Transparency for HRECs in the public interest

Amphetamines.com

Although not of a binding nature, a decision by the Acting Information Commissioner in Western Australia, that documents about the consideration of an application to the Human Research Ethics Committee at Curtin University of Technology were not exempt under the Freedom of Information Act, should make for lively discussion at universities and other organisations around the country where such committees consider research proposals.

The Acting Commissioner decided that the submission to the Committee, including supporting documents about the conduct of research, documents containing comments on the proposal by Committee members (other than a small amount of personal information) and information about funding from partners should all be disclosed.

The case concerned documents about a ongoing research program into Attention Deficit Hyperactivity Disorder(ADHD) and a comparison of “ the effects of stimulant medication (Dexamphetamine or Ritalin) with the new nonstimulant medication, Strattera, on cognitive, educational and social outcomes in boys and girls, diagnosed with ADHD.” The University gave the applicant access to 18 of the 42 relevant documents, but refused access to the rest on the grounds that they were all exempt under one or more of clauses 4(3) (commercial or business information); 6 (deliberative processes); 8(2) (confidential communications); and 11(1) (effective operation of agencies) of Schedule 1 to the FOI Act.

The Acting Commissioner's decision was based on a number of considerations and conclusions including that some information claimed exempt was already in the public domain, and that the assertions of the University in some instances about the need for confidentiality was "unsupported speculation and conjecture". In considering the familiar argument about the need for frank advice, he said:

"By way of example, if I were to accept the agency’s assertion that members of the HREC must be free to act “...in a full and frank manner” when considering research proposals, that would mean that I accept as reasonable the agency’s claim that professional academic members of the agency, and other like agencies, will only make honest, and sometimes adverse comments and criticisms about research proposals submitted to the HREC for ethical approval if they can do so behind the cloak of confidentiality. In my view, such a claim is inconsistent with the ethical standards expected of professionals in the academic world and elsewhere and, as with all of the other claims made by the agency, it is not supported by credible evidence. The agency’s views do not, in my view, establish that disclosure of the disputed documents would, on balance, be contrary to the public interest. In effect, the agency has given those statements as a basis for claiming that because of the inherent “checks and balances” in the HREC ethical approval processes the public generally and the complainant in particular, should take the agency’s word that the proper processes have been followed and that it should not be subject to further scrutiny and be held further accountable by disclosure under the FOI Act."[86-87]

The Acting Commisioner said the response to the application was

"inconsistent with the objects and intent of the FOI Act. Little weight was given, both at the initial decision stage and the internal review stage, by the agency to promoting the purposes and objects of the FOI Act. The reasons given by the agency for refusing access to the disputed documents are not, in my opinion, enough to justify refusing further access....The FOI Act is intended to enable the public to participate more effectively in governing the State and to make the persons and bodies that are responsible for State and local government more accountable to the public."[92]

The nature of the research was also an important factor in weighing public interest considerations:

"There is a strong public interest in agencies being accountable for their decision-making and in the public having access to information about university research projects, particularly where, as here, the Project involves academic research involving the medication of children with drugs. I agree with the complainant’s submission that obtaining information about research of the kind being undertaken in relation to the Project is a strong public interest factor in favour of the public being able to scrutinise the approval given by the HREC of the agency and make its own judgment as to whether the HREC is discharging its functions properly. I also consider that disclosure of the disputed documents would serve the public interest in keeping the community informed and in promoting the discussion of matters of the kind relating to research about research that may improve the educational and personal outcomes of children diagnosed as suffering from ADHD."[94]

The Acting Commissioner acknowledged a "public interest in ensuring that the community has confidence that universities have integrity and ethical standards in relation to their research and that the HREC must be free to act in a full and frank manner when considering research proposals. I accept the agency’s advice that it has stringent internal and external reporting requirements and that research processes are closely monitored and sub-standard research practices are not tolerated. In my view, stringent internal and external reporting requirements as described by the agency are both necessary and appropriate but I would expect that to be the case in any event."

"However, the fact that such processes exist at the agency does not mean that individuals such as the complainant should be denied access to the same documents, in an effort to satisfy themselves that such internal and external reporting requirements are appropriate and being adhered to. An assertion that the complainant and the public at large should “take the agency’s word for it” that all the necessary checks and balances are being adhered to is not sufficient to persuade me that the public interest is best served by non-disclosure."[96].

