Sunshine and rain on Right to Know Day

Right to Know Day 28 September- great to see traffic on the twitter feeds including plenty from Australia at #RighttoKnow

While observance has been trending in the right direction in recent years, its another step in the right direction given Right to Know Day often passed virtually unnoticed here.

Something positive from the highest levels of government on the importance of the right to know would be a welcome development but alas..

So too, with three ministers in New York last week, an Australian presence at the Fifth Anniversary Celebration of the Open Government Partnership would have indicated strong interest and commitment as well.

Alas again....

Further rain amid the sunshine:
 The Center for Law and Democracy in Toronto and Access Info Europe used the occasion to publish an updated Global Right to Information Rating, analysing the quality of the world's access to information laws.

The Australian legislative framework (the Federal Freedom of Information Act) comes in 56 of 111 rated, down four places since the previous assessment.

Mexico tops the list, and of particular interest UK 33, NZ 40, Canada 48 and USA 55.

Among the eye raisers, Russia 34, China 80, Japan 90, France 94, Germany 105 and Austria 111.

You can quibble with some of the scoring in the Australian assessment where we receive 83 points of a possible 150-in a few areas the assessor in my opinion has been off the money -  but  overall the act, hailed in its time in 1982 as up there with the best, is no better these days on these criteria than middle of the pack.

That's before attention to matters beyond the scope of the rating including

• outdated features of the act that reflect the 70s rather than the twenty teens, for example one of many, Section 17,

• recommendations to address weaknesses and enhance the law and practice arising from reviews including the Hawke report , the Australian Law Reform Commission and the Australian Information Commissioner (and loads more suggestions from outside government),

• the Office of Australian Information Commissioner first under threat of closure, then the government's failure to fill positions established by Parliament or fully fund the FOI watchdog role and the office information policy functions,

• the 'tone at the top'  as a result of the absence of positive leadership and support for transparent accountable government at the same time as senior public servants speak out critical of the law generally ('very pernicious') and about its impact on their capacity to do their job, 

• the interpretation and practical application of the law in some agencies that give rise to the epithet 'freedom from' rather than 'freedom of' information. Sarah Gill of The Age on Fairfax Media yesterday in "Have we reached peak secrecy?" pulled together some examples, arguing

"Despite the Turnbull government's professed enthusiasm for transparency and accountability, (ie membership of the OGP) this year – marked by a shroud of secrecy over border protection, the targeting of whistleblowers, and the intransigence of the Attorney-General around the release of his diary – could well be the low point for open government in Australia since Freedom of Information laws were introduced three decades ago."

Andrew Dyson SMH

Peak Secrecy? Give hope a chance?
Despite the validity of the examples cited and others that could be added, there are plenty of contenders for the 'peak secrecy' award over the last thirty years that IMO, would beat out the 15 months of the Turnbull era on display so far. The implacable attachment to the conclusive ministerial certificate during the Howard years and the eleven years it managed to ignore any positive reform for example.

As I commented at the six month mark, the record of the Turnbull government suggests hope as well as disappointment.

Six months on, membership of the Open Government Partnership, the yet to be completed National Action Plan of commitments to reform, and the Prime Minister's endorsement of the goals of the OGP as consistent with "Australia's long and proud tradition of open and transparent government" gives hope some chance.

Sunshine Week in the US-loads of activism, a hint for the PM

It's that time of the year again with panel discussions, workshops and other events about using and understanding the latest developments in freedom of information resources.

Prime Minister Abbott, still scratching around to get going with that "good government starts today" plan of a month ago might find a clue in the subtheme:

Sunshine Week

Open government
is good government

March 15-21, 2015

Oh for an Aussie Sunshine week!

Sunshine Week in the US, so on St Patrick's Day no less, I'm green with envy at the  organisation, scope and range of activities to highlight the importance of access to public information funded by the Knight Foundation, Bloomberg, American Society of Newspaper Editors and Reporters Committee for Freedom of the Press. This selection of resulting media coverage on day 2 turns the mind to what the same enthusiasm, enterprise and effort might achieve here. Alas...

Bipartisan support for overkill, and a shared blindspot in quarantining parliament from FOI

Fairfax papers gave prominent coverage - "Secrecy law veils MP perks" the front page lead in the Sydney Morning Herald and elsewhere on Saturday - to the other result of the outbreak of bipartisanship in Canberra last week: legislating without dissent in  the House to exclude the departments that support the Parliament from the Freedom of Information Act

Not in the 11 minutes that it took to debate and pass the bill in the House last week, or elsewhere publicly since has there  been any attempt to explain why the legislation is needed now as an interim measure a year after the situation emerged. And with the report on the operation of the FOI act by Dr Hawke still under wraps but due to be tabled any day soon..

Nor why the exclusion is total and retrospective when in a joint submission to Dr Hawke, the three departments argued for less than what the bill gives. Simply for FOI coverage to be restricted to matters of an administrative nature , along with a few other specific amendments.

