PM's speech makes good and familiar noises

The Prime Minister's speech to the newspaper publishers' conference, referred to yesterday, repeats earlier commitments to Freedom of information reform rather than telling us anything new.Unfortunately the timetable for release of a discussion paper for second phase of reforms -to cover everything except the abolition of ministerial certificates- may be starting to slip:"later this year"has had "or early next year" added.

One positive is that the PM accepts, and keeps repeating, that greater openness and transparency is necessary if one of the Government's goals of increasing public participation in government affairs is to be achieved. Freedom of Information has failed to deliver on this front right across the country, with relatively little use of FOI rights to seek access to information about policy development and government decisionmaking. Many of those interested long ago worked out that long delays, high cost and the limited chances of getting much useful information, meant that applications for these type of documents weren't worth the effort. If the Government's slow progress on reform can make our democracy more vibrant in this way there will be plenty to cheer about-eventually.

Dropping in from Canada

From afar in Canada, itself in election mode since Sunday, the new NSW Government appears to be on the back foot within days.

Meanwhile Minister Faulkner didn't say much new about whistleblower protection in this speech launching the Whistle While They Work Report of Dr AJ Brown of Griffith University.Next step is the Dreyfus report in February 2009.

And this ABC report of the Prime Minister's address to a publishers conference doesn't advance things either on the Freedom of Information reform front, with its emphasis on his obsevation that some degree of confidentiality in government will always be necessary. Perhaps the speech itself was more more encouraging but is yet to appear on the PM's website.

Freedom of information in NSW - a chance to do better

Developments in NSW including a new premier and deputy premier have been heard this far away in Canada. As Matthew Moore in today's Sydney Morning Herald wonders, will the new leadership follow a more enlightened path on access to information than their predecessors? The Carr and Iemma governments both seemed comfortable, even defiant in wearing the "secret state" tag. There are plenty of ways for the new crowd to demonstrate "we're not them", but a commitment to open and transparent government, and steps to make this a reality would be a great start.

Canada developments resonate with visitor from Australia

I'm travelling in the US and Canada at present, for the last few days in Ottawa.

 Today's Ottawa Citizen has two items of interest and relevance to our own access to information situation in Australia.

The editorial "Daring to dine out" comments on the fact that local councils in Ontario do not have the resources to inspect restaurants for compliance with health standards,which require three inspections a year for those in the high risk category. But Ottawa's council is to make inspection reports available online "so that the dining public can access the results quickly", bringing Ottawa into line with emerging international best practice. No Australian state, territory or local government jurisdiction has been prepared to go there so far.

 The paper also reports on the results of a three year inspection by the Information Commissioner into whether government agencies had "secret rules" for processing Freedom of Information applications from media organisations, leadingto delays in disclosure of documents. The Commissioner couldn't find evidence of secret rules but found plenty of instances of unfair and unjustifiable delays where "special handling" labels were attached to applications. This is an area that warrants attention from the NSW Ombudsman and others who are looking at what goes on in our own systems.

NSW Ombudsman lays out the issues on FOI

The NSW Ombudsman has released this Discussion Paper on the NSW Freedom of Information Act seeking submissions generally and on 139 specific issues. The Ombudsman said the review of FOI is also to extend to close examination of administration of the Act in 18 agencies including a sample of state and local government bodies and others in the health and  university sector. Here is coverage today in The Age and the Sydney Morning Herald  

Supreme Court win for former student over exam paper and marking guides

The Victorian Supreme Court found no error of law in a decision by the Civil and Administrative Tribunal that an examination paper and two marking guides of the University of Melbourne were not exempt under the Freedom of Information Act. The Court decided that the correct approach had been taken in assessing whether the purpose for which the documents had been prepared had been completed at the time the application was made. The provision in the Victorian Act differs from other FOI legislation as mentioned in this earlier post.

There is a bit more about the case in The Australian Higher Education Supplement.

Australian Privacy Awards

The winners in the various categories of Australia's Privacy awards announced on Wednesday included Justice Michael Kirby of the High Court, who took the Australian Privacy Medal. Justice Kirby's chaired the OECD Working Party that developed the privacy principles in 1980 that became the basis for rules regarding handling personal information in many developed countries, and was the President of the Australian Law Reform Commission when its report provided the framework for the Australian Privacy Act of 1988.

Medicare Australia won the Grand Award. And you can relax about personal information when next in the dentist's chair- the Australian Dental Association won the Community and NGO award.

