New leadership but reminders of old tactics on open government

A Prime Minister who manages a 10% increase in his popularity rating to 71% is obviously travelling well- in "about to be shocking economic times", the government has more public support than when elected 11 months ago.

But as the opposition and some media commentators have noted, the government's reticence to provide information about the advice or forecasts that underpinned decisions to guarantee deposits in financial institutions and bank borrowing from abroad, and to deliver a fiscal stimulus package involving $10.4 billion in taxpayers money, is a far cry from all the claims that this government would be different when it came to open government.In fact it's a bit like the "if only you knew what I knew you would surely agree" line used frequently throughout history, but three examples come to mind: by former Immigration Minister Andrews last year to justify cancelling Dr Haneef's visa, aspects of the case for war in Iraq presented to us in 2003, and by President Johnson way back in 1964 to get the US Congress to authorise the commitment of ground forces to Vietnam after what turned out to be a false claim of an attack on US vessels in the Gulf of Tonkin.

Surely something more was on the table for consideration than the IMF prediction of zero growth for developed economies. Disclosure of our government experts' assessments whatever they were would assist public debate on an issue the PM has labelled the equivalent of a national security crisis.

And for someone who told us he was serious about doing something about the role of Parliament the PM also seems to prefer audiences other than Parliament to announce these major policy changes.

The PM's party in opposition in January last year made much of the fact that John Howard's $10 billion rescue package for the Murray River had not gone to Cabinet, and seemed to have been worked up on the back of an envelope. The boot would appear to be on the other foot now. Maybe the urgency of the present situation justified decisions based on skimpy research, limited cost- benefit analysis, and forecasts that were out of date almost immediately.But sharing the realities with us rather than stony face assurances all will be revealed in a month's time would be in accordance with the standard of transparency which the PM led us to expect.

The scene this week shifts to Senate Estimates. Given the tone set by the PM and Treasurer to date, for Federal Treasury public servants it's likely to be battle-stations with instructions not to give an inch. No doubt there are some potential Freedom of Information applicants out there sharpening the pencil.

NSW steps into 1995

NSW Premier Nathan Rees was right to call the swings of over 20% against the government in by-elections at the weekend a "shellacking", but he did manage to get instructions out to ministers, as promised last week, that their media releases from today must be available on the web, through a link on the relevant agency website.Probably not possible in the few days since the Premier made the commitment,but why not also a central link for all ministerial media releases like this one in Victoria?

But this is trivial stuff compared to what is to come. The Premier said:

"The plan that we put forward over the next month, including the mini-budget, will be fundamentally different to anything the people have seen in NSW before."

It should be more than just an interesting month.The Premier has just lost the head of his department who has quit, and asked government agencies to get rid of 20% of senior public servants- hardly conducive to the sort of behind the scenes work required to produce plans for a "fundamentally different" way forward.He is also about to be joined in Macquarie St by union boss John Robertson who is said to be on the fast track to a ministry. None of this is going to boost morale in an already dispirited and politicised public service which as a result of years of neglect, lacks the leadership and skills in many quarters essential for modern public management.

And on the accountability front, as we saw last week, the starting point for something "fundamentally different" is that the Secretary of The Treasury says he won't tell a parliamentary committee the date of a document because the Crown Solicitor says he doesn't have to.

Good luck, Premier.

A quiet approach to important FOI amendment in Victoria

The Age reported yesterday that an undercover officer from the police security intelligence group had infiltrated several activist groups including the Stop the War Coalition, Animal Liberation Victoria and Unity for Peace. The undercover agent also played a role planning this year's Palm Sunday peace rally and attended organising meetings with church and activist groups.The report included this:

"At the request of police, the State Government quietly amended the Freedom of Information Act in 2006 to prevent any document created by the police covert and intelligence unit from being released. This means people may not be able to access their personal files created by this branch of police."

The legislation that amended the Freedom of Information Act didn't go through too quietly- only parts of it did.

As the Attorney General told Parliament on 6 April, the Terrorism (Community Protection) Further Amendment Bill 2006 was all about " the state and national response to the threat posed by terrorism to the Australian community", and was "just one of a number of nationwide initiatives including engagement with various communities to eliminate the causes of terrorist activity". Not surprisingly it attracted the attention of members of parliament with speakers from both sides. But neither the Attorney General nor any of the other members who spoke in the Legislative Assembly made any reference to excluding from the FOI Act documents held by the Intelligence and Covert Support Department of the police force.