Something less than the proposed Government-Opposition complete FOI wipeout might be acceptable although you have to wonder how they've coped at Westminster with the full nelson for the last eight years (no, we know the answer, uncomfortably-see Robert Hazel), and in parliaments also subject to FOI in Scotland, Wales, Northern Ireland and elsewhere.

I'm wary of  the inclusion/exclusion "in relation to matter of an administrative nature" because these words used in a number of exemption provisions are being interpreted narrowly in the courts. Decisions regarding the Governor General's office and the FOI act for example in effect mean (paraphrasing) any document that relates to supporting, assisting, facilitating, or implementing what the Governor General does as part of her functions is beyond the reach of the FOI act. The Federal Court  in that case said the bright new shiny objects of the act were not relevant, so there was no leaning in favour of a broad interpretation of words such as this to assist the exercise of rights of access, and scrutiny of decision making. (There is an application for leave to appeal to the High Court awaiting to be heard.) 

A turf war over what "matter of an administrative nature" means in the context of the parliamentary departments is to be avoided. Certainly where payments to, for, in support of or on behalf of  parliamentarians are concerned.

A better approach if there is to be a carve out would be to legislate with some degree of specificity what is or isn't subject to the act . And ensuring payments to members and senators, and expenditure incurred in providing support are part of the publication requirement. Something recommended generally as a transparency initiative by the Belcher committee way back in 2010:

1. That the government’s decision to publish details of all expenditure on parliamentary entitlements administered by the Department of Finance and Deregulation be underpinned with a legislative basis.
2. That all senators and members be required to provide a link on their official parliamentary websites (at www.aph.gov.au) to their individual expenditure reports on the Finance website.
3. That the presiding officers be encouraged to publish on a regular basis details of expenditure on services and facilities provided to individual senators and members by the chamber departments.(Recommendation 11.)

Last time I looked two only of the many Belcher committee recommendations, and not No 11, had been acted upon.

Back to Parliament and the FOI act.....

In an interview on ABC Radio AM on Saturday Keith Breene asked what could be potentially hidden as a result of the FOI move:

PETER TIMMINS: Well, these three departments have an allocation of about $170 million-odd a year, so I guess like any government department there are important scrutiny issues about how government agencies go about making decisions, spending public money, letting contracts. In this case, some of this money is spent on our parliamentarians.

A lot of that information about their entitlements is published by the Department of Finance, but there are other payments made by the Department of the Senate and the Department of the House of Representatives to our parliamentarians, and I guess that's a bit of a strange anomaly in the system, that that should be given special protection by not being subject to the FOI Act.

KEITH BREENE: Are there any reasons apparent to you why these three departments should be treated differently to other parts of the Parliament or the government?

PETER TIMMINS: No, not really, and there's some very strong reasons why they should be subject to scrutiny. I mean, we live in a democratic society; in a democratic society, transparency and accountability are important values.

Public scrutiny is essential for anti-corruption purposes. The Government has on the record an open government declaration of 2010, and importantly, on the day that the Prime Minister formed government - Julia Gillard formed government in 2010 - she said that day, and I quote: "let's draw back the curtains and let the sun shine in, let our Parliament be more open than it ever was before."

So all this seems to be a rather strange move at this stage.

KEITH BREENE: And what do you think it says about the attitude of Parliament to openness generally?

PETER TIMMINS: I think it sends a pretty strong message that they'd like to leave things the way they used to be, and in the modern context, I think the demand for transparency and accountability runs quite counter to that idea.

This is the source of that quote from Prime Minister Gillard (7 September 2010) which reads

Throughout this process of forming a new government we've been open with the Australian people. To quote Rob Oakeshott, sunshine is the best disinfectant, and we've agreed to far-reaching reforms that make me as Prime Minister and our government and how it functions more accountable to the Australian people. So, let's draw back the curtains and let the sun shine in; let our parliament be more open than it ever was before. That's real reform, and that's the direct result of the election.

 The Prime Minister also said that day:

 Well this is an opportunity for the nation.. to listen to what the Australian electorate told us at this election. I've heard the message loud and clear. People do wanna (sic) see us more open, more accountable, more transparent. I am going to be held to higher standards of accountability than any Prime Minister in the modern age. I'm well aware of that, and I'm going to focus on being up to that challenge. And I'm also well aware that when we go to the polls next time in 2013, Australians are going to hold me to account and I wouldn't have it any other way.

Ah, those were the days:

Australia and the OGP: next, who leads whom, where?

Now that Australia has lodged its letter of intent to join the Open Government Partnership, next step is the development of the national action plan.

But before that, who's driving this cart? 

Hopefully Senate Estimates this week may see a bit of prodding on this issue, and into current thinking within government on where things go from here.

Ideally the Prime Minister ("let the sunshine in") supported by her department should grab the reins. As per the US where President Obama leads from the White House, and the UK where Minister for the Cabinet Office Francis Maude is in charge, supported by the Cabinet Office Transparency Team.

