10, 11(a) and 12(c) of the NSW Privacy and Personal Information Act. 

There is a lot in the decision on the full range of information privacy principles. Judicial Member Montgomery found in favour of the Council on a number. 

The following extracts relate to the findings concerning breach of three principles. They turned on the evidence rather than anything else. Nothing has been said about an appeal so far. Other councils are putting on the thinking hat and the politicians seem ready to roll in any event.

Notice
Section 10 requires that the subject of an information collection is made aware of the implications for their privacy of the collection process, and of any protections that apply prior to or at the time of collection.

149. Section 10 is explicit in regard to the details of which the individual to whom the information relates are to be made aware. In the circumstances of this matter, the Council has collected the Applicant's personal information, and that of other individuals, and provided some signage in an effort to make people aware that images were being collected. I accept that the signage is sufficient to inform a majority of individuals that the cameras are in operation and, by implication, that personal information is being collected. It is not sufficient to inform individuals of the purposes for which the information is being collected.

150. Not all cameras have a sign near them. Increased signage would increase the likelihood that more individuals become aware that the cameras are in operation and that personal information is being collected.

151. I am not satisfied that the signage is sufficient to ensure that individuals are made aware of all of the information addressed by section 10.

An exemption to Section 10 where information is collected for law enforcement purposes did not apply. Police Officers are able to view a live feed of the images collected from the cameras and an arrangement is in place between the Police and the Council whereby an authorised Police Officer may apply for access to particular information.  

Judicial Member Montgomery said [156] a "small proportion of the information is used for law enforcement purposes however that is not the purpose for which it is collected. The information is collected for 'crime prevention' purposes" adding: " In the circumstances it is also doubtful that the Applicant's personal information was collected for 'crime prevention' purposes given that the Applicant was a private citizen going about his private business in a lawful manner." [157]
(Comment: the interpretation of these terms may involve legal argument if the matter goes further.)

Relevant not excessive information
Section 11(a) requires an agency to take such steps as are reasonable in the circumstances (having regard to the purposes for which the information is collected) to ensure that the information collected is relevant to that purpose, is not excessive, and is accurate, up to date and complete.

162. In my opinion, the vast majority of the information collected under the Council's CCTV program is 'collateral information' and is not relevant to the 'crime prevention' purpose. All of the Applicant's personal information is 'collateral information' and is not relevant to the 'crime prevention' purpose. Further, there is no suggestion that Police made any use of the collected information for law enforcement purposes.

163. In my view, the evidence is clear that the images and footage collected in relation to the Applicant are of such poor quality that, in any event, the information would be of little assistance for law enforcement purposes. Because of the poor quality of the footage it cannot be said that the information collected is complete. A high proportion of the frames were omitted giving the false impression that the Applicant was skipping rather than walking.

164. The expert evidence suggests that CCTV does little to prevent crime. The data available for the Nowra CBD suggests supports the Applicant's argument that the Council has not demonstrated that filming people in the Nowra CBD is reasonably necessary to prevent crime. In fact, available data suggests that since the Council's CCTV program was implemented crime has increased in the Nowra CBD in the categories of assaults, break and enters and malicious damage.

165. It seems to me that, at least at the time the Applicant's personal information was collected, the equipment used in the Council's CCTV program was unable to provide any meaningful data that would be able to assist in a general 'law enforcement' context.

166. In my view, the Applicant's personal information that has been collected is not relevant to the purpose of crime prevention, and is excessive, inaccurate and incomplete. In the circumstances, I agree with the Applicant that the Council has not complied with the obligation imposed on it by section 11 of the PPIP Act.

Reasonable security safeguards

Section 12(c) of the PPIP Act provides that an agency holding personal information must ensure that the information is protected by taking reasonable security safeguards against loss, unauthorised access and misuse.

169.... It is common ground that the collected data is only available to Council staff and Police Officers. In my view, the Council has developed sufficient safeguards, as are reasonable in the circumstances, to protect the personal information collected and are therefore sufficient to meet the requirements of section 12(c). The system as designed requires that the (Police) duty officer enter a user name and password at the commencement of their shift, to log into the 'live feed' monitor. However, the evidence suggests that this process has not been followed.

