Warming journalists' hearts- now that's a challenge

http://blogs.abc.net.au

Particularly that of veteran journalist Laurie Oakes, political editor of the Nine Network. But he told the MEAA Press Freedom dinner on Friday that John Faulkner had done it in announcing the planned Freedom of Information reforms, even though other developments or non-developments leave Oakes somewhat chilled to the bone.This from Oakes in Saturday's News Limited publications including the Herald Sun :

"When John Faulkner unveiled proposed reforms to freedom of information laws a few weeks ago, his speech warmed the cockles of every journalist's heart. The Special Minister of State promised "a shift from the culture of secrecy to one of openness", and said his aim was to encourage "a pro-disclosure" attitude in the Australian public service. ..as long as Faulkner's Cabinet colleagues don't get cold feet, and senior bureaucrats fail in their predictable attempts to water it down, the legislation will breathe new life into the system. Anything that lifts the veil of secrecy that governments in this country use to prevent publication of potentially embarrassing information is to be commended. Good on Faulkner for making a start. But that's all it is. A start.

Last night, speaking at a Press Freedom dinner in Sydney, I got stuck into the Federal Government because Faulkner's grand rhetoric about openness and transparency seems to stop at the FoI laws. If the Government was fair dinkum, you'd expect it to apply the principles espoused by Faulkner across the board. But that is not happening. Whistleblower protection laws recommended by a parliamentary committee headed by Labor backbencher Mark Dreyfus, QC, are actually aimed at keeping the lid on public disclosures. And "shield" legislation, ostensibly to reduce the threat of journalists going to jail for refusing to name their sources, also falls well short of what Faulkner says he wants to achieve."

Oakes was also on the money in saying that more needs to be done to bring home to members of the public that these issues impinge on them and their rights, given the fact that "journalists are on the nose." There has been little "reaching out" by media representative bodies to others who share their concerns. Some media groups have shown little interest in the rights charter now under discussion around the country, other than to oppose it. And then there is the blatantly silly position maintained by some that the media framework for dealing with privacy related issues is "working well." It isn't. The Australian Privacy Foundation has proposed a chat to Australia's Right to Know Coalition and the MEAA about this issue. No public sign so far that the media thinks there is anything to talk about.

Genuine privacy fears from FOI reform- or something else?

The headline "Privacy fears over FOI law reform" to Chris Merritt's article in today's Australian seems ironic given that the paper has, in the "Your right to know " campaign, urged Freedom of Information reform, and been dead against the idea of a statutory cause of action for breach of privacy, proposed as one aspect of reform of privacy laws. But the body of the report was limited to reporting the NSW Law Reform Commission's claim referred to here yesterday, that some of the recommendations put forward by the Ombudsman in his review of the NSW Freedom of Information Act "may weaken the protection of individual privacy."

The only issues specifically raised on the subject in the Commission's 27 page submission to the Attorney General are the recommendations for an Information Commissioner, to be located in the Ombudsman's office, to oversee FOI, and for consideration by the Government of transferring the Privacy Commissioner functions there. There isn't anything much to back up the claims of perceived problems arising for privacy protection, and on the last-mentioned the Commission thinks combining FOI and privacy could work- anywhere except in the Ombudsman's office:

"Provided the independence of both offices is supported by clear statutory provisions, we would not oppose a model involving some form of common oversight of privacy and FOI. A similar model was endorsed by the current federal government as part of its election commitment. The proposal was to establish an independent FOI Commissioner, preserve the existing role of the Privacy Commissioner, and create an over‐arching office to be known as an Information Commissioner, with responsibility for overseeing all aspects of data protection and information management."

Thinking through the best model would benefit from some open discussion and debate about the options- there is no one right answer- that will deliver the best result- and the lessons from experience.

Maybe for NSW the next step is an Information Commissioner, as proposed in Canberra (was any consideration given there to putting it all together in the Ombudsman's Office?) and in line with the UK, Canadian provinces such as Alberta, British Columbia, Ontario etc. Maybe its combining the two and putting the function with the Ombudsman as in New Zealand and the Canadian province of Manitoba.