Foreign Affairs? A domestic portfolio is better suited, although DFAT should stay closer to the action than hitherto (!) as the OGP has an important foreign policy dimension. 

Attorney General's perhaps as AG Dreyfus has Senator Faulkner's endorsement as someone really interested in the principles that underpin the OGP? (Update: AGD it is.)

Or maybe the Office of Australian Information Commissioner or Finance and Deregulation (AGIMO)?

The decision on lead agency and the way the agency designated views the issues and manages the development of a national action plan are vitally important.

The project requires some "outside the square" thinking about engagement with civil society that must go beyond an invitation on a website for submissions, the preferred methodology of quite a few in Canberra still hanging onto the nineteen seventies.

And the plan should only be a broad and rough outline of "concrete new commitments on open government" until that engagement takes place. Not simply a repackaging of low hanging fruit, as these documents released earlier in the year suggested.

Gov 2.0, Open Data and better use of technology are important. So are other transparency  issues sure to be raised when people peek outside the Parliamentary Triangle: for example next stage FOI (wherever we end up after the Hawke report due to be tabled in this session), and next stage integrity and anti-corruption including our long delayed national Anti-Corruption Plan and whistleblower protection, disclosure of political donations and better disclosure of lobbying activity. And the Extractive Industries Transparency Initiative to mention just a few other matters that warrant consideration. 

The US first crack at this in 2012 after extensive engagement with civil society provides an indication of this kind of broad thinking.

We need to move promptly in a similar manner towards our own version.

Sunshine Week a shining example

It's Sunshine Week again in the US:

a national initiative to promote a dialogue about the importance of open government and freedom of information. Participants include news media, civic groups, libraries, nonprofits, schools and others interested in the public’s right to know. 

Terrific for them.

Having been there a year ago, here I am this time in Sydney green with envy at the leadership, enthusiasm, widespread participation and financial support from the Knight Foundation and others that makes this happen year after year.

And left to imagine how interesting some of these events listed for Washington will be as the week rolls on. 

Who, what, when, where and how could we ever make something like this happen here?

Malcolm Turnbull on the deficit of trust

ABC

Also worth your time the George Winterton Lecture in Perth this week by my local Federal member Malcolm Turnbull entitled “Republican virtues – truth, leadership and responsibility.” It incudes a section on the urgent need for honesty and for steps to restore trust in political leadership. Some extracts:

Most Australians believe we need an honest, informed policy debate. Yet I don‟t see many people who believe we have that. Instead, we all hear again and again that Australians are ashamed of the parliament, that they see it as nothing more than a forum for abuse, catcalling and spin....
Call me idealistic if you like, but we have a greater need than ever for informed and honest debate and, yet, with the decline of journalism less means to deliver it and hold to account those who seek to frustrate it....
In case you think my call for a change of attitude and practice to truth in politics is just idealism – let me make a practical political point. It seems to me that we don’t simply have a financial deficit, we have a deficit of trust. We can argue for hours which side and which politicians,which journalists indeed, have contributed most to it. But it affects all of us and all of our institutions.The politicians and parties that can demonstrate they can be trusted, that they will not insult the people with weasel words and spin, that they will not promise more than they can deliver, that they will not dishonestly misrepresent either their own or their opponents‟ policies – those politicians and parties will, I submit to you, deserve and receive electoral success.

Before this speech I had sent him a link to my Polly perks, lobbying, probity, sunshine post

which refers to a number of reasons why pollies are held in low regard. I said I'd be happy to publish any comment he would like to make. The offer still stands.

 

Polly perks, lobbying, probity, sunshine...

From Saturday's Sydney Morning Herald further instalment about the scribbled system of disclosure of parliamentarians' interests and extras on the side:

An Australian National University professor who has written extensively on accountability, Richard Mulgan, says transparency is vital. "There is a very strong court of public opinion when it comes to parliamentarians," he says. "This is where transparency seems to me to be key. Politicians do live in a glass house and it's harder for them to get away with things."
But the present regime of disclosures presents many hurdles to accountability - not least because the forms are scratched in handwriting on unsearchable pages that must be examined individually. In the words of John Uhr, a professor of politics at ANU, the present system of disclosures "has still got a kind of 'club rule' about it, where the information is registered with the club official for club purposes"....
Australia's parliamentarians are not subject to many of the checks and balances that govern behaviour of parliamentarians in other Western democracies...Most politicians who accept gifts and lavish trips don't have to meet standards expected of federal public servants, whose behaviour must comply with a code of conduct.... The requirements for politicians to reveal duchessing and the like are based on a list of necessary disclosures set down in 1984 for members of the House of Representatives and 1994 for members of the Senate, and hardly changed since. The lists of disclosure are often obscure, poorly framed and inconsistent between the two houses... Confidence in the overall state of disclosures - and their ability to provide the "glass house" envisaged by Professor Mulgan - is not helped by omissions, opaque or illegible reporting and silliness.

Reminder: Prime Minister Gillard on forming government in August 2010 :

So, let's draw back the curtains and let the sun shine in; let our parliament be more open than it ever was before.