Only part of the bill was to amend the FOI Act.Here is what the Attorney General said on this aspect of the legislation in the second reading speech in the Legislative Assembly:

The bill also amends the Freedom of Information Act 1982 to clarify a number of technical and interpretative matters. Firstly, the definition of document in that act has been amended to ensure that the definition includes copies, reproductions or duplicates of a document and any part of a copy, reproduction or duplicate.

A technical amendment to section 25 of that act clarifies that the deletion of material from a document that would be reasonably regarded as not relevant to the subject matter of a request. This amendment simply reflects the current legal understanding of that act. An interpretative provision, clause 19 of the bill, will make clear that a document can be the subject of more than one exemption under the Freedom of Information Act at any one point of time. Again, this provision clearly establishes what is the well understood operation of the law in Victoria.

The amendments to section 29A of the Freedom of Information Act will extend the operation of this exemption provision to include documents created by the counter-terrorism coordination and emergency management department of the Victorian police force.

This provision will be retrospective in operation, however, I believe that honourable members will share the government's view that it is simply not appropriate, or indeed wise, that such material should be accessible under the state's freedom of information processes. Additionally, the bill makes clear that documents that are risk management plans of declared essential services under the Terrorism (Community Protection) Act or documents of a training exercise for declared essential services under the Terrorism (Community Protection) Act are also exempt documents for Freedom of Information Act purposes.

A further change (which is also reflected in the proposed amendments to the Public Records Act), is that exempt documents, as set out in section 29A, now expressly includes those documents whose disclosure could endanger the security of premises including land, building, places and vehicles.

"This change is consistent with the freedom of information legislation in New South Wales and public records legislation in Queensland and is intended to clarify the situation in relation to documents that relate to important state sites and buildings."

That was it from the Attorney on that subject, although the explanatory memorandum accompanying the bill may have been more comprehensive. Several Opposition speakers in debate on 4 May commented on the FOI changes and noted that some of the amendments to the FOI act went beyond those necessary to prevent terrorism.

No- one other than the Attorney General made any reference to the changes to Section 29 and neither he nor any other speaker mentioned an amendment that had the effect of including new subsection in Section 31 of the FOI Act- the law enforcement exemption-which provides:

"Notwithstanding anything to the contrary in this section, a document is an exempt document if it is a document created by the Bureau of Criminal Intelligence or (whether before or after the commencement of section 22 of the Terrorism (Community Protection) (Further Amendment) Act 2006) by the Intelligence and Covert Support Department of the police force of Victoria."

It all points up the need for close scrutiny of the fine detail of legislation and raises another issue: the justification for provisions in any of our freedom of information acts that have the effect of conferring blanket exempt status on all documents held or created by particular government agencies.

It's not just the Victorian act and not just police services that enjoy these generous exemptions.In NSW there is a long list (in Schedule 2 of the Act) of types of documents that are exempt because they relate to particular functions of specified agencies.When it comes to the Police in that state, documents created by the former Information and Intelligence Centre, the former State Intelligence Group, the Counter Terrorist Co-ordinationCommand, the former Protective Security Group, the former Special Branch, the former Bureau of Criminal Intelligence are all automatically exempt.

All the FOI acts include exemptions that cover information that should not be released because of the harm that would result including to the conduct of police functions in carrying out law enforcement and anti terrorist activity.Blanket exemptions for all documents of a certain kind put a large and unacceptable hole in the principle of accountability that underpins FOI legislation. There should be a compelling case made out for any such exemption.

In this instance the exemption for documents created by the Intelligence and Covert Support Department of the Victorian Police slipped through parliament very quietly, with the Attorney General aiding that cause.

What's on in FOI land

The Carter Center’s Access to Information Project has launched a calendar of events, including conferences, workshops, summits, retreats, and training sessions from around the world regarding access to information and transparency issues. If you know of anything that should be listed complete and send this form to ati.cartercenter@gmail.com. Queries to lneuman@emory.edu .

The calendar is a bit of a reminder that the list of events in Australia on the topic, is, well thin to put it mildly.

Thanks to Rick Snell for the heads up.

