What's in a name?

A lot depends on the context, as two recent NSW Administrative Decisions Tribunal Freedom of Information cases involving NSW Police illustrate.

Details of a victim/witness named in a report of an incident, as you would expect are likely to be unavailable unless there are special and unusual circumstances.In Chirita v NSW Police Force (2009) NSWADT 69, the Tribunal upheld the Police determination that the date of birth, home telephone number, mobile telephone number and home address of the victim/witness named in a Police Report was information concerning the personal affairs of that person and disclosure would be unreasonable, even though the applicant, the person responsible for the incident, knew his name. And that the public interest override-still alive and well in NSW (cf Victoria)-did not warrant disclosure in this instance.

But the names of police officers carrying out their duties is another matter. In Vella v NSW Police Force(2009) NSWADT 68 the Police argued that the names of three officers who sat on an assessment panel to consider Mr Vella's application to join the Force was information that if disclosed could reasonably be expected to have a substantial adverse effect on the effective performance by the agency of its functions, and would, on balance, be contrary to the public interest. The Tribunal [36] gave this short shrift, particularly as the panel members would have introduced themselves by name to Mr Vella at the time, and because of the absence of evidence to support the claim of adverse effects from disclosure.The Tribunal had previously rejected [29-35] Police arguments that some parts of notes of his interview with the panel should also be withheld from Mr Vella for the same reasons, the Police in this instance citing possible impact on candour and frankness in future.

It's 16 years since the NSW Court of Appeal rejected an earlier argument by the NSW Police that the names of officers carrying out official functions was exempt, on that occassion on personal affairs grounds. (Commissioner of Police v District Court of New South Wales (1993) 31 NSWLR 606-Perrin's case; no link available.)

However details such as date of birth, home telephone number, mobile telephone number and home address of members of the Police Force are also likely to be well and appropriately protected against unwarranted disclosure.

New NSWADT cost powers get first workout.

In January in "Long lost review sort of surfaces, four years late" I commented on the statutory review report on the NSW Administrative Decisions Tribunal Act tabled with so little fanfare in Parliament years late by the Attorney General that the President of the Tribunal appeared to not notice; that the review was then (and still) yet to be published on the Attorney General's website, so few will have seen it; and that the report had been the basis for some changes to the Act that received scant attention during parliamentary debate.

The only reference in Parliament to one change-to the Tribunal's powers to order costs in proceedings-was this from the Attorney General in the Second Reading Speech in the Legislative Council on 27 October;

"(The Bill) amends section 88 to confirm that the parties in the tribunal are to bear their own costs unless the tribunal orders otherwise, and incorporates an expanded range of matters to be considered in the making of an award of costs. The provision is modelled on the provision contained in the Victorian Civil and Administrative Tribunal Act 1997."

I missed this at the time-hands up who didn't?- so was surprised when a new provision was used recently by the Tribunal, apparently for the first time in a privacy or Freedom of information matter, to impose a cost order on a complainant/applicant.

In BE v University of Technology Sydney(2009) NSWADTAP 22 the President sitting as the Appeal Panel decided that the lodgement of a late application for review of an earlier Tribunal decision concerning a privacy complaint was in this case a strong basis for a costs application [29]. And costs were awarded because the appeal in the context of this much litigated complaint, bordered on the vexatious [31-32].

The new powers are a far cry from the extremely limited "special circumstances" provision for costs prior to the amendment of the Act, and put FOI and privacy applicants, and yes, government agencies appearing before the Tribunal on notice that a wide range of matters-including "any other matter the Tribunal considers relevant"- can now be taken into account regarding cost orders. And will be, as BE has now found, with no doubt others to follow. Section 88 of the ADT Act now reads:

‘88 Costs

(1) Each party to proceedings before the Tribunal is to bear the party’s own costs in the proceedings, except as provided by this section.

(1A) Subject to the rules of the Tribunal and any other Act or law, the Tribunal may award costs in relation to proceedings before it, but only if it is satisfied that it is fair to do so having regard to the following:

(a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings by conduct such as:

(i) failing to comply with an order or direction of the Tribunal without reasonable excuse, or

(ii) failing to comply with this Act, the regulations, the rules of the Tribunal or any relevant provision of the enactment under which the Tribunal has jurisdiction in relation to the proceedings, or

(iii) asking for an adjournment as a result of a failure referred to in subparagraph (i) or (ii), or

(iv) causing an adjournment, or

(v) attempting to deceive another party or the Tribunal, or

(vi) vexatiously conducting the proceedings,

(b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings,

(c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law,

(d) the nature and complexity of the proceedings,

(e) any other matter that the Tribunal considers relevant.

(2) The Tribunal may:

(a) determine by whom and to what extent costs are to be paid, and

(b) order costs to be assessed on a basis set out in Division 11 of Part 3.2 of the Legal Profession Act 2004 or on any other basis.

(3) …

(4) In this section, costs includes:

(a) costs of or incidental to proceedings in the Tribunal, and

(b) the costs of or incidental to the proceedings giving rise to the application, as well as the costs of or incidental to the application.’

As to the NSW Government making sure we all know about changes in the rules, that's another story.

Fairly "radical" initiatives regarding private sector disclosure.

http://stephenyears.com/blog/

"Radical transparency" according to an entry on Wikipedia is "a management approach in which (ideally) all decision making is carried out publicly." You can see why the "radical" tag fits. Last month Daniel Roth in Wired ran it up as part of the solution to the current crisis in financial regulation around the world (and in other sectors as well), a theme picked up on Sunday in ABC Radio National's Background Briefing on Zombie banks. One of the speakers said we need to seriously question bank claims to confidentiality for information that goes to the management of risk, our money, and potentially involving high cost to the taxpayer in the form of government support.

