NSW Board of Studies fails FOI test

The NSW Ombudsman's report of an investigation into the Board of Studies and scaled exam results sounds interesting, but given confidentiality limitations on the Ombudsman the report itself will only come into the public domain if the complainant or the Sydney Morning Herald posts the text somewhere.The (ex) student who pushed the issue, Hugh Parsonage, started this four years ago. The Ombudsman found the Office of the Board of Studies was wrong in rejecting his Freedom of Information application, saying its handling of the case ''from beginning to end, is of serious concern''.

Struggling with "communicative abundance" and "monitory democracy"?

Professor Jonathon Keane of the University of Westminster, an Adelaide boy still at heart, has been in Australia speaking about his almost 1000 page book "The Life and Death of Democracy." If you haven't caught up with this- the text of an occassional address at the Senate a few weeks ago will give you the gist of what he is on about with "communicative abundance" and "monitory democracy." Makes those of us who are trying to keep an eye on a little of what is happening in government feel part of a wider and important trend.

At a local level, the following struck a chord, and had me hoping the techniques mentioned are all ancient history:

"In the era of monitory democracy, government media management is partly a ‘top down’ process. Governments hack in to the system of communicative abundance using various instruments, blunt and sharp. In recent years, John Howard did this to a worryingly unconventional degree. The formula of his governments’ media strategy is clearer in retrospect: build a team of tough-minded public relations people who are good at spinning everything. Get them to cultivate the image of the Prime Minister as a dedicated, hard-working, self-made man, a leader in whom everyone can recognise something of themselves, and what they want to be. Grant access of journalists to government plans in return for favourable coverage. Put senior bureaucrats on notice that they are required to report all contacts with journalists to the Prime Minister’s office. Stop leaks from retired or serving bureaucrats (Howard called it ‘democratic sabotage’, and explained that leaking is bad because it wrecks the tradition of fidelity and confidentiality upon which the provision of frank and fearless advice by civil servants to politicians depends). If necessary, get the police to turn up on doorsteps to ask questions of suspected infidels. Pass legislation to slap bans on reporting high-priority matters, detention without trial of suspects and witnesses, for instance. Pursue journalists who are troublemakers, especially those who refuse to divulge their sources. Threaten them with prosecution for libel, or contempt of court. Cultivate deaf ears for requests for disclosure of information. Keep trusted commentators at the ready, on duty at all times. Ignore calls by lawyers’ groups, NGOs and the press for new freedom of information laws, or their reform. Say often that you favour ‘freedom of communication’, but make it clear that there are strong grounds for withholding information, such as security, public order, fair play, the rights of business, the protection of the vulnerable, the needs of government."

Important privacy conference next month

The International Association of Privacy Professionals Australia and New Zealandʼs second annual conference – Privacy Proofing Your Organisation- will be held in Melbourne on 14 October. Featured speaker is Mozelle Thompson, former US Federal Trade Commissioner, and corporate privacy advisor, on social media and privacy in the 21st century. Other speakers include Special Minister of State, Senator Joe Ludwig, Australian Privacy Commissioner, Karen Curtis, eBayʼs Alistair MacGibbon and CyberCop Susan McLean. Further details and registration at www.iappanz.org or phone +613 (03 for locals) 9895 4475.

Defence Minister opens up

Minister for Defence Senator Faulkner stepped in to overrule his department by releasing two paragraphs from the Executive Summary of a consultant's report on the Defence Budget Audit, and to post the Summary of the Budget Audit Report with two small deletions on the Defence website. The two paragraphs highlighted in the Minister's media release about the advantages of a superbase model don't sound earthshattering. An official had withheld this information concerning recommendations about the future of bases in an earlier response to a Freedom of Information application by the Sydney Morning Herald, as an internal working document on a matter not yet decided by the Government. There may have been more to it but the Herald reported the official's reasons on the public interest considerations as including that disclosure would cause ''unnecessary speculation and anxiety" - not exactly one of those phrases that boosts confidence in decision making.

VCAT ruling on when a document is more than information

www.win.org.uk

Australian Freedom of Information acts for the most part, are acts that provide a right of access to "documents", not information. The NSW Government Information (Public Access) Act to replace the FOI Act early in 2010 will be different, providing for access to information - more about that in a final comment.

