Dark FOI days prompt call for top FOI success stories

Taro Taylor- Wikimedia Commons

Dark days for Freedom of Information here but clouds are gathering elsewhere including the UK where new Justice Secretary Michael Gove is said to have a cutback agenda that extends to introduction of charging for 'thinking time' in the course of a decision.

('Thinking time' charges are a painful FOI reality in all Australian jurisdictions and have been for years. One example, The Canberra Times request this year for documents from Finance going back 12 months that explained delays in completing the $6.4 million renovations project at the Prime Minister's Lodge - $3759 all up including charges for 176 hours to decide what could be released. And the decision? Not in the public interest to release the documents, nor to waive costs. Ah dear.) 

But I digress....
As part of the coverage of the yet to be unveiled cutback agenda in the UK, The Daily Mail published this list of Scandals We Wouldn't Have Known About Without FOI Powers:

 • The MPs expenses scandal would not have been exposed if not for the FoI Act. Discs containing receipts and submissions from MPs to the Parliamentary authorities were being redacted for release under Freedom of Information rules when they were leaked.
  • Graham Knight, the father of an RAF Sergeant among 14 servicemen killed when a Nimrod jet exploded in Afghanistan in 2006, used FoI to discover that the RAF was aware of fuel leak problems with the aircraft.
  • The ‘spider letters’ from Prince Charles to government departments in which he warned about military helicopters in Iraq and lobbied in favour of homeopathy would have remained hidden.
  • More than 1,100 care home deaths were linked to dehydration over a nine-year period and more than 300 deaths to severe malnourishment, according to documents obtained under the Act.
  • An FoI request by the Daily Mail revealed a prisoner was given the right to taxpayer-funded IVF while behind bars by using human rights laws.
  • More than 10,000 criminals escaped prosecution for serious violent assaults by saying sorry in a single year. FoI requests showed the police’s widespread use of ‘community resolutions’.
  • It was found that disgraced peer Lord Janner made three visits to Parliament months after police were told he was too ill to be questioned over child abuse allegations.
  • The Mail revealed how hospitals were paid millions to hit targets for patients who died on the Liverpool Care Pathway, which has now been scrapped.

That prompted thinking about an Australian list. 

The Daily Mail loves 'scandals' but we don't need to be so limited. Your nominations please
  
Australia's Top Disclosures We Wouldn't Know About Without FOI.
Four off the top of my head to start:

Reserve Bank Board minutes published commencing in 2007 following Michael McKinnon's FOI digging going back to 2004.

Exposure of Australia’s first case of foreign bribery as a result of investigations that included FOI by Richard Baker and Nick Mckenzie revealing that Securency, a subsidiary of the Reserve Bank of Australia had paid million-dollar commissions to win global banknote contracts.

Information about breaches of food hygiene standards starting in NSW and extending to other parts of the country (maybe still not everywhere?) following Matthew Moore's FOI campaign.

Revelations about Australian knowledge of, and involvement in detention practices in Iraq and Afghanistan by the Public Interest Advocacy Centre, based on documents obtained after a six year FOI battle, raised many questions about policy, accountability and transparency going back to 2003.

Important FOI disclosures or scandals welcome by way of comment, email  peter.timmins1@gmail.com or tweet or direct message @FOIguru

CIA torture revelations reveal transparency and accountability differences as well

The redacted Executive Summary pdf (525 pages) "Study of the CIA's Detention and Interrogation Program, "describes in more than 500 pages a dysfunctional agency so unprepared to handle suspected terrorist detainees after 9/11, that the CIA bought into private contractors' proposals for torture, and then lied to Congress, President Bush, the Justice Department, the public, and to itself about the purported effectiveness of the program." (National Security Archive).

US reaction

"OpenTheGovernment.org welcomes the long-overdue release of the Executive Summary of the (report). We were appalled by the 11th-hour attempt to intimidate Senator Feinstein and the Intelligence Committee out of releasing the report, and relieved that she resisted that pressure. The argument that government abuses cannot be revealed because of their severity is incompatible with the First Amendment, the rule of law, and accountable government.
As Senator Claire McCaskill said yesterday, this was “gut check time for our democracy.” OpenTheGovernment.org’s Executive Director, Dr. Patrice McDermott, stated, “the suppression of the report would have ended the last, best hope of ending the unjustified secrecy regarding CIA torture. Instead, we have taken a meaningful first step towards restoring oversight and democratic accountability.”