There is no question that while governments in this state since 1991 ran for cover, the NSW Ombudsman's Office flew the flag vigorously for open, transparent and accountable government and for FOI law reform. It also has knowledge, experience, skills, and stature in the FOI area, public administration and complaint handling that will be hard, and take time and resources to replicate, if the Information Commissioner is established as a separate office. There are also efficiencies that present themselves in the event of combined functions. The NSWLRC and the Privacy Commissioner have run up the "downsides."

One thing that hasn't worked in NSW, in the interests of privacy protection, is a stand-alone privacy commissioner with an act full of holes; an under-resouced office; "independent of government" according to the NSWLRC, but operating as a business unit of the Attorney General's Department; lacking visibility and much clout; and responsible to successive attorneys general who appeared disinterested in the subject. Until someone raised the possibility that the function be removed to elsewhere in government? So leaving it alone, as is, makes no sense at all to me.

The Merritt article quotes Attorney General Hatzistergos (last time I looked he wasn't the minister responsible for FOI) as agreeing with the need for independent FOI oversight and saying the Government would release a draft reform bill for consultation "in coming weeks."

Hopefully the review function issues won't be in concrete, having been settled behind closed doors.

One aspect of " weakening privacy protection" in the name of FOI reform that The Australian missed, but presumably wouldn't complain about, is the Federal Government proposal that the personal information exemption in their FOI Act is to be amended to incorporate in addition to a test of unreasonability, a requirement to consider whether disclosure on balance, would be contrary to the public interest.

FOI reforms a red flag for business?

www.creditcards.com

In a recent post I mentioned significant aspects of Minister Faulkner's Federal Freedom of Information reform package regarding private sector or business information -changes to the business affairs exemption and planned referral to the ALRC of the issue of private sector disclosures- and that so far, the Government has not invested time or energy in explaining why they are necessary and warranted. Leading law firm Allens Arthur Robinson (and I imagine others) are starting to raise the red flag with clients, concluding this briefing note on the subject thus:

"While companies seeking Federal Government information concerning administrative decisions or in connection with litigation may benefit from the reforms, there may be unwelcome implications for companies that provide services to the government or whose business affairs are detailed in government information."

AAR will help if anyone out there wants to pick up on the alert about "unwelcome implications" to lodge a submission in response.

On the broader front of the importance of open transparent and accountable government, and changes to the law to better balance the public interests in secrecy/confidentiality and the right to know, I'm afraid the Australian business community has largely been missing in action for years.

Unless the Government puts an effort into explaining and putting the case for what it is on about with these reforms, naysayers- in this case, powerful and infuential ones- will be happy to occupy the space.

NSWLRC throws an oar in on FOI reform

This is from a post in early February, generally welcoming the NSW Ombudsman review report on the Freedom of Information Act:

"The Premier has responded in a media release with a general commitment to greater transparency, to Cabinet consideration of the report's 88 recommendations, and to introducing the new Open Government Information Bill in "the upcoming session of parliament." Good, but a little short of President Obama's example of how to get the message out there that things were to be done differently from day one. The Premier might have done better by adopting some or all of the suggested policy and management changes to get the ball rolling now [1.6], and giving someone very high up in the system some very public accountability for finalising the details for the proposed new legislative framework within a specified but short timeline. Some muscle, clout and capacity to knock heads together will be necessary as the 152 page report leaves room for argument and bureaucratic infighting about the details. Just one - the suggestion for consideration that the Information Commissioner should take over as privacy overseer as well. Others are the recommended review of NSW secrecy laws, and resolving which agencies should continue to enjoy a partial blanket exemption for information about particular government functions.Get the picture?"

There have been no public indications of what has been happening within the NSW Government since, but I'd expect a fair bit of that predicted behind the scenes infighting. Just one small indication- in a highly unusual development, the NSW Law Reform Commission (undertaking a review of NSW privacy laws just entering its fourth year) has popped its head above the ramparts to join the fray, with a statement of its preliminary views about the Ombudsman's proposals in this 27 page submission last month to the Attorney General.The main thrust is to indicate that it opposes the recommendation that the Information Commissioner be part of the Ombudsman's Office. So does the Privacy Commissioner. Last month in a belated submission to the Law Reform Commission on a consultation paper issued in June last year, the Privacy Commissioner's main concern was to argue that the Ombudsman's Offfice shouldn't become the Information Commissioner.