The issue of what is a document, and the distinction between documents and information for FOI act purposes, cropped up in a recent Victorian decision. Deputy President Coghlan of the Victorian Civil and Administrative Tribunal in Wooldridge and the Department of Human Services (General) [2009] VCAT 1900 considered whether part of a request under the Victorian Freedom of Information Act to interrogate the Department’s electronic management system using the term “Withington” and seeking a copy of the results generated by these searches, sorted by date for each report, was a valid application for a document as defined in Section 5 of the Act. The Department argued in these preliminary proceedings that the case should be dismissed under s 75 of the Victorian Civil and Administrative Tribunal Act because:

• (a) no valid request for access was made by the applicant under s 17(2) of the Act; (b) as no valid request was made, there is no reviewable decision (deemed or otherwise) before the Tribunal; (c) accordingly, the Tribunal does not have jurisdiction; (d) the application for review is misconceived, lacking in substance or otherwise an abuse of process;

Section 17 of the Victorian FOI Act provides that a "person who wishes to obtain access to a document of an agency or an official document of a Minister shall make a request in writing to the agency or Minister as the case requires for access to the document" and in subsection (2), that a "request shall provide such information concerning the document as is reasonably necessary to enable a responsible officer of the agency, or the Minister, as the case may be, to identify the document."

Deputy President Coghlan said the

"nub of the Department’s contention is that the request for the electronic document management system to be interrogated and for a copy of the results generated by these searches to be provided was not a request for a document. It says that the request is for information to be obtained using the particular methods described by the applicant. This, they say, is not a request for access to specific documents, but rather is a request for information and not permitted by the Act." [20]

Document” is defined in s 5 to include, in addition to a document in writing –

(a) any book map plan graph or drawing; and

(b) any photograph; and

(c) any label marking or other writing which identifies or describes any thing of which it forms part, or to which it is attached by any means whatsoever; and

(d) any disc tape sound track or other device in which sounds or other data (not being visual images) are embodied so as to be capable (with or without the aid of some other equipment) of being reproduced therefrom; and

(e) any film negative tape or other device in which one or more visual images are embodied so as to be capable (as aforesaid) of being reproduced therefrom; and

(f) anything whatsoever on which is marked any words figures letters or symbols which are capable of carrying a definite meaning to persons conversant with them; and

(g) any copy, reproduction or duplicate of any thing referred to in paragraphs (a) to (f); and

(h) any part of a copy, reproduction or duplicate referred to in paragraph (g)—

but does not include such library material as is maintained for reference purposes.

The Department argued that when read with s 17 of the Act, the definition of document reinforces the contention that a person must request access to a document and is not permitted to direct an agency what databases to search and in what manner, because that is a request for information and is not permitted.

However Section 19 of the Act is a provision concerning requests involving use of computers. Section 19(1) says (1) Where— (a) a request is duly made to an agency;

(b) it appears from the request that the desire of the applicant is for information that is not available in discrete form in documents of the agency; and

(c) the agency could produce a written document containing the information in discrete form by—

(i) the use of a computer or other equipment that is ordinarily available to the agency for retrieving or collating stored information; or

(ii) the making of a transcript from a sound recording held in the agency—

the agency shall deal with the request as if it were a request for access to a written document so produced and containing that information and, for that purpose, this Act applies as if the agency had such a document in its possession[25]

Deputy President Coghlan cited no cases in the decision so it may be the first time the matter has been considered in Victoria or elsewhere. She decided the application was valid:

28. While the request refers to the Department’s electronic system and the ability to search it by “author” or similarly titled source field and by “subject” or similarly titled summary field, and asks the Department to interrogate the system using the term “Withington”, the request seeks a copy of the results generated by the searches.

29. Section 19 contemplates the creation of a document where it appears from the request that the person wants information that is not available in discrete form in documents of the agency (s19(1)(b)). In this particular case, the request sought a copy of the results generated by certain searches. That request for a copy is a request for a document, and in fact such a document was actually generated and provided.