FOI specialists not up in lights at Walkleys this year

None of the media's FOI mafia made the list of finalists for the Walkley Awards for Excellence in Journalism this year. Long time investigative journalist Ross Coulthart (with Nick Farrow), who has used freedom of information laws to good effect over the years, is one of three finalists in both Television Current Affairs Reporting (Less Than 20 Minutes) and Investigative Journalism categories for a report on Sunday, Channel Nine,“Butcher of Bega". The program brought to light shocking medical malpractice on the south coast of NSW. Coulthart ( and Farrow) have picked up Walkleys before for outstanding investigative reports for the now defunct Sunday program

Seven years ago in Coulthart and Princess Alexandra Hospital and District Health Service (text here), Coulthart won an important victory when the Queensland Information Commissioner decided that a statistical table of adverse outcomes from cartoid surgery performed by the Hospital's Vascular Surgery Unit over a specified time period was not an exempt document, despite the fact that it indicated that one of the five surgeons involved had a "complication rate" higher than other surgeons involved.The decision( a summary here) included strong findings that disclosure of this type of information is in the public interest.Not sure why, but the decision didn't seem to cut much ice elsewhere.The reasoning behind it hopefully is informing Federal Health Minister Nicola Roxon's push for public access to more information about performance in the health system.

The full list of finalists in the Walkleys, to be awarded on 27 November, is here.

NSW Premier needs to spread the word on new era of transparency

The NSW Premier won't have to look far for a reminder of the significance of the task at hand in pushing the government in the direction of more transparency in the conduct of public functions - just right nearby to The Treasury in fact.

At a parliamentary committee hearing last week on the need for a mini-budget in NSW, questions were asked about statements by the then Premier Iemma on 7 September, repeated by his successor Nathan Rees on 10 September, that a drop in the NSW AAA credit rating would cost taxpayers $500 million a year. Apparently the correct assessment of the additional cost is in the range of $15-$20 million in the first few years, rising to $ 110-$120 million, for a total of $500 million over four years.

Greens MLC John Kaye had these questions for Treasury Secretary John Pierce:

Dr JOHN KAYE: Were you concerned that the public debate was being informed by a $500 million a year figure?
Mr PIERCE: It did cause me to cringe.
Dr JOHN KAYE: Did you translate that cringe into a telephone call to either the Premier or the Treasurer saying that that was not correct?
Mr PIERCE: We certainly discussed it with the Treasurer's office and put it in the documentation that the office would have used when talking to the Premier's office.
Dr JOHN KAYE: So, subsequent to those statements being made by one or both premiers, you did take steps to inform the Government via the Treasurer's office those statements were incorrect?
Mr PIERCE: Yes, I did.
Dr JOHN KAYE: Can you tell us on what date you did that? You cringed, so you would presumably remember the event—as we all did.
Mr PIERCE: Yes, I remember the event.
The Hon. GREG PEARCE: You referred to the briefing note earlier.
Mr PIERCE: Yes, but there is no date attached to it.
Dr JOHN KAYE: So it is an undated briefing note? That would be unusual for Treasury.
Mr PIERCE: It is easy to find out the date. It is in the system.

At the end of the meeting when Dr Kaye asked Mr Pierce to table the undated briefing note, he said he would need to check with the legal people, and it was agreed the matter would be raised again when Treasury appeared before the same committee for Budget Estimates on Tuesday of this week.Here is what transpired:

CHAIR: .. I requested that you advise us of the date of an undated interest-rate calculation, a briefing note, of the former Treasurer. Dr Kaye later requested that you provide the Committee with a copy of that briefing note and you undertook to consider whether to provide that briefing note. Do you have those documents with you?
Mr PIERCE: I am advised that the Crown Solicitor has advised that the Committee does not have the power to order the production of documents. If necessary, that should be dealt with by the whole House under Standing Order 52. If the Committee wishes to progress this request, I ask that the Committee refer the matter to the House.
Dr JOHN KAYE: Does that include telling us what the date was of the supposedly undated memo?
Mr PIERCE: Yes.
The Hon. GREG PEARCE: That is answering our question. You were asked the question what was the date of the member. So, you are saying that the advice is you do not have to answer?
Mr PIERCE: Yes.

Well, I'm sure the Crown Solicitor knows his law, but why in the new era of transparency did the Treasury Secretary feel obliged to act upon it, particularly to decline to tell the committee the date of the document?

By the way this is the same Crown Solicitor who in October 2006 raised the alarm about the "crisis" in government in NSW arising from, among other things, the Legislative Council exercising powers to require documents to be produced, thus distorting our system of government, and the Government’s ability to govern. As I suggested at the time
"tone at the top" set by these kind of remarks (it got worse regarding the imperative of not disclosing legal advice) significantly shapes the organisational culture of secrecy in the NSW public sector..

