Discussion underway about privacy cause of action

Richard Ackland in the Sydney Morning Herald and the editorial in The Australian today comment on the NSW Law Reform Commission recommendation for a statutory cause of action for breach of privacy. Ackland is somewhat bemused about aspects of the report, but doesn't dismiss the recommendation and the earlier Australian Law Reform Commission proposal, suggesting these and other developments are powerful arguments in favour of an Australian rights charter or bill. The Australian finds the NSWLRC's proposals "alarming." This seems a little more welcoming than the response in March to the ALRC report by the paper's Legal Affairs editor Chris Merritt's ("outrageous"). Both articles today see lawyers having a field day.

The commissions have made a strong case for a cause of action, separate from breach of confidence and defamation and not aimed specifically at the media, although you wouldn't know that from most reports. And for legislation rather than the common law as the preferred path from here. Both also recognise the need for national consistency. But there are differences in the detail and the approach to balancing privacy and other rights that require considered analysis and discussion. What signifigance should be attached to the fact that NSW report would qualify the right by reference to the public interest in the public being informed about matters of public concern, but makes no mention of "allowing freedom of expression", the terms used by the ALRC? Or to the NSW Commission differing with the ALRC over the need to specify examples in the law, whether actionable conduct need give rise to offence or substantial offense in intruding on reasonable expectations of privacy, and to differences in the range of available defences?

Meanwhile, none of the following may ever give rise to a cause of action, but in the last two days we have reports of concerns in Sydney and Melbourne about extension of surveillance cameras; Telstra paying $100000 in fines for breaches by its call centres of the Do Not call register; and the Australian Communications and Media Authority finding Channel 10 breached the privacy rules in the Commercial Television Code of Practice (no power to impose a penalty but staff have received training!).

MPs allowance exclusives

Steve Lewis in an "exclusive" in today's Daily Telegraph ( but also in The Advertiser) adds a little more detail to his exclusive last week in the Herald Sun on the contents of a draft Auditor General's report on Federal MPs and the expenditure of allowances, including some spending on chocolates and children's fiction, and interesting big printing contracts for those printing allowances paid direct to members. The ANAO final report including the Government's response is yet to be tabled. In the Senate yesterday Senator Bob Brown (Australian Greens) unsuccessfully moved disallowance of an increase in travel allowance awarded by the Remuneration Tribunal, with he and Senator Xenophon both raising issues about the need for more transparency regarding Tribunal processes. No-one mentioned the need for more transparency and accountability from Parliament itself for the more than $300 million it will spend this year including on some member entitlements. But I won't repeat myself...just yet.

Thanks to Open Australia for the Hansard link.

Frank advice remains confidential in Victoria

Access to some advice documents under the Victorian Freedom of Information Act is being determined on grounds that disclosure would inhibit the provision of frank advice in future, an argument questioned or rejected elsewhere.

In a recent Victorian Civil and Administrative Tribunal decision the effect of disclosure of some documents was found to be contrary to the public interest because of the nature of the information and the consequential impact on ongoing government interests; others because they related to the preparation of a cabinet submission. However the decision of the President Justice Bell in McIntosh v Department of Premier and Cabinet [2009] VCAT 1528 includes statements and findings concerning a policy brief and a possible Parliamentary Question that rely on the broader point that advice to ministers should remain confidential regardless of content. For example: "(t)he Premier and ministers are entitled to receive frank, independent and confidential advice about how to answer possible parliamentary questions if asked, and be judged on their answers, especially in relation to issues of high policy importance. PPQs represent an adviser’s views about the matters at possible issue, not those of the Premier or minister. The Premier and ministers should not be judged on their adviser’s views. Releasing PPQs on matters of high policy importance may inhibit access by the Premier and ministers to frank and independent advice of that kind in the future" [70]; and "(r)eleasing advice given to the Premier and ministers would breach the confidentiality of the advice. It would also inhibit the capacity of officers to give such advice independently and frankly in the future ..."[92].

There might be other arguments to support the exemption claims but these reasons are in marked contrast to comments by Federal Special Minister of State Joe Ludwig on the same subject in Canberra two weeks ago, admittedly talking about reforms that are yet to come to pass:

"I know that some in the Australian Public Service feel that FOI reforms may inhibit their ability to provide frank and fearless advice. But I believe that the tradition of frank and fearless advice is more robust than that. I believe that our public servants will work professionally within the new FOI framework as they do within other accountability mechanisms. It is beyond dispute that it is in the public interest for ministers to receive written advice on matters relating to their administrative and policy responsibilities. In any given case, whether or not the exemption may be sustained will depend on the subject matter of the document and the circumstances around the Government’s consideration of the document, including whether a Government position has been announced. Political sensitivity will not be an argument against disclosure."