Noting that other cases may well be different, Deputy President Coughlan said [30 and 31]

"in this case, the Departmental officer well understood that the applicant wanted a document produced using the term “Withington”. That this was not available in discrete form in documents of the agency is clear. The officer dealt with the request as if it were a request for access to a written document so produced, containing the “Withington” information (s19(1)). It is a distraction to focus on the advice or direction the applicant gave to the Department about how the system might be interrogated. To indicate to the Department to interrogate using the term “Withington” was simply a way of making the request clearer. The request made is of the very type s 19 appears to provide for."

Update. The decision should be read in conjunction with Deputy President Coghlan's decision on the same day in McIntosh v Victoria Police (General) [2009] VCAT 1923 which covers similar ground and became available after the above comments were written.

The GIPA Act will render the definition of a "document" and these sort of questions unnecessary in NSW. The Act is "An Act to facilitate access to government information;" refers to information not documents almost throughout in providing for an application for information recorded in some way, and stipulating that information is to be published and released unless there is an overriding public interest against disclosure; requires an agency to undertake reasonable searches to find information using the most efficient means including those resources that facilitate the retrieval of information stored electronically; and authorises the provision of information in a new record, where this might be appropriate.

The similar provision in the NSW FOI Act to Victoria's Section 19 - the somewhat archaic "requests involving the use of a computer," enlivened only in NSW where an application relates to information not contained in a written document - can be of no continuing relevance in this new situation and does not appear in the GIPA Act. The only limitation in the Act on the search for information involving retrieval from electronic systems is where this would involve substantial and unreasonable diversion of resources. Depending on how the application for information is framed and how information is stored, asking for results of a search of systems using a nominated term would appear to be a straightforward request.

The rest of the country including other reformers (Queensland) and some would-be reformers (the Commonwealth but not Tasmania) are sticking to "documents," putting NSW commendably in the lead in legislating for access to information in the Information Age, and moving on from the world of 20-30 years ago when discrete written documents were just about the only information held by a government agency.

The Tele on parents (or the Tele's) right to know.

Sydney's Sunday Telegraph took aim yesterday at the NSW Government, asserting parents' right to know details of who is on the s-x offenders register and to access comparative information about school performance. I'm with them on the latter, and on information about how many names are on the register, as any claim that this can't be released for privacy reasons is more than a stretch. However I'm doubtful the good order of society and the well-being of its members- the current standard all-purpose definition of the public interest- would be advanced by disclosure of other details of those who appear on the register. No doubt the Tele is interested, and so are some of the citizenry, but that doesn't mean it's in the public interest for it to be disclosed. The NSW Government clearly made a mess of housing Mr Ferguson, but the mob shouldn't be guarding the barricades in our name, an outcome almost certain to result from disclosure of details of where a person on the register lives.

In any event it's an offence (Section 21E of the NSW Child Protection Offenders Registration Act-CPORA) to disclose information about a registrable person, subject to a number of qualifications listed in the section, notably if disclosure is made "with the consent of the Commissioner of Police given (either generally or in a particular case) for the purposes of ensuring the safety or protection of a child or of children generally", or "is authorised or required by or under this Act or any other law."

Given the nature of the information it would almost certainly be exempt under Clause 12 of Schedule 1 of the Freedom of Information Act- disclosure would constitute an offence against an act other than the FOI Act- despite the qualifiers on disclosure. Under the yet to commence Government Information (Public Access) Act, which will replace the FOI Act early in 2010, the situation will be crystal clear. Section 21E of CPORA is one of 26 overriding secrecy laws listed in Schedule 1 of the GIPA Act for which there will be a conclusive presumption of an overriding public interest against disclosure.The policy debate on that one seems well and truly over. That shouldn't be the case for separate offence provisions that limit newspapers in NSW publishing comparative school performance information drawing from information published by a national public authority.That is plain silly.

Tassie goes for Right to Information

The Tasmanian Government has released the Exposure Draft of the proposed Right to Information Bill, which sounds close to the Queensland and NSW models. Deputy Premier and Attorney General Lara Giddings calls for feedback on the Bill which proposes to replace the current Freedom of Information Act ; mandates greater proactive release of information by Government; spells out the factors to be considered when applying the overarching public interest test; creates clear timelines for processing applications, if the information is not already available; and increases the powers of the Ombudsman for external review and monitoring. The Bill can be accessed here- I haven't looked yet. Update:Rick Snell thinks significant improvement- but proof of the pudding and all that. Submissions close 1 October.