Queensland adoption laws to open access

Transparency in Queensland is on something of a roll-"Adoption secrets to be revealed" according to this report on news.com.

Immigration decision making not up to scratch

Photo News Limited

Three weeks ago, the Commonwealth Ombudsman released a report following an investigation of the way Freedom of Information applications have been handled by the Department of Immigration and Citizenship. The report was critical of many aspects, but made it clear that the investigation had not involved examination of the quality of decisions made by the Department.

This decision last week by the Administrative Appeals Tribunal concerning documents sought by Dr Haneef provides an insight into decision making in the Department when dealing with an application for documents about the decision making process. The Department originally claimed 282 documents were exempt. After subsequent concessions, the removal of 73 duplicates, and the Tribunal's decision on six remaining documents, one was found to be exempt.

It's worth noting that the original decision was made five months after the coming to office of the Rudd Government, with its many pre-election commitments to change the culture in government in the direction of greater openness and transparency.

In April this year Dr Haneef applied for documents relating to the cancellation last year of his Business (Long Stay) visa, which had an expiry date of 30 August 2010; the decision to detain him in 2007 and to his ongoing detention at that time; the issue of a Criminal Justice Stay Certificate; and any documents recording or relating to communications between Government Departments concerning Dr Haneef. Here is the relevant part of the original determination:

"The documents I have exempted under subsection 36(1) are internal working documents. The documents to which you have sought access are documents which contain advice and recommendations prepared for the deliberative processes whose disclosure would be contrary to the public interest.

In coming to this view, I considered the following factors in favour of disclosure:

• There is a general public interest in making information held by the Government accessible to the public;
• A person or the general public is entitled to have access to documents containing decisions which affect them. Disclosure may reveal the reasons for decision; and
• The need for openness and accountability of the Department’s operations.

On the other hand, I considered the following in favour of non-disclosure:

• Advice to Ministers or other senior officers or free expression of opinion, if disclosed, would hamper the flow of advice from bureaucrats or others if they thought this advice could be subject to later scrutiny;
• Disclosure would mean officers would be reluctant to record sensitive issues; and
• Disclosure would inhibit full and frank discussions and may leave some people reluctant to record an opinion or provide advice.

On balance, I have decided that the public interest to exempt such documents outweighs the public interest in disclosing documents and there [sic] exempt them from disclosure under subsection 36(1) of the FOI Act.”

The Tribunal upheld the claim in respect of one of the six documents in dispute by the time the matter came before it, on the basis that it was contrary to the public interest to disclose a document that "will more readily be misunderstood by the public and mischaracterised by those who are unacquainted with the full details of Dr Haneef’s case and the way in which various Australian governmental agencies and officers handled it.....The preliminary nature of the views expressed, the questions which are raised but not answered, the speculation as to how events may unfold in the future and the way in which the Department might respond – all of these characteristics of the document demonstrate that disclosure would more readily lead to its misconstruction in the public arena than the other documents considered below."[41]

As to the other five, the Tribunal rejected arguments that disclosure would mean that officers would be less candid and frank in providing advice, and that this on its own would justify non disclosure on public interest grounds. There was "no convincing evidence .. presented to the Tribunal by the Department establishing any direct, significant or specific disadvantage that would be likely to flow from disclosure.."[45-50].

"With regard to drafts of the Statement of Reasons eventually given by the Minister in relation to the cancellation of Dr Haneef’s visa.. (t)he Department submits that the fact that these documents are in draft form justifies a finding that disclosure would not be in the public interest. The same general objection regarding the discouragement of candour and frankness is also advanced by the Department, but again it is not supported by any specific evidence which indicates that publication of these documents would be adverse to the public interest. Moreover, we are of the view that there is a very cogent public interest in having the unexpurgated reasons for cancellation of the visa made public, and that this is a consideration which should be given due weight. Far from accepting the Department’s submission that disclosure of the documents would run contrary to the public interest, we find that the public interest in respect of these documents warrants disclosure."[49]

We can only ponder why the Department didn't get closer to the correct decision way back in April. Unlike other aggrieved applicants,at least Dr Haneef got an expedited hearing.