Almost two years ago Deputy President Forgie of the Administrative Appeals Tribunal in McKinnon and Secretary Department of Prime Minister and Cabinet said [176] the claim that senior APS officers have a reasonable expectation that the documents would remain confidential and that their release would tend to inhibit frank and objective analysis and evaluation of issues and policy options in the future could be fairly restated: " If the work that they did as APS officers were revealed, they would not in future do the work required of them as APS officers holding senior positions, which required them to give policy advice and to do so in a way that promotes the APS Values." She continued:

177. Whichever way the claim is stated, it cannot be said to have a rational basis. Senior APS officers may well have an expectation that their advice will remain confidential and, for the most part, that it is often the case. To suggest that they would be inhibited in the performance of their duties if their advice were released would require clear evidence. I do not have that evidence. Without it, I struggle to understand how, in an APS that is committed to being apolitical and accountable to what the literature describes as its “stakeholders” and which has a statutory as well as ethical duty to perform its duties would be inhibited. Its stakeholders must include the Australian community. My struggle is such that I have concluded that there are no reasonable grounds in this case for the claim that disclosure of documents 1 to 13D would be contrary to the public interest on the basis of any inhibition of frank and objective analysis and evaluation of issues and policy options in the future."

In a unanimous decision of the NSW Court of Appeal three years ago, the Court stated that after decisions have been made within government, public interest arguments for non disclosure of “thinking process” documents cannot be based on formulaic, theoretical propositions developed in an era of closed government.

The new acts in place in Queensland and soon NSW, and the Federal Government's Exposure draft make such broad arguments even harder to sustain.

The applicant in the VCAT case, Andrew McIntosh is a member of the Victorian Parliament and applied to the Department of Premier and Cabinet for access to all documents relating to the controversial Record of Commitments dated 6 November 2006, made by the then Premier and The Police Association prior to, but not mentioned publicly until after, the state election.The public interest in access received an acknowledgment from Justice Bell but didn't cut the mustard. He may have felt bound by Victorian court precedents to accept the arguments and to find as he did. But the line of reasoning is looking dated, circa 1985 and Re Howard, another factor pointing to the need for a fresh look at FOI in Victoria in the light of current thinking about transparency and accountability.

Complex questions about access to information about a child

New access to government information laws in Queensland and NSW ( yet to commence) include provisions (slight differences in wording) that attach weight to the public interest in non-disclosure of information concerning a child where disclosure would not be in the child's best interests. In both cases this is a consideration to be assessed against any competing public interests in disclosure.

A similar but less conditional provision in the Western Australian Freedom of Information Act was the subject of a decision by Information Commissioner Bluemmel in Re "M" and Child and Adolescent Health Service [2009] WAICmr 16 to refuse access to a father who sought the medical records of his four year old daughter. Section 23(4) of the WA Act provides:

“ If a document contains personal information and the applicant, or the person to whom the information relates, is a child who has not turned 16, the agency may refuse access to the document if it is satisfied that access would not be in the best interests of the child and that the child does not have the capacity to appreciate the circumstances and make a mature judgment as to what might be in his or her best interests.”

Commissioner Bluemmel was satisfied the documents contained personal information about a child and, with regard to the child's best interests said [15]

"I am of the view I should give weight to the professional expertise of the relevant officers of the agency. In this case, I am advised that the decision on internal review was made by an officer who has extensive experience and qualifications in the area of child health and, before making her decision, the decision-maker sought the views of the senior medical officer in charge of the CPU. I am also advised that it is a longstanding policy of the agency to put the interests of the child above the interests of another party, including the parents of the child. This is particularly relevant where the requested documents contain detailed private and sensitive information about a child."

Important considerations in the minds of the officers concerned [16] , supported by the Commissioner, were that disclosure to the applicant was "disclosure to the world" and the inability to attach conditions to disclosure. No special factors or circumstances appear from the decision to have been argued by the applicant and in any event in WA would seem to be irrelevant. In Victoria and NSW case law has ruled that disclosure to the world cannot be automatically assumed.

The NSW Government Information (Public Access) Act when in force will not allow conditions to be attached to an FOI disclosure, but will provide that conditions can be attached to informal disclosure in response to an informal application (Section 8). Section 54 also will entitle an agency, in responding to an application under the Act, to take into account, for or against disclosure, the applicant's identity and relationship with any other person, the applicant's motives for making the application and any other factors particular to the applicant, to the extent the applicant chooses to make them known to the agency.I can't see anything similar in Queensland's Right to Information Act, but glad to hear from anyone if I missed it. The Federal Government's Exposure Draft wasn't clear about whether any change to "disclosure to the world" or the irrelevance of special applicant factors was contemplated (Submission 21 page 13).

The take from the WA decision is that when it comes to review of decisions about the best interests of a child, the views of the experts will loom large, and won't be lightly dismissed.In NSW at least the new Act specifically will provide for consideration of special factors that may justify disclosure to a particular applicant, but possibly not to others. This may or may not have changed anything in the West, if it had been a relevant consideration, but its a good move by mine.

A spring in your step with eDiscovery software

When it comes to the techo side of government information management, I can't contribute much, but note IBM has announced "new IBM eDiscovery software with advanced analytics features... to accelerate organizational agility in responding to litigation, regulatory, and freedom of information requests, while streamlining the integration of eDiscovery capabilities into comprehensive offerings." Organizational agility ?

NSWLRC calls for input on personal information issues

Had some experience, on either side of the desk, regarding access applications for information under the NSW Freedom of Information Act, that raised issues about personal information of someone other than the applicant, and have a view about the law, policies and procedures that were applied in handling the matter? The NSW Law Reform Commission is interested in hearing from you on its blog, in connection with an additional reference from the Attorney General that forms part of its broader privacy law inquiry.