Max Weber who enlightened us all those years ago about the behaviour of bureaucracies would be an interested observer of these machinations around bureaucratic survival and retention/expansion of power and authority. Plus ca change....

Shine a little light on politicians use of public money

This letter in today's Sydney Morning Herald under the heading "Show us the money" in response to yesterday's editorial, will sound familiar to those who read the post here on the same subject on Monday.

"I agree we should accept the umpire's reasonable assessment that an increase in electoral allowance is justified ("Let's be honest about MPs' pay", April 28). But we need transparency about these and other allowances paid to our representatives. The electoral allowance is taxable income, but if not spent - and no one knows what is paid to whom, and for what purpose - it goes into the pocket. MPs should be required to report on what they do with our money. For some reason the Government, in its recently announced Freedom of Information reforms, has not acted upon a 1995 Law Reform Commission recommendation that the departments that administer Parliament be covered by the FoI Act. Even that would not go far enough to meet today's expectations of transparency and accountability. Information about expenditure and retention of any allowance payments should be up on the web for all to see.

Peter Timmins Potts Point"

Meanwhile, Sean Parnell in The Australian, with the help of a little noticed Auditor General's Report and the Freedom of Information Act, gives some details of The Australian Political Parties for Democracy Program, a program administered by the Department of Finance and Deregulation, involving grants of up to $1 million a year to the major political parties.

"While some of the taxpayer funds have been spent promoting democracy in the Asia-Pacific region, the Labor and Liberal parties have spent more of their grant money hooking up with established Western organisations and paying staff to arrange their travels."

The basis for the deletion of "the names of those involved and some of the projects" from documents released to The Australian is not explained in the article.

On pages 11 and 12 of the Auditor General's report in a comment about shortcomings of the program, it turns out that the arrangements are such that the parties don't have to spend the grant funds for the purposes outlined in their annual applications for money, have not properly acquitted the money received, and that the Department hasn't in place any measures relevant to assessing expenditure against the objective of "strengthening democracy internationally."

Googling government information

http://weblogs.newsday.com

With the Queensland, Federal and NSW governments all moving in the direction of greater pro-active disclosure of information on the web, as part of Freedom of information reforms, one question that arises is whether we can find important information relevant to our interests, now and once the new era is underway, using publicly available search engines such as Google?

Search engine results are essentially statistical. Important but obscure government material might not rate highly. In addition there is the possibility that other problems might stand in the way of easy access to government information.

An expert in the field a few months ago told me that in addition to bad luck in finding things on-line because other documents might out-rate important government ones, other factors might be poor searchability as a result of use of language in documents not likely to be used by the public; poor URLs; poor page structure; failure to include documents or data-bases in the index due to the way they are published or linked, eg only linked from within a Flash document or in pull-down menus or via a password-protected site; and not that we would expect this, deliberate hiding through use of robots.txt.

There is a whole raft of guidance on web publishing on the Australian Government Information Management Office website. I assume the state equivalents such as the NSW Chief Information Officer have something similar. Whether all this means we are in good hands I have no idea.
(I don't even know whether robots are used on any government websites, how the index is created or what Flash means.) Google itself says it has the answers. Are our techo types onto problems of searchability and the use of publicly available search engines? I'd be interested in your comments.

These issues to one side, many government websites appear to have other problems. For example Usability One published in February the results of a survey of 12 Federal Government websites after new accessibility guidelines (WCAG 2.0) were released by the World Wide Web Consortium in December 2008.

"The accessibility guidelines provide a reference for web developers and web designers to create websites that are accessible to any user, regardless of physical, sensory and cognitive disabilities, and/or technological barriers. None of the websites audited adhere to all criteria in the latest accessibility guidelines. Clearly, updates will have to be made. Even UsabilityOne is updating their website based on the new guidelines. It is possible to excuse websites not being compliant to the new guidelines at this stage. What is alarming is the vast majority didn‟t even comply with the WCAG 1.0 guidelines which have been in place for over 9 years. Of most concern is that many of the Government Department websites reviewed are responsible for protecting the rights of the public, including those with disabilities."