The Leaders Statement in London following the G20 and the accompanying Declaration on Strengthening the Financial System steered clear of the word "radical" but had plenty to say about the need for greater transparency in the operations and regulation of financial institutions.

Could all this have any connection with two aspects of Minister Faulkner's Federal Freedom of Information reform package, neither of which have had much in the way of public explanation from the Government to date, that indicate more than a passing interest in a couple of big changes with implications for the private sector ?

One, the announcement that "the Government will (later this year) provide the Australian Law Reform Commission with a reference to consider whether FOI should be extended to, or another disclosure regime provided for the private sector." While this proposal had been considered but not recommended in the Commission's 1995 Open Government Report, Senator Faulkner said "the Government considers it timely to re-examine this issue in the context of the general reforms to freedom of information and developments on disclosure regimes in both public and private sectors." By the by, this has emerged as an issue in several countries including Ireland where the finance regulator is not subject to the FOI Act, with a call also for "banks that have been nationalised or guaranteed by the government (to) come under Freedom of Information legislation." In the US , not only are the banks not covered, but it has emerged that large parts of the Federal Reserve system that has lent trillions to banks is not subject to the FOI Act either.

Two, the proposed changes to the business affairs exemption in the Freedom of Information Act.The current exemption ( Section 43) which has worked effectively to deny access to important information in government hands about private sector entities regardless of any community interest or impact, and with which the business community grudgingly accepted way back in 1982, is to be amended. For the first time, two categories of information-the disclosure of trade secrets, and disclosure of information that has a commercial value that could be destroyed or diminished by disclosure- will only be exempt where in addition, release on balance is contrary to the public interest. In addition an " on balance contrary to the public interest " test is to be ( somewhat clumsily) grafted onto that part of the exemption that protects information concerning business, commercial or financial affairs information where disclosure would have an unreasonable adverse effect.

Radical transparency, as defined, maybe not. But a potential shake-up to some cozy notions concerning the need for secrecy and confidentiality about information that goes to public well-being held by government about private sector bodies. And a serious look later in the year at whether the private sector should have a more onerous obligation regarding direct disclosure of information as well.Interesting times.

Not much sizzle yet, to open government sausage.

I wonder if thinkers in government here about how to enhance transparency in the Google age are keeping up with action elsewhere to give practical effect to ideas such as developments referred to by Nick Troiano in Realizing Transparency 2.0 Through Social Media . In a few words:"In this era of transparency 2.0, no longer will placing a window between the people and their government suffice. That glass needs to be removed. The people ought to be able to reach inside and fiddle around. Our expectations of transparency in government, which were once limited to observation, have expanded to include participation."

In what might well be a welcome first, or at least first for a long, long time, Minister Faulkner as the minister responsible for Freedom of Information spoke in Canberra recently to the FOI Practitioners Forum, those government officials who deal with FOI issues everyday. The speech is a good summary of the legislative proposals, and recommended, particularly if you haven't ploughed through the Draft Bill. The Minister also peppered the summary with strong, positive statements:

"Information is.. the lifeblood of democracy. It makes informed commentary, debate and discussion of government policies possible. It lets people know what their government is doing, and why. It is fundamental to openness in government, that cornerstone of government integrity. And achieving more openness in government is the Government’s goal."

Minister Faulkner clearly sees legislative change as the first and major step to achieving more openness. But it's still all future tense-things that are to follow once the legislation passes Parliament.

I'm afraid there is no sign yet, in this speech or elsewhere, of innovative thinking about what may emerge from the wonderfully bureaucratic sounding "Information Publication Schemes" that may start to roll out from Federal Government agencies, if all goes well, sometime in 2010.

As to "doing things differently", the Minister is getting closer to spelling out to the public service that the government is serious in its commitment to open government:

"I will be writing to the heads of all agencies seeking their commitment and support in carrying out this objective, as I mentioned when I launched the package last week."

And the Minister made it clear to the FOI practitioners that the Government will want their help when the law changes:

"I also seek your support today. Those of you handling or advising on FOI applications have a vital role to play in ensuring that changes in FOI law are carried through to changes in FOI practice. We will be relying on you to ensure that these reforms actually deliver more open and more accountable government. I do know that this will not always be easy. It is often a very difficult job to weigh the competing and complex demands of transparency and confidentiality. I know too that where there is not a clear answer to the issues raised by a FOI request, it will always seem easier and safer to say ‘no’ rather than ‘yes’, to chose caution and withhold the document rather than take what may seem to be a risk and release it. It is our hope that these proposed changes will deliver the statutory structure and the processes to make it easier for you, as the decision makers ‘at the coal-face’ of FOI, to weigh these different factors, and to deliver FOI outcomes that reflect the public interest – and the government’s policies – of openness, transparency, and informed discussion and debate."

Meanwhile, back at the farm........

Credit grade for Faulkner.

You might be interested in this assessment of the Federal Freedom of Information Reform proposals by Ken Parish,writing for Club Troppo. Ken gives the package a credit grade, and thinks I have been a little unfair. I'll leave it to you, dear reader.

Ken Parish is a Darwin-based lawyer and former Labor member of the Northern Territory Legislative Assembly. He now teaches (mostly public law subjects) at Charles Darwin University, where he founded Australia's first fully online external law degree program. Ken is no longer associated with any political party, describing himself as a "committed sceptic."

Secrecy unveiled at Spy Museum.