Premier Rees needs to tell the public service, starting with Mr Pierce, that he is fair dinkum about open and accountable government and that there is to be no more sheltering behind legal advice about how to avoid responding to parliament and its committees when legitimate questions- like the date of a briefing note- are raised in the exercise of oversight responsibilities.

NSW Premier Rees off to a promising start on transparency issues

NSW Premier Nathan Rees provided some positive indications in his appearance before the Legislative Council Budget Committee on Tuesday of the commitment to move the state away from the "secret state" tag worn with such pride for so long, and to enter a new era of less spin and more transparency. There is a long road to hoe here, but the new man made a more promising start on this front than any of his predecessors since Nick Greiner 20 years ago.

First up- ministers media releases will be posted on the web. Now don't laugh but the following exchanges represent the breaking of new ground in NSW,where ministers have worked hard to leave as few footprints as possible since the arrival of Labor in office in 1995, and the advent of widespread use of the internet around the same time:

The Hon. CATHERINE CUSACK: Premier, now that we have media releases that are informative rather than spin, will you agree to list all of those on your Premier's website and require your Ministers to list their media releases on their websites?
Mr NATHAN REES: Yes.
The Hon. CATHERINE CUSACK: And Ministers as well?
Mr NATHAN REES: Yes....
The Hon. TREVOR KHAN: In regard to putting your media releases up on the website, what time frame will you commit to to achieve that degree of transparency?
Mr NATHAN REES: I am happy to have a Premier's memorandum out by the end of the week on that. Today is Tuesday—I can do it by close of business tomorrow. Incidentally, we had already made that decision prior to today.

But the Premier isn't rushing to go too far in this direction:

The Hon. TREVOR KHAN: ....Premier, are you prepared, as the Prime Minister and former Prime Minister did, to post transcripts of press conferences on the website as well?
Mr NATHAN REES: Can I take that on notice?
The Hon. TREVOR KHAN: Sure.
Mr NATHAN REES: There are any number of people who tape every press conference. If they want to put them up, and that is over and above the other elements of media scrutiny, that is a call for them.
The Hon. CATHERINE CUSACK: I do not think they have the taxpayer-funded transcripts of press conferences. My colleague is asking if you would be willing to put those publicly funded transcripts on the website
Mr NATHAN REES: They do not read very well. That would be a concern of mine.
The Hon. CATHERINE CUSACK: Is that a reason not to post them?
Mr NATHAN REES: In part, yes, it is. Often I am asked to comment on things on the run. I would much rather give the public, if they are accessing it, a succinct position rather than something I have had to take on notice, whether it be in a press conference or here. My preference at this stage is to not do it, but I am not ruling it out.

The Premier and the Director General of his department then told the committee how much appointments of two additional spin doctors in the dying days of the Iemma Government cost on an annual basis($600,000), their salaries($290,000 and $220,000) and how much each had been paid on redundancy($30,000 and less than$20,000) when the new Premier sent them packing on day one in the job.Worth noting because of the recent refusal of a Freedom of Information application on the grounds information was personal. The Director General also disclosed that former Reserve Bank Governors Fraser and McFarlane are each being paid $3500 per day to provide advice on economic management.

This is all a contrast to the ancien regime which would have fought tooth and nail to resist disclosure of this sort of stuff.

The Premier noted he had released via the web a report by Boston Consulting on Railcorp which formed the basis of his decision to bring the State Owned Corporation back under ministerial control within a day of being asked for it, and said he would hope to be able to release the Twomey report on political funding within the next 10 days- a report the Government had received in August but which he had started reading last week.

The following exchange on freedom of information reform is a stark contrast to the belligerence evident when similar issues were raised a couple of years ago with then Premier Iemma and the Director General of the Department (now Secretary of the Federal Attorney General's Department) Roger Wilkins:

Ms LEE RHIANNON: Premier, Queensland, Northern Territory, Ireland, Canada and the United Kingdom all have an independent information commissioner. Your predecessors failed to overhaul the Freedom of Information Act for 19 years. Will you adapt an information commissioner and move to overhaul the laws without just relying on the Ombudsman? Your Government failed to do the review itself. Will you now move on it and do it?
Mr NATHAN REES: I have already said I want to reform the freedom of information laws. I think there is a public expectation for it but most importantly there is a policy imperative around it. Since the New South Wales Act was passed there has been an explosion in Internet usage and electronic communications and so on. I meet with the Ombudsman this week. That will not be the sole source of advice I take on the matter. I am particularly interested in Anna Bligh's response to the report that was done in Queensland. There will be changes to freedom of information legislation. I would like to be able to give you more details today but our thinking on it is not that advanced yet except to say there will be significant reform.
Ms LEE RHIANNON: Can you give us a time line? When is that going to happen? We had the promises before from Mr Carr and it just went off into the never never.
Mr NATHAN REES: Can I take that on notice? I do not know how comprehensive the process to date has been. I do not know when Mr Barber's report is going to be finalised. I need to get advice on the Queensland response. Can I take it on notice?
Ms LEE RHIANNON: Okay, thank you.