 UK reaction
Tony Blair to face grilling over CIA torture as his own Labour party calls for evidence

Tony Blair and his former ministers face a grilling over what they knew about CIA torture as their own Labour party demanded they come clean. A chorus of senior Labour figures yesterday said the former Prime Minister along with Jack Straw and David Miliband should appear before the parliamentary committee examining whether Britain was complicit in the brutal US interrogation programme. It came as Sir Malcolm Rifkind, chairman of the Intelligence and Security Committee (ISC), gave the strongest signal that the trio would be called before him. But pressure was also growing for a full judicial public inquiry to investigate the claims...

Australian reaction
Professor George Williams Blood on many hands in CIA torture scandal

There is no suggestion that Australian officials used torture. Instead, we were complicit in the US torture program. In contrast to the UK, which successfully demanded the return of its citizens from Guantanamo Bay, Australia failed to take action to protect Habib and Hicks, despite emerging evidence of their mistreatment.  The problem was not merely one of silence and acquiescence. Australia's political leaders, including Prime Minister John Howard, were some of the strongest international supporters of US actions at Guantanamo Bay. Despite irrefutable evidence of what occurred there, this support has never been retracted.
In other nations, the harm done to citizens at the hands of the US has led to wide ranging inquiries. By contrast, Australia's leaders have shown no appetite to investigate these matters. Both sides of politics have resisted any inquiry that could determine whether Hicks was tortured, and whether Australian officials bear responsibility for the treatment of him and Habib.
America has a lot of soul-searching to do about its departure from the most basic standards of decency. We also need to come to terms with our involvement in these programs. It is past time that a judicial inquiry was held to ascertain how Habib and Hicks were treated, and whether any compensation is due to them. The public has a right to know the truth of what occurred, and to know that measures will be taken to ensure that our leaders do a better job of protecting Australian citizens in the future.

Minister's veto on FOI release of Prince Charles' advocacy letters not based on reasonable grounds

 A long running-now in its ninth year-battle waged by The Guardian for access under the UK Freedom of Information Act and Environmental Information Regulations to 27 letters sent by Prince Charles to ministers in the previous Labour government took another turn this week.
Are you ready:
the Court of Appeal quashed a certificate issued by the Attorney-General that vetoed an Upper Tribunal finding that reversed the decision of the Information Commissioner who had upheld the departments' decisions to refuse to disclose the letters.

In plain speak, the Upper Tribunal decision stands, that the letters in so far as they contain 'advocacy correspondence' should be released,

For the moment at least. Leave has been granted to the Attorney General to appeal to the Supreme Court.

The Tribunal found that "it will generally be in the overall public interest for there to be transparency as to how and when Prince Charles seeks to influence government... In broad terms our ruling is that although there are cogent arguments for non-disclosure, the public interest benefits of disclosure of “advocacy correspondence” falling within Mr Evans's requests will generally outweigh the public interest benefits of non- disclosure."

It did not rule that purely personal or social correspondence, or "correspondence within the established constitutional convention that the heir to the throne is to be instructed in the business of government" should be disclosed. [Court of Appeal at 18].

The key finding in the unanimous Court of Appeal decision(pdf) was that the purported exercise of the veto power was unlawful on administrative law grounds in that the Attorney General did not have 'reasonable grounds' to issue the certificate under the FOI act, and with regard to environmental information the certificate is incompatible with EU law.

'Wednesbury unreasonable' features strongly.

Analysis by Dr Mark Elliott of the University of Cambridge (Public Law for Everyone) and Jon Baines (Information Rights and Wrongs) suggest the Court itself may have erred in setting the reasonableness bar too high. 