What a nice invitation from Washington’s Spy Museum in the mail today:

Dear Peter,

We’d be delighted to have you as our guest at the Spy Museum’s upcoming event about freedom of information and government secrecy. The event is taking place tomorrow, Tuesday April 14, at 6:30 pm at the International Spy Museum, 800 F Street, NW Washington, DC 20004.”

As I said in reply, all the combined skills of many spooks would be needed to beam me up from Sydney and into Washington in time, but I appreciated the thought.

However if you are reading this from the Washington vicinity and can get there,it sounds like a very interesting discussion:America on a need- to know- basis:Secrecy in a Free Society. Buy a ticket here. Details as follows.

"Government secrecy—necessary evil, essential protection, ready cover-up, or useful bureaucratic measure? Americans wrestle with the concept of government secrecy, but tend to find it more acceptable when they feel threatened. But how much secrecy is too much and when does classification become control without bounds? Moderator Shelby Coffey III, senior fellow of the Freedom Forum and former editor and executive vice president of the Los Angeles Times, will engage a panel of experts in an exploration of these crucial questions. Join Thomas S. Blanton, executive director of the National Security Archive; Peter Earnest, former chief of the CIA office responsible for FOIA, privacy, and litigation issues in the clandestine service; Ronald Goldfarb, author of In Confidence: When to Protect Secrecy and When to Require Disclosure; and Mike Levin, former chief of information policy at the National Security Agency; for a lively exchange of views on the inherent tension between the public’s right to knowledge and the government’s duty to safeguard vital national security information.”

Maybe next time.

Government by the people,for the people,and accountable..to Parliament.

A significant aspect of the Victorian Court of Appeal decision in the Osland case (apart from apparently putting an end to Mrs Osland's legal attempts to find out more about the decision to refuse her petition for mercy) was the Court's finding that the Freedom of Information Act does not bring anything new to, or enlarge, traditional notions of ministerial accountability. If the Court is right,Victoria (where FOI reform is yet to reappear on the Government's agenda) should consider a leaf from the current Federal reform proposals to include in the objects of the Act "increasing scrutiny, discussion, comment and review of the Government’s activities", and specifying a public interest in disclosure to promote those objects.

The Court stated that it is "the accountability of a Minister to Parliament which has been recognised as the defining feature of responsible government."[38]. In addition, ministers can be held to account through questions and criticism by journalists and citizens. But in giving consideration to the public interest override (Section 50(4) of the Act) in the context of the Victorian Freedom of Information Act, to documents claimed exempt on legal privilege grounds, the Court had to operate within the legislative context [40]: "at the level of general policy, the Act itself has already struck a balance between the public interest in the maintenance of legal professional privilege, on the one hand, and the public interest in access to documents relevant to executive decision-making, on the other."

Therefore,[41] "(i)t is.. outside the scope of s50(4) for this Court to decide, as a matter of generality, whether there should be public scrutiny of legal advices received by a Minister in connection with the making of an executive decision. That is so whether the public interest is said to reside in greater transparency or in greater accountability… Whether ministerial accountability entails the production of legal advices relied on by ministers in making decisions, and if so in what circumstances, is a policy question which will fall to be considered, if and when it arises, by the executive or by the legislature."

The effect of this is that the Government can choose whether and in what detail it discloses information about legal advice received. And until the Parliament more explicitly legislates circumstances that require disclosure of legal advice, Section 50(4) won't provide the basis for forcing government to disclose relevant documents.This seems to involve significant reading down of 50(4):

" On the hearing of an application for review the Tribunal shall have, in addition to any other power, the same powers as an agency or a Minister in respect of a request, including power to decide that access should be granted to an exempt document (not being a document referred to in section 28, section 29A, section 31(3), or in section 33) where the Tribunal is of opinion that the public interest requires that access to the document should be granted under this Act."

In the Tribunal decision way back in 2005 the President Justice Morris [54] concluded that the arguments in this case for disclosure "are unique and powerful. Being unique, there is no reason why the provision of access should create any general precedent in relation to legal advice concerning petitions of mercy generally. Being powerful, they not only outweigh, but override, the factors that confer, and are relevant to the conferral of, exempt status on the documents.”

President Morris concluded the public interest required disclosure because citizens will be in a position assess the merits of the government’s decision to deny the petition of mercy.[34] He attached importance to “a public interest in information being freely available to enable members of the public to intelligently consider and discuss decisions of the executive branch of government. Democracy demands no less.”

He continued[49]:

”There is a particular public interest in relation to the operation of the criminal justice system. Public confidence in the system is likely to be enhanced if decisions, which affect legal rights, are made in a transparent manner. The exercise of the prerogative of mercy – or the grant of a pardon – in circumstances which are not transparent or beyond question have the potential to undermine public confidence in the justice system. In circumstances where a government decision is made in relation to a petition of mercy, relying upon particular advice which is specifically referred to, there will be a strong public interest in also making available any other advice that has been obtained in relation to the same question. If a decision maker obtains advice from two sources and receives different advice, the public might be misled if it is told that a decision has been made on the basis of advice (specifying the advice) without reference to the fact that there was also different advice. If only one advice is specified in such circumstances an impression may be created that the decision maker really had no choice; whereas if the two different advices are specified the public might think that there was a choice to be made by the decision maker and wish to know why a particular choice was made.”

The Court of Appeal concluded there had been no misleading in the Minister’s media release, that normal and proper processes of administration had been followed, that nothing in the content of the documents required disclosure of anything more than the Government had chosen to reveal, and that President Morris in considering the public interest in full disclosure of advice received was going beyond the scope of Section 50(4).