FOI delivers but Mercury declines to name poor performing schools

The Hobart Mercury has used the Freedom of Information Act to access information about literacy and numeracy levels of students in the public sector system, reporting large discrepancies that seem to reflect differences in socio-economic status, but decided not to publish the names of the schools with poor records.The Mercury responded to a request from the Premier and the Education Department who said publication of this data would only further stigmatise struggling areas.

In a follow up today, the paper says it has tried in the past to expose such disadvantage but had been urged to focus on positive stories; acknowledges the danger of letting the Government, and others responsible, off the hook; and reserves the right to publish these details if and when community attitudes dictate it should do so. The decision not to publish will be much debated by the Mercury's media colleagues.

"Our withholding of the table of schools is a singular departure from this paper's commitment to the public right to know. But it is not open-ended. If a change in community thinking requires its publication we will do so. We made our decision, not to protect a Government that flunked the exam and avoided publishing the results, but to shield innocent children -- if only temporarily -- from being implicated in that failure. But this does not let the Government off the hook. It must quickly find a way to give this information to the community. Only through this knowledge can communities and schools hope to pressure government to end the inequities in education.

The Government is on notice to do something about what appears to be the emergence of an illiterate, poor and non-working class of Tasmanian who is destined to miss out on the opportunities and trappings that the rest of us enjoy."

NT Commisioner's first but welcome decision on FOI

This must be some sort of world record: The Office of the Information Commissioner in the Northern Territory, almost four years after the commencement of the Information Act, made its first external review decision on an access to information application. The paucity of decisions may mean a couple of things, including that freedom of information is going swimmingly in the Territory. But no matter what, you have to wonder about a review system that received a matter in July 2005 and hands down a decision in March 2008. Are there others in the three year long pipeline?

Notwithstanding, it's a no nonsense decision to grant access to a document that the Office of the Commissioner for Public Employment fought long and hard to protect- a report prepared by a consultant on the investigation and review of a grievance in connection with the applicant's employment at Alice Springs Hospital.

The Acting Commissioner rejected arguments that the report was outside the scope of the Act because it related to the decision making functions of a tribunal, concluding that the process of investigation and consideration did not involve the exercise of any judicial or quasi-judicial function[9-73]; decided that the public interest in disclosure outweighed other factors in considering the status of this deliberative process document[74-89]; and found the evidence did not support an argument that disclosure would have a substantial adverse effect on the management of employees[90-107], reveal information communicated in confidence to the agency[108-113] or constitute an unreasonable interference with the privacy of those who spoke to the investigator[114].

Some of the Acting Commissioner's counterparts in other jurisdictions, who seem greatly attached to public interest arguments to support confidentiality, even after the event, in investigative and deliberative processes might find food for contrary thought in this decision.

The Acting Commissioner's summary of the decision has been published in Issue 7 - June 2008 (227kb, PDF) of the Office Newsletter, In Fact. The decision (Collie and the Commissioner for Public Employment) is here

A pity it was three years in the making.

Time on again for whistleblower protection

Mark Dreyfus QC, Member for Isaacs

The Cabinet Secretary, Senator John Faulkner announced that the Government has asked the House of Representatives Standing Committee on Legal and Constitutional Affairs to consider and report by 28 February 2009, on a preferred model for legislation to protect public interest disclosures (whistleblowing) within the Australian Government public sector. The media release and terms of reference indicate a broad ranging inquiry.The Committee is chaired by one of the star recruits for Labor at the last election, Mark Dreyfus QC. It's probably inevitable that some sort of inquiry has proved necessary as Labor's election commitment was in broad and general terms.

It's not that the ground isn't already well tilled- Senator Andrew Murray introduced bills that went nowhere although one was the subject of this report in 2002 by the Senate Public Finance and Administration Committee

The 175 page draft report, "Whistling while they work project" the result of three years of work by Dr A J Brown of Griffith University and colleagues, supported by a substantial grant by the Australian Research Council, has been sitting on the table since late last year.

The Committee is to look at whistleblowing in the Australian Government public sector so all this won't move us far in the direction of what all the experts say we need- a coherent, national approach to whistleblower protection laws.

40000 words on the dark arts of spin and related topics

Mark Pearson and Roger Patching of Bond University have published a literature review, "Government media relations: A 'Spin' through the literature", a terrific resource for researchers and students interested in what, unfortunately, have become the dark arts of access to, and communication of, government information. Freedom of Information gets some coverage in Chapters 1 and 2.