FOI in Victoria- first the bad, then some good news.

The Victorian Ombudsman in his Annual Report released yesterday (Chapter 2 pages 38-49) says complaints to his Office about Freedom of Information matters were up from 125 to 178; and reports on avoidable errors in processing requests, backlogs becoming increasingly common, and problems with the consultation process. Concern about the culture surrounding FOI practices in some areas of the public sector, included the following (with case studies in support):

"Often agencies act against the intention of the FOI Act by restricting, rather than facilitating the release of information.

I do see good examples in the Victorian public sector of an open culture in handling FOI requests. However, the inclination in some agencies is to use the FOI Act to prevent the release of documents, rather than to use it according to its intended purpose: as a means to allow scrutiny of an open and transparent government.

Poor attitudes towards FOI requests and a limited understanding of FOI laws underscore these cultural problems. Although my office continues to promote greater openness and transparency, some agencies remain reluctant to fully disclose matters of public interest, even after receiving guidance.

The need for change in departmental culture regarding granting access to information is essential and is just as important as the right to obtain actual access under the FOI Act. Accordingly, I will be examining these matters closely and reporting on them during the forthcoming year."

The Chapter also includes comments and recommendations about water authorities and open meetings, and tender processes particularly in public hospitals.

Attorney General Rob Hulls announced on Tuesday:

"All departments twice yearly would publish documents commonly sought under Freedom of Information requests in five key areas. The information to be released includes: Details of consultancies of less than $100,000; Cabcharge expenditure; Departmental lists of accounts; Costs of departmental executive officer conferences and planning seminars; and Executive officer salary bonuses (annual release). Mr Hulls said all departments would be encouraged to identify additional categories of information suitable for proactive publication. He said all departments also would publish on their websites information about publications, major reviews and overseas visits undertaken by public servants. The publication of this information would coincide with the release of annual reports."

The Age reports also that Mr Hulls said the Government had proposed revised FOI guidelines to the Ombudsman that would increase accountability

Conclusive certificates... gone

The Freedom of Information (Abolition of Conclusive Certificates and Other Measures) Bill passed the final stages in the House of Representatives yesterday, so congratulations to the Federal Government on delivery of Stage One of the promised reforms. The final wrap-up of debate included contributions by Daryl Melham, adding a few real world comments, and Mark Dreyfus, providing a little history and a taste of what is still to come.

The sun will rise in the morning.

AAT decision a primer on cases relevant to some exemptions.

The decision of Senior Member Friedman in Maksimovic and Commonwealth Director of Public Prosecutions[2009] AATA 700 involved a number of Freedom of Information applications and many documents. The decision upheld all the agency exemption claims for documents that had not been released. The applicant had been convicted in September 2006 and sentenced to seven years’ imprisonment for importing a prohibited substance and attempting to possess a prohibited import, following the interception of a parcel sent by post from Costa Rica. Many of the documents contained information from Costa Rican intelligence officers or generated by state police during the investigation. There is nothing new in the decision but it is a useful collection of the precedents that hold sway in the interpretation and application of some exemptions in Commonwealth Act.

Damage to international relations.
Section 33(1) A document is an exempt document if disclosure of the document under this Act:(a) would, or could reasonably be expected to, cause damage to:..(iii) the international relations of the Commonwealth;

"13.In Re Maksimovic and Attorney-General’s Department (2008) 109 ALD 417 the Tribunal decided that the names of the Costa Rican officials were exempt under this section of the FOI Act. In Commonwealth v Hittich [1994] FCA 1324; (1994) 53 FCR 152 the Full Federal Court held that there is no public interest test in section 33, and in Re Wang and the Department of Employment, Education and Training (1988) 15 ALD 497 the Tribunal noted that the strong personal interest by an applicant in obtaining access to a document is not relevant. In Re Maher and Attorney-General’s Department (1985) 7 ALD 731 the Tribunal held that a mere allegation or possibility of damage to international relations was insufficient, but that the phrase damage to international relations of the Commonwealth comprehends intangible damage such as trust and confidence, even though such damage may be difficult to assess."