I'm not sure what prompted the reference - the Attorney asked the Commission to look at the matter at the time Parliament was debating the Government Information (Public Access) Act in June, after the Ombudsman spent a year looking at the Freedom of Information Act, including investigation of the practices of 18 agencies, and this was followed by further work by the Department of Premier and Cabinet before the legislation was introduced into Parliament. In all this it seems, some issues concerning access to personal information were or may have been missed, although the Commission's Points for Discussion seems to be searching for problems rather than laying them out. In any event the Commission would welcome before the end of the month any input on past experience or the likely effect of the new legislation on applications for this type of information.

FOI scope question resolved after 13 years

Years after Freedom of Information commenced around the country, questions still crop up about what bodies are or are not covered by legislation. The latest, a decision by Justice Cavanough of the Supreme Court of Victoria in Attorney - General for the State Of Victoria v Kay [2009] VSC 337 that the Victims of Crime Assistance Tribunal was not an agency for the purposes of the Victorian Freedom of Information Act, comes 13 years after VOCAT was established. No surprise to the Department or the Tribunal apparently. Rights to access to non confidential documents in any event are contained in the Victims of Crime Assistance Act. The relevant paragraph on the FOI Act:

30 VOCAT is established under s 19 of the Victims of Crime Assistance Act 1996. It consists of the Chief Magistrate and all other persons who hold the office of magistrate or acting magistrate. Rights of access under the FOI Act extend only to (non-exempt) documents of an “agency” (as defined) and (non-exempt) official documents of a Minister. VOCAT’s documents are obviously not the documents of a Minister. Nor, in my opinion, is VOCAT an “agency”. That term is defined (by s 5 of the FOI Act) to mean “a department, council or a prescribed authority”. VOCAT is plainly not a department (as defined) or a council (as defined). The definition of “prescribed authority” comprises four categories identified in paragraphs (a), (b), (c) and (d) of the definition. VOCAT cannot fall within (a) because it is not a “body corporate” within the meaning of that paragraph. It cannot fall within (b) because it is not declared by the regulations to be a prescribed authority. It cannot fall within (d) because none of its members, as such, holds an appointment relevantly declared by regulations made pursuant to (d). Paragraph (c) covers “the person holding, or performing the duties of, an office established by an Act” but it is expressed to operate “subject to subsection (3)”. The Chief Magistrate and each magistrate and acting magistrate might be said to be holding an office established by an Act (the Victims of Crime Assistance Act 1996). However, in my view, they are taken outside the definition of “prescribed authority”, and therefore outside the FOI Act, by s 5(3)(c) of the FOI Act, which provides that a person shall not be taken to be a prescribed authority by virtue of his holding, or performing the duties of, “an office or member of a body”. VOCAT is, in my opinion, clearly a “body” within the meaning of s 5(3)(c) and the Chief Magistrate and each magistrate and acting magistrate is clearly a member of that body. Similarly, the Adult Parole Board and each of its members have been held to be outside the FOI Act, and so has the County Court and each Judge of the County Court."

Tasmania shines a little light on the big end of town

http://blogs.e-rockford.com

Tasmania is to join the crowd with a Lobbyists Register to regulate lobbyist contact with the Government from 1 September, as announced by Deputy Premier and Attorney General Lara Giddings. The Code of Conduct is similar to the Federal and other state schemes up and running: 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. It comes with all the limitations and weaknesses noted here previously, some of which are raised today in The Australian by two prominent ALP connected lobbyists who call for the exceptions to be brought into the scheme.

There are a couple of notable Tasmanian differences: it applies in addition to communication with ministers, parliamentary secretaries, and public servants to communication with a Member of Parliament of the political party (or parties) that constitute the Executive Government of the day, (a positive first, I think). And imposes a 12 month post separation ban on lobbying by a minister, parliamentary secretary or head of agency on a matter they had dealings with in the previous 12 months. This is on the weak side - the Federal Code ban on ministers post separation is 18 months for lobbying on any matter dealt with in the previous 18 months. The Tasmanian Code fails to mention any post separation ban on lobbying by ministerial staff, or the hot issues elsewhere, pay to meet the minister fund-raisers, and in Queensland at least, success fees for lobbyists.(Update: nor mention of another hottie running in The Australian today- banning lobbyists from accepting paid government positions)

Here is Bob Burton's take on the scheme in Crikey.

As The Mercury reports today:

"Hobart public relations man Michael Lester said the new Lobbying Code of Conduct would not change the way he did business. Mr Lester, a former journalist, manages the Tasmanian office of the national corporate communications firm CPR."