Plus ca change.......

Then again some justifications for decisions to withhold information being put forward by members of Mr Rudd's own government have a depressing familiar ring. Like this from Parliamentary Secretary Jan McLucas who told the Senate yesterday why a Freedom of Information request for a report prepared by a CSIRO expert on the potential marine impact of effluent from the proposed Gunns paper mill had been refused by a departmental official

"The document sought by Senator Milne contains material that is preliminary and based on a number of assumptions. The document was not commissioned by any person and has not been peer reviewed or validated by field data. Dr Herzfeld states in the document that the modelling undertaken is unverified for accuracy. There is a strong likelihood that the material in the document could erroneously be interpreted or presented as final rather than preliminary or as based on fact rather than assumptions. The discussion based on such an interpretation or presentation could mislead the public and create uncertainty, pressure and complexity for Gunns Ltd in its dealings with its stakeholders, including the general public."

Thanks to OpenAustralia.org for the great new alerts on activity in the Parliament

PM puts shoulder to the wheel on increased transparency for schools

Good on the Prime Minister for picking up the ball from his deputy and making increased transparency and accountability in our schools one of the key elements in the next stage of reform of the education sector.Here's part of what he said at the National Press Club yesterday:

"I appreciate there can be debate about the most reliable indicators of school effectiveness. But I cannot understand why public institutions such as schools should not be accountable to the community that funds their salaries and their running costs. Right now, we do not have accurate, comprehensive information to allow rigorous analysis of what schools and students are achieving. This must change.Parents have a right to information to inform their family’s decision making about school enrolment. It is important, too, that this information gives parents the full picture. Simplistic league tables don’t really tell us how well a school is performing. They don’t tell us about the student population that the school started with – and its level of educational advantage.Everyone understands why a private school on Sydney’s north shore might do better than a comprehensive government high school in the outer suburbs. But it is not unreasonable to expect that schools with a similar mix of students and similar starting points should do equally well. What parents most want to know is what difference a school is going to make – in other words, the extent to which it is adding value to the results of their students. Parents overseas can get this information. Australian parents – and students – deserve the same. That is why today I announce that we will be making agreement on individual school performance reporting a condition of the new national education agreement to come into effect from 1 January 2009.Within a year, we want to see increased information available to Australian parents. And within three years, a report that shows not just how their child is doing, but how their child’s school is performing compared to similar schools.Knowing where there is underperformance will help us to target additional resources."

The PM recognised there will be plenty of argy-bargy over this. As The Australian reports today

"For years, state Labor administrations have sided with unions to reject transparency and have aggressively fought media attempts to use Freedom of Information laws to secure information on the relative performance of schools."

He's right to push hard on this one.

FOI delivers on medical mistakes,but oh so slowly

The 7 Network's headline grabbing Freedom of Information success (after eight months of trying) in getting access to information about medical errors in western Sydney public hospitals, including the fact that 19 procedures were carried out on the wrong patient or body part, and that 49 deaths may have been avoided if adequate care had been provided, gives rise to the obvious question raised by the NSW Opposition- why don't we have routine disclosure about performance in the health system?

Then there's the question about why disclosure comes only after a long drawn out and expensive battle for the applicant, and for the taxpayer who has funded the time of those resisting disclosure for all this time.

Increased transparency would contribute to improved performance and provide a much needed incentive for all in the system to do better.

Who knows about Privacy Awareness Week?

Who could cavil at the idea of Privacy Awareness Week, launched this very week by the various privacy commissioners? We could all benefit from a bit more awareness of the many and increasing challenges to our "right to be left alone". And some of the events such as recognition of achievement through the Federal Commissioner's Awards are a good thing.

I don't think Greens MLC Lee Rhiannon has any problem with the concept or the involvement of the office of the NSW Privacy Commissioner, but as she points out in this media release it all rings a bit hollow, given the state government's record on privacy protection:

"This Privacy Awareness Week there is little to celebrate when it comes to the NSW government's support individual's privacy...Poor privacy protection in NSW comes at a time when technological and administrative advancements and increased police powers pose significant threats to individual rights. In this internet age, NSW now has outdated privacy legislation overseen by a part-time Privacy Commissioner. Privacy NSW had its funding and staff slashed in 2003 and has never recovered, becoming little more than an answering phone. In the meantime the NSW government has introduced legislation that rings alarm bells for privacy, for example establishing a photo ID card, electronic health records and very weak workplace surveillance laws."