Documents containing information communicated by a foreign government in confidence
Section 33(1) A document is an exempt document if disclosure of the document under this Act:...(b) would divulge any information or matter communicated in confidence by or on behalf of a foreign government, an authority of a foreign government or an international organisation to the Government of the Commonwealth, to an authority of the Commonwealth or to a person receiving the communication on behalf of the Commonwealth or of an authority of the Commonwealth.

"17. In Gersten v Minister for Immigration and Multicultural Affairs (2000) 61 ALD 445 Wilcox J held that for the exemption in s 33(1)(b) of the FOI Act to apply there is no need for the information to be confidential in character or for disclosure to amount to a breach of confidence. At 448 he stated:

I do not think there is any scope for importing into s 33(1)(b) the equitable principles relating to breach of confidence. The paragraph recognises that there is a public interest in the Australian Government being seen by foreign governments, and their agencies, as a reliable recipient of confidential information; a government that will respect the status of confidential information that is supplied to it in the normal course of business. It would be neither possible nor appropriate for the Australian government to make judgments about the motives with which the information is supplied.

18.Whether a document is communicated in confidence is a question to be decided on the balance of probabilities (Re Environment Centre NT Inc and Department of the Environment, Sport and Territories (1994) 35 ALD 765), and there can be an implied or inferred understanding that the information would be kept confidential (Re Maher)"

Documents affecting relations with States
Section 33A (1) Subject to subsection (5), a document is an exempt document if disclosure of the document under this Act: ... (b) would divulge information or matter communicated in confidence by or on behalf of the Government of a State or an authority of a State, to the Government of the Commonwealth, to an authority of the Commonwealth or to a person receiving the communication on behalf of the Commonwealth or of an authority of the Commonwealth ... (5) This section does not apply to a document in respect of matter in the document the disclosure of which under this Act would, on balance, be in the public interest.

"21. To establish an exemption under s 33A(1)(b) of the FOI Act it must be shown that the information in question was communicated in confidence by a State to the Commonwealth. It is not necessary that the information in fact be confidential, or that it be communicated in circumstances giving rise to an obligation of confidence (Re Environment Centre). There needs to be evidence that there is an express or implied understanding of confidentiality between the Commonwealth and the relevant State (Re Parisi and Australian Federal Police (1987) 14 ALD 11). Section 33A(5) of the FOI Act provides that the exemption in s 33A(1)(b) of the FOI Act will not apply if disclosure would, on balance, be in the public interest. In Re Mann and Australian Taxation Office (1985) 7 ALD 698 the Tribunal held that if prima facie the exemption is established under s 33A(1)(b) of the FOI Act, then without positive evidence to establish that disclosure would, on balance, be in the public interest, the exemption will be made out."

Documents affecting enforcement of law and protection of public safety
Section 37(1) A document is an exempt document if its disclosure under this Act would, or could reasonably be expected to: (a) prejudice the conduct of an investigation of a breach, or possible breach, of the law, or a failure, or possible failure, to comply with a law relating to taxation or prejudice the enforcement or proper administration of the law in a particular instance; ... (2) A document is an exempt document if its disclosure under this Act would, or could reasonably be expected to: ... (b) disclose lawful methods or procedures for preventing, detecting, investigating, or dealing with matters arising out of, breaches or evasions of the law the disclosure of which would, or would be reasonably likely to, prejudice the effectiveness of those methods or procedures; or ...

"25. To establish the exemption under s 37(1)(a) of the FOI Act it is necessary to show that disclosure would, or reasonably be expected to prejudice an investigation, which requires more than a mere risk or possibility, and includes a situation where a person would be able to ascertain the state of the investigator’s information and thereby avoid detection (News Corporation Ltd v National Companies and Securities Commission (1984) 1 AAR 511).
30. As with s 33(1)(a) of the FOI Act, the requirement in s 37(2)(b) of the FOI Act that disclosure would, or could reasonably be expected to disclose lawful methods or procedures requires more than a mere possibility (News Corporation). In Attorney-General’s Department v Cockcroft (1986) 10 FCR 180 the Full Court of the Federal Court referred to could reasonably be expected to... and stated at 190:

In our opinion, in the present context, the words “could reasonably be expected to prejudice the future supply of information’’ were intended to receive their ordinary meaning. That is to say, they require a judgment to be made by the decision-maker as to whether it is reasonable, as distinct from something that is irrational, absurd or ridiculous to expect that those who would otherwise supply information of the prescribed kind to the Commonwealth or any agency would decline to do so if the document in question were disclosed under the Act. It is undesirable to attempt any paraphrase of these words. In particular, it is undesirable to consider the operation of the provision in terms of probabilities or possibilities or the like...