I’ll be interested to see what the Victorian FOI commentariat make of this.

Osland bid for advice on pardon fails in Victorian Court of Appeal.

The Victorian Court of Appeal in a unanimous joint decision has ruled in the Osland case that the Civil and Administrative Tribunal had been wrong in finding that the public interest required the grant of access to legal opinions provided to the Attorney General in connection with the decision to refuse her petition for mercy following conviction for murder of her husband.

The High Court had remitted the matter to the Court for reconsideration in August last year, finding the Court of Appeal had erred in failing to read the documents in reaching the same conclusion on an earlier occasion. Four of the five High Court judges in the majority had said it was not ‘legally impossible’ that there might be such differences between the advices as might require disclosure in the public interest. The Court of Appeal [18] put paid to speculation on the matter, confirming there were material differences of opinion in the various advices to the Attorney. It decided it was unnecessary to say more about the nature or extent of the differences, and ruled there was nothing in the revealed differences that attracted the override discretion in Section 50(4) of the Victorian Freedom of Information Act--to order release of documents where required in the public interest.

The Court of Appeal rejected the argument that the public interest required disclosure because a press release issued by the Attorney General about the decision to reject the petition "created the misleading impression that the only legal advice (a joint opinion of three eminent counsel).. obtained .. had advised (him) to deny the petition." While the release made no reference to the fact that a number of advices had been obtained, or to any differences, the Court found [31]:

"There was nothing in the language of the press release, or in the surrounding circumstances, which would warrant this Court finding – as a fact – that the Attorney-General had thereby represented to the public either that the joint advice was the only advice he had received on the topic or that he had received no advice to the contrary. On a fair reading, the announcement was not intended to enable – and did not invite – members of the public to make an assessment of whether the Minister had made the right decision. It was not a statement of reasons for the decision. The announcement was intended to convey – and in fact conveyed – no more than that the decision had been based on, and accorded with, independent legal advice from eminent counsel."

The Court also rejected an argument that "the public interest in accountability" required disclosure of the documents all of which were exempt on legal privilege grounds because the issue of the press release, and its reference to the joint advice enlarged the content of the Attorney-General’s obligation of accountability. Counsel for Mrs Osland submitted:

"The taking of that step (issue of the release) meant that the demands of accountability could no longer be satisfied by the Minister being questioned or criticised in Parliament or by journalists and commentators. Because he had chosen to justify himself by referring publicly to the joint advice, so it was said, he had assumed an obligation of accountability which could only be discharged by his disclosing also that he had had other, and different, advice. That disclosure not having been made, so the argument went, the public interest in political accountability required that access be given to all of the advices under s50(4)"[35].

The Court observed:

"What underpins the submission, therefore, is a proposition of a general – and potentially far-reaching – character. The proposition is that if, in announcing a government decision, a Minister states that the decision accords with legal advice which the Government has received, the Minister must – in order to be ‘properly accountable’ – disclose the existence of any advice received which is contrary to the decision arrived at and must disclose the content of all relevant advices. That is what the public interest is said to require. Translated into the language of the Freedom of information Act 1982(Vic), this means that if a ministerial decision is stated to be supported by legal advice, and contrary advice has been received by the Minister relevant to the decision but is not referred to, the public interest under s50(4) of the Act is enlivened so as to require that access be granted to all relevant advices. (As a matter of principle, the same theory of accountability would extend to advices of all kinds, whether legal or not, on which Ministers rely in arriving at their decisions.) [37]

In what is an intriguing conclusion that warrants some close analysis, the Court rejected the argument on the basis that it was

"outside the scope of s50(4) for this Court to decide, as a matter of generality, whether there should be public scrutiny of legal advices received by a Minister in connection with the making of an executive decision. That is so whether the public interest is said to reside in greater transparency or in greater accountability. (The question of principle is no different when – as here – the Minister in announcing the decision refers publicly, without waiving privilege, to the conclusions of one such advice.) Whether ministerial accountability entails the production of legal advices relied on by ministers in making decisions, and if so in what circumstances, is a policy question which will fall to be considered, if and when it arises, by the executive or by the legislature.[41]

The Court [43-49] decided there was nothing in the particular circumstances of this case that justified the exercise of the discretion to require disclosure of otherwise exempt documents.

The Bendigo Advertiser is the only media report this morning.

Clean but unofficial version of proposed Federal FOI act

John Fitzgerald is a lawyer with over 20 years experience in Administrative Law. He is currently writing a text on Freedom of Information in Australia. John has done a service with a "cut and paste" of the current Freedom of Information Act and the proposed changes, additions and deletions to produce a clean version of the entire FOI act as it would look if the proposals go forward. While it has no official status, I'm sure John has done a great job. He is happy to share the result here with readers.Sure beats trying to work your way through the released amendment bill. Thanks John.

Transparency still a struggle despite the law.

www.imagingstation.com.au

It's not clear from this report about a broader local council issue whether the Sydney Morning Herald was or wasn't sidetracked by the response from Burwood Council chief architect Albert Becerra:

"When asked for access to his pecuniary interest declaration, Mr Becerra said the Herald would have to submit a freedom-of-information request."

For the last 16 years Section 12 of the NSW Local Government Act has stipulated that"(e)veryone is entitled to inspect the current version of," among a whole raft of documents free of charge, "returns of interests of councillors, designated persons and delegates." Chief architect and other senior council staff are certain to be designated persons.

The Council's website acknowledges availability: it says all you need do to see returns is "Contact the Governance Section within Council." But nothing posted on the web. Perhaps there is scope for looking again at the level of detail of interests that need to be declared by those in local government, but in this day and age it's hard to justify the "come to the office during business hours" approach built into this and many other aspects of our supposedly transparent systems of accountability.