Having found the Attorney General improperly issued the certificate, the Court did not delve into the the reasonableness of the views cited by the Attorney General in disagreeing with the Upper Tribunal decision:

that (i) so-called advocacy correspondence formed part of The Prince of Wales’s preparation for kingship; (ii) The Prince of Wales and Ministers would feel “seriously inhibited” from exchanging views candidly and frankly if advocacy correspondence were not kept confidential; (iii) disclosure would jeopardise the perception of the Prince as politically neutral; (iv) the advocacy correspondence had a “constitutional function”; and (v) the correspondence reflected The Prince of Wales’s “most deeply held personal views and beliefs”.[41]

Even though Candid and Frank are popping up way down here as well,at least we removed the dreaded conclusive certificates from the Federal FOI landscape five years ago otherwise all that 'reasonableness' business might be highly relevant.

UK committee stands with FOI, withstands blowback

Despite Tony Blair's preference to go down as a "nincompoop" rather than the courageous leader for introducing freedom of information in the UK, and all sorts of concerns from current and former ministers and senior public servants, the House of Commons Justice Committee concluded FOI has been worth the effort:

(Chairman Sir Alan) Beith said the legislation had enhanced Britain's democratic system and made public bodies more open, accountable and transparent: "It has been a success and we do not wish to diminish its intended scope or its effectiveness"..

The Committee's Conclusions and recommendations are here.

The Campaign for Freedom of Information which sensibly has stood guard and sought to protect the act and the principles that underpin it, rather than fade into the sunset thinking the job was done years ago, generally welcomed the report-with a sigh of relief I imagine.

Heather Brooke in Sydney

Today's session at the Sydney Writers Festival with Richard Aedy facilitating a discussion with Heather Brooke from the UK and veteran journalist Alex Mitchell about journalism in the digital age was terrific. Brooke enjoyed it, tweeting it was great. You can catch an edited version on Radio National's Media Report tomorrow Friday at 5.30pm or anytime thereafter. 

Austen Tayshus-Manly Daily

Mitchell's story about donning the budgie smugglers to run dead in a swimming race with Idi Amin in order to get an interview is hilarious. I presume someone explained "budgie smugglers" to the non-plussed Brooke afterwards.

Brooke's later session with Waleed Aly posing the questions, was less successful. Aly seemed keener for an intellectual arm-wrestle than a conversation about the advertised privacy related topics. All a bit of a struggle.

At both sessions Brooke while welcoming the advent of WikiLeaks, poured a bucket on Julian Assange, on the basis of her dealings with him-difficult, devious, dictatorial, reckless- someone who fails to live up to the standards he expects of others. This Guardian review- a paper incidentially that Brooke thinks has to go broke because of its "free" on-line business model-of The Revolution will be Digitised, gives the flavour.

Brooke acknowledged some aspects of what WikiLeaks does might constitute journalism but that it is best described as a source/publisher. Mitchell, an old school, shoe leather, contact book journo who thinks there is much more to the craft than sitting at a computer screen or regurgitating what is put on the desk, didn't express a view but it was pretty clear that what Assange does is a million miles from journalism as Mitchell practiced it.

No one seemed to have the heart to mention that the MEAA gave Assange a Media Alliance union card, "confirming that he is a member in good standing with the Australian journalists." And that Wikileaks received the Most outstanding contribution to journalism award
at last year's Walkleys. 

Battleship skills for FOI users

In a UK Guardian blog post Martin Robbins Editor of the Lay Scientist laments the lack of open access to university research papers, and sparked lively comment about Freedom of Information rights, peer review, who pays, and the high cost of access to journal articles. I assume the situation is the same here although academics and others will know more than me. Robbins description of the FOI process will strike a chord with some users and processors regardless of where they are:

Freedom of Information requests are slow, tedious, and as a means of gathering information roughly equal in efficiency to the game Battleships. You fire off a formal request, wait a month for a reply telling you your request was rubbish and off-target, move two squares to the left and fire again, and repeat until you get what you were after, or you've given up, or you've died of old age. Apply this to research data and there's a good chance that even if it's available it may be unintelligible, or in a proprietary format, or undocumented.