"People can do what they do with public information"

Tell it to the NSW Greens and the state Opposition who voted to make it a crime to play around with published data on school performance to produce "crude and simplistic league tables" if published in a newspaper but not elsewhere. And to the NSW Law Reform Commission which says in the report on a privacy cause of action referred to in the previous post [5.28], that publicly available information, say in a paper record buried away somewhere but theoretically available for public inspection, may in some ( they should have emphasised extremely rare) circumstances still retain a privacy character. But the NSW Food Authority has the right attitude to the arrival of an iPhone application, FoodWatch NSW, which brings the Food Authority's list of restaurants that have been issued an order in relation to food hygiene practices near your location to your fingertips.According to the Sydney Morning Herald:

A NSW Food Authority spokesman said it did not have a particular view of such applications, but would encourage the public to use the information wisely. "We don't endorse any of those products," he said. "We just provide the information for anyone to use. We just encourage people to be cautious because the information is frequently changed. They should check back to the original source before they make a decision. "People can do what they do with public information."

An improvement on Railcorp's threat to sue to protect intellectual property over something similar for train and ferry timetables. And the start of what should be a new era for the use and reuse of government information at a time, place and in a format to meet public needs. As to all those copyright and cost recovery policies that have dominated thinking in the past ???

NSWLRC recommends privacy cause of action

The NSW Law Reform Commission in a report released today ( but dated April) recommends the state adopt a civil action for breach of privacy, but only as part of national law reform, so privacy law would be uniform throughout Australia. The report clarifies when an individual should be able to claim compensation and places limitations on the action.The Chairperson of the Commission, the Hon James Wood AO QC, said “the action is only applicable where an individual has a reasonable expectation of privacy that is not overridden by public interests such as freedom of speech. We advocate a common sense approach, whereby privacy interests are weighted against other important concerns such as the public’s ‘right to know’ and the protection of national security”. Despite this watch out for media types jumping from tall buildings.

The proposal is for a cap for non-economic loss of $150000. More when I have a chance to absorb the detail (116 pages) of what looks to be a formidable, balanced argument for filling the gap in current law. Interestingly the Advisory Panel, members of which may or may not agree with all or parts of the report, included distinguished legal minds from Australia and abroad, and while he might be in that category as well, Sydney Morning Herald journalist David Marr.
Update: Marr's involvement appears to have given the SMH a "head's up" with this "Take a good look- this picture might soon be banned" and Marr's opinion piece detailing his ignored attempts to dissuade the NSWLRC from the recommendation, both in Saturday's Herald, while not a word in News Ltd papers. They won't be far behind.

SA FOI change for 10 year old cabinet documents

South Australian Premier Mike Rann has announced proposed changes that would remove the cabinet document Freedom of Information exemption for documents 10 years after they come into existence. Documents would only be exempt thereafter if another exemption applied. The Advertiser yesterday welcomed the announcement as a new step in increasing the public's right to know, and as following Queensland's lead. Hold on folks, NSW led on this in its FOI Act of 1989, a situation continued in the yet to commence Government Information (Public Access) Act. The Advertiser in rightfully urging " the Federal Government to examine the decisions by the state Labor governments..to not be so over-protective" didn't mention that while it falls short, the Feds propose bringing all documents including cabinet documents into open access after 20 not 30 years.

On the SA front it 's fair to ask " is that all there is?" Just why the state sees no need for more fundamental FOI reform in the light of developments elsewhere, remains a mystery.

Faulkner on transparency improvements at Defence

He's on the case: some extracts from a speech, Governance and Defence, Some Early Impressions, by Minister for Defence Senator Faulkner yesterday that will do something to reassure those critical of the department over excessive secrecy:

"I have always held the view that transparency is crucial to good governance. Transparency is essential to accountability. When I came into this portfolio I was aware that Defence had been criticised in the past for failing to provide enough openness and transparency. I have found a great willingness across the Department, to embrace the Government’s reform agenda, and to look for areas in which transparency can be enhanced. At the departmental level, three key reforms, improving transparency both internally and externally, have been put in place.First, a new position of Chief Audit Executive has been created to upgrade Defence’s internal audit function...Secondly, an ongoing budget remediation process is underway, planned for completion in the 2009-10 Additional Estimates...Thirdly, the approval process for major projects has been reformed following the recommendations of the Mortimer review to better align acquisitions with strategic priorities

Another example comes from a very different area. At the operational level, CDF, Angus Houston, held a media roundtable with a number of journalists on 21 July this year, to discuss the steps the ADF is taking to avoid civilian casualties, and provide more information to the public.

On 1 July, I released the Public Defence Capability Plan 2009, which included more detailed information about particular proposals than past DCPs and, given its more realistic time frame, should provide a more reliable and more certain base for planning. This year’s Public DCP contains information on 110 projects or phases of projects, $60 billion worth.I also announced a project to re-examine the way we provide defence planning information to industry and the public, including the value, the nature and the content of the Public DCP, with a view to providing not only more, but more useful, information. Thirdly, for the first time the Government released the Priority Industry Capabilities. These were previously unpublished– but now we have shared them with industry and the public.

While these are all important steps, transparency and accountability are also questions of Departmental process and culture. And we are moving to address these as well."