An illustration of Rhiannon's point perhaps is the lack of excitement about the week, or events for privacy awareness, on the NSW Privacy Commissioner's website

Cost cutting and accountability

The Canberra Times highlights the impact of Federal expenditure cuts on the operation of government departments, with important accountability bodies raising concerns about the impact on the conduct of their functions:

"Their plight, hinted at in public well before now, became common knowledge this week when Parliament's Joint Committee of Public Accounts and Audit held public hearings in Canberra as part of its inquiry into the effect of the efficiency dividend on small agencies. On Wednesday, Commonwealth Ombudsman John McMillan told the committee that the cuts risked ''diminishing our effectiveness as an accountability institution''. Auditor-General Ian McPhee said the funding cuts meant the Australian National Audit Office would have to cut back on the number of audits it conducted this year, from 50 to 45. McPhee said, ''The efficiency dividend is no longer coming out of efficiencies but is impacting directly on the programs that we are delivering. At least five other bodies the High Court, the Federal Magistrates Court, the Australian Law Reform Commission, the Office of the Inspector General of Intelligence and Security, and the Insolvency and Trustee Service of Australia have registered similar complaints, suggesting this is more a cri de coeur than any orchestrated exercise to pressure the Government into reconsidering its budgetary edicts."

What amounts to an across the board 3.5% cut in operating expenditure this year would seem certain to impact on many administrative functions including freedom of information to some degree. The usual means of achieving cuts, to reduce staff, could exacerbate already poor and unsatisfactory performance in this area in some agencies, partly the result of consistent underfunding over the years.

A bit of lateral thinking might identify some non-staff savings in the FOI and related fields that could come from more routine disclosure of information; no more silly battles over documents the release of which would result in no real harm to important public and other interests; not engaging high cost lawyers to run cases in the Administrative Appeals Tribunal, etc,etc.

But reduced costs in this area of government, and a squeeze on agencies such as the Ombudsman don't sound consistent with the claims things are moving in the direction of more open, transparent and accountable government. And a properly resourced Information or Freedom of Information Commissioner is still just a twinkle in Senator Faulkner's eye.

Two takes on climate of disclosure

The Age today ( and the Australian Financial Review yesterday) have seized on comments earlier this week by Australian Public Service Commissioner Lynelle Briggs on Freedom of Information at a Walkley Foundation Conference in Canberra, with both reports focusing almost exclusively on her remarks about the media. This from The Age:

"...while she supported the principle of disclosure,(Ms Briggs said) sensationalised reporting of documents obtained under freedom-of-information laws was not helping a national campaign by journalists and their employers to free up the system.

"The media should accept some responsibility for the current state of FoI," Ms Briggs told a Canberra conference.

"The extensive use of FoI editors has contributed significantly to the current impasse by flooding government with deliberate fishing expeditions and requests designed specifically to embarrass ministers," the commissioner said. "I'd like to see more sensible - and less sensationalised - reporting of the information released within an accurate context."

I was the other speaker in the session "The climate of disclosure:the public service and the right to know" so can tell you first hand that she made it clear she sees benefit from maximum disclosure.In addition to a serve at the media she also had some important things to say about improving transparency through more routine disclosure of policy research and other initiatives that would represent significant and positive change in access generally, and FOI performance in particular.The full text of her remarks is here

My comments at the conference were along the lines that the climate of disclosure within the public service, historically, has been on the cold to cool side, not assisted by over 100 secrecy and confidentiality laws, and an enduring culture of secrecy in some agencies that has not been adequately addressed by successive governments over the years. While there have been claims the climate is warming and a couple of examples, there is also evidence that old habits of excessive secrecy continue. These are my notes for those interested.

On the vexed question of access to policy advice, and responsible reporting, that the Commissioner raised, this is from a post here in early June following the leak of the views of four departments on a proposal that went to cabinet:

"We should be entitled to know through designated procedures(not leaks at the whim of someone in the system) what government knows unless some harm to essential public interests would result. Governments need thinking space to weigh advice and make a decision, then choose to act on the advice of this expert or that, or not at all, and to explain itself. However a government serious about transparency should not be trying to limit what we know about the views of its experts by locking the papers up for 30 years when they will be released into open access. Disclosure of the assessments of government advisers, no matter how this occurs, should not endanger the prospect of frank and candid advice in future. The Government should be demanding this sort of advice from its public servants on an ongoing basis."