Reminder: the  Senate Finance and Public Administration Committee in March 2012 concluded everything was rosy with how the current regulation of lobbyists and lobbying in the form of a registration requirement is framed and works in practice. No recommendations for improvement according to the majority. The Greens Senator Lee Rhiannon in a dissenting report strongly disagreed and made eight recommendations for major change.

(Update: Senator Rhiannon reiterated the call last week for publication of "full details of MP’s interests, entitlements and perks online rather than unsearchable formats and paper records gathering dust in Canberra.")

Reminder: a  review of the system of parliamentarians entitlements commenced in September 2009 with the appointment of the Belcher committee, following critical findings about accountability and transparency by the Auditor General. The Committee Report came into the public domain when tabled in Parliament in March 2011, close to a year after it had been completed and handed to the government. "We are committed to reform, openness and transparency to ensure that we maintain the trust and confidence of the Australian people,” Senator Ludwig, the minister then responsible had said at the time the Committee was appointed.

Some improvements have been made since 2009 in public reporting on payments made by the Department of Finance separately from the Belcher review process, but that's just part of the picture- and the parliamentary departments are subject to the FOI act at least for the moment. Minister Gray in March 2011in announcing that two (of 16) Belcher committee recommendations had been acted upon, said the remaining recommendations had been referred to the Remuneration Tribunal, although some have nothing to do with that body. The minister said nothing then or since about when the tribunal should complete its work or when if at all the government will act on the recommendations.

Reminder: Speaker Peter Slipper and President of the Senate Senator John Hogg have said nothing on any of these issues.

Reminder: members of Federal (and state) parliament were rated very high or high for honesty and ethics in the Roy Morgan Survey of Professionals May 2012 by 10% of those surveyed- just ahead of the last three of 30 categories, real estate agents, advertising people and used car salesmen.

Ah, you've got to love 'em.

Australia makes news at US National Freedom of Information Day Conference

But it wasn't for any great freedom of information accomplishment. On the contrary we together with other countries involved in negotiating the Trans-Pacific Partnership copped quite a serve over the lack of transparency.

Last Friday at the Sunshine Week conference I attended in Washington, Lori Wallach of Public Citizen Trade Watch, recently returned from observing the 11th round of negotiations in Melbourne on the TPP trade agreement spoke to her just published article  in the March edition of American Prospect. Wallach said "unprecedented secrecy" surrounds the draft texts under discussion, quoting former US trade official Gary Horlick as saying it "is the least transparent trade negotiation I have ever seen" in his 40 years in the game. Wallach contends the negotiation has been misbranded as "trade": the 26 proposed TPP chapters

 "include domestic policy on financial, health-care, energy, telecommunications, and other service-sector regulation; patents and copyrights; food and product standards; land use and natural resources; professional licensing and immigration; and government procurement."

Wallach said decisions are being taken without public access to any documents or details or, in the US case, input from members of Congress serving on key committees whose jurisdiction is directly implicated. And that the governments involved have ignored a global “release the texts” campaign led by unions and civil-society groups. However more than 600 business representatives serving as official U.S. trade advisers have full access to an array of draft texts and an inside role in the process. "The strategy is to squelch informed debate until a deal is signed and any alterations become difficult."

Wallach's talk prompted a look at other materials. The Department of Foreign Affairs and Trade website confirms that it is no secret that the TPP will involve more than trade (emphasis added):

The Australian Government will pursue a TPP outcome that eliminates or at least substantially reduces barriers to trade and investment. The TPP is more than a traditional trade agreement; it will also deal with behind-the-border impediments to trade and investment.

This report from another observer at the Melbourne negotiations puts Australia up there leading on the confidentiality issue-and avoiding rather than answering questions:

The Australian chief negotiator opened the briefing with a statement of the chapters which had made progress during the round. Intellectual Property was not mentioned as one of these chapters, though market access, services, rules of origin and capacity building were amongst those specifically mentioned. He stated that there were more than 20 negotiating groups.

As usual, very few substantive questions were answered. Some procedural questions also went unanswered.

The first question came in the form of request for greater transparency, including the release of the text, in order to permit the general public to be part of the process. The Australian chief negotiator stated that the stakeholder forum provides the primary way for stakeholders to participate and it is common practice not to release texts during negotiations of free trade agreements. He suggested that releasing the text would not be feasible because "nothing is agreed until it is agreed."

A later question regarding the release of the text came when one stakeholder asked if the TPPA negotiating parties would consider a release after a composite text had been reached as is done at the WTO. The Australian chief negotiator repeated that in his view, the answer had already been clearly stated, that this is not the WTO and they would not release the text.

When asked whether all countries had finished tabling their IP text and whether the US specifically had tabled its text (marked as "placeholder" text in the prior leaks) on biologics, the length of the access window, internet retransmission and copyright limitations and exceptions, the Australian negotiator immediately responded that they would not release text. When pressed to answer simply whether specific text had been tabled or not, Barbara Weisel, US chief negotiator, did not clearly answer the question but seemed to indicate that such text had not been tabled yet. She noted that USTR is still consulting with stakeholders regarding some provisions, presumably on biologics and the length of the access window.