I don't want to get into a three-month formal e-mail exchange just so I can see some data for a paper. The only request I want to submit is an HTTP request. I want to be able to look up a paper on the internet, read it for free, and then click a button next to it to download the data that was used (where appropriate) in a standard format so I can have a play with it. It seems like a pretty basic thing to ask. 

World FOI title up for grabs?

UK Cabinet Office minister Francis Maude speaks about a discussion paper on improving Freedom of Information legislation

 "The UK government is determined to have the most ambitious open data agenda of any government in the world. But we want to embed this approach throughout the public service and we want to hear from people about how they think we should do this." "It is an incredibly brave step for any government to become this open, but this is the approach we want to take in order to create public accountability and efficiency in our services and to drive economic and social growth."

While a couple of the changes for consideration sound somewhat old hat from an Australian perspective, there's always room for reflection:

"We want to be the most open and transparent government in the world"

We've heard quite a few ambitious claims like this, but this time the message is from the UK Government as 10 Downing St launched its Transparency website yesterday. The site includes search facilities to access agency business plans that cover the next four years including data such as financial information, Structural Reform Plans and departmental priorities; find details of who ministers and ministerial advisers are meeting, and hospitality, gifts and overseas travel; who does what in Whitehall and what they're paid; and performance information on efficiency and effectiveness of policies and programs. More is promised. The PM, Deputy PM and head of the civil service all showed up for the launch.  Any Australian government in the running?

Blair shows real democrat colours

Martin Rosenbaum on Open Secrets has a great post on Tony Blair's reflections on his introduction of Freedom of Information law to the UK:

"You idiot. You naive, foolish, irresponsible nincompoop. There is really no description of stupidity, no matter how vivid, that is adequate. I quake at the imbecility of it."

The Constitution Unit  at University College London put out this release (thanks Rick Snell) suggesting

"the former Prime Minister should not have reproached himself in such extravagant terms. He is mistaken to fear that FOI has had a significant effect in inhibiting private policy discussions, says the Constitution Unit director Prof Robert Hazell.  As in other Westminster countries, the Act contains protections for policymaking.

Prof Hazell points out that in the UK, “sections 35 and 36 of the FOI Act offer protections for policymaking discussions and there is also the ultimate protection the of a ministerial veto to prevent the release of information which the government has used twice.” For instance, last year Jack Straw used the veto to block publication of Cabinet discussions in the run-up the Iraq war in 2003.


A two year study 'Does FOI Work'? by the Constitution Unit  found little evidence of a 'chilling effect' inhibiting policy making or committing it to paper.  Prof Hazell adds: “anecdote abounds but hard evidence is difficult to find. Changes in methods of recording policy discussions were due to other factors, notably the use of electronic communications and the changed pace of decision –making.”

Another study undertaken by the Unit for the Information Commissioner’s Office concluded that, although there has been some concern and nervousness, ‘neither officials nor Ministers thought that FOI requests would have much impact on the substance of the decisions taken by government. The same factors would be considered; and the same conclusions reached’.

Dr Haneef loses another round

In Haneef and Australian Federal Police (the Commonwealth Director of Public Prosecutions was also a respondent) [2010] AATA 514, Senior Member McCabe upheld the agencies' Freedom of Information exemption claims, with a small number of minor variations, in respect of documents withheld concerning his detention and cancellation of visa in 2007. Some documents had been previously released.

The decision is straightforward in terms of the law, but includes a long summary of the background [6-48], a couple of interesting comments about legal privilege [60-76] and affirmed the absolute nature of the exemption (section 33(1)(b)) that relates to provision of information in confidence by a foreign government [230-234].Regardless of whether the information is now in the public domain, or any other consideration if the evidence is there is an agreement between agencies, an Australian officer says the (UK) Metropolitan Police Service gave it in confidence, and the Tribunal has no grounds to doubt the claim, that's the end of the matter. No doubt in dealings with us, all foreign government agencies mark their aide-memoire accordingly.

As Senior Member McCabe said [232]:

"..the MPS is serious about protecting secrets. It is irrelevant whether that attitude is consistent, reasonable or admirable. I accept there is a risk that information from overseas might be rendered inaccessible through the simple device of channeling it through the hands of a supposedly prickly agency."