The issue last week was the need for an official on-line seachable register of interests of federal parliamentarians.It's the same at state government level. In the NSW Parliament the latest register of members' financial interests has just been tabled. I can find only one media report-by Brian Robins in the Sydney Morning Herald yesterday. Only the declarations of two members get a mention- Matt Brown is 99% of the story and there is a passing reference to George Souris. There are something like 140 members. Want to know about the others?- off to Macquarie St Sydney to inspect the paper records- business hours, of course. We should expect a lot better at all three levels of government.

The state of FOI:a phrase, a sentence or about 240 words.

I know that editors and journalists have to be short and sharp, but in an otherwise fair comment about the state of the game and particularly the wider impact of lies to journalists in today's Australian, the reference to "Freedom of Information laws that barely function" is too harsh. John Hartigan, News CEO and Australia's Right to Know leader at the Free Speech Conference put it this way: "Freedom of Information has not worked as envisaged. In fact it’s become an oxymoron." The first part is right; the second a search for a headline.

A Google News search for "Freedom of Information" pages from Australia turns up plenty of media reports in any week based on documents obtained under the various freedom of information acts. And of course plenty of stories about delays, costs and knockbacks as well. We don't know but can summise about the non-media experience.

As evidence I'll never get a job in the media the extract below is a reminder of the conclusions about FOI in Australia in the Independent Audit of Free Speech Report for ARTK in October 2007.This still to my mind holds up almost 17 months later-I would say that wouldn't I? The question now is whether the current interest in reform will produce solutions to these problems.I notice ARTK has only a 14 page Summary of the Report on its relatively new website. Here is the full text of the 360 pages if you are interested. State of free speech in Australia-pdf.

"FOI laws work reasonably to provide access to personal information about the applicant, and on occasion to information about other important matters of public interest and concern. However, several factors result in FOI working less well in accessing documents relevant to government accountability. An issue in all jurisdictions is that governments have not taken sustained measures to deal with an enduring “culture of secrecy” still evident in many government agencies. Ministers and senior public service leaders have not been consistent strong advocates of open government principles.

FOI performance is patchy across all governments. In some agencies applications are managed in a professional manner and decisions on access reflect the law, its spirit and intent. In other cases the FOI process involves delay, high cost, and limited access to requested documents, often on grounds that suggest determined attempts to protect politically sensitive information. Claims that FOI is achieving its intended purpose, including opening government activities to scrutiny and criticism, are not substantiated by the available evidence.

FOI, in the federal arena in particular, is marked by a high degree of legal technicality which tends to dominate considerations about whether disclosure is in the public interest, or may demonstrate harm to an essential public interest. There are problems and inadequacies in the design of the laws; too much scope for
interpretation of exemption provisions in ways that lead to refusal of access to documents about matters of public interest and concern; cost barriers to access; and slow review processes that often fail to provide cost-effective resolution of complaints."

Sir Humphrey lives- surely not?

The late Nigel Hawthorne aka Sir Humphrey.

NSW Premier Nathan Rees and some of his close advisers might be a bit young to remember the famous BBC "Yes Minister " series. His comment last week that the Ombudsman's FOI Review Report is "currently under active consideration by my Government" for some of us, and without justification, we hope , prompted a memory of Sir Humphrey, the quintessential mandarin, on the meaning of words:

"'The matter is under consideration' means we have lost the file. 'The matter is under active consideration' means we are trying to find the file."

Hmm, but come to think of it, the Report was released two months ago.

ACT on the FOI reform bandwagon

The Australian Capital Territory is the latest to join the Australian Freedom of Information review rush following a decision last week by the Legislative Assembly to ask the Standing Committee on Justice and Community Safety to conduct an inquiry into the 1989 Act. The ACT Act is basically THE Commonwealth Act and the movement at the station there would prompt re-examination in any event, but an inquiry was also part of the deal for support by The Greens for the formation of an ALP minority government after last year's election. It's also been an issue the Liberals' Vicki Dunne has pursued for years. Sweet for Dunne, who has had some celebrated battles with the Stanhope governments over FOI, and who moved the motion to set up the inquiry- only to have a series of amendments added that string the terms of reference out to three pages of detail (and "any other relevant matter" to boot)-that she ends up in the chair.

Details here.Thanks to Ray Polglaze for the heads up.

FOI for Boffins (Mark 2)-warning:not for the faint-hearted

www.oxfordentrepreneurs.co.uk

You could write a book on the subject- a few will- but given the complexity involved in working through the Exposure Draft of the Federal Government's Freedom of Information Amendment (Reform) Bill, for my own purposes and perhaps of assistance to you, the following is a summary of some of the more significant aspects of what would change and stay the same.I won't repeat previous comments about the overall package, the pro-active disclosure provisions or the public interest provisions.

I presume Minister Faulkner's department would have had to put something like this together to brief him and the cabinet on the proposals, particularly the exemptions, in addition to the Companion Guide which doesn't quite do it. I may have missed something in the fine print or got it wrong-in that case let me know. I've stopped short of comment (in most cases) at this stage.

The Act as it stands is here. The documents released for consultation are here.
The Exposure Draft Bill here - PDF 543KB. Hope this doesn't stretch the relationship too far.Good luck

Scope of the Act
No change except for extension of the Act to documents held by a contracted service provider or subcontractor providing services to an agency and the agency would hold the document if it performed the service in its own right. An agency must take contractual measures to ensure it receives a document of this kind.(Schedule 6 in the Draft)

Charges
Application fees abolished and free processing time of one hour for all and five hours for journalists (bloggers?) and non-profits. Nothing in the Exposure Draft. A Draft regulation to be released shortly.