Specifically on Freedom of Information, the Minister said:

" .. you might know I have a particular interest in FOI. Defence has been criticised for not meeting Freedom of Information (FOI) deadlines. In 2007-08, 67 % of federal government FOI responses were completed within the 30-day statutory deadline. Defence only met the deadline in 38 % of their responses for that financial year. That figure fell to 15 % in 2008-09. I accept that FOI will not always be an easy area for Defence to manage. Some issues are inherent in the complexity of the requests received. Some are associated with the sensitivity or classification of information. But Defence itself has identified its FOI performance as an issue and has taken structural steps to address it. On 9 June 2009, the Secretary and the CDF created a new branch to coordinate FOI matters, as well as records management and archives administration. Change in this area is also cultural. Key steps undertaken by this new branch include improved communication, visibility and accountability for FOI requests within the senior levels of the Department, FOI training for decision makers and the development of a dedicated FOI database to monitor the progress of requests. Staff from this branch will also work through the FOI process with action areas to ensure that requests are processed as soon and as efficiently as possible.

I believe that with these reforms Defence will be in a good position to deliver on FOI and transparency reforms, within the requirements of national security."

The Minister went on to discuss in detail, in the interests of transparency, some of the challenges facing him and the department on specific big ticket items.

Conclusive certificates going, going almost gone

The Senate passed the Freedom of Information (Removal of Conclusive Certificates and Other Measures) Bill yesterday, without amendment, so only the House of Representatives to go and that will be routine business.

Senator Ludlam (Australian Greens-WA) moved several amendments but only the Greens and Senator Xenophon supported them, the Opposition siding with the Government. The amendments proposed related to the provision to give a blanket exemption to documents held by a minister received from an intelligence agency, which the Government justified as correcting an anomaly by bringing such documents in line with a long-standing exemption for documents of this kind held by an agency. Intelligence agencies have been outside the scope of the Act since inception, which also troubled Senator Ludlam.

Blanket exemptions and exclusions of agencies from the operation of the Act are in principle hard to justify, something Senator Ludwig acknowledged:

"The government does recognise, though, if we go to the nub of the issue, that strong justification is needed to support wholly excluding agencies or classes of documents from the operation of the FOI Act. A total exclusion will be justified where the functions of the agency would be compromised by right of public access to information they hold. That is clearly the case for intelligence agencies."

Perhaps when the entire act gets revisited (within two years after the broader reform bill, yet to be introduced, makes it through Parliament, the Minister told Senator Ludlam) we might have a closer look at how the New Zealand Security Intelligence Service and the CIA manage to cope without functions being compromised even though they are covered by their access to government information legislation.

Shadow Attorney General Brandis wins the chutzpah award for his claim that "The coalition’s commitment to open, responsible government is well known" but he did have a point that the Howard Government had issued few (around 14 from memory) conclusive certificates compared to earlier ALP governments where, anecdotally they stopped counting after three figures.

None of the other points made in submissions on the Bill rated a mention in debate.

Information access a whole - of - government change management challenge

Those thinking about, interested, or involved in change associated with access to government information - now a broad church across the country - will find much of value in the report "Information Policy and E-Governance in the Australian Government"( pdf 185kb) by Dr Ian Reinecke for the Department of Prime Minister and Cabinet.

The report was completed in March, although the published version includes an update reference in July and has only recently been released. The Government 2.0 Taskforce clearly had its genesis here although neither Minister Ludwig nor Minister Tanner mentioned Reinecke's report in announcing its establishment in June, and nothing has been said publicly about what might be happening behind the scenes on its key message- the need to get cracking now. Reinecke himself was appointed to the Taskforce- more about him and the consultancy (I doubt this was $70000 for a week's work) here

While the sole focus of the report is the Federal Government, the problems, challenges and suggested responses are likely to be closely replicated in other jurisdictions where change is underway or on the way.

The report provides a look at international developments and the current state of play within the Government on information policy and technology. Reinecke illustrates that Australia badly lags comparable countries in recognising the opportunities to improve government-public dialogue through access to and sharing information. The Federal Government picture he paints isn't a pretty one: diverse information practices across government; disaggregated governance of information management policy; problems arising from split responsibilities for parts of the equation; absence of a co-ordinating lead agency and real clout for key agencies to make things happen; attitudes among public servants on disclosure and the use and reuse of information by the public that are mostly defensive or disinterested; and other limitations and constraints such as copyright and confusion about licensing options.

However Reinecke was heartened to find some innovators within government pushing the envelope by using new information tools and techniques, and an agency such as the Australian Bureau of Statistics embracing creative commons licensing. He and others he talked to see Freedom of Information reform particularly the establishment of the Office of Information Commissioner as an overdue measure. And the big opportunity to put information governance in its rightful place - central to good government.

Reinecke sets out a commendable scheme of what needs to be done, starting immediately to build momentum and helpfully, suggests priorities for the Information Commissioner, once established. He acknowledges that better governance in the information field is a whole -of -government change management exercise that will take time, as many within government remain unaware or unconvinced of the need for change or the benefits. He points out that the Commissioner will need strong support from public service colleagues and to bring in outside expertise, knowledge and experience.