A submission from counsel for the applicant that the Memorandum was "drawn so widely that it is attended by an 'air of unreality'"  was of no relevance. Dr Haneef encountered a similar hurdle in two previous AAT FOI cases, here and here.

Simple as ABC/BBC: Middle East reporting out of FOI bounds

Previous posts here about the exclusion from the Commonwealth Freedom of Information Act of documents held by Australia's public broadcaster the ABC (and SBS) "in relation to program materials" have mentioned what appeared to be a contrast with the situation in the UK, where the BBC enjoys an exemption for documents concerning journalism. ABC Managing Director Mark Scott last year indicated the ABC was prepared to talk to the Government about tightening the exemption to something more in line with the UK provision, although nothing seems to have come of that.

Out-Law.com reports a UK Court of Appeal decision to refuse access on the basis of the journalism exemption to a study into how the BBC covered the Middle East in 2003 and 2004. In an earlier decision the Information Tribunal ruled the report should be disclosed. The Tribunal's interpretation was the exemption required the BBC to show that journalism was the main reason for the study, when it appeared to have been undertaken for strategic and resourcing reasons as well. The High Court and the Court of Appeal disagreed: as long as one of the reasons for the report was journalism then it was covered by the FOI Act exemption.

The Australian Federal Court decision that gave the ABC exclusion from the FOI act a generous interpretation, even by Mark Scott's reckoning, also resulted in a decision to refuse access to an ABC report on complaints it received about coverage of the Middle East in 2000-2002.

Digital age calls for removal of digital impediments

An article by Jane Fae Ozimek in The (UK) Register Commons slapped for FOI fastidiousness raises issues about access to digital information that we may see play out in Australia. The question: would a request for digital information to be sent to an email address that will automatically publish the response be a valid application, and produce an eventual positive ruling, albeit after a two year battle, from the equivalent of the Information Commissioner here?

Civil liberties rate in UK Coalition accord

Thanks to Bob Burton for a reference to the UK Coalition Government agreement  which includes:

10. Civil liberties

The parties agree to implement a full programme of measures to reverse the substantial erosion of civil liberties under the Labour Government and roll back state intrusion.

This will include:

- A Freedom or Great Repeal Bill.

- The scrapping of ID card scheme, the National Identity register, the next generation of biometric passports and the Contact Point Database.

- Outlawing the finger-printing of children at school without parental permission.

- The extension of the scope of the Freedom of Information Act to provide greater transparency.

- Adopting the protections of the Scottish model for the DNA database.

- The protection of historic freedoms through the defence of trial by jury.

- The restoration of rights to non-violent protest.

- The review of libel laws to protect freedom of speech.

- Safeguards against the misuse of anti-terrorism legislation.

- Further regulation of CCTV.

- Ending of storage of internet and email records without good reason.

- A new mechanism to prevent the proliferation of unnecessary new criminal offences.

Mark Bollard comments about the FOI and privacy related issues, and Media Spy  has this to say about likely defamation law reform:

Both parties agree that Britain’s libel laws are in need of an overhaul, with concerns that corporations and wealthy individuals have disproportionate power to use the courts to sue publishers and media outlets on the grounds of defamation, placing an undue burden of proof on the defendants. The laws led to what has been termed “libel tourism”, where foreign individuals and companies took advantage of Britain’s pro-claimant laws to sue the media. The coalition agreement pledges to initiate a “review of libel laws to protect freedom of speech”. The Conservatives’ election manifesto declared that the party would “review and reform libel laws to protect freedom of speech, reduce costs and discourage libel tourism”, while the Liberal Democrats went further by proposing the implementation of the so-called “Reynolds defence“, giving journalists the ability to use the public interest to justify investigations even if they are unable to prove conclusively that their findings are true.

 

Black holes at the heart of FOI

Australian Freedom of Information aficionados, familiar with the definitional issues argued up hill and down dale and the absolute nature of the cabinet document exemption in our laws, may know that the UK doesn't have such a specific provision in the FOI Act, although just about everything of this nature is caught by a policy document exemption that at least requires consideration of the public interest. The Government has been moving in the direction of adding a cabinet document exemption to the law but has now backed off.