Applicants
New powers for the declaration by the Information Commissioner of a person to be a vexatious applicant. Requires a finding of "abuse of process"(as defined) or a "manifestly unreasonable" request or application.(89K-89N in the Draft)

Exemptions with no public interest test
National security, defence, international relations
Section 33. No change. A new subsection in Section 4(11 in the Draft) of the Act states to"avoid doubt" Section 33 covers information communicated pursuant to any treaty or formal instrument on the reciprocal protection of classified information with a foreign government or international organisation.

Cabinet documents.
New section 34. Main changes are that a document prepared for submission to cabinet (exempt at present) will only be exempt where it has been or is proposed to be submitted and was brought into existence for the dominant purpose of submission for consideration by the cabinet; new subsection exempts a document brought into existence for the dominant purpose of briefing a Minister on such a document. Other current provisions in the exemption remain.

Executive Council
Section 35. Repealed.

Law enforcement
Section 37. No change.
.
Secrecy provisions in other acts
Section 38. No change to the exemption or to Schedule 3 that lists secrecy provisions in other acts prohibit disclosure.

Legal professional privilege.
Section 42. No change.

Material obtained in confidence.
Section 45. No change other than consequential amendments to 45(2).

Contempt of Parliament/contempt of court.
Section 46. No change
.
Companies and securities legislation.
Section 47. Repealed
.
Electoral rolls
Section 47A. No change.

Public interest conditional exemptions
The wording of each current exemption that includes a public interest provision is to be amended, to link back to the standard "must disclose unless at the time disclosure would on balance be contrary to the public interest" test in new Section 11A. Other than this:
Commonwealth-State relations
Old Section 33A repealed and replaced (47B in the draft). No substantive change.

Deliberative process.
This heading replaces "internal working documents". Old Section 36 replaced (47C). No substantive change.

Financial or property interests of the Commonwealth
Old Section 39 repealed and replaced (47D). No substantive change.

Certain operations of agencies
Old Section 40 repealed and replaced (47E). Only change is removal of subsection(e)- disclosure could be expected to have a substantial adverse effect on the conduct by or on behalf of the Commonwealth or an agency of industrial relations.

Personal privacy.
Old Section 41 repealed and replaced (47F).The exemption itself is unchanged:a document is is conditionally exempt if its disclosure under this Act would involve the unreasonable disclosure of personal information about any person (including a deceased person).
However a new subsection lists matters that a decision-maker must take into account including whether the information is well known or available from publicly accessible sources, and "any other matters" considered relevant.Perhaps this is meant to allow a step back from "disclosure to the world" in appropriate cases (as per the Marke decision in Victoria) although Section 11(2) remains: the right of access under the Act is not affected by any reasons the person gives for seeking access or the decision maker's belief as to what are his or her reasons for seeking access.
The other new twist is that in addition to the requirement to consider unreasonability (which has always required consideration of the public interest) the exemption provision now requires disclosure unless on balance contrary to the public interest.

Business documents
Old Section 43 repealed and replaced (47G). No substantive change in the exemption. However all three separate parts of the exemption will also now require consideration of whether disclosure is on balance contrary to the public interest. There is currently no additional test like this for a trade secret, or information that has a commercial value that would be destroyed or diminished by disclosure. The broader exemption for information concerning business,professional commercial or financial affairs continues to require a finding that disclosure would have an unreasonable affect or prejudice the future supply of that sort of information, plus new consideration of whether disclosure on balance would be contrary to the public interest.

Research
Old Section 43A repealed and replaced (47J). No substantive change.

The economy
Old Section 44 repealed .Current 1(a) not replaced: exempt where disclosure would, or could reasonably be expected to, have a substantial adverse effect on the ability of the Government of the Commonwealth to manage the economy of Australia.
The new section largely replicates the current 44(2) with the addition of an exemption where disclosure would have an unreasonable adverse effect on Australia's economy by "influencing a decision of a person or entity".

Exemption of certain persons and bodies
Section 7A(2)-intelligence agencies- repealed and replaced (20). No substantive change except to exempt a summary of or an extract from an intelligence agency document. No change to agencies listed in Schedule 3 that are exempt in respect of all or some functions except the addition of Department of Defence in relation to documents in respect of operational intelligence, and "special access programs under which a foreign government provides restricted access to technologies." And removal of Federal Airports Corporation.

Consultation Requirements
Sections 26A, 27, 27A repealed and replaced (18). No substantive change.

Review Processes and other bits and pieces
Another day.....If you got this far you know we both need a break.

Not guilty, your honour.

www.bushtelegraph.files.wordpress.com

In the NSW Legislative Council yesterday we had the following about non-ministerial involvement in Freedom of Information decision- making:

The Hon Greg Pearce: My question is directed to the Minister for Primary Industries, Minister for Energy, Minister for Mineral Resources, and Minister for State Development. Is it currently the practice, or has it ever been the practice, for any department or agency to send a draft determination of a Freedom of Information Act application to his ministerial office before making the response public?

The Hon Ian Macdonald: No, I am not aware of that. I will ask my office and come back to the member.

The Hon Don Harwin: My question without notice is directed to the Minister for Health. Is it currently the practice, or has it ever been the practice, for his department to send draft determinations of Freedom of Information Act applications to his ministerial office before making the response public?
The Hon John Della Bosca: I am not aware of such a practice, but I will ascertain information from my office and come back to the member as soon as practicable.