A couple of important findings and observations from the report:

"Agencies’ interest in government information tends to cease at the point of creation; they do not see part of their role as putting that information to work outside government, although there is a sense that third parties may be better placed than they to do so. There is a real question about agency preparedness to make public sector information more widely available; in classifying information within government, there is a tendency to over-classify as a defensive measure. The argument for open access is not clearly understood. Making agency performance data publicly available may meet resistance from some Commonwealth agencies, even as they are seeking to persuade state jurisdictions to adopt and disclose performance metrics; there may also be caution about ‘unintended consequences’ e.g. parents withdrawing children from under-performing schools. Information management is seen by all agencies interviewed as distinct from managing the technology and some noted that there is a tendency of IT staff to resist more open communications instead of regarding ICT as an enabler of more open engagement between government and citizens.[5.6]

The general principle that recognises that the purpose for which an agency creates information is relevant to determining the terms on which it is released, is not clearly articulated across government.By the nature of what they do, the service delivery agencies bring to the issue of open access a higher level of recognition that close engagement with their customer base is essential and that online technologies present opportunities for innovation in that regard. They also recognise that the disproportionately higher volume of FOI requests they receive and the higher costs they incur responding to queries could be ameliorated by more proactive release of information. It is clear however that some agencies show little evidence of re-thinking their position on ensuring more open access to information and closer interactive engagement with individuals and communities online.[5.7]

There is a specific need to begin developing an Australian Government information policy that is appropriate to the digital world and which should make it easier to search for, discover and use government information. This will enable better access to public sector information in a form and on terms which are of greatest value to those who seek it.(6.1)

The major obstacle to introducing e-consultation in government is not technical; it is a cultural attachment by the public service and politicians to constrain the systematic sharing of information with citizens. To overcome that cultural reluctance, public service managers need a reason to change their behaviour and a process to do so.(7.7)

The intuitively appealing principle of governments being as open as possible to the citizens who elect them needs to be informed by a realistic assessment of the measures, functions and structures required to deliver that outcome. International experience, although not a perfect template for who does what in government to better manage information in Australia, is instructive.(8.1)

All part of the challenge for the Taskforce and the Information Commissioner, waiting out there somewhere.

Auditor General to shine some light on Parliament opacity

Steve Lewis and Ben Pakham in this exclusive "MPs rorting millions in taxpayer-funded entitlements" in yesterday's Herald-Sun reported that a yet to be released Australian National Audit Office report has found widespread abuse of the printing allowance paid to members and senators, with the entitlement, contrary to guidelines, "being used for the main or only purpose of electioneering activities".

Special Minister of State Senator Ludwig made a statement on the matter in Parliament yesterday saying it would be inappropriate to comment on the audit at this stage. He noted that the parliamentary entitlements framework "is overly complex, based as it is on a mixture of primary legislation, regulations, Remuneration Tribunal determinations, procedural rules, circulars, guidelines, executive decisions and conventions", and listed the Government's initiatives on transparency and accountability reforms, concluding

".. that no area, including the area of parliamentary entitlements, is beyond the reach of reform. A package of reforms is currently under consideration by the government, the details of which will be released in due course."

The Minister prefaced his remarks by referring to the audit "into the administration of parliamentarians’ entitlements by the Department of Finance and Deregulation" which of course would not extend to the administration of some entitlements by the parliamentary departments. Neither he nor Senator Ronaldson, who spoke for the Opposition, made any reference to the general issue of the need for greater transparency and accountability for the legislative arm of government, which will spend over $300 million this year in addition to the $390 million in parliamentarians' entitlements administered by Finance.

Could the Minister's "package of reforms" extend to implementing the recommendation 14 years ago by the Australian Law Reform Commission that "The parliamentary departments should be made subject to the FOI Act", a recommendation so far ignored in any of the Government's public ruminating on FOI reform proposals? Or doing something about a situation referred to by the Auditor General as follows in 2001, as noted here previously:

"a key area in which some overseas models reviewed, particularly those of Canada and the United States, differed from the approach currently taken in respect of the Australian Federal Parliament is that they provide for significantly greater levels of public disclosure of the guidelines and/or rules that govern entitlements’ expenditure by the members of the respective legislatures; and of the costs incurred by the individual members."

On the broader FOI reform front, the Minister didn't have much joy for those who have been watching the clock tick these past 21 months, simply indicating in his statement:

"I anticipate that the final legislation will be introduced as soon as possible and certainly well before the end of the year."

Thanks to Open Australia for the Hansard alert and link - eat your heart out those in Queensland who would like to know more about what goes on in state parliament.

NSW local councils still in the maze

Local councils in NSW will from the commencement of the Government Information (Public Access) Act, early in 2010, be freed from some of the complexity associated with access to information issues, as Section 12 of the Local Government Act is to be rescinded, a different publishing requirement, a modified version of Section 12 (1), will be imposed under the new legislation, and applications for other information are to be dealt with in accordance with GIPA. Sometime the NSW Law Reform Commission will also report on the inquiry into the state's privacy laws and the relationship between them and access to information laws.In the meantime, two developments worth noting.

In JS v Snow River Shire Council (No 2) [2009] NSWADT 210 the Administrative Decisions Tribunal decided to take no further action on a complaint of a breach of privacy as a result of a disclosure by the Council to the owner of a property of a letter from the applicant concerning construction on the land. Judicial Member Montgomery said the letter was arguably a document required to be made publicly available under Section 12 (1) of the LGA and certainly an "other document" required to be disclosed under Section 12 (6) unless on balance disclosure would be contrary to the public interest.