As Maurice Frankel of the Campaign for Freedom of Information writes in The Independent

The exemption would have carved out a black hole at the heart of the FOI Act. The chances of obtaining cabinet or cabinet committee minutes are already slim. A ministerial veto has twice been used to block their release. But the proposed exemption would also have applied to papers circulated to any cabinet committee.

Ministers wanting to keep their secrets safe could flash them in front of a cabinet committee, instantly prohibiting public access for 20 years. A new top layer of secrecy beyond the Act's reach would have been created.

The old "trolley technique" wouldn't seem to be available anywhere here these days, but I'm afraid we've got our share of black holes. Arguments for making the cabinet document and other absolute exemptions subject to a public interest test have fallen on deaf ears everywhere to date. So have things like following the UK example of extending FOI to the Parliament- everywhere except Tasmania, that is.

Information commissioners need to carry a big stick-and use it

With Federal and NSW information commissioners to be appointed next year (well, hopefully) to join those operating for years in Queensland and Western Australia, and the Tasmanian Ombudsman to have new responsibilities, this first broad ranging interview by Christopher Graham after six months as Information Commissioner in the UK provides food for thought about the style and approach needed:

"I think (in the past) the Information Commissioner's Office [ICO] has not been alert enough and fierce enough with public authorities that do not comply with their requirements under the Freedom of Information [FOI] Act," he said.

"After five years, public authorities should be able to do better. From now on, we will be a rather tougher partner. We will insist on adequate responses within the time limits. I will be up for issuing what are known as 'information notices' [which compel public authorities to supply information to the ICO or they will have committed a criminal offence]. We have not really done this so far but we will from now on."

On managing privacy obligations the Commissioner has no doubt tougher penalties are part of the compliance answer:

"People guilty of serious, negligent and reckless breaches of people's privacy – basically where information entrusted to organisations, companies or public authorities is made public without authority – should be liable to custodial sentences. Courts ought to have the power to jail offenders for up to two years. At the moment offenders who are caught might get a modest fine which is, frankly, set off as a business expense. But if people knew they could go to prison, they would think twice about committing such an offence that some people now consider as just a prank."

Graham is also about to hop into another issue that has largely gone through to the keeper in Australia:

Mr Graham's latest initiative – announced on Wednesday – is to carry out a massive analysis next year into surveillance – a follow-up to his organisation's report "A Surveillance Society" published in 2006. The Information Commissioner is clearly concerned society's obsession with CCTV cameras has gone too far. "There needs to be some evidence that it is necessary. You can't just say: 'It's a [crime] deterrent so we will have it.' It needs, for example, to go into pubs where there is a history of trouble. But it's unfair for a licensing authority to have CCTV as a matter of routine because law-abiding citizens should be able to have a meal or a drink without being captured on CCTV."

Climate change hack has an FOI angle

The publication of email exchanges between scientists following a cyberattack on researchers at the Climatic Research Unit at the University of East Anglia, England suggest attempts to skew the debate about aspects of the climate change debate, but also reveal attempts to keep unhelpful information from Freedom of Information requests in various parts of the world. According to The Wall Street Journal :

"More recent exchanges centered on requests by independent climate researchers for access to data used by British scientists for some of their papers. The hacked folder is labeled "FOIA," a reference to the Freedom of Information Act requests made by other scientists for access to raw data used to reach conclusions about global temperatures.

Many of the email exchanges discussed ways to decline such requests for information, on the grounds that the data was confidential or was intellectual property. In other email exchanges related to the FOIA requests, some U.K. researchers asked foreign scientists to delete all emails related to their work for the upcoming IPCC summary. In others, they discussed boycotting scientific journals that require them to make their data public."

Publicly avaiailable information isn't always old hat

A fuss in the UK about fast tracking immigration processing, apparently based on documents released after a Freedom of Information battle and posted in the disclosure log on an agency website seven months ago, but just discovered by the mainstream media and politicians, has given rise, somewhat unfairly to claims of "cover up." However Martin Rosenbaum on Open Secrets commented:

"So what does this tell us? To start with, perhaps opposition politicians and journalists (yes, me included) should read the FOI disclosure logs of government departments more carefully. But perhaps it also tells us something about the relationship between the web and the media. Documents are available on the internet for anyone interested to read for several months - yet it's only when the mainstream media focus on them that other journalists and politicians get interested."