I don't know what relevant FOI activity has been undertaken. Participants have sought to head things off at the pass with this agreement on confidentiality to apply for four years, with NZ  acting as the organiser in chief:

First, all participants agree that the negotiating texts, proposals of each Government, accompanying explanatory material, emails related to the substance of the negotiations, and other information exchanged in the context of the negotiations, is provided and will be held in confidence, unless each participant involved in a communication subsequently agrees to its release. This means that the documents may be provided only to (1) government officials or (2) persons outside government who participate in that government’s domestic consultation process and who have a need to review or be advised of the information in these documents. Anyone given access to the documents will be alerted that they cannot share the documents with people not authorized to see them. All participants plan to hold these documents in confidence for four years after entry into force of the Trans Pacific Partnership Agreement, or if no agreement enters into force, for four years after the last round of negotiations. Second, while the negotiating documents are confidential, each participant may mail, e-mail, fax, or discuss these documents over unsecured lines with the groups of people mentioned above (i.e., government officials and persons who participate in the domestic consultation process). The participants may also store these documents in a locked file cabinet or within a secured building; that is, the documents do not need to be stored in safes. Each participant can also create and store these documents on unclassified computer systems. Lastly, the participants will mark the documents they create in a manner that makes clear that the documents will be held in confidence.The policy underlying this approach is to maintain the confidentiality of documents, while at the same time allowing the participants to develop their negotiating positions and communicate internally and with each other. We look forward to your confirmation that you agree with this approach.

In answer to a question, Wallach said Peru's FOI law offers the best chance of some access to TPP documents and a court case there is underway.

Sunshine Week- a great idea still to hit our shores

It's that time of the year - well it is next week - when the US open government community, led and co-ordinated by the Association of Newspaper Editors and the Reporters Committee for Freedom of the Press demonstrate the importance of open transparent government through Sunshine Week publicity and events.

I've been lamenting for years the absence here of a Knight Foundation to fund the start up, and a formidable team with a shared interest, prepared each year to invest time and resources to help build public awareness of the importance of the right to know. For everyone, not just the media.

 Three years ago, the coalition of media groups Australia's Right to Know organised a conference in Sydney on FOI reform, but hasn't repeated it. Or at any stage reached out to partners who might share an interest in open, participatory government. Despite the great name, ARTK's focus has been on media not citizen interests. And it's maintaining a very low profile - the last addition to published submissions on its website was in October 2009  and to the media releases list, in May 2010

By happenstance I'll be in Washington next week, attending a couple of events and renewing some contacts.

While the Queensland Information Commissioner has organised three Right to know days and the NSW Commissioner is talking about a Sydney event later this year, oh for a local equivalent of a group like these Sunshine Week partners:

American Library Association ♦ Association of Alternative Newsweeklies ♦ Association of American Editorial Cartoonists ♦ Center for Democracy & Technology ♦ Center for Public Integrity ♦ Center for Responsive Politics ♦ Collaboration on Government Secrecy ♦ Electronic Frontier Foundation ♦ First Amendment Center ♦ Investigative News Network ♦ League of Women Voters ♦ Media Law Resource Center ♦ National Association of Broadcasters ♦ National Conference of Editorial Writers ♦ National Freedom of Information Coalition ♦ National Newspaper Association ♦ National Press Club ♦ National Security Archive ♦ Newspaper Association of America ♦ OMB Watch ♦ Online News Association ♦ Openthegovernment.org ♦ Patch ♦ Project on Government Secrecy ♦ Project on Government Oversight ♦ Radio Television Digital News Association ♦ Society of Professional Journalists ♦ Student Press Law Center ♦ Sunlight Foundation ♦ Sunshine in Government Initiative

Sunshine prompts some parliamentarians to certify entitlement expenditure

The Department of Finance and Deregulation list of parliamentarians and senators who had not certified that expenditure by Finance was for legal use of entitlements, referred to here a week ago when the count of non-certifiers was around the 100 mark as at 6 January, reduced to 64 by the 20th. How many rightfully asserted "not guilty" along with John Cobb is unknown. Ministers Roxon, Bowen and Crean, Opposition frontbenchers Bishop and Turnbull and The Greens Bandt are among those who tidied up the record in this period-for expenditure January to June 2011- but those still outstanding (you know what I mean) include minister Conroy, Tony Abbott, Joe Hockey, and Andrew Wilkie- who admittedly has had a busy few weeks.

As certification is voluntary (ahem, is anyone else concerned about this?), I imagine the issue is not anywhere near a high priority for the 20 listed who were not re-elected in 2010 (there are others from previous parliaments). They include Lindsay Tanner, Maxine McKew, and Pat Farmer who has run from the North to the South Pole raising money for the Red Cross, but  this week was "in a tent at the US base, with his feet in warm water drinking a bottle of champagne."