In Re Anderson and Australian Federal Police (1986) 11 ALD 355 the Tribunal held that a document may disclose methods or procedures either by specifically referring to or describing them, or by providing information from the nature of which the methods or procedures employed may be capable of being inferred."

Documents concerning certain operations of agencies
Section 40 (1) Subject to subsection (2), a document is an exempt document if its disclosure under this Act would, or could reasonably be expected to:
...
(d) have a substantial adverse effect on the proper and efficient conduct of the operations of an agency;
...
(2) This section does not apply to a document in respect of matter in the document the disclosure of which under this Act would, on balance, be in the public interest.

36. In Re Bayliss and Department of Health and Family Services (1997) 48 ALD 443 the Tribunal held that substantial adverse effect means an effect that is real or of substance and not insubstantial or nominal. In Re Wallace and Australian Federal Police [2004] AATA 845; (2004) 83 ALD 679 the Tribunal held that the exemption applied to information provided by the Thai police to the AFP on the understanding that the information would be kept confidential, and that disclosure would have a substantial adverse effect on the AFP by interfering with the close links between the AFP and the Thai police.

37. Section 40 does not prevent the disclosure of information where the disclosure would be, on, balance, in the public interest. In Re McKinnon and Commissioner of Taxation [2001] AATA 871; (2001) 48 ATR 1114 the Tribunal noted at [84] that ...satisfaction of the grounds in s 40(1) would ordinarily be enough, by itself, to make the grant of access prima facie contrary to the public interest.
39. In respect of the public interest consideration the Tribunal takes into account the objects of the FOI Act that recognise the right to gain access to documents in the possession of government agencies; the public interest in the scrutiny of the respondents in their investigation and prosecution of criminal activity; and the public interest in enabling an individual to gain access to information relating to that person’s prosecution and conviction. On the other hand there is a public interest in preserving the respondents’ ability to carry out their functions of investigating and prosecuting criminal activity in order to protect the community from the effects of serious crime. On balance the Tribunal finds that the public interest in non-disclosure outweighs the public interest in disclosure because the protection of the community requires the respondents to be able to carry out their functions of investigating and prosecuting criminal activity, and release of the exempt material would hinder their ability to do so effectively. Therefore the Tribunal finds that the exclusion provision of s 40(2) of the FOI Act does not apply to the exempt documents."

Perils of "Pauline", privacy, and old photos of someone

Mark Day in The Australian yesterday gave Crikey a serve, and the comment thread provides a range of views. Day's final point was:

"Crikey reported that it had taken upon itself to lodge an official complaint to the Australian Press Council about The Sunday Telegraph’s use of fake Pauline Hanson pictures last March. “Crikey (public duty and all that) complained to the Press Council (as) the sole regulatory voice for print journalism,” the email said. “We thought that a national newspaper group publishing cheesy nudes purporting to be images of a public figure lacked any connection to the public interest and also raised privacy concerns ... not to mention simple issues of morality and tact.” The Press Council decided against action because the editor had apologised, legal processes had been undertaken and resolved, and the matter was therefore beyond the council’s remit. I don’t mind Crikey, or any other person or entity, having an opinion and fearlessly expressing in any form - print, broadcast or online. But spare me the hypocrisy of a media outlet as flawed as Crikey seeking regulatory judgment against another."

Margaret Simons (welcome back) responded, among other points, as we had at the time, that the only apology about the photographs hinged on the fact they weren't Pauline Hanson, suggesting nothing would be wrong with publishing 30 year old photos of someone's behind closed door activities- if it had only been the right person.

Conclusive certificates-still going..

Edging closer-still not quite there. Debate on the Federal Freedom of Information (Removal of Conclusive Certificates and Other Measures) Bill 2008 got underway for half an hour in the House of Representatives last night, but was interrupted before the Bill passed. 13 speakers, but fairly predictable themes along party lines. The Bill was introduced in the Senate in November 2008 and passed there in August.