Abstract"Government media relations is deserving of serious study because it sits at the interface between the executive and journalism, two of the fundamental institutions in a modern democratic society. That line of communication is central crucial if citizens are to be kept informed of the workings of government and the machinations of the political system. The Australian High Court underscored its importance in the 1990s when it introduced an ‘implied constitutional freedom of communication on matters of politics and government’ through a series of decisions (2007, pp. 35-38). It is a communication channel where truth and transparency should be institutionalised. Truthful, accurate and transparent government communications are crucial to an informed citizenry via an effective news media.

This literature review aims to background and map key themes within the research to date in the field of government media relations (sometimes pejoratively known as ‘spin’) for the benefit of fellow researchers and to identify opportunities for research to take knowledge beyond that existing body of material."

"The mob" misguided on the right to be informed

With the ugly face of the mob on the street in Queensland, the hottest "right to know" issue has become, in the space of a week, our right to be informed about the whereabouts of convicted pedophiles, but why stop there?

Peter Faris QC in The Australian and this editorial in the Gold Coast News are advocating an Australian version of Megan's Law which includes convicted sex offenders in many US states. What next? As Paul Syvret in the Courier Mail says

"..where would such a register of criminals stop? If we are to be told when a convicted pedophile moves in around the corner, why shouldn't we know whether our neighbours are murderers, drug dealers, have a long history of break and enter offences, or are habitual drink-driving offenders? And remember, any such registers only list those who have been convicted. There are countless offenders of all types living quietly among us now. They just haven't been caught yet."

Even the Prime Minister has weighed in although it's not clear exactly what he advocates- a notification system, or no constraint on publication:

".. civil liberties lawyer Terry O'Gorman has called for laws to stop the media revealing the location of child sex offenders, Prime Minister Kevin Rudd also said people had a right to know. Mr Rudd said: "My general view is that the community has a right to know.

"I believe that this is a most sensitive, difficult area and these are sensitive, difficult decisions to be made by the authorities, but I think as a general principle the community does have a right to know.

The public register or notification requirement would be a dangerous step on a slippery path. Notwithstanding, there is no justication for the Courts preventing publication as in this case referred to in a Herald Sun editorial.

Encouraging to some extent that the PM has found his voice on the "right to know." PM, there are plenty of related issues awaiting your attention.

Primogeniture still trumps

In March the Acting WA Information Commissioner decided that where an issue of who was the closest living relative of a deceased person among siblings arose in the course of dealing with a Freedom of information application, the correct interpretation was that this meant the oldest sibling. He said other factors such as the quality and closeness of family relationships were too subjective to rely upon in interpreting the term “closest relative”. (See case 1)

In this decision he has reaffirmed the principle and applied it not only where there was evidence of an estrangement between the person and his late mother, but where in her later years she expressed the wish that he not be given access to her medical records

"The FOI Act was not intended to deal with such questions as the proper interpretation of words used in a statutory declaration or the state of mind of a deceased person. The A/Commissioner considered that the most appropriate way to distinguish which surviving child should be designated the “closest relative” for the purposes of the FOI Act is to select the individual born first in time because this provides the most objective and certain approach to interpretation, and accords with the ordinary dictionary definition of the term as used in the FOI Act'.

New years eve at Kirribilli

An unsuccessful Freedom of Information application for documents by the Sydney Morning Herald about the cost and the guest list for the Prime Minister's new years eve party at his official Sydney residence is hardly a matter of great significance but it raises some interesting issues.

The application was refused on the grounds that any relevant documents held by the Prime Minister were not "official documents of a minister" as defined by the FOI Act. According to the report, the relevant factors cited by the Prime Minister's Office were that "Mr Rudd and Ms Rein had personally invited guests to a private function at Kirribilli House on New Year's Eve" and "Mr Rudd and Ms Rein personally met all the additional costs associated with the conduct of the … function". It's correct that documents held by a minister of a personal kind, or comprising the records of a minister in her or his capacity as a member of Parliament, do not fall within the terms of documents covered by the Act.