No sign of transparency for MPs allowance spending

A fuss of sorts today over a Remuneration Tribunal Determination to increase the electoral allowance for Federal senators and members of the House of Representatives by $4700, the first increase for years. Guardians of the public purse such as Senator Bob Brown threaten disallowance when the matter comes before the Senate.

I don't have a problem with the umpires assessment that an increase is justified.But I'm back on an old hobby-horse to point out that there is no transparency about what the pollies do with the money.The electoral allowance (details here as part of the bigger payment picture)-currently ranging from $27300 to $39600- is "an expense of office allowance payable to Senators and Members to reimburse them for costs necessarily incurred in providing services to their constituents."It's taxable income, but If not spent - and no-one knows what is paid to whom, and for what purpose- it goes in the pocket.

Parliamentarians should be required to acquit the allowance by reporting what happened to the money.It's not just this allowance either that doesn't receive public scrutiny. For some unexplained reason (duh!) the Government, in the recently announced Freedom Of Information Reform package has not acted upon a 1995 Australian Law Reform Commission recommendation ( ALRC 72, Recommendation 73) that the parliamentary departments (who dole the money out to members and senators) should be covered by the FOI Act. Even that wouldn't go far enough to meet expectations these days - information about expenditure and retention of any allowance payments should be up on the web for all to see. An exception of course for identifying particulars of any money paid to a constituent in financial hardship, if any allowance was used in this way.

The same goes for state and territory parliaments and parliamentarians.

Goodbye to 2020 and all that

A couple of final thoughts on the 2020 Summit before all that enthusiasm and thousands of ideas disappear completely beneath the sand.

David McLennan in the Canberra Times (seriously) and Bruce Chapman in The Australian (amusingly) both highlight the problem of an over-ambitious plan to get 1000 people together for less than two days, with a blue sky agenda, in a process ultimately over engineered in the search for consensus. Poor preparatory material was also a clear weakness for mine, at least for the Governance discussion. Then there was the lacklustre government response a year after the event.

So what? Little gain but not much damage, you might say. Well for a government that came to office talking about the need to govern differently, The Age editorial on Friday cited this significant longer term impact:

"The attitude of both sides of politics presents a dispiriting contrast to the summit's bold vision of what kind of nation Australia should aspire to become by 2020. A year ago, summit co-chairman Glyn Davis said that, politically, "a government that ignored all of the views put forward by 1000 people would be taking a very high risk". The risk actually relates not only to the Government, but to Australians' perception of the worth of political engagement. If the summit briefly managed to get many people to suspend their cynicism about the political process, its lasting effect may unfortunately be to confirm the public's view that governments and politicians listen to the views of the community only when it suits them."

Open slather

Thought an experiment might be worth a try - an invitation to anyone to post a comment, opinion or observation, or raise an issue of interest or concern about any matters of likely interest to others who come here. Brevity (I know, not necessarily my best suit, but some of this stuff is complicated) and civility are the only rules. Just hit the comments button below - anonymous or otherwise your choice. Who knows where this might lead?

Update: Ok, ok it was Friday afternoon and you had a lot on, but we had a couple of readers chime in including Dissent from the US who asked what I thought was the number one privacy issue or concern here. I ventured a guess that ID theft and fraud were at the top of the list , with the general lack of appropriate sensitivity in government and business to privacy not far behind.Dissent put warrantless surveillance and Real ID (the push for authentication of drivers licences and related issues) at the top there. Any other thoughts welcome.

We'll try Open Slather and variants on the theme again from time to time.

Shield laws set for lively debate.

Attorney General Robert McClelland.

Some heavy going still ahead on the issue of proposed changes to shield laws for journalists, an important aspect of the discussion we are having about free speech, the right to know and the role of the media. Key players include:

The Attorney General Robert McClelland, who on behalf of the Government has put on the table the Evidence Amendment (Journalists' Privilege) Bill 2009, currently the subject of an inquiry by the Senate Legal and Constitutional Affairs Committee. With some changes, the legislation would enact for journalists in matters arising under Federal law, current protections in NSW legislation that apply to professional confidences in a variety of circumstances, one of which is journalist-source.