No sign yet of the broader FOI Reform bills. Special Minister of State Senator Ludwig said on 6 August "the bills will now be introduced into parliament."

Thanks to Open Australia for the Hansard link.

Commissioner endorses right to know, before final decisions.

In Re City of Subiaco and Subiaco Regional Development Authority [2009] WAICmr 23 the WA Information Commissioner strongly endorsed the public interest in the community being in a position to know what was going on, in matters of community significance, even though final decisions by the agency had not been taken.

The City of Subiaco Council sought review of a determination by the Authority to deny access based on the internal working document and business affairs exemptions, to parts of some documents submitted to its board between January and April 2008 concerning a major redevelopment. An interesting aside is that two of the five board members were Subiaco councillors.

Information Commissioner Bluemmel found the documents not exempt. While satisfied they contained advice obtained, prepared and recorded, and would reveal a consultation that had taken place, all in the course of, and for the purpose of, the Authority's deliberative processes, he was not satisfied disclosure on balance would be contrary to the public interest.

There was no evidence to support the claim that some disputed information (a draft report from a consultant) which had undergone alteration, could lead to ill-informed speculation and confusion if taken out of context.In any event, the Commissioner agreed with the former Commissioner who commented on a similar claim in relation to the disclosure of draft documents:

“I consider paternalistic and simplistic the view that the public is unable to understand the difference between a draft document and a final report. I also reject as fanciful the claim that the public is likely to be misled by the disclosure of documents that reveal a process of editing, correcting and refinement of written material produced by an agency.” [37]

Commissioner Bluemmel said if disclosure of the draft would not properly inform debate, it was

"within the scope and power of the agency to release other information to confirm that the disputed information does not represent a concluded position or that the agency has now moved on from such a position, in order to counter any confusion or uncertainty that may exist following disclosure under the FOI Act. The agency’s explanation may itself result in better information being provided to the community."[38]

The Commissioner[46] said it was appropriate in weighing public interest considerations to have regard to the particular interest of the Council in accessing the information, having concluded:

"In my view, it is arguable that the agency’s decision-making would be enhanced by a greater degree of transparency being afforded to one of its key stakeholders. Such disclosure may work to resolve difficulties by providing a better insight into, and understanding of, the agency’s views, consistent with the objects of the FOI Act. I agree with the complainant that the public interests in transparency and probity would be furthered by the disclosure of the community consultation material."[41]

The Commissioner said [45] there was a public interest

"in a local community being fully informed about development and redevelopment proposals which have the potential to affect the lifestyle and amenity of that community. Related to that, I consider that there may well be a public interest in the provision of such information occurring before, rather than after, any conclusions are reached and that this particular public interest is enhanced by the disclosure of relevant and timely information, so that the complainant - and through it, the community - can participate in the decision-making processes of government. In Re Shire of Mundaring, the former Commissioner said at [35]: “... if public participation is to have any meaning, it should allow input into the planning process at an early stage and well before a decision is made. Further, the public is only able to participate in such democratic processes if it has access to relevant and timely information.”

He concluded on this point:

"In weighing the public interest factors for and against disclosure, I have found that the public interests served by disclosure under the FOI Act outweigh the public interests in ensuring the integrity of ongoing deliberations by the agency, because I do not consider that the agency has established that disclosure could have an adverse effect on its ongoing deliberations or that any other public interest would be harmed by the disclosure of the disputed information."[49]

The Commissioner also rejected [51-61] submissions that the draft consultant report contained information that had a commercial value that would be destroyed or diminished by disclosure.

Searchability an issue in shift to proactive publication

Steven Bartos of The Allen Consulting Group writing in the Canberra Times on 1 September (no link available) on an issue raised here several times concerning the shift to proactive publication of government information: the need for agencies to organise and present their information so as to make it easily accessible in practice.