Lateness not a fatal flaw to NSWADT jurisdiction

The NSW Administrative Decisions Tribunal, in its Freedom of Information and privacy review jurisdictions at least, seems to spend an enormous amount of time on jurisdictional issues, suggesting the need for examination of the underlying legislation to cure defects that give rise to problems and uncertainty.

One of many such issues has been whether the Tribunal has powers to consider an application for review of a Freedom of Information application received later than 60 days after an internal review determination, or the completion of consideration of a complaint by the Ombudsman. While some decisions have taken the contrary position, the prevailing view has been that the provision in the FOI Act stipulating the 60 day deadline is absolute, and that a late application must fail on jurisdictional grounds.

The Appeal Panel, chaired by Tribunal President Judge O'Connor, has now decided this is wrong and that the Tribunal can consider a late application, but is only likely to exercise discretion to hear such a matter if there is a reasonable explanation for the applicant not acting within the already generous time allowed for review applications. The Appeal Panel acknowledges there is still doubt about the law, and that it would be far better if this was addressed by clear legislation, as is the case in Federal and Victorian law[61-62].

Bad luck for those who missed the boat previously, where being late in lodging an application with the Tribunal was held to be a fatal flaw. The Appeal Panel noted [27] the situation had worked unfairly against applicants in a number of instances.

And what ever happened to the statutory review of the Administrative Decisions Tribunal Act which the Act required to be tabled in Parliament in 2003 and which may have identified some of these problems and possible solutions? Or to the Government response to a Parliamentary Committee report on Tribunal jurisdiction released in November 2002? In the Tribunal's annual report last year President O'Connor expressed the hope both might appear before the end of 2007. Any sightings?

Accentuate the positive, or a hole in the bucket?

Headline writers, like the rest of the population, divide into "glass half empty","glass half full " groupings, as illustrated this morning in reporting on the Queensland Government's response on Freedom of Information reform."Anna Bligh shields her cabinet in revamp of FOI laws" in The Australian; "Government to loosen reins on Cabinet secrecy" in The Courier Mail . I'm sticking with my "rolled gold" of yesterday. Of course us armchair critics can always see ways for gold medal winners to improve performance.

Queensland takes gold on FOI reform

Queensland Premier Anna Bligh has announced that the Government has accepted all but two of the Solomon review Panel's 141 recommendations for Freedom of Information changes, 23 with some qualification. There are still steps to be taken to translate intent into law, and to change attitudes in government about the public right to access information, but this is rolled gold reform.

A whole of government information policy to increase proactive release of information, with CEOs to be told to get cracking now to see what can be done straight away; a new simplified act to be called the Right to Information Act with a strong objects clause to ensure disclosure considerations don't get waylaid by "exemption creep"; clear governance responsibilities for making all this work assigned to the Premier and the Director General of her department.This is seriously good stuff.

Congratulations to the Premier and the many others involved who have brought the reform package to this stage, particularly David Solomon and his small crew who crafted ideas about best practice in the information age into a workable set of measures.

Not surprisingly there is room for a few quibbles but not today. For the moment at least, Queensland has set the standard for the rest of the country, where reform is still in the air. Some such as the Federal Minister John Faulkner, the ACT and Tasmanian governments have shown real interest in what's been happening in Queensland. Who knows some of the sentiment may waft over borders to effect even those who have shown no interest (South Australia) or who can manage only a polite nod when someone else- the Ombudsman- starts to do some work on the subject (NSW).

Here is the Government response and the Solomon Review

More the merrier as FOI reform crops up in the west

Not to be left out, the Opposition in WA have now hopped on board the integrity, honesty and transparency train.

Tassie joins improved accountability and transparency push

Tasmanian Premier David Bartlett has announced a 10 point plan to "clean up the mess " including

A review of the Freedom of Information Act, including more staff and resources.

Improved protection for whistleblowers.

A register for lobbyists.

Strengthened codes of conduct for ministers, parliamentarians and ministerial staff.

A recommendation to establish an independent investigative body or power.

The Premier's media release and fact sheets give more detail. On FOI:

"An immediate review of the Freedom of Information Act, with a view to improving, if necessary, access to information for all Tasmanians, as well as of the administration of the act.

This will include a thorough look at the recommendations of the reviews already conducted of both the Commonwealth legislation and the recent Queensland act review.