After wrongly claiming that NSW ministers were subject to a cooling off period for post ministerial employment in areas within their responsibility( they are only required to consider talking to the Parliamentary Ethics Adviser) the Premier said he would look at the four year old recommendations of the ICAC "and, if there are improvements to be made for the sake of transparency, I am happy to look closely at them."

A promising start if action backs up words.

Experts think ALRC privacy recommendations may not go far enough

This article in today's AustralianIT indicates that quite a few speakers at last week's conference on ALRC proposals for privacy reform gave the Commission's recommendations a good but not good enough assessment.

The Oz article is peppered with quotes from experts outside government along the lines that the report failed to recommend the"fundamental rebuild that will be necessary in future"; the proposed law will collapse under its own complexity -- and with it consumer trust"; "missed opportunity"; many of the most critical issues are not resolved; the proposals still leave huge gaps in protection, and create endless complications for victims seeking help; and so on.

Waters and Vaile see the need for a shift from the light touch regulatory model:

"Above all, they say, the new challenges require a more vigorous approach to promoting respect for privacy, based on recognised principles of responsive regulation. "This means not only real teeth for the watchdog but also greater willingness to bite than successive privacy commissioners have displayed," Waters and Vaile say. "Preventing us from sleepwalking into a surveillance society, as Britain's Information Commissioner has warned, requires taking on some powerful vested interests, not just business as usual."

Some additional papers, (but not all and nothing of note from the session on the proposed cause of action for breach of privacy) are now on this website.

On the cause of action front here is an interesting comment on what in the UK are emerging issues about a celebrity's reasonable expectation of privacy (in this case Sienna Miller) , and the possible distinction the court made law might make between an expectation while lying topless on a public beach or a boat near the shore, and the expectation doing the same thing on a boat miles off-shore only to be captured by a telephoto lens.

Governor Arnie no wimp on health privacy

Popular Pics-www.popular-pics.com
While Australian policy makers consider the ALRC recommendations for improving privacy protection, Internet Business Law Services reports that new laws in California, with effect from January 2009, will provide for fines from $25,000 to $250,000 on health facilities and individuals for every time they inappropriately obtain, use or disclose medical information.Other fines apply where data security violations put a patient at immediate risk of injury or death and up to $250,000 for a failure to report breaches to authorities.The moves follow a number of high profile instances of unauthorised "peeking" by staff at celebrity health details, including those of Governor Schwarzenegger's wife.

Whistleblower law inadequacies evident in parliamentary inquiries in Canberra and Sydney

The House of Representatives Legal and Constitutional Affairs Committee has been beavering away on its whistleblower protection reference.Many submissions and transcripts of the six public hearings held to date are now available.

Commonwealth Ombudsman Professor John McMillan gave the Committee this snapshot when he appeared on 4 September:

Over the past two decades across all levels of government in Australia we have witnessed the prosecution and at times imprisonment on corruption and fraud offences of a state premier, state government ministers, a commissioner of police, a chief magistrate, members of parliament, judges, numerous officials at all levels of government and prominent national businessmen. Royal commissions and special inquiries in Australia over the past decade have investigated allegations of corruption in political lobbying, policing, job recruitment, occupational licensing, vehicle registration, land and building development, offender management, public procurement, revenue collection, financial investment and foreign bribery, as well as within crime and anticorruption commissions themselves.

If we lower the bar and look beyond corruption to illegality, maladministration, fiscal wastage and public health threats, the risks to integrity in government are much larger. To combat those threats and to preserve integrity, we need a comprehensive ethical strategy and a strong legal framework. Whistleblower protection laws must be an essential part of that framework for the simple reason that nearly all unethical behaviour occurring within organisations is known to and disapproved of by insiders. They are usually the first and sometimes the only ones to know of malpractice occurring within. So we need to encourage honest workers in the organisation to
uphold the public interest and to report what they know. To encourage them, we must first assist and protect them. This should not be a false promise; telling the truth should not be a costly mistake.