It sounds as if the request was refused on the basis, that as the documents sought were outside the scope of the Act, the application was invalid, rather than a claim that the documents were exempt from disclosure. As the decision was made on behalf of the minister there is no right of internal review, no right to complain to the Ombudsman, and given the nature of the rejection, maybe no right of external review by the Administrative Appeals Tribunal. Just what constitute documents of a personal kind has not as far as I am aware been previously tested. Where the line should be drawn between the Prime Minister's use of public property and those aspects of the life of the Prime Minister and his family that are clearly of a personal nature is unlikely to be resolved by independent review in this case either.

In Senate Estimates hearings in February there was extensive questioning of officers of the Department of Prime Minister and Cabinet about the function. It emerged then that the Department did not have a copy of the guest list and that the additional costs of the function had been reimbursed to the Department by a payment by the Prime Minister's wife. In subsequent responses to questions taken on notice, the Department said Ms Rein had reimbursed all staff and other costs associated with the function over and above normal running costs, calculated by the Department and paid in response to an invoice sent to the PM. But the Department declined to provide further information, in accordance with what was described as a longstanding practice to not disclose details of public or private functions held at official residences.

It's unclear whether the Herald's FOI request was to the Department or the Prime Minister's Office. It would make a difference. If it was to the Office, the response received is what it is and that may be the end of the matter. If it went to the Department, however, the response received would not be adequate. A strange quirk in the Federal Act permits the minister or a person in his office to make a determination on a request for documents held by the agency but the response would have to determine the status of those documents. While the Department still may not hold a copy of the guest list, as made clear to the Estimates Committee, it holds documents about the costs of the function. The definition of " official document of a minister"referred to above would not be relevant to dealing with a request for documents held by the Department. The law says the documents held must be provided unless they are exempt. It might be hard to argue that a document detailing costs and a reimbursement for an event on public property involve unreasonable disclosure of personal information or would attract any other exemption. Any decision to refuse access would be subject to the normal rights of review.

As for guest lists at official functions not sure what has happened here, but the UK media for years have used FOI to keep an eye on who makes the list for Chequers, after this breakthrough in 2005.

NSW "name and shame" initiative second best option

Good to see the commencement of publication of the details of fines imposed for breach of food standards on the NSW Food Authority website, bringing this state at least somewhere closer to the good practice standard of comparable countries such as the UK, and many parts of the US, and Canada. There is not much sign of movement in the other states.

The Government's initiative is rolled out under the "name and shame" banner, from the Minister's media release, the use of this term on the web page, and predictably in media reporting. What a pity we haven't embraced a fully transparent scheme with real potential to lift food hygiene standards that would come from routine release of information about compliance-good, bad and indifferent-or through a rating system. Either would acknowledge good as well as poor performance, and provide an added incentive to all to lift their game

Examples of penalties that appeared on the "name and shame" website’s first day of publication included:

• A restaurant in the Fairfield Council area fined $660 for dirty premises or equipment.
• Two restaurants in North Sydney fined $660 and $330 each; one for a person smoking in a dry food store and the other for a dirty meat slicer.
• A McDonald’s restaurant on the Central Coast fined $660 for failing to maintain fixtures and fittings in good repair.
• Two restaurants in the Penrith Council area fined a total of $1320 for four counts of poor cleanliness and maintenance issues.
• A Wollongong restaurant fined $660 for failing to maintain potentially hazardous food under temperature control.
• A Subway on the Central Coast fined $660 for poor cleanliness.

The matrix used to determine what constitutes a serious breach and therefore justifying publication is also reassuring after concern about the absence of this detail in the legislation that established the register earlier this year.

It's worth recalling that all this only came about after a two year campaign involving numerous Freedom of Information applications by the Sydney Morning Herald FOI editor Matthew Moore, and frequent refusals by different councils to disclose details on the basis that disclosure would have an unreasonable adverse effect on business affairs that was not outweighed by the public interest in disclosure, in at least one case supported by the Ombudsman. Congratulations to Blacktown and Woollahra councils who early on went against the tide and recognised a strong case of the public right to know when they saw one.

Transparency central to lifting trust in government

Here is an extract from the introduction to The Pew Center Report on the Government Performance Project - how well state governments in the US manage information, infrastructure, money, and people, released earlier this year:

"Just a few years ago, states would boast about their latest, cutting-edge piece of
technology. Not anymore. Today, it’s not the tools. It’s results. One of those is transparency. In an era when “trust in government” is at low ebb, states are working to open up communications with their constituents."