Minister Della Bosca later added:

"Earlier today the Hon. Don Harwin asked me a question about my office receiving draft freedom of information determinations. I can confirm to the House that my office does not receive draft freedom of information determinations. My office receives a copy of the final determination, as sent to applicants, for information purposes only. That makes sense because, as Opposition members would be aware, my office is frequently contacted to provide comment on issues pertaining to freedom of information releases."

Fascinating, in the light of the reported findings of the Ombudsman that there are widespread problems around this issue, to see if the pattern in these answers is repeated across the entire ministry.

From potholes to a big hole.

That NSW Ombudsman report sounds more fascinating by the day, with this from Simon Benson in today's Daily Telegraph that the report includes information that the RTA engaged a company connected with its former minister and former chief executive to deal with some of the ensuing mess that arose concerning the investigation of the handling of a Freedom of Information application for documents about..... potholes. Benson's opinion piece about how bungling and sneakiness turned a mole-hill into a mountain, and the editorial in stablemate The Australian, concluding "a tinpot government that is furtive about potholes has much to hide"-would take paint off the wall in many government headquarters. In NSW??

The Report was tabled in Parliament yesterday. There was also this exchange in the Legislative Assembly, among others

"Mr BARRY O'FARRELL: My question without notice is directed to the Premier. Given the Premier's promise to end the days of the secret State and to be honest, transparent and accountable, why will the Premier not release the Ombudsman's report into the handling of freedom of information requests by the Roads and Traffic Authority and the former Minister for Roads?

Mr NATHAN REES: I am advised that the Ombudsman's report will be tabled this afternoon in the other place. I can advise that in line with the Ombudsman's recommendations, the Roads and Traffic Authority provided the report to the Commissioner of the Independent Commission Against Corruption. I can also advise that we welcome the Ombudsman's recent report on the Freedom of Information Act. I have said that Act needs overhauling and we have considered the Ombudsman's proposal for a new Act. As I have said on many occasions, it is the Government's intention to completely overhaul the Freedom of Information Act, which is more than 20 years old and does not reflect the electronic age.The Ombudsman's report provides a road map for fundamental reform of freedom of information in this State. It is currently under active consideration by my Government."

But if you want to read the Report, at present the only option is to toddle down to Parliament House in Macquarie St during business hours and ask to see a copy.The Telegraph-the complainant- has a copy provided by the Ombudsman as is routine practice, but hasn't so far posted it on the web. So has the RTA, but no sign of it there either. The Ombudsman can't publish a report sent to a minister even when the minister tables it-his act only permits publication of a report sent directly to the Parliament. Parliament doesn't do anything even 20th century like automatically putting on the web important tabled documents of wide public interest. And so far nothing on the websites of the Premier or his department.

Last October the Premier raised hopes things would be very different by now.

Something bigger than a pothole.

A Daily Telegraph Freedom of Information application to the Roads and Traffic Authority for documents about potholes, and a subsequent investigation by the Ombudsman into interference from the then minister's office has taken another turn as reported today, with new information about steps taken to try to keep the Ombudsman at bay with big bucks paid to a top Sydney law firm. The Independent Commission Against Corruption is now investigating. The Telegraph also reports:

"Ministers will be banned from talking to their departments and staff about Freedom of Information applications under sweeping recommendations before Premier nathan Rees to stamp out political interference. The Government will also consider banning government agencies from using legal privilege to hide from investigations and keeping documents secret unless it can be proven to be justified. But Mr Rees has so far refused to implement all the recommendations, apart from submitting a draft memo to agencies reminding them that FOI applications should be made free of political interference."

Draft memo? In this report last month the paper said orders had been issued by the Premier to ministers to stay out of dealing with FOI applications. No wonder then and now there is nothing to this effect in the list of minsterial memoranda.

For a comment about political interference in FOI decision-making see this post in December 2007.

Transparency part of the answer to lifting performance in the hospital system

From the NSW Government's response to the Report of the Special Commission of Inquiry into Acute Care Services in NSW Public Hospitals( Garling) on Tuesday.

"A Bureau of Health Information will be created to support transparency in health data and allow greater local control of information analysis. Consistent with functions outlined in the final Garling Report, the Bureau will undertake public reporting, performance monitoring, ad-hoc data supply and analysis, evaluation and research."

The details of Garling's recommendations in this area are included at 75-79 in the response. All are supported. The Bureau is to be established in Stage One by July 2009. Some aspects of measurement and reporting are listed for action in Stage Two or Three. The Government also supports related recommendations, such as 90, for the public display by each ward of infection rates and compliance with hygiene standards.

Tasmania also sees the need to start again.

In contrast to the Federal Government's approach to reform in suggesting modifications to the 27 year old Freedom of Information Act, and putting out 130 pages of amendments for public comment,Tasmania today followed the lead of Queensland, and the NSW Ombudsman, with Attorney General Lara Giddings proposing that the existing complex and confusing Freedom of Information Act be scrapped and replaced by a right to information act. The Attorney General said (some of this has a familiar ring)

“The key proposal is a new approach to accessing information which encourages departments to ‘push’ information into the public arena rather than waiting for a request to ‘pull’ the information from the agency. “The aim is to be more open and reduce the traditional FOI approach to an option of last resort. “This will require significant cultural as well as legislative change within Government."..... The review is timely as it will also modernise our approach to FOI to better reflect the changing times in which we live and work, and the different ways in which we can access data and information using modern technology. “Over the life of the current Act we have moved from typing pools and stenographers to high speed internet, emails and digitisation of departmental records and information. “With improved information flow and increased community expectations around transparency, the old legislative framework is arguably no longer relevant or appropriate."