Our present legal framework is deficient. Simply, it lets people down. There is not a clear procedure for Australian government employees to report knowledge of wrongdoing, adequate protection for those who do or punishment for those who retaliate."

There haven't been any ticks for the status quo. Public Service Commissioner Lynelle Briggs probably came closest on 25 September when she told the Committee "(t)he commission believes that the current system works reasonably well but that there are a number of enhancements that could be made to deliver a more effective whistleblowing system."After a couple of hours of Q and A with the Committee, she wrapped up saying "(t)here will be an enormous amount of work to do in the future."

Much of the debate revolves around what disclosures should be protected, how protected disclosures should be encouraged, and how to make the system work in practice.Both the Ombudsman and the Commissioner submit their organisations are best equipped to manage the whole issue of public interest disclosures.

A NSW parliamentary committee has also been looking at the adequacy of state law and practice in this area, but to date there is less to show for its efforts. It is yet to publish any submissions and the only hearing to date involved two and a half hours with the Deputy Ombudsman and the Deputy Commissioner of ICAC. The Committee Chairman in a Media release at the end of September said it was clear" that the effectiveness of the current legislation that protects whistleblowers, that is the Protected Disclosures Act, is limited and there is no real ownership of the act. The evidence given has drawn attention to some pretty fundamental issues about the operation of the legislation.” More hearings to follow.

FOI delivers big weekend stories

Two big Freedom of Information disclosure stories over the weekend. In New Zealand, the Herald reported that a letter from a former undercover policeman to the Chief Justice, released under the Official Information Act, includes a claim that he lied in testimony in more than 150 cases that ended with people sentenced to terms in prison.

In the UK documents now over 10 years old , released to the Sunday Telegraph after a two and a half year Freedom of Information battle reveal that contrary to what was claimed at the time, Tony Blair acted almost immediately after a meeting with Bernie Ecclestone, who had donated a million pounds to the Labour Party, to get ministers cracking on ways to exempt Formula 1 from the ban on cigarette advertising . This from the editorial

"Documents obtained by The Sunday Telegraph under the Freedom of Information Act (FOI) nevertheless show conclusively that while Mr Blair may have had many political virtues, being straight with the public was not one of them.......It is a serious indictment of the way FOI operates that it should have taken Christopher Hastings, our reporter, more than two years to obtain the relevant documents. We wonder what other truths the guardians of "freedom of information" are protecting from public scrutiny until they can no longer harm the Government."

On the homefront media reports over the weekend based on Freedom of Information releases included
Council bus drivers flout law
Big banks ignored sub-prime troubles
AFP helps with death cases
Premier John Brumby spent $78905 on US trip
Consumers to gain loan watch website

Piecemeal discovery of the sunshine solution.

In a column in today's Sydney Morning Herald I welcome the use of the t-word-transparency- now cropping up as part of the proferred solution being put forward by our leaders to to all sorts of problems, but suggest piecemeal use of the term is no substitute for a comprehensive commitment to open and accountable government and implementation plans to give life to the policy. There are widespread practices that are inconsistent with the frequent micro calls being made for greater transparency in this field or that.

The editor took the scissors to one paragraph in the middle of the column. The words in italics were in the original but not the published version:

"In NSW, after years when government leaders seemed to revel in the state’s reputation as the secret state, Premier Rees flagged an overhaul of freedom of information legislation “as part of efforts to improve both transparency and accountability of government”. This was also a reason for bringing Railcorp back into the fold as a state government agency. No details yet, but on the down-side NSW monthly accounts, usually released within weeks of month-end, are yet to appear for June. And no we can’t see any contract with the organisers of World Youth Day or for the V8 races at Homebush. As for any cost benefit analysis, the Premier says believe it, we’re miles in front."

Tassie democracy improvement plan not going quite to plan

The Mercury notes some backsliding regarding the basis for establishing an ethics commission in Tasmania, one element of Premier David Bartlett's 10 point plan to strengthen trust in democracy.

"If Labor does deliver its 10-point plan in full, it contains practical measures to improve transparency. It clarifies the relationship between police and ministers, provides protection for whistleblowers, improves Freedom of Information access and ensures better funding for the Ombudsman, DPP and Auditor-General......
Mr Bartlett's initial suggestion that a parliamentary committee decide the exact nature of the proposed ethics watchdog has now backfired. The Government's subsequent backdown has cast doubt on his often-stated commitment to openness and on the other aspects of his 10-point transparency plan."