"53 Section 25 of the Privacy Act provides that a public sector agency is not required to comply with section 18 of the Privacy Act if non-compliance is ‘otherwise permitted (or is necessarily implied or reasonably contemplated)’ under an Act. The words ‘otherwise permitted (or is necessarily implied or reasonably contemplated)’ are extremely broad. For the reasons argued by the Council, it is my view that section 12(6) of the Local Government Act satisfies this provision."

And in this case note [2009] NSW PrivCmr2 issued by Privacy NSW (with a rider that it does not constitute legal advice) the publication on a council's website of development applications including the applicant's name, address, telephone numbers and signature without having informed the proponent, involved a breach Section 10(c) of the PPIP Act, which requires an agency to take reasonable steps to inform people of the intended recipients of that information, when collecting their personal information. No breach of the disclosure principle was involved because under Section 12 of the Local Government Act 1993, development applications are "public documents" that members of the public are entitled to inspect. Publication of the complainants' development applications on its website did not involve a breach of s. 18 of the PPIP Act. Finally it was determined that there was sufficient security in place to comply with Section 12 of the PPIP Act, which requires personal information to be stored securely and be protected from unauthorised access, use or disclosure. The development applications were uploaded in "Tiff" and "Jpeg" format which, to a degree, was considered to prevent modification of the documents. Additionally, before the website can be accessed, a user is required to agree under an exclusive licence only to view the website content.

Victory for Liberal Party

Seriously.

But the main point of interest in reporting a partial win for the party in the Administrative Appeals Tribunal on a Freedom of Information matter concerns legal professional privilege, and a ruling that the exemption in Section 42 of the Commonwealth Act did not apply to one of two documents in dispute because privilege had been waived by actions of the agency.

In Liberal Party of Australia and Australian Electoral Commission [2009] AATA 551 the applicant sought review of a decision to refuse access to two legal advices held by the Commission concerning an application to register another political party -the Liberal Democratic Party-around the time of the last Federal election. On an advice from in-house lawyers, the Tribunal found [21-27] the document was independent legal advice from solicitor to client, there was no question of waiver, and rejected argument that it was outside the scope of the exemption because it was a document provided to officers of the agency for the purposes of making decisions generally (Section 9(1)).

Advice had also been sought on registration from the Australian Government Solicitor [10-20] in light of a recent amendment to the Commonwealth Electoral Act. In the determination to grant the application to register the name Liberal Democratic Party, the Commission's officer had stated:

"The advice provided to the AEC, from an AGS Senior General Counsel, was that the amended section 129 would not be likely to result in a different outcome were the AAT to again decide the “liberals for forests” matter or a similar matter. The advice also considered the need for the AEC to have evidence that similarity in names would be likely to be confused or mistaken, or lead a reasonable person to think a connection or relationship exists when it doesn’t. the advice suggested that it would be open to but not necessary for the AEC to commission such evidence by surveys or other research, or to rely on objectors to put forward evidence necessary to support their assertions, giving that evidence an appropriate weight."

Senior Member Constance summarised [14] the principles on waiver as set out by the High Court and the Federal Court as:

1. Waiver of legal professional privilege occurs when there is inconsistency between the conduct of the client and the maintenance of confidentiality.
2. It does not matter that the entity entitled to the benefit of the privilege did not intend to waive the benefit.
3. Considerations of fairness are relevant in deciding whether there has been inconsistency such as to amount to a waiver.
4. In determining whether or not there has been inconsistency it is necessary to consider the circumstances of the particular case in the context of the alleged inconsistency.
5. If the substance and effect of the advice is communicated in a context of emphasising and promoting the strength and substance of an argument being advanced by the recipient of the advice there is an implied waiver of privilege.

The Tribunal was satisfied that the Commission’s conduct in referring to the AGS advice in the manner it did in the Statement of Reasons was inconsistent with the maintenance of confidentiality in relation to that advice. Privilege had been waived by stating in the determination the effect of the advice and then relying upon it in relation to at least three of the five considerations taken into account in reaching the conclusion to which the Statement of Reasons related. Given the fact that registration was granted despite objections, including presumably from the Liberal Party among others, it would be unfair to the Party to deny it access to the opinion relied upon.'[20]

Interestingly the Commission argued but finally conceded on the point that the Liberal Party of Australia-an unincorporated association- was a person for the purposes of an application for review under the Administrative Appeals Tribunal Act but not that it was a person within the meaning of the FOI Act [7-8]. I thought issues like the very broad definition of person for FOI purposes had been settled about 27 years ago, but not for some apparently.

Queensland parliament rains on open access party

Amid all that good Queensland news is this downer that the Clerk of the Parliament there has knocked back a request by Open Australia to allow republication of Hansard online which would enable them to add the search capabilities that have made their Federal effort a real winner. To the extent there are problems here, the attitude should be let's solve them.

More generally, concerns of this kind, flowing from “loss of control” of information and sitting alongside others such as cost recovery and copyright will be a big part of the coming culture debate as FOI reform with a new proactive publishing requirement moves to implementation phase in several jurisdictions. Of course parliaments everywhere in Australia remain outside the scope of access to government information legislation.Nevertheless those responsible need to respond to the same contemporary challenges by making information available for use and reuse in a way that suits the needs of citizens. At least the letter from the Clerk shows some serious consideration of the issue- I’d be surprised if it has received much attention at state parliaments elsewhere- and Queensland sounds as if it might be a step ahead in publishing on-line, documents tabled in parliament.