170. I agree with the Applicant that the use of a generic password rather than an individual user name and password for each authorised user means that there is no way of checking who is and isn't using the live monitor at the Nowra Police Station. There is no way of knowing whether those who are accessing the monitor have been appropriately trained. Section 12(c) provides that the agency 'must ensure' adequate protection of the collected information. While the system design would achieve this objective, the Council has not monitored compliance with the safeguards that are in place. As a consequence, the Council's CCTV program is open to unauthorised access and misuse and therefore fails to comply with section 12(c) of the PPIP Act. At a minimum, compliance would require appropriate training and monitoring of the use of individual user names and passwords to provide an audit trail of users of the system.

The orders are:

1. The Council is to refrain from any conduct or action in contravention of an information protection principle or a privacy code of practice;

2. The Council is to render a written apology to the Applicant for the breaches, and advise him of the steps to be taken by the Council to remove the possibility of similar breaches in the future.

Sunshine best served straight

It's come a long way since this post seven years ago about Matthew Moore's exposure of excessive secrecy concerning compliance with food hygiene standards, and six years since the first Freedom of Information breakthrough by the Blacktown Advocate leading to release of the names of local offending restaurants. Then in 2008 the publication of statewide details by the NSW Food Authority, finally put paid to some of the early nonsense about "privacy" and placed the public interest properly in the middle of the table.

Esther Han's front page splash in The Sun Herald today on the results from the first full release of data from the Food Authority's register reveals that more than 3500 of the 36,000 eateries inspected across the state failed hygiene tests. Over 8000 penalty notices were issued in the past five years. More than 1000 related to cockroach infestations, rodent activity and droppings in commercial kitchens. The worst offenders get more free publicity. (Update: a special serve for the fast food chains in this follow on.)

Testimony to some degree to the old adage, sunshine etc: "Last year 785 food businesses were named and shamed compared with 1309 businesses the year before."The number of food businesses appearing on the register has almost halved in three years..."  

I've lost track of whether this fight for transparency is still to be won in some other states and welcome any updates.

Further puzzling over NSW conclusive certificates

More today in the Sydney Morning Herald about those NSW conclusive certificates and what they stand for.  

As Sean Nicholls reports the Premier now says the Deloitte report will be released eventually. Nicholls continues:

The power to block the public release of documents using a conclusive certificate had been used only once in the 20 years before the O'Farrell government came to power, but has been applied eight times in the two years since. The power was included in an overhaul of NSW freedom of information legislation by the former Labor government in 2009. The new Government Information (Public Access) Act, which replaced the Freedom of Information Act, removed the power for ministers to issue certificates to block release of documents. But it gave agencies the right to issue certificates over what they deem to be cabinet documents, preventing their release. No certificates were issued under the former Labor government after the GIPA Act came into force in July 2010. But eight have been issued by departments since the O'Farrell government came to power in March 2011.

The following is a bit legal and finicky I'm afraid. But bear with me....

As I commented yesterday there is no provision in the GIPA act for a certificate that blocks access to information sought by an applicant. The issue under that act is whether in a particular instance there is an overriding public interest against disclosure of information. It is to be conclusively presumed that there is an overriding public interest against disclosure of cabinet information, defined by reference to various facts set out in Schedule 1(2).

The relevant provision relied on in the media reports about conclusive certificates is Section 30 of the Government Information (Information Commissioner) Act which appears in Part 3 Division 4, headed Powers of Commissioner.

S 30 includes this reference to a certificate:

(2) "A certificate of the Director-General or Deputy Director-General (General Counsel) of the Department of Premier and Cabinet that any information, record or thing or the answer to any question comprises, contains or would reveal Cabinet information is conclusive of that fact for the purposes of this section."

The certificate can only be issued by specified officers in the premier's department, not by others.

And as s 30 (2) states, a certificate issued by one of those officers is conclusive "for the purposes of this section."