Say it isn't so, Premier.

A challenge on the home front for Federal Health Minister's transparency crusade

Federal Minister for Health Nicola Roxon has been rightfully pushing the states hard on greater transparency in the health sector but things in her own balliwick, at the Therapeutic Goods Administration, need some attention.

In an editorial in Australian Prescriber, Dr Agnes Vitry of the University of South Australia's Quality Use of Medicines and Pharmacy Research Centre says

"the current Australian situation, in which the data used to make decisions (by the TGA) and the reasons behind these decisions remain secret, is no longer tenable.Full transparency is required at all steps in the marketing of medicines, from publication of the trial protocols to assessment of the data by the TGA. It includes public disclosure of the potential conflicts of interest of all external experts involved in the TGA advisory committees. It concerns not only positive decisions, but also negative decisions, for example when a marketing application for a drug has been refused."

Dr Vitry highlights the fact that information readily available in comparable countries such as assessment reports for new medicines, lists of refused or cancelled marketing authorisations, minutes of advisory meetings, and reports submitted by drug companies are not available publicly in Australia.She details how the pharmaceutical industry, which funds the agency has successfully resisted even the modest changes that have been considered so far.

Dr Vitry concludes:

"Transparency requires political will and leadership. This is an active process that needs to be adequately resourced. While drug companies spend millions of dollars on promotion of medicines each year, it seems paradoxical that limited funding and cost recovery could prevent the TGA from appropriately informing the Australian public. The TGA urgently needs to take steps to improve its transparency if it wants to retain its credibility not only with the Australian public and health professionals but also on the international scene."

Thanks to 6minutes.com.au for the lead.

FOI job hunters,listen up

Anyone out there with Freedom of Information experience looking for a couple of months work in Canberra might be interested in the following from Nicole Thornton at Frontier Jobs, a well named organisation for finding someone for this line of work, you might say.

APS5 FOI Coordination Officer - Federal Department
APS5 contract, initially 3 months
Federal Government Department

Located within the Parliamentary triangle
Our client has the requirement for an experienced Freedom of Information Officer & Privacy and Access and Equity Contact Officer to join their team on a short-term contract. You will be required to provide secretariat support to internal governance committees, apply principles & practices of Equity & Diversity, OH&S and Participative Management practices and adhere to the APS Code of Conduct. You will also be required to undertake other duties as required.
To be considered for this position, you must have existing experience as a FOI Officer and be an Australian Citizen. Having an existing Security Clearance at the Protected level would be advantageous.
If you require any information, or are interested in this position, please contact Nicole Thornton on 02) 6230 0355 or email Nicole.Thornton@frontierjobs.com.au"

FOI delivers

How about this rash of Freedom of Information disclosures over the last week:
Banks turn to Future Fund for cheap cash
Police rosters handed to Liberals
Moral stance on executions under threat
Monash joins Royal Women's on RU486 prescription list
Property crash began last January, Treasury figures reveal
Adult Ed in crisis, say Libs
School computer plan may hit taxpayers
Superboat big secret: it was dull
Tiger Moth death mystery revived
Bad teachers back in class
Taxpayers to foot $6m toxic site bill
Brethren schools net $18m funding

Then, on a different level, there was the resignation of the Victorian local councillor, shall we say, exposed, through a Freedom of Information request as having submitted for reimbursement a receipt from a brothel in Canberra where he had been on, ahem, council business.

Australia 5th in e-government

Those who like me regularly struggle to find what they want from government websites or do business with a government agency on the internet will be interested to see that Australia came in fifth out of 198 countries surveyed in a report on e-government by Darrell West of the Brookings Institution in Washington.

At the top of the list were South Korea, Taiwan, the United States, Singapore, and Canada. Just behind us were Germany, Ireland, Dominica, Brazil and Malaysia, and at the other end of the spectrum, Tuvalu, Mauritania, Guinea, Congo, Comoros, Macedonia, Kiribati, Samoa and Tanzania who barely have a web presence.

Its not clear what websites were examined, how many (apparently less than 10 in each country), or even what level of government. Websites were evaluated for the presence of various features dealing with information availability, service delivery and public access. The Australian sites rated high on many indicators but poorly on security policy, disability access, access in foreign languages and evidence of regular updating and maintenance.

My pet beefs are the limited and poorly organised information about policy research and government decision making, and the lack of tools to assist in finding out what information of potential interest might exist.Oh,and the pathetic search capabilities on the NSW Government website that is supposed to provide access to information about government contracts. See my comments last July.