The report concludes that "information is king", not in the sense so familiar here, that spin dominates government thinking, but in the recognition that how well government manages, analyses and disseminates information is central to performance in all areas:

"No single idea emerges more clearly from year-long research done for the 2008 Government Performance Project. As always, this report focuses on four fundamental areas of government management: Information, People, Money and Infrastructure. But this year, the elements that make up the information category—planning, goal-setting, measuring performance, disseminating data and evaluating progress—overlap with the other three fields to a greater degree than ever before. Information elements, in short, are key to how a state
takes care of its infrastructure, plans for its financial future and deals with the dramatic changes affecting the state workforce."

The criteria for the assessment of performance in the information category were:
• The state actively focuses on making future policy and collecting information to support
that policy direction.
• Elected officials, the state budget office and agency personnel have appropriate data
on the relationship between costs and performance and use these data when making
resource-allocation decisions.
• Agency managers have the appropriate information required to make program
management decisions.
• The governor and agency managers have appropriate data that enable them to assess
the actual performance of policies and programs.
• The public has appropriate access to information about the state, the performance
of state programs and state services and is able to provide input to state policy makers.

Overall the states were rated B- in this category. The Grading the States 2008 Report is here. Thanks to Free Government Information for the link.

The Australian states would all point to some evidence of performance management and reporting, but I can't recall similar recognition of the"information as king" point, the assessment of performance in provision of access to information, or any ongoing comparative work, but happy to stand corrected.

Old secrets week

Revelations about the 60s, followed by another about the 50s. If as now revealed, the US Government at high levels knew,there is an interesting issue about what if anything Australian records contain about incidents now coming to light in Korea and the US about the early days of the Korean War. According to AP,

"American officers observed, photographed and confidentially reported on.. wholesale executions by their South Korean ally, a secretive slaughter believed to have killed 100,000 or more leftists and supposed sympathizers, usually without charge or trial, in a few weeks in mid-1950."

339 Australians died in the Korean War between 1950-1953.

US FOI delivers on Australia's 1960s nuclear ambitions

This report in The Age on Australia's concerns 40 years ago about international developments that would prevent us from developing our own nuclear weapons, was based on documents released in the US in response to Freedom of Information applications by the National Security Archive at George Washington University. Details of the documents are on the NSA website which includes this comment

"The documents detail the well-known resistance to the NPT from countries like India ("China at her back, and Pakistan lurking on the sidelines") but also from more unusual objectors such as Australia (concerned that the Western Pacific security situation might worsen) and Italy (unhappy about the "second-class status" of non-nuclear states). The documents suggest that the current crisis in the NPT system has deep historical roots, but also that current headlines overlook the long-term achievements of the NPT regime."

I wonder what Australian documents of the time about this issue are available in open access at Australian Archives, and whether at our end there is still sensitivity about what we told the US all those years ago? An interesting comparative study for someone out there.

Chicken little sighted in Canberra

Dennis Atkins in the Courier Mail says Federal Cabinet will today consider Minister Faulkner's submission on Freedom of Information reform, with strong public service advice that removing "ministerial discretion to block the release of documents, .. could threaten the Cabinet system of government and even weaken intelligence ties with foreign powers." Wonder they didn't add the sun will not rise, the earth will not turn, and other similar arguments that have been running for the last 30 years.

Still in the dark on hospital and doctor performance

The Sydney Morning Herald reported last week that NSW Department of Health continues to hold the line against publication of information about the professional performance of hospitals and doctors, but the Feds are showing no sign of backing off their insistence that more transparency has to be part of the away forward on reform of the health system.

The Herald quoted a publicly available audit, Review Of Implantation Procedures For Permanent Pacemakers In NSW Public Hospitals 2007, stating there "appeared to be no difference in complication rates between … where the procedure was performed." However the report showed complication rates varied from 8.5 per cent for the best-performing hospital to 17 per cent for the worst, and neither the report nor the Department identified the hospitals concerned.

A cardiologist told the Special Commission of Inquiry into Acute Care Services in NSW Public Hospitals recently that there was a "strong case" for public report cards on surgeons who implanted pacemakers because some had higher infection rates and "signature mistakes". And the director of the Centre for Human Bioethics at Monash University, Justin Oakley, said if patients were not told of differences between hospitals "there has been a failure in informed consent".