The purpose of the section is to impose a limit on the commissioner's powers as set out in the GIIC act. Specifically the powers do not enable the commissioner to require any person to do certain things if this would involve disclosing cabinet information. The commissioner for example can't demand to see a document to satisfy herself that it is a cabinet document. Section 30(1) states:

This Act does not enable the Commissioner:
(a)  to require any person:
(i)  to give any statement of information, or
(ii)  to produce any record or other thing, or
(iii) to give a copy of any record, or
(iv) to answer any question,
 if compliance with the requirement would disclose information that is Cabinet information, or
(b)  to inspect any such record or thing.

But the certificate would not establish conclusively that the document is a cabinet document for the purposes of refusal of access, or for the purposes of a decision by the commissioner in reviewing such a decision. Both decisions are decisions under the GIPA act.

A  s 30 (2) certificate establishes conclusively that documents are cabinet information for the purpose of limiting the exercise of power by the Information Commission to inquire about or sight disputed information.

Section 30(1) would seem to allow any government agency to refuse to provide information to the commissioner even in the absence of  a certificate from Premier's, simply by asserting that compliance would require a person to disclose cabinet information.  In the event of such a claim, it would be open to the commissioner to argue the toss with the agency about whether doing an act or thing would involve disclosure of cabinet information. The commissioner would no doubt find it difficult to look behind such a claim.  But it would be just a claim in the absence of conclusive evidence. Conclusive evidence that the information in question is cabinet information exists if a certificate has been issued by Premier's under s 30.

Although it's a close run thing, there is no bad old day powers in the NSW legislation to block public access through an official's certificate.

NSW Information and Privacy Advisory Committee

The membership of the New South Wales’ inaugural advisory committee on right to information and privacy matters announced on Friday includes three worthies from the private sector- and moi! 

 

Glad of the opportunity.

 

The committee will advise Deirdre O'Donnell the NSW Information Commissioner, and Dr Elizabeth Coombs, the NSW Privacy Commissioner on privacy and information access matters. The Attorney General also has the capacity to refer issues to the committee.

 

Other members are Ms Teresa Corbin, Ms Angela Green and Mr Doug Peiffer, with three deputy members Mr Bruce Mansfield, Ms Julie Ann Priest and Ms Samantha Yorke, and two yet to be named senior public sector officers.

We'll do our best.

 

Centrelink not subject to NSW privacy laws

Deputy President Magistrate Hennessy in AGU v Commonwealth of Australia [2013] NSWADTAP 3 reached the unsurprising conclusion that Centrelink, part of the Commonwealth Department of Human Services is not a public sector agency for the purposes of the NSW Privacy and Personal Information Protection Act, and as a result is not subject to the NSW Health Records and Information Privacy Act. 

While it clearly did not come within the statutory definition of a (NSW) agency, the appellant's unsuccessful arguments revolved around provisions in the legislation that seek to bind the Crown in all capacities. The Appeal Panel said these provisions were for the purpose of overriding the common law presumption that the Crown is immune from civil suits, not to extend the act's privacy principles to Commonwealth agencies.

Not mentioned in the decision is that the Department and Centrelink are subject to the Commonwealth Privacy Act.

Privacy law, Commonwealth or state is confusing and messy, and the combination even more so. It is not surprising that citizens such as AGU can get off on the wrong foot. Surry Hills Legal Centre representing AGU perhaps should have picked up that arguing obscure points while pursuing remedy through NSW law to an ADT review and an appeal was always something of a lost cause.

NSW Parliament still in pre-internet transparency world

Kate McClymont in Saturday's Fairfax Media

"For years before he left New South Wales Parliament in mid-2011, Labor powerbroker Eddie Obeid entered ''not applicable'' in the section of his pecuniary interest declaration asking whether he had received income from a trust. But the accuracy of those declarations are being queried following sensational revelations in a corruption inquiry this week about the millions of dollars that have flowed through six Obeid family trusts, including millions that came to the Obeid family as proceeds from an allegedly corrupt government tender.

If anyone had been looking during those years the "N/A" entries might have been noted then as passing strange. But few would seem to have bothered to trundle down to Macquarie Street on a weekday between 10 and 4 to inspect the register available for public inspection only at those times.(Fact sheet 07 - The register of pecuniary interests - Parliament of NSW pdf)

Publication on-line is a 21st century boost to transparency and accountability that is yet to fully register there.  