PM's office draws a legal shade on sunshine

Ceridwen [CC-BY-SA-2.0] Wikimedia Commons

FOI Editor at The Australian, Sean Parnell wrote over the break about the two decisions handed down (in Christmas week) by Australian Information Commissioner Professor John McMillan, upholding decisions on behalf of the Prime Minister to refuse access to documents because they were outside the scope of the Freedom of Information Act.

The issue in both cases was whether documents requested by Parnell were "official documents of a Minister."( Freedom of Information Act (s 4). The commissioner found that a letter sent in September 2010 by Emily's List, a Labor Party advocacy group which counts the Prime Minister as a member, congratulating her on her election victory, and separately, a list of the meetings and conference commitments of the Prime Minister at an ALP national conference, did not relate to the affairs of a government agency, an essential component of the definition, and therefore were not subject to the FOI act.

Parnell argued in both cases that the documents involved contact with people seeking to influence government decision making that should, in the interests of transparency, be disclosed. But as the commissioner observed

Whether there is a public interest in greater transparency surrounding contact between elected political leaders and business or community representatives is not the issue to be resolved in this IC review. That is a debate for another forum.

Hopefully an issue for the review of the Commonwealth act towards the end of the year, and for anytime anyone shows an interest in our weak lobbying laws that should require some disclosures about lobbying activity.

Putting in the slipper

 Don't laugh this is serious.

The task of ensuring appropriate standards of transparency and accountability apply to the Australian Parliament has been duck shoved for years but is now in the hands, in part at least, of Speaker Peter Slipper. The comments in response to an article in his home town daily about his new well remunerated job are instructive.

He last featured here a year ago when Bill Hoffman of the said Sunshine Coast Daily was trying without success to get information about an investigation into his use of entitlements. Tony Wright in the SMH today provides some high (?) points:

Last year he was forced to repay $14,000 for wrongful use of entitlements, including travel for his family. In 2003, the Finance Department demanded he repay $7785.67 for breaching the family travel entitlement. His phone bill alone for half of 2009 was $14,764, which was more than that of Kevin Rudd, who was prime minister at the time. His cabs cost $16,000 over just six months, plus $8600 on private-plate cars (it was later revealed his son was spending time driving the taxpayer-funded car). All up, in the last six months of 2009 - a period that caught the eye of the Finance Department - Slipper's upkeep as a humble backbencher, including the running of his electoral office, cost the public $640,562. Slipper's expenditure rolled along last year, when he attracted notice for spending $30,000 on family travel, and also when he took a 43-day overseas tour, which he explained was on parliamentary business."

(Update: More today in The Weekend Australian including reference to a police investigation.)

Parliamentary entitlements
A broad range of concerns regarding transparency and accountability for entitlements and expenditure for and on behalf of members and senators were canvassed at length here last year.

The Belcher committee recommendations addressed some of these issues. Two were acted upon, the rest shipped off to the Remuneration Tribunal and have not been heard of since.

Minister Gary Gray whose responsibilities include parliamentary integrity hasn't said a word on the subject since passing the parcel to the Remuneration Tribunal. Update: This recommendation from the committee has been kicking around somewhere out there unaddressed since the committee concluded its work in April 2010:

That the Special Minister of State, on the advice of the Department of Finance and Deregulation, table in the parliament: (i) the name of any sitting or former senator or member who has not substantially complied with a request for information about an alleged entitlement misuse within a reasonable time (for example, 28 days) (ii) the outcome of the investigation into the complaint, and (iii) regular reports setting out each senator’s and member’s compliance with the requirement for certification that entitlements have been accessed in accordance with the relevant legislation, including any justification given by the senator or member for non-compliance with the requirement.

We have sunshine, but no Sunshine Week

 Sunshine Week this week in the US, the annual national initiative led by the American Society of Newspaper Editors to promote a dialogue about the importance of open government and freedom of information. Participants include news media, civic groups, libraries, nonprofits, schools and others interested in the public's right to know. Here is a sample of the coverage and events.The Department of Justice got on board launching FOIA.gov with government wide data on FOI processing, including agencies with the biggest backlogs. The Knight Open Government Survey undertaken by the National Security Archives revealed a glass half full on implementation of President Obama's day one openness commitment and subsequent directive.

Would we had a philanthropist like the Knight Foundation to fund, and a coalition like the one behind Sunshine Week to support, a similar initiative here.

National Information Law Conference Canberra March 2011

Information law, a topic probably still not taught as such in many Australian law schools, has arrived with the National Information Law Conference organised by Australian Government Solicitors' to be held in Canberra in March. It's a good thing that the field now gets this recognition and the program of Australian and overseas speakers sounds interesting and attractive. But spread over three week days and at $1500 per head (plus $100 for the Conference Dinner) there are limits on who has the time and money to share the wisdom beyond the public services and others who can get three days off work, with an employer prepared to foot the bill (plus travel and accommodation for those who don't live there.) I don't expect there will be too many self employed, community activists, NGOs, journalists and academics on tight budgets (other than the couple listed to speak) or just interested citizens in attendance.