The mindset that information in the public domain can't be of interest or importance is widespread here as well. With Queensland in the vanguard regarding more proactive publication of information since 1 July, I wonder whether journalists, politicians and interest groups there regularly check the disclosure logs of government agencies ( involves going through each agency Publication Scheme to find the Log - and they were admittedly a bit thin last time I looked) or the regular public release of information about Cabinet decisions?

The Oz, human rights horror stories from the UK, and some exploded myths for good measure.

UK DPP Keir Starmer QC- read on.

Chris Merritt in The Australian today returns to a familiar theme for the paper- the horrors that await us if the Federal Government goes ahead with a Human Rights Charter . This time its about the perils particularly for those of religious belief, based on the views of a British barrister, Paul Diamond, heading our way to join, among others that font of wisdom on the subject, former NSW Premier Bob Carr, at a " public meeting on the dangers of a charter of rights" in Sydney next week.

While acknowledging "(t)here are substantial differences between Britain's Human Rights Act and the scheme that has been drawn up for this country by Frank Brennan's committee," Merritt says, to justify telling us how bad things are in the UK, that " there are enough similarities to ensure Diamond's grim assessment of the British experience might cause some charter supporters to reconsider."

Diamond's "grim assessment" , according to Merritt, arises from involvement with clients who "are religious people whose beliefs, he says, have come under attack because of Britain's charter: an airport worker who refused to stop wearing a crucifix, a teacher who was dismissed when she objected to the promotion of a homosexual lifestyle to children, a nurse who was suspended for offering to pray for a patient."

Shocking isn't it? But a pity also that readers of the Oz and those attending the meeting probably won't hear about the speech yesterday in London by another UK barrister the Director of Public Prosecutions, Keir Starmer QC, one of many I expect who has rather different views. An extract follows- have a look at the myths towards the end.

"A brief look back into history shows that all of the defining documents recognise that human rights are universal, inalienable and perpetual. They are not triggered or defined by any one individual's status at any given time. They are not to be applied or disapplied depending on the situation one finds oneself in. And they are not discriminatory.

Our texts in this area are, of course, the Human Rights Act 1998 and the European Convention on Human Rights and Fundamental Freedoms. As I am sure we all know, Articles 2 - 12 and Article 14 of the Convention are adopted in the Human Rights Act 1998 and so have been with us for over a decade now. However, one cannot escape, particularly in recent months, the debate that has emerged around the extent to which it is appropriate - and these are my words here - to repatriate the Human Rights Act and make it "more British."

I do not think it unreasonable to conclude that those who advance such a view somehow propose to replace the Human Rights Act, or at least those articles in it which are taken from the European Convention, with other human rights which they consider to be more appropriately geared to "British" society.

Pausing only to recall the fact that the United Kingdom played a major role in the design and drafting of the European Convention itself back in 1951, let me just take you through those rights which have been adopted through the Westminster legislation.

• Everyone's right to life shall be protected by law.
• No one shall be subjected to torture or degrading treatment or punishment.
• No one shall be held in slavery.
• Everyone has the right to liberty and security of person.
• Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.
• No one should be held guilty retrospectively of a criminal offence.
• Everyone has the right to respect for his private and family life, his home and his correspondence.
• Everyone has the right to freedom of thought, conscience and religion.
• Everyone has the right to freedom of expression.
• Everyone has the right to freedom of peaceful assembly and to freedom of association.
• Men and women have the right to marry.

And Article 14:

• The enjoyment of these rights and freedoms shall be secured without discrimination on any ground.

For my part, I am proud to be part of a society that regards these rights as part of my entitlement as a member of that society. They are basic; they are fundamental; and I venture to suggest that, for the majority of us, they are so much part of our way of life that we take them for granted.

I cannot think of any way in which such basic human rights are either so foreign to England and Wales that they do not reflect those principles that we hold dear, or which for some other unspecified reason, are thought not to be relevant and of direct applicability to each and every member of our communities.