The following are the topic headings for issues that West suggests governments should address:

"Government websites frequently presented access problems, both at the level of the initial search and the internal navigation- the level of accessibility must be improved.To facilitate broader access, web designers should make government websites available in other relevant languages. To encourage citizen use of online government, website maintenance needs to be improved across the board .The organization of many government websites was problematic with so much information crammed onto their pages that it inevitably led to user confusion. Government websites which present a great deal of dense information could be improved by personalization, which would help to remove clutter.Several basic changes to the layout of government websites such as uniformity could improve organization."

ALRC privacy proposals get the once over

The first conference to discuss the Australian Law Reform Commission Final Report on Australia's privacy laws and the discussion paper issued by the NSW Law Reform Commission on the associated NSW review was held yesterday, under the auspices of the Baker and McKenzie Cyberspace Law and Policy Center at the University of NSW.

I didn't get there but the Center posted the Program , with links to some papers and presentations.Graham Greenleaf and Nigel Waters provided an overview of some positives and many missed opportunities (paper), highlighted what they regard as weaknesses in the recommendations concerning review rights of decisions on complaints by the Privacy Commissioner( slides) and on data transfers outside Australia (slides). Former Privacy Commissioner Malcolm Crompton and Chris Connolly also also presented papers (Panel Session 4) on the latter issue.

Discussion of the cause of action (no papers posted yet) will be repeated in Melbourne on the evening of 8 October, and will include Matthew Ricketson of The Age- details here

Minister Faulkner outlined the steps and timetable for the Government's stage one response- looking at the building blocks of the revamped Privacy Act, namely the Unified Privacy Principles (or UPPs), credit reporting, health and new technologies-with work to be initiated by the Department of Prime Minister and Cabinet with other Federal government agencies, stakeholder consultations, including the state governments, and targeted seminars on credit reporting and health privacy issues. The Minister said he anticipated being in a position to address the Standing Committee of Attorneys-General on the Government’s views of the ALRC recommendations early in 2009. No mention yesterday of stage 2, with such meaty issues as the ALRC recommendations regarding, among many others, the proposed course of action for breach of privacy, and the removal of the exemption for political parties, apparently a long way down the track.

The main drift of the rest of his remarks was rapid technological change and the need to ensure appropriate consideration of privacy issues at the early stages of new ways of doing things not turning the mind to them as the last gasp.

Not good privacy practice: "your Xrays are in the mail"

From a recent case note (S v Health Service Provider [2008] PrivCmrA 19) issued by the Federal Privacy Commissioner on whether reasonable steps were taken to protect personal information from misuse and loss and from unauthorised access, modification or disclosure:

"The Commissioner considered whether the steps taken by the health service provider, when it mailed copies of the complainant’s medical records and the original x-rays in the general mail to (another) health service provider, were ‘reasonable’ in the circumstances.As health information, the complainant’s medical records and x-rays are sensitive information as defined in the Act, which is generally afforded a higher level of protection than other forms of personal information. The potential harm the complainant would suffer, should the original x-rays be lost in the mail, is significant, given the loss of this record of the complainant’s condition would be permanent.The Commissioner noted that while the health service provider was not a large organisation, the cost of alternative methods to transmit the documents would not be a significant financial burden. The Commissioner also considered the level of risk of the medical records and x-rays being lost in a generally dependable and reliable general mail system. The Commissioner formed the view that the health service provider failed to take reasonable steps to protect the complainant’s personal information by using the general mail, in breach of National Privacy Principle 4.1."

Momentary distraction: the debate about Palin

The Sydney Morning Herald letters page leads today with a letter I wrote yesterday in response to Gerard Henderson's claim that Sarah Palin was being singled out for criticism by the "left leaning intelligentia" who were giving her a bad time because she was a conservative, Christian, mother of five from Wasilla.The reality is that on the basis of what she has shown so far, she is unqualified for the job. My reference to the emergence of critics of Palin from the right was drawn from this paragraph in an article by Howard Kurtz, the media columnist for the Washington Post.

"While some journalists say privately they are censoring their comments about Palin to avoid looking like they're piling on, pundits on the right are jumping ship. MSNBC's Joe Scarborough says Palin "just seems out of her league." National Review Editor Rich Lowry called her performance "dreadful." Dallas Morning News columnist Rod Dreher described the interview as a "train wreck." Conservative columnist Kathleen Parker urged Palin to quit the race, saying: "If BS were currency, Palin could bail out Wall Street herself."