A big law conference like this and the yawning gap in the Australian conference calendar of non-legal events about  the lie of the land regarding public information, open government, information rights, relations between government and the populace, public participation etc demonstrates one of our problems in the FOI area: that it is seen too frequently inside government and out as lawyers' business.

The different beast we don't see here (yet, he says hopefully) is something along the lines of the one day 13th annual National Freedom of Information Day Conference  that will be held in Washington DC a week earlier than the Canberra gathering:

"Hosted each year by the First Amendment Center, the conference brings together open records advocates, government officials, judges, lawyers, librarians, journalists, educators and others to discuss timely issues related to transparency in government and public access to official records. The program is conducted in partnership with the American Library Association, The Reporters Committee for Freedom of the Press, OMB Watch, OpenTheGovernment.org, and The National Security Archive at George Washington University; and in cooperation with the annual "Sunshine Week" initiative sponsored by the American Society of News Editors."

The conference is a full day of panel discussions and presentations-and here' the rub: there is no charge to attend.

We have a lot to learn about how to to build and sustain a community of interest around the  topic.

Sunshine the best detergent

From the Sydney Morning Herald tonight under the headline MP admits deliberately misleading parliament over signing blank forms:

Penrith Labor MP Karyn Paluzzano (who resigned earlier in the week as a parliamentary secretary) admitted at a corruption inquiry today she misled parliament by signing either blank or partly completed staff payment forms....Asked at this afternoon's hearing whether she had knowingly signed false and misleading forms, Ms Paluzzano answered: "That is correct."....Asked if she had signed either partly filled-in, or blank, forms Ms Palazzano gave the same response, and when asked whether she had deliberately misled parliament, she answered: "I accept that."...During today's hearing, it was also alleged that she rorted her electoral mail account by sending out mail that had not been approved by the clerk of the Legislative Assembly as is required.

The ICAC hearing continues.


From a post  here on 19 June 2009:

When asked in the Legislative Council yesterday about why the NSW Parliament would not be subject to the Government Information (Public Access) Bill the Attorney General John Hazistergos said it was a silly question and that the President of the Legislative Council and the Speaker of the Legislative Assembly had explained the reasons for the decision. He said citing examples of where this had occurred elsewhere, like the UK, was inappropriate "cherry picking" because " how we do business in this Parliament, the checks and balances that exist in New South Wales are not replicated in every other jurisdiction" and "freedom of information legislation in this State and throughout Australia is about keeping the Executive accountable. There are other means for keeping the Parliament accountable."

Just what those means are is not apparent. And-if applying the law to the legislature poses a problem- why the Government has not asked Parliament itself to consider embracing higher standards of accountability and transparency has not been explained. The Attorney General has been a vociferous opponent of a Human Rights Bill or Charter for Australia on the basis that parliament, not unelected judges should strike the right balance in protecting rights. Yet when it comes to a system to ensure the right to know about the day to day operations of Parliament in spending the $123 million allocated in this week's state budget, it is not even a topic worth discussing.

So no more pesky questions please about the $100 million in the Budget for "Members' Support" or how much each member is paid in entitlements or how travel, electoral or other allowances are spent. Just look forward with anticipation to next year's annual report for a few high level details.

Trust us, we're the NSW Parliament.

Perhaps time for more questions and reconsideration, Attorney General, or can we be confident Ms Palazzano is a one off, and no repeats are likely?


Tasmania is the only Australian jurisdiction to properly address this issue extending the Right to Information Act to commence on 1 July to the parliament in respect of matters of an administrative nature. 

Sunshine Week and the never-ending story

It's Sunshine Week in the US, again leaving those here who would like to see media organisations really step up to the plate on the public's right to know and why it's important, green with envy at the resources, professionalism and wide scope of and support for the initiative. The unfortunate news is the poll published there today that shows the public thinks government secrecy is as strong as ever.

The National Security Archive  has also published the result of an audit of agency compliance with President Obama's directive on openness.

The Obama administration "has clearly stated a new policy direction for open government but has not conquered the challenge of communicating and enforcing that message throughout the executive branch," the report concluded.

Those here faced with the same challenge should note what appears to have happened when the writtten directives were issued last year by the President and Attorney General to agencies to do things differently:

Some agencies (13 out of 90) implemented concrete changes in practice as a result of the memos; some (14 out of 90) have made changes in staff training; and still others (11 out of 90)  have merely circulated and discussed the memos. The remaining agencies (52) either told the Archive that they have no records that demonstrate how they implemented the Obama and Holder Memos or did not respond at all to the FOIA request.

Update:The White House commented in this New York Times report on the audit:

"The White House, however, took issue with the group’s methodology and said that the administration had made clear progress in turning around an executive branch that is often averse to public disclosures. “What we have done this year is to build the infrastructure to build a lasting change,” Norm Eisen, the special counsel to the president for ethics and government reform, said Sunday.