The idea that these human rights should somehow stop in the English Channel is odd and, frankly, impossible to defend.

Let me pause there simply to guard against complacency: everyone of us, I am sure, knows of instances where these rights have been ignored by someone in authority; where they have been deliberately set aside ostensibly to secure some greater goal; where they have been wilfully abused in the pursuit of prejudice and discrimination. So, whilst I recognise that for most they are a part of our way of life, for others, they are vital shields and defences to the abuse, prejudice; and discrimination to which they are subjected.

If there are perceived problems with these human rights under the Human Rights Act, I venture to suggest that they are more borne out of their misapplication and misunderstanding rather than any perception that they lack intrinsic value.

And following that theme, let me dispel some myths about the Human Rights Act and the European Convention:

A police force unable to circulate a photo of a wanted, dangerous and violent criminal because it might breach his Article 8 rights to privacy? My advice - go ahead - it is essential to protect the public.

Unelected judges can now tell Parliament that their laws need not be enforced? No - judges cannot strike down legislation.

Human Rights mean that school teachers cannot enforce discipline at school? No - it is domestic legislation - section 548 of the Education Act 1996 - passed 2 years before the Human Rights Act - that banned corporal punishment in schools. Interestingly enough, it is section 93 of the Education and Inspections Act 2006 - passed 8 years after the Human Rights Act - that now allows school teachers to use reasonable force to prevent a pupil from committing an offence."

It is often in the interests of those who want to debase a principle to chip away at it by citing examples of its occasional misapplication. We should all take care to examine critically the so-called restrictions brought about by the Human Rights Act and consider where the misunderstanding truly lies before condemning a constitutional instrument that has provided legitimate comfort to so many."

Good advice for those in the UK, and here as well.

Public broadcasters and the right to know-about them

In a recent post I commented on the Australian Broadcasting Corporation's various views about it's current exclusion from the Freedom of Information Act "with respect to documents in relation to its program material" and whether this matched or should match the BBC's exclusion from the UK FOI Act "in respect of information held for purposes other than those of journalism, art or literature". Two decisions last Friday in the UK reversed previous thinking there that the predominant purpose for keeping the material determined whether it was covered by or excluded from the Act. Justice Irwin in the High Court said information fell outside the FOI Act if it was held to any significant extent for one of the purposes mentioned in the exclusion provision. The Federal Court of Australia in 2006 interpreted the ABC exclusion as covering anything that had a direct or indirect relationship to program material, so welcome aboard BBC. Martin Rosenbaum at Open Secrets has more about the UK developments. As to any real difference between the formulations or at least court interpretations of them.....

Information Commissioner challenges

As NSW goes about setting up the Office of Information Commissioner and finding someone to fill the job, the Acting Information Commissioner in Queensland comes to grips with new legislative responsibilities, the new West Australian Information Commissioner Sven Bluemell settles in, and the Federal Government continues to mull over legislation to establish its Office of Information Commissioner, a timely reminder from the UK that more than good intentions are needed to make this kind of set up work:

"Long delays by the Information Commissioner’s Office (ICO) in investigating freedom of information complaints are undermining the effectiveness of the FOI Act, according to a new report by the Campaign for Freedom of Information.

The report analyses nearly 500 formal decision notices issued by the ICO in the 18 months to 31 March 2009. The decisions were made under the FOI Act and the associated Environmental Information Regulations. It finds that -

• on average it took 19.7 months from the date of a complaint to the ICO to the date on which the ICO’s decision on the complaint was issued

• in 46% of cases it took between 1 and 2 years from complaint to decision

• a quarter of formal decisions took between 2 and 3 years while 5% of cases (23 complaints) took more than 3 years

• the longest case took 3 years and 10 and a half months

• only 24% of decisions were issued within 12 months of the complaint.

The report also found that on average the ICO’s investigation into a complaint did not begin until 8 months after the complaint had been received. In 28% of cases, there was a delay of more than a year before the investigation began and 19 cases waited more than 18 months. One complaint had been with the ICO for 22 months before the investigation began."