The state governments.With the Commonwealth in the Standing Committee of Attorneys General, they have been working away on changes to uniform evidence legislation that would extend protections for professional confidences to all jurisdictions, in line with the NSW law, as recommended by three law reform commissions, and adopted by SCAG in 2005. Chris Merritt in The Australian reports that the Attorney says the states have all agreed to the inclusion of new "public interest factors" in the model uniform evidence bill that would give judges discretion to protect a broad range of professional confidences. "These new factors give clear recognition to the public interest in freedom of the press" and are consistent with what is in the bill before the Senate Committee.However the Western Australian Attorney General in a submission to the Committee has cried foul, arguing the Commonwealth has jumped the gun in going ahead with journalist specific legislation, and objecting to some of the proposed changes, for example removing privilege where an offence or misconduct may have been committed by a confidant.Similar views are expressed in submissions by the NSW and ACT Attorneys.

The cross-bench senators and the Opposition who will determine what emerges from the Senate. Nicola Berkovic in The Australian reports concerns of The Greens and Senator Xenophon that the protections don't go far enough, and uncertainty about where the Opposition stand.

The media. In separate submissions the Australian Press Council, Australian Associated Press, Media, Entertainment & Arts Alliance, and Australia's Right To Know make a number of points about the detail of the proposal, links with whistleblower protections and secrecy laws. All argue for changes to ensure the protection of the identity of a source is the starting presumption only to be overridden by the exercise of a discretion where compelling public interests require.

The Committee has a hearing scheduled for Melbourne next Tuesday.Three and a half hours will almost certainly not be sufficient to resolve issues that have been raised in the submissions particularly the adequacy of the protections proposed; and the case for singling the media and journalists out for special professional confidence protections. On this last point there are important issues regarding definitions (none in the bill) of the media and journalists, further complicated by the growth of non-mainstream disseminators of information and opinion; and the absence of those attributes such as mandatory qualifications and enforcable standards of conduct usually associated with a profession. Then there is the prospect of lack of uniformity with different laws applying to state and territory matters - who said operating within a federal system was easy? (No-one actually).

The submissions by Dr Fernandez of the School of Journalism at Curtin University and the Public Interest Advocacy Centre (written by Mark Polden formerly a long time in-house legal adviser at Fairfax) are well worth a read. Both are on the witness list on Tuesday. But not an attorney general to be seen?

Federal agency privacy concerns.

If you weren't relaxed and comfortable after reading last week that doctors "will be forced to hand over patient medical files to Medicare to prove they have performed the services they have claimed, in a move the Government says will save taxpayers about $148 million over four years," you won't feel any better, and maybe a bit worse, after seeing the front page story in today's Australian Financial Review,"ATO lashed over privacy breaches"( no link available), summarised in Business Spectator.

The AFR report was the result of a six-month investigation, aided by a series of Freedom of Information applications, and a consultant's report that raised serious concerns about mismanagement and inappropriate collusion between the Australian Taxation Office, the Australian Crime Commission and the Australian Federal Police.

RSS subscribers.

If you keep up to date with postings on this blog with an RSS feed, just a note to say that the settings have been altered to provide from now on the full text, rather than the first few lines.

2020 vision suffers from near-sightedness

Reaction to the Government's response to the Final Report on last year's 2020 Summit seems to be somewhere between "underwhelmed" and "disappointed" as illustrated in these articles in Fairfax papers and The Australian, the Oz editorial and Mike Steketee's comments.

The response (The future of Australian governance - PDF 99KB) to the Governance chapter of the report includes a lot of the waffle Steketee refers to, not surprising, given the fact that much of the chapter lacked coherence, was repetitive, and included a lot of ideas that were trite and bordered on laughable as 2020 objectives.(See comments in June 2008).

Plans for moving on what the Report listed as the five priority themes for governance- the constitution, rights and responsibilities (an Australian Republic); a modern federation; collaborative governance; revolutionising the ways government and communities interact; parliamentary reform; and open and accountable government-vary from doing nothing (the Republic), to improving the way COAG works and a series of other small steps, and making a start on others, for example on Freedom of Information reform and discussion of a charter of rights. Some ideas- for example a culture change on disclosure, hardly a 2020 goal (I hope)- could have started a year or more ago if the Government had chosen to act.