In fact, the Solomon Review of the Queensland FOI system will be the starting point for this review.

Secondly, we will significantly strengthen the implementation of the act by providing additional resources in the training, salary and staff numbers of FOI officers and units, as well as the development of rigorous manuals and guidelines for use by people working in this area across government agencies.

The Department of Justice will oversee this review, but it will be conducted with the use of independent FOI experts from outside of our government and outside of Tasmania.

The make up of this panel of experts and the Terms of Reference will be released publicly in the coming weeks.

This is something which we will commence now."

Good to see the reform movement is now on the agenda in all but a few of our jurisdictions, although we are yet to see the colour of any government's money.

Media Watch on the media and privacy

Last night's ABC TV's Media Watch was devoted entirely to discussion of the Australian Law Reform Commission proposal for an action for breach of privacy, and media reaction or overreaction, depending on your point of view. It followed themes commented on here last week. The transcript( or video) provides a good overview of the opinions of the critics and Commission President David Weisbrot, together with some useful links.

While there is a basis for concern that we don't have freedom of speech firmly established in the law, and that Australian courts have not shown much interest in examining in a defamation case whether a publisher acted responsibly in the circumstances, is there a basis for this claim by Sam North, the Managing Editor of the Sydney Morning Herald that judges can't be trusted to interpret a statute in a manner consistent with Parliament's intentions :

Jonathan Holmes: In your experience how much weight do judges in this country give to freedom of expression to the media's right to free speech?

Sam North: Very little... They have an antipathy towards the media and freedom of expression and freedom of speech doesn't rate very highly.

Jonathan Holmes: So if it was up to individual judges to weigh the right of privacy on the one hand and the right of media to free speech on the other, how do you think you'd go?

Sam North: I think we would go badly.

We are all entitled to "think" whatever we like about the future and to express our view. My five cents worth is that we might all be better off with something on the statute book that defines the broad parameters of a cause of action, balancing as best we can the interests involved.The alternatives are to proscribe such a cause of action ( courageous in the Sir Humphrey sense), or leave it to the courts to respond or not, to changing community attitudes to new threats to privacy, both here and internationally.

Privacy cause of action commentariat in the ring

The match up continues today with some in the red corner, others in the blue, and still evidence that some critics of the statutory cause of action haven't quite come to grips with the proposal. So David Flint in The Australian observes:

"Extraordinarily, there is no defence of public interest, something which had been in the earlier discussion paper. Instead the court is to take such considerations "into account" in a balancing exercise. Surely, if we are going to have a new cause of action, proof of public interest should be the end of the matter."

The public interest isn't something you pick up off the shelf and say "Eureka!" In all sorts of areas a balancing of various interests is involved.The proposal is that this issue is one for the plaintiff, right up front.The action could fail at the first hurdle- on public interest/freedom of expression grounds-even before a defence is required .

David Weisbrot and Les McCrimmon of the Australian Law Reform Commission who have spent the last two years listening, pondering and analysing the options have this to say in The Sydney Morning Herald :

"The commission's final recommendation is that a legal action should be available to remedy a serious invasion of personal privacy, where the individual (a) had a reasonable expectation of privacy and (b) the conduct complained about would be regarded as highly offensive to a reasonable person. Further, the plaintiff would have to satisfy the court in each case that (c) the public interest in privacy outweighs other matters of public interest - including the interests in informing the public about matters of public concern and in allowing freedom of expression.By including the public interest test, covering only highly offensive conduct, and placing the onus of proof squarely on the person complaining of the breach, the commission has set a very high bar - taking into account the concerns of artists and media organisations about respecting freedom of the press and freedom of expression. Indeed, some privacy advocates and civil libertarians argue that we have set the bar much too high."

Elsewhere Chris Merritt writing in The Australian ("Tort reform") also doesn't attach much significance to the requirement that the plaintiff would have to address this issue to found a cause of action.

"Even if the cause of action had credible defences for the media -- which is not the case -- the mere fact of its existence would transform privacy law into one of the hottest practice areas."

And money for jam for lawyers? Maybe, maybe not- Weisbrot and McCrimmon point out it hasn't done much to line the pockets of lawyers in those Canadian provinces where something similar has been on the statute book for some years.

There is plenty more, but two other sparring partners are Greg Barns (Online Opinion)
and Richard Ackland in the Sydney Morning Herald.