There was no mention of it just recently when access to the register was discussed in the NSW Parliament. 

I'm not aware there has ever been a response to this recommendation 10 years ago by the NSW Independent Commission Against Corruption:

"That the register of pecuniary interests be established as an electronic database that can be accessed via the internet by Members of parliament and members of the public."

Regulation of secondary employment for Members of the NSW Legislative Assembly - Report to the speaker of the Legislative Assembly (September 2003) (pdf) [Recommendation 11]

Access to the register online would be convenient for the public, save staff time dealing with anyone who did bother to ask to see the register, heighten the chances that disclosures would be more accurate and kept up to date, and bring to public attention sometime sooner than years later, obvious gaps or failures to disclose. (Mr Obeid was always said to be among the richest members throughout his time in parliament.)

In a welcome development, the Federal parliament these days publishes the Senate Register and House of Representatives Register online. 

As parliaments do elsewhere in various forms, for example

Queensland

The House of Commons

The House of Lords

Scottish Parliament

New Zealand.

The NSW registers aren't the only important documents that sit in musty folders in Parliament House waiting for someone to take a look that should be online. In all our state parliaments, so too do documents relating to payment of entitlements, and other details of support for parliamentarians provided at taxpayers expense.

 Let's get with it, folks. 

"New-fangled ideas" about use of the internet for transparency and accountability purposes are here to stay.

(As Sean Nicholls reports today, Labor opposition leader John Robertson didn't get far in proposing to his colleagues that second jobs for parliamentarians should be banned and interest disclosures should extend to spouse interests as well. Really.)

Tribunal delay, Henry George and other hopeless causes

I'm sure there are plenty of examples of clutching at straws or voids in space with resultant costs to the taxpayer and delay to others.

However those waiting patiently for a Government Information (Public Access) Act review decision from the NSW Administrative Decisions Tribunal (in a matter that I'm involved in, since a hearing in July) won't be amused that part of the long delay results from the tribunal having to deal with cases such as NSW Henry George Foundation v Director General Department of Attorney General and Justice decided by Deputy President Higgins last week. The application for review came before the tribunal member in February and April last year.

Everyone is and should be entitled to their review of course, but it should have been made clear along the way in this case that virtually everything being put on behalf of the third party, a charitable trust objecting to disclosure of three years of filed financial accounts, was fanciful and had no prospect of success. The case was decided on the papers, without a hearing.

But Deputy President Higgins took (seven months and) 72 paragraphs to reject claims regarding various public interest considerations against disclosure that did not arise (one), were not relevant (two) or were not established (three). On one, that disclosure of its annual financial statements could reasonably be expected to prejudice the future supply of information from an informant, Deputy President Higgins said the applicant "clearly has little understanding of the application of this ground of public interest consideration against disclosure." Other public interest arguments in my view, were slightly higher grade.

One claim was remitted to the agency for determination, although Deputy President Higgins seemed dubious, with good reason: whether disclosure of the names of trustees, acknowledged as personal information, could reasonably be expected to 'reveal' their names, in light of the fact they appear on the trust's letterhead used in correspondence, and some in other court proceedings.

None of these arguments appear to have been submitted to the tribunal by a hapless group innocently caught up in a GIPA application and doing its best to deal with unfamiliar legal issues. Dwyer Lawyers, experts in tax, wills, estates etc acted for the trust. You have to wonder whether they opined beforehand that there were reasonable prospects of success.

Henry George is turning in his grave at the cost to the taxpayer of agency and tribunal time spent on this. 

There is no reference in the decision to the agency raising the issue of costs but one ground for an order is the relative strength of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law.

Agencies that concede as soon as a matter hits the ADT - as the Department of Education  and Communities did in this recent case that has been cluttering Deputy President Higgins' decision pending tray - should have done better first time round, and by failing to do so also contribute to delay in the tribunal for others, and unnecessarily to ADT costs. Not to mention the administrative cost in this case that may arise from stuffing up in releasing unrelated personal information about others to the applicant.

It's my second day back. Excuse the grumpiness.