The Directions Paper outlining the proposals that have already had input from agencies and experts, and some useful international comparative information are here. Submissions close 8 May.It's a more publicly accessible process than what we have seen from Canberra.

Some analysis of the FOI reform package.

Minister Faulkner's Freedom of Information reform package is draft legislation to give effect to Labor's election commitments. ( Memory jogger- pre-election policy.pdf ).The commitment apart from words about the end of excessive secrecy, change in culture across government, and promotion of greater opennness and transparency, was to implement "key findings" of the Australian Law Reform Commission 1995 Open Government Report to revise (in largely unspecified ways) the Freedom of Information Act, to rationalise exemption provisions, abolish conclusive certificates, review charges and establish an information commissioner. The Minister clearly sees the draft legislation as something to wave in front of the public service as evidence that the government is serious about culture change.He said last week he had a memo to public service leaders sitting on his desk to this effect, hopefully sent by now.

The proposals deliver mostly on a legislative scheme to deliver on the commitments. Selectively mind you when it comes to the 106 Recommendations of the ALRC-see below. Here and there, for example in abolishing application fees entirely, the draft goes beyond what was proposed by the Commission.The Government's separate move to abolish all conclusive certificates also goes further than the Commission recommendations.

But "rationalise exemption provisions" has produced a bit of a damp squid with the abolition of two rarely used exemptions (Executive Council documents and documents prepared in accordance with companies and securities legislation) and a sub-section relating to documents concerning the conduct of industrial relations, all as recommended by the ALRC. All other 16 exemptions (including many internal combinations and permutations) remain, with a couple of welcome changes but some ALRC recommendations not acted upon. Exemptions will now be arranged in two neat boxes - absolute exemptions, and conditional exempt documents where a public interest test applies. (More about these in another post shortly.)

Some media reports suggest confusion that the Minister's statement about a single public interest test means there will be one exemption. That's what Queensland is proposing. Federally it means only that the current situation of several different formulations of a public interest test in the Act will be replaced by one test- whether disclosure is contrary to the public interest, relevant only to specified exemptions but not others.

Many of the ALRC's 106 recommendations related to non-legislative measures but quite a few statutory changes on issues other than exemptions have been rejected without explanation. As already pointed out, its a big x for the recommendation that the parliamentary departments which spend and pay money on and to our parliamentarians be brought within the scope of the Act; ditto for a recommendation now 13 years old to reduce the time limit for dealing with an application in three years from 30 days to 14 days; ditto that charges should only be imposed in respect of documents released; and ditto for other proposals of varying significance such as that chief executives of government agencies should have a duty under records legislation to create "such records as are necessary to document adequately government functions, policies, decisions, procedures and transactions." You might be surprised they don't have such a duty already, only an obligation to safeguard records once created.

Overall there are important positive changes- notably the proactive publication requirement- even if it falls way short at this stage on detail as mentioned here last week- and the pro-disclosure bias achieved through a clear statement of the objects of the act and a more forceful expression of relevant and irrelevant public interest factors.

But what we will end up with is hardly an access to government information act tailored to community needs and expectations and reflecting 21st century realities. It's still essentially the 1982 Act- in fact drafted in the 70s- with a lot of legalisms and horse and buggy features of the original, amended to reflect some aspects of the internet, to give effect to election commitments, and informed by many but by no means all of the changes recommended by the Australian Law Reform Commission all those years ago.

The reforms therefore represent significant incremental change but limited rethinking of basic concepts. In the dry and dusty 130 pages of proposed changes to the legislation there is no hint of bigger, broader consideration of access to government information in the Google Age. It wasn't much of an issue way back in 1995 when the internet and the information age had just dawned. But the debate (as picked up to some degree in the Queensland Solomon Report Chapter 3) these days has in some respects moved on from a good law that fairly balances the right to know and the imperatives of good government. The discussion is about government wide information access policies; the linking of public access considerations to an approach to information and communications technology management that is geared to reflect the changing sensitivity of information over time; access to search tools that would enable the citizen to search for government-held information of interest; improved access to digital information including government databases that might promote investigative reporting and further action by those outside government to achieve government policy objectives. And agency score-cards, performance agreements with chief executives, and penalties for obstruction.

Maybe the Government recognises this and expects the detail to flow forth when we have an information commissioner, or when we have a further review of the Act two years after the new legislation takes effect. In the meantime once the legislation passes Parliament later in the year, you will in 2010 be able to lodge an FOI application by email!!

If you are interested in ideas about FOI 2.0 this presentation by Rick Snell last year outlines what openness and accountability could mean in our times. (Pdf)

One reason we won't be spending much time tossing around these ideas is that the Government has done a neat job of "framing" the problem and the answer by putting on the table the proposed amendments to the Act in a way that will certainly limit public input to the proposals put forward, not broader concepts. In addition the technical language of the bill will limit participation in the discussion to the boffins and usual suspects. Few others will get through the draft and the links back to the Act, ALP policy and the ALRC Open Government Report to try to work out what was promised and recommended, and the merits of what is now proposed.

To the outsider, the bulk of available time to date on FOI reform appears to have been spent by Minister Faulkner, his office and the public service engaging in a 16 month, largely private internal seminar on drafting legislation to enable the Government to tick the box on another election commitment. It could have been different if there had been a serious attempt to reach out to engage the community on the subject of government transparency and accountability, not now after 16 months, but way back when minds first turned to the subject.That didn't occur. Overall, however its way better than what was on offer-nothing- from the last lot.

The rest of us have about six weeks now to offer a comment.