The following, about community interaction and participation was a positive, but the wheels have been spinning in the Australian Government Information Management Office and elsewhere in government for years on e-governance, without much traction. Now the Prime Minister's Department is to have a go, but you hardly feel any sense of urgency:

" ..the Government is committed to developing practical initiatives in e-governance that increase communities’ ability to interact with the Parliament and the policy development processes of government. The Government is committed to making extensive information about policy issues available on-line to the community. The Government will develop better ways to increase interactive consultative processes using new technologies to communicate and hear from people. Some aspects of this work will be guided by the statutory Information Commissioner position (comment: sometime in 2010), which the Government will be establishing as part of its Open Government reform agenda. As a first step, the Department of the Prime Minister and Cabinet has sought expert advice(emphasis added) on the enhancement of information and access to Commonwealth information and policy and a whole-of-government approach to the development of an e-governance strategy. The Government is also considering (emphasis added) holding a set of forums that will bring together experts, business and community representatives and others with a strong interest in a number of topics to promote a collaborative approach to challenging issues and better inform government decision making."

Mayor of Gosford flunks accountability 101

On ABC 7.30 Report last night, Matt Peacock interviewed the Mayor of Gosford about $40 million in write-downs on Council's investments in collateralised debt obligations. A local business group has asked the Council questions as to exactly what funds have been invested in what schemes.

MATT PEACOCK: The council's answer was that it receives a monthly assessment and update of the investment portfolio from Structured Credit Research and Advisory on a commercial in confidence basis. It's also receiving advice on the possible unwinding and early redemption of investments, and that advice, too, is commercial in confidence.

MAYOR CHRIS HOLSTEIN: The councillors are given a regular update, councillors are briefed on where they are sitting and what's the position on all of those and how they are currently rating and where we're going.

MATT PEACOCK: And what about the public?

MAYOR CHRIS HOLSTEIN: Well, we put it out to the public. I'll have 170,000 financial experts will tell me, "You should have gone this and you should have done that."

Mayor, that's the whole point. Citizens are entitled to ask and be told what you are doing with their money, and entitled to tell you what they think about it all. It's called transparent, responsible and accountable government. I'd be amazed if the claims of "commercial in confidence" for information about where Council money is invested, and the current value of those investments, would stand up to scrutiny in any Freedom of Information challenge.

NSW Supreme Court on "disclosure to the world"

Justice Smart in the NSW Supreme Court in Gene Simring v Commissioner of Police, NSW Police[2009] NSWSC 270 considered the applicability of the Victorian Court of Appeal decision (in Marke) that disclosure to a Freedom of Information applicant was not necessarily disclosure to the world at large, and that an applicant's purpose in seeking access can be relevant when making an assessment under the Freedom of Information Act that disclosure of information about the personal affairs of another would be unreasonable :

" After the argument had concluded, my attention was drawn by the Crown Solicitor to the decision of the Victorian Court of Appeal in Victorian Police v Marke [2008] VSCA 218 delivered on 5 November 2008. Both parties were invited to make submissions and did so. That decision involved a detailed consideration of the Victorian Freedom of Information Act, many of the provisions of which have counterparts in the NSW FOI Act. In Marke the three judges delivered separate judgments. All Members of the Court of Appeal considered that it was wrong for a decision maker to proceed on the basis that a disclosure under the FOI Act was a disclosure to the world at large. Weinberg JA and Pagone AJA considered that the applicant’s purpose in seeking access to the documents was relevant. This may have been conceded by the parties. The majority thought it was permissible but not mandatory for a decision maker to have regard to the extent to which documents released under the Vic FOI Act might be further disseminated by the applicant. Both thought that a decision maker was not able to place restrictions on further dissemination of documents released under the FOI Act."[70]