So good to see the Federal Government keeps pushing:

"NSW hospitals would be forced to publish their mortality rates or risk losing federal funding, the federal Health Minister, Nicola Roxon, said this week. The Prime Minister, Kevin Rudd, was "adamant" such criteria were made public in his plan to make states more accountable for public hospital performance, she said.

We lag many systems around the world in this area, but it is still a hot issue, for example in California where a bill before the legislature also seeks to ensure public disclosure of medical outcomes and other information about health care safety, quality and cost. One of the supporters says the potential cost savings are enormous and that public disclosure of safety and quality information, such as mortality rates by hospital, has been shown to lead to improved performance.

Anonymity not warranted for significant agency mistakes

An unnamed local council in Victoria released 223 pages of documents to a Freedom of Information applicant who was involved in a protracted dispute with a neighbour, including 185 pages of information provided largely in confidence by the neighbour about their side of the story, and without any consultation.It proved to be an expensive failure to process the application correctly.

First an investigation by the Ombudsman, that resulted in an acknowledgment by the council that it "may have erred seriously in its management of the FOI request". Then when the council did not follow the Ombudsman's recommendations to resolve the matter, the neighbour complained to the Privacy Commissioner who was able to investigate an alleged breach of privacy because the council appears to have released the documents as a routine disclosure, not under the FOI Act. As a result of a finding by the Commissioner of breach of the disclosure principle, the council agreed to payment of an undisclosed sum in compensation.

While the aggrieved party is entitled to expect privacy in the handling of these complaints, wouldn't the local citizens be better off if the council was publicly named, rather than hidden behind "Local Council" in the case note issued by the Privacy Commissioner? That might enable any of them interested, to ask relevant questions. Quite apart from final compensation, how much did this cost in terms of staff time and any other assistance sought to deal with two investigations, and why did the council fail to act on the Ombudsman's recommendations?

FOI grounded as parliamentarians take flight

Midwinter, and many MPs take flight for foreign climes, hopefully to broaden their horizons(or not as the case may be). Junket or no, as this editorial in the Herald Sun points out, there is a lack of accountability as a result of the fact that parliament(in all jurisdictions,not just Victoria) is not an agency for the purposes of freedom of information legislation.This has been on the list of recommended but unaddressed reforms in Canberra since the 1995 ALRC Open Government report. The issue rarely gets a mention elsewhere. Come on folks, we should expect better than this.

Some advances on the transparency front

Credit where due to the Federal Government and Special Minister of State Faulkner for these initiatives for improved transparency, even though the first two still fall short of a robust disclosure regime:

• Publication of information on the web about aggregate cost of travel by office-holders
  
• On line publication of the Register of Lobbyists
• New guidelines on use of public money for government advertising include the requirement for publication on the web of Auditor General's assessment of compliance.In the light of the Howard Government's record in this department, a brownie point for trying to the Opposition spokesman who criticised the guidelines for failing to include the word"vet" .

But the recently released Code of Conduct for Ministerial Staff is silent on responsiveness to parliamentary committees, one of the issues Labor raised when in opposition. This was my assessment after Senate Estimates in February: "It sounds like there is some significant wriggle room regarding a pre election commitment that ministerial staff will be available to answer questions posed by parliamentary committees: this now seems only to be applied where a staffer has been improperly involved in executive decisions." The Code says staff are not to involve themselves in such matters. "This Government believes that within Minister's offices, it is Ministers who must make executive decisions, and it is Ministers who are and who should be accountable for those decisions,'' Senator Faulkner said.

FOI: cost and delay a continuing problem

Stories of cost and delay are commonplace in Freedom of Information experience, but here is Tim Lester of Nine television network on the story so far of an attempt to access two reports on the preparedness of hospitals to cope with a national emergency ($ 3650 to make a decision says the Federal Department of Health); and The Age on a bill for almost $2000, and no "public interest " reduction to get to first base, with an application for documents from the Department of Prime Minister and Cabinet concerning "rendition", the US practice of forced transfer of terrorism-related prisoners between countries. The " decision-maker is not satisfied that any material released by the department would add any value to information that is already in the public domain".

They only know what we have read in the papers?