Let's hope the Queensland Parliament (and other states) says how can we make things like this happen, not how many problems we can identify that mean we can't.

The Federal Government 2.0 TaskForce (see Nick Gruen's comment about dealing with the overly risk-averse attitudes of public servants) hopefully will help help kick things along, not just in Canberra.

Queensland Information Commissioner

Still on matters Queensland, Julie Kinross who was appointed Information Commissioner last week has been acting in the job since April last year. Kinross has had 20 years public service experience, including Assistant Commissioner Health Care Complaints Commission, Commissioner for Fair Trading and Deputy Director-General, Department of Fair Trading and Wine Industry Development. By happenstance we had a couple of chats in Canberra this week, enough to suggest the RTI and Information Privacy acts, and leadership on implementation are in very good hands.

FOI reforms the real thing, even to Michael McKinnon

After two days at different conferences in Canberra where Freedom of Information was a lively topic, a few reflections.

David Solomon and Michael McKinnon in addressing the National Administrative Law Forum on the topic "FOI reform or political window dressing?" both agreed its serious and far beyond window dressing thus far in all the jurisdictions that are on the move. Premier Bligh received special acknowledgement from both for the priority she gave to change from day one in office, her willingness to go with root and branch reform and the skin she has put on the line to make this work in Queensland.

Solomon said the common element everywhere was that new political leadership had seen more open government as a virtue, with FOI part of a bigger reform picture to improve integrity, accountability and public trust and confidence in government. McKinnon not surprisingly thought that the media had played a key role in getting the issue on the agenda through highlighting how FOI was not working, gave some telling examples of the high cost of government secrecy in terms of impact on citizens, and suggested the need for constant vigilance by the media and others to hold onto the gains, given what he sees as the underlying resistance by ministers and public servants to openness.

Cabinet Secretary and Special Minister of State Senator Joe Ludwig gave an outline of the new scheme in the Federal Exposure Draft released by his predecessor in March, but no advance on that, although in this first speech on the topic since his appointment, he put on the record his strong commitment to the change proposals. The Minister gave no indication of what influence on thinking the 46 submissions in response to the Draft bills have had, and left straight after, without taking questions, on the note that having considered them, the bills will now be introduced into Parliament.

One welcome comment by the Minister was on frank and fearless advice- those who still mumble (you know some of the names) that the potential for advice to be open to later scrutiny will mean it is not written down should note:

"I know that some in the Australian Public Service feel that FOI reforms may inhibit their ability to provide frank and fearless advice. But I believe that the tradition of frank and fearless advice is more robust than that. I believe that our public servants will work professionally within the new FOI framework as they do within other accountability mechanisms. It is beyond dispute that it is in the public interest for ministers to receive written advice on matters relating to their administrative and policy responsibilities. In any given case, whether or not the exemption may be sustained will depend on the subject matter of the document and the circumstances around the Government’s consideration of the document, including whether a Government position has been announced. Political sensitivity will not be an argument against disclosure."

Professor Bill Lane and Eleanor Dickens of Clayton Utz Brisbane ran a concurrent session at the Forum providing a detailed run-through of Queensland's Right to Information Act. It provided a sharp contrast for me between the fundamental shift in Queensland (and NSW) reflected in completely new legislation and the Federal proposals which graft onto the existing 27 year old act some extensive changes that deliver on the Government's pre-election commitments. While 21 months on, now is long past the time to get on with it, the opportunity has been missed this time round for a bigger step by Canberra in the best practice direction.

At the Walkley Foundation Public Affairs in the Nation's Capital Conference on Wednesday one issue I spoke about was the looming management challenge posed by the new forms of access to information legislation, with the emphasis on publication and pro-active disclosure. Public affairs functions within government agencies will need to be directly involved, as will IT, the web people and records management. Existing models where in some agencies FOI has primarily been law influenced work often in a legal branch won't fit the new world. Neither will the current attachment in ministers' offices, including that of the Prime Minister, to attempt to micromanage and control information flows to the outside world -something will have to give.

Nicholas Gruen of the Federal Government 2.0 Task Force sparked a lot of interest in outlining the Task Force agenda, and says so far - early days - he, with Minister Tanner ( and Ludwig) behind him, is encountering enthusiasm from those in government who hear about the open government possibilities. Public affairs staff at the conference were also positive but indicated Gruen needs to get to senior management who they told him are risk-averse when it comes to getting information out there.

I understand the issue of how best to organise and manage the new era is already exercising minds in Queensland government agencies, with deputy heads designated Right to Information champions and responsible for making this new idea, something close to the Premier's heart and political fortunes to some extent, work in practice. The issue doesn't seem to have hit the intray in Canberra or Sydney as yet.In NSW existing structures where FOI responsibilities in some agencies are in a ministerial liason unit will also not sit comfortably with the Government Information (Public Access) Act which provides that an agency is not subject to the direction or control of any minister in dealing with applications for agency information, and separately contains four offence provisions including one concerning improperly influencing a decision.