Justice Smart [71] said "I would hesitate before not following the majority view of the Victorian Court of Appeal on legislation which has so many similarities to the NSW FOI Act", but concluded that no error of law had occurred in the Tribunal in this case in which the applicant sought access for the purposes of an appeal against a criminal conviction. The applicant had failed to provide sufficient evidence on how the documents would assist him:

" If the plaintiff wishes to rely on the ground stated (setting aside an unsafe conviction) and the public interest in the administration of justice including challenges to unsafe convictions it is not sufficient for him to state that he wants to access allegedly exempt documents as an aid to challenging and setting aside his convictions. If it appeared that the documents could arguably assist in showing that the convictions were unsafe that would be a powerful reason for granting access.[79]

After examining whether more generally the right of access under the Act justified disclosure in this case, Justice Smart concluded:

"While the judgments in Marke constitute important discussions of the FOI Act (Vic) and much of what is said is applicable to similar provisions in the NSW FOI Act I am of the opinion that there was no relevant error of law on the part of the Tribunal or Appeal Panel having regard to the way each approached the matter and the findings made."[83]

There is enough in Justice Smart's observations to suggest that the next time this issue arises there are good grounds to argue that Marke should apply in NSW. Here is what the ADT Appeal panel had to say on the matter in a recent decision:

"56 We have not found it necessary in reaching these conclusions to examine the difference between views expressed in this Tribunal (see for example, Saleam -v- Director General, Department of Community Services and Ors [2002] NSWADT 41 at [58]-[60]); upheld on appeal, Saleam -v- Director General, Department of Community Services and Ors [2002] NSWADTAP 30; and Cheney v Sydney West Area Health Service [2008] NSWADTAP 29) and the Victorian Court of Appeal in Marke’s case, esp at [104] ff per Pagone AJA. The debate relates to whether the unconditional nature of release under the FOI Act (i.e. disclosure ‘to the world’) operates to exclude absolutely consideration of the claims personal to an individual applicant for release of the requested documents. We acknowledge the force of the concerns that Ms Howell has raised as to the benefits that she would receive from having these documents released. However, in our view as explained, the public interest factors to which we have referred clearly outweigh the gains that she might obtain from release of the documents we consider to be exempt."

My comments on the law and policy considerations are here.

Government round-table on FOI Reform bills.

The Department of the Prime Minister and Cabinet will host a forum for interested persons to discuss the exposure draft Freedom of Information reform bills in Canberra on Thursday 7 May, from 2.30-4.30. To attend email foiconsultation@pmc.gov.au or telephone Maia Ablett on 6271 5245 by 5 May 2009. I hope to be there, but a trip to Canberra for two hours, meant to include an overview of the proposed reform measures, and discussion of the draft bills-are they sure they can spare the time? It sounds as if discussion of other ideas that go beyond the drafts is also out of the question.

APSAC cleaning up corruption in Brisbane

The program has been finalised for the second Australian Public Sector Anti-Corruption Conference- APSAC, sponsored by the three state commissions- to be held in Brisbane in July 2009. The four days will feature top figures in this and related fields from Australia and overseas and cover contemporary anti-corruption trends and strategies, including sessions on the media and exposing corruption, and on protection of whistleblowers.

Lobbyist registration schemes not quite all the same

http://blogs.e-rockford.com

The three Australian lobbyist registration schemes are essentially the same- hired guns need to register with some exceptions; an on-line publicly available register of lobbyists and clients; ministers and public servants are not to meet unregistered lobbyists; and a failure by lobbyists to act in accordance with the code of conduct could result in loss of access altogether.In many respects the emerging Australian standard (Tasmania and Queensland have said they are going in the same direction) is a start, but a long way short of a fully transparent approach to public information about influence peddling.

In a case of spot the difference however, the Australian Government and the Western Australian on-line registers are both searchable in respect of individual lobbyists who work for any registered entity, and for the companies and organisations they represent.So finding a particular lobbyist or who represents a company in Canberra or Perth is straightforward. Simply insert a name in the search facility at the top of the page.

Not so in NSW.The register for all intents and purposes looks the same as the other two. But there is no search on the register and the site search doesn't list register entries. Trying to find a lobbyist who works for a registered entity or whether a particular company is registered involves looking separately at up to120 registrations, unless you strike what you are looking for earlier. Not only does this detract from the transparency principle that underpins the scheme, it must complicate things for those in government who want to check who is registered.(Update-thanks to David Jacobson for the additional information in a comment, that Queensland already has the same hard to search system up and running.)