“It’s not enough for us to make initial, strong pronouncements. How do you really turn the battleship to achieve a lasting impact?” he asked. He said that throughout the executive branch, public information officers “are really trying to turn that battleship, and the initial returns are positive,” with more documents being released in the last year under Freedom of Information Act, or F.O.I.A., requests. But “there’s much more to do” and it will probably take another year before the changes are fully seen, he added. Even so, he said that the White House’s early data suggested more reason for optimism than the National Security Archive report in tracking progress under the Freedom of Information Act.".. The administration planned to release a broader report on government openness next month.."

MPs and opaque arrangements about expenditure of public money

The NSW Remuneration Tribunal last week issued the 2009 Annual Report and Determination of Additional Entitlements for Members of the Parliament of NSW. I'm all in favour of paying parliamentarians properly as recommended by an independent body but we badly need more sunshine about what goes here, despite the Tribunal's commendation of some recent initiatives to improve accountability.

For example how much of the electoral allowance (now ranging from $39950 to$82095 depending on the size of the electorate) each member spends, on what. NSW parliamentarians, like their Federal counterparts may pocket any unspent electoral allowance with the only issue one between the member and the Australian Taxation Office.The Determination tells us one submission received by the Tribunal suggested any unspent portion of the allowance should be returned to the Consolidated Fund rather than being retained by Members, but alas any such change, the Tribunal says, would be outside its powers and require legislative change.

Payments to members are subject to audit but no information about the expenditure of this or other allowances paid to individual members- Logistic Support Allocation, Electorate Charter Transport reimbursement, Committee Allowance, Electoral Mailout Allowance- or expenditure on other entitlements is publicly available from the Parliament. Not even the rule book that Parliamentary Joint Services uses for payments is on Parliament's website. But you can glean a little from the Tribunal Determination.

The Tribunal, at the request of the Presiding Officers, ruled out the use of the LSA to purchase promotional products for constituents such as "fridge magnets, notepads, shopping lists, key rings and pens." No moat cleaning revealed here, but what else is claimed only the Tax office will ever know.

Then there is the Sydney Allowance for members whose nominated place of residence is outside Sydney. It has been modestly increased (by $6) to $246 per night. The Determination tells us that everyone from a backbencher to a minister eligible for the allowance can choose to receive pay as you go payments or a lump sum, in the case of a minister and a few others, 180 nights worth ($44280). Members are to retain some proof they stayed overnight, but no details of expenditure are required. If they choose pay as you go they are entitled to additional payments over the limit on proof of expenditure. The Determination says the payments are meant to provide for long-term accommodation and I wouldn't want to condemn these worthy souls to life in a hotel room but the quid pro quo for nice round sums like $44000 should be publicly available details of where and on what the money goes.

Members of parliament also get money in the LSA to directly employ two or three people in their electoral office at public expense.The Determination even refers to payments to an approved relative. But nothing is publicly available about who is on each of their payrolls.

Is Tasmania unique where newly appointed parliamentary secretary Allison Ritchie resigned from that position and parliament last week after it was revealed she employed her mother, two sisters and her brother-in-law in her office, touching off debate there about the need for some rules about all this?

The legislative branch of government in NSW (which will spend over$100 million on Members Support this year) and everywhere else in the country drags the chain when it comes to open and transparent government. All are outside the scope of freedom of information laws and the parliamentarians themselves, with a few notable exceptions such as The NSW Greens' Lee Rhiannon show no interest in lifting the game on their own volition.

Sunshine Week sets a shining example.

Next week 15-21 March is Sunshine Week in the US- a media initiated annual national campaign designed to heighten public awareness of the importance of open government.This year one feature will be a report on surveys of the information states make available on the web, undertaken in association with the American Society of Newspaper Editors' Freedom of Information Committee, the National Freedom of Information Coalition, and the Society of Professional Journalists' FOI Committee.

The toolkit of terrific resources available free for use by media across the US includes opinion columns, editorial cartoons, informational graphics and public service ads for print and broadcast.

US media owners, publishers and journalists do a great job to build and maintain a constituency for open transparent government, in everyone's interests, by investing in initiatives to improve public understanding of the importance of these issues.This long-term highly professional effort to alert the public to their stake in all this is something the Australian media coalition, Australia's Right to Know, together with like-minded partners, should seek to emulate.The coalition will break new ground by holding a Free Speech Conference in Sydney on 24 March.It's a welcome development, but have a look at Sunshine Week's Calendar of Events and the range of activities and organisations involved- not a one-off either, but part of an ongoing investment of time, money and other resources, deemed worthwhile by the many participants, even in tough financial times.

You'll see some examples of the US materials accompany posts here next week.

Transparency flag flying in the US as well.

Of course it's not just NSW where the call has gone out for more openness and transparency.Here, from Sunshine Week, is a list of, and links to, some of the voices urging improvement in the US, on the eve of Presidential and other election contests on 4 November.