As to developments elsewhere, last month on behalf of President Obama, the White House Office of Management and Budget issued interim guidance on communications with lobbyists about money available under the Recovery Act, as required by a provision in the Act: no problem in talking to a registered lobbyist about the program in general or how and where to apply for funding; nor talking to a lobbyist at a "widely attended gathering", mindful of existing ethical guidelines. But in respect of other direct approaches by lobbyists, agencies are to advise as follows:

“Under the President’s Memorandum, we cannot engage in any oral communications with Federally registered lobbyists about the use of Recovery Act funds in support of particular projects, applications, or applicants. All such communications by Federal lobbyists must be submitted in writing, and will be posted publicly on our agency’s recovery website within 3 days."(emphasis added)

Ditto for written approaches. OMBWatch provides some commentary and links to a couple of Federal agencies that have posted lobbyist communications to date.

You can imagine the frantic lobbying by lobbyists if this sort of scheme had the slightest chance of coming in our direction.

Premier Rees: "the taxpayers of NSW are entitled to know what I do day-to-day "

NSW Premier Nathan Rees has moved some way since the days of his predecessor, who following in the steps of the media meister who went before him, Bob Carr, wouldn't even put media releases on the web."Leave no footprints" was the mantra of those times. The Premier now has his media releases and articles here and those of ministers here.( If you are from elsewhere, stop that snickering-these are big steps forward hereabouts.) Some selected video of the Premier answering questions in Parliament and an opportunity to "talk" to the Premier and follow him on Twitter are available through links here. The Premier's Department website now includes some reports and studies.

Freedom of Information applications have thrown a bit of light on a couple of other related matters.This report last week says the Premier thinks your right to know what he's doing even justifies special film coverage at taxpayers' expense:

SYDNEY, April 16 AAP - NSW Premier Nathan Rees has defended the cost of his personal TV camera crew after it was revealed it cost taxpayers almost $20,000 in just two months. Documents obtained by the state opposition under Freedom of Information laws show the filming has cost $18,936 at a time when families and businesses are feeling the squeeze of the global economic downturn. "While Nathan Rees is indulging his own vanity, families are struggling to make ends meet, and businesses are contemplating laying off workers because of NSW's high taxes," opposition frontbencher Chris Hartcher said on Thursday. But Mr Rees has defended the spend on the film crew, hired to record his announcements in February and March, saying the film clips are posted on his website and allow the public to see what he is up to. "It's occasional filming; I'm not followed all day every day," Mr Rees told reporters. "It's about transparency and I believe the taxpayers of NSW are entitled to know what I do day-to-day and that's what this is all about."

But the Premier doesn't seem to be getting any mileage out of the Government's very own
TV Channel- Channel 45 on digital. Neither are the citizens. According to documents obtained through Freedom of Information by opposition frontbencher Chris Hartcher, the Government has no information on the numbers ( any?) who watch daily programming on the traffic, weather and health, and a foreign language late night movie.It's the same movie in Mandarin from April to June, so that saves money on the published program. Oh, and I left off the Lottery results. But it has cost $1million since start-up in 2003.

I know you shouldn't even try to stand between a premier and a good news story but what ever happened after Premier Rees issued an instruction in October last year to ministers to look into more pro-active disclosure of information on government agency websites? The Ombudsman in a report in February found that public servants at working level contend with ministers and CEOs who would not countenance pro-active disclosure of documents regardless of the sensibility of such a move.I won't even mention -well hardly- some examples of failure to make widely available on the web important reports tabled in Parliament.

Maybe the Premier could squeeze in a six month update?

Remember 2020?

Michelle Grattan seems to have been on the receiving end of a good leak in reporting about the Government's response to ideas put forward at last year's 2020 Summit- to be revealed in detail next week, long after the original commitment to respond by the end of last year. The score for the Governance Group's 184 ideas is " 90 taken forward, 43 considered further." The detail to come on Wednesday.