"Some agencies publish so much, of so little value, that finding truly useful information becomes a Herculean task... most readers of public service websites do not possess the heroic strength of mind required to find information from such un-navigable sites. Fortunately, hiding useful information in overcrowded websites is not universal practice. Some agencies publish information which: is organised logically (not just as lists) and well tagged, so search engines can find relevant material; have internal links on their websites that actually work; avoid embedding bulky PDF files; and have few annoying self-promotional graphics to slow down browsers. The trick for the Commonwealth will be to promote and encourage this kind of good practice in online publication, and discourage poor web practices, so as to turn the promise of more accessible information into reality. It is not difficult and requires no new technology, just willingness and a commitment to transparency.... the issue with information is not so much the technology but underlying culture. Many in the IT game have faith in the power of technologies to change entrenched public sector habits. The lessons of reforms in the 1980s and 1990s suggest that will not be enough: public sector reform is much harder and more complex. Drivers of public service culture change can be diffuse and varied. Ministerial direction is necessary but not sufficient; public sector agencies have a multitude of ways to comply with the letter but not the spirit. To entrench a new culture, broader factors must come in to play. Here, the lessons from overseas are encouraging. There is a growing mood for greater transparency and accountability in the United States and Britain; countries from which Australia, in a process called policy transfer, traditionally draws inspiration. Indeed, transparency in government is emerging in these countries as the key underlying theme for public sector reform....

Better transparency is.. an important policy tool to stem or reverse the erosion of public trust in government."

Calling all stations for an information commissioner

Speaking of good people, the NSW Government is on the lookout for an Information Commissioner to act as the "independent champion"of the new open government regime established by the Government Information (Public Access) Act which will commence in early 2010. An advertisement is in today's Sydney Morning Herald (Page 9- no link, but sure to be up soon here) calls for applications by 28 September so get your running shoes on if life's ambition calls.( Also in Business section of The Weekend Australian page 30.)

It's a top job for a leader and experienced manager with (paraphrasing here)
integrity and commitment to open and accountable government
who knows a lot about government processes
is comfortable with the exercise of statutory powers
has expertise in complaint handling and dispute resolution
and who can communicate and deal with a whole raft of stakeholders from general public to the leaders of government.
And you don't have to have a law degree!

Sound like you? Looking for the chance to make a mark? It's an independent statutory position accountable directly to the NSW Parliament. More details from Sarah Bradshaw at the Department of Premier and Cabinet on 02 92284657 (612 instead of 02 if you are in foreign climes) or
sarah.bradshaw@dpc.nsw.gov.au

A little FOI and whistleblower history passes

Malcolm Brown wrote of the funeral of journalist Basil Sweeney in the Sydney Morning Herald last week, noting his involvement in the Phillip Arantz story of 1971 when then Sergeant Arantz in charge of the NSW Police computer unit gave crime statistics to Sweeney showing crime clear-up rates were far lower than officially stated.

Arantz acted after bringing to the attention of the top echelon that incorrect statistics showing the Police were winning in cleaning up major crime had been tabled in Parliament, and that Parliament had been misled. No action was taken, Arantz gave the true stats to Sweeney and his life changed forever- taken into custody as the Herald hit the streets, declared insane by the Police medico, detained at Prince Henry Hospital for three days, charged with release of information without authorisation, dismissed from the force- while top cops and the ministers of the day stayed on and continued to reap ill-gotten gains.

The Arantz story was page 1 Chapter 1 in a 1972 book "Secrecy:Political Censorship in Australia" by a newly graduated law student who argued that Westminster style accountability as practiced in this country meant the public right to know was entirely in the hands of ministers and public servants who could virtually tell us anything they liked, and woe betide anyone who tried to tell the truth when it was inconvenient to the powers that be. The book put Freedom of Information and whistleblower protection on the agenda as the author Jim Spigelman, joined the staff of Federal Labor Leader Gough Whitlam who became Prime Minister in December 1972, with a commitment to reform. It took a while. Whitlam was long gone when a Commonwealth FOI Act came into force in 1982. Adequate whistleblower protection is still being discussed. The draconian Section 70 of the Commonwealth Crimes Act is still on the books, injustice to Allan Kessing remains a disgrace.His Honour James Spigelman is now Chief Justice of NSW.

Arantz died in March 1998. Brown recounted his story in the Sydney Morning Herald at the time. Repeated below because it's a reminder of the importance of laws that protect the right to know and individuals brave enough to stand and be counted. (From The Whistle May 1998 Whistleblowers Australia)

"He will go down in history as the archetypal whistleblower.

It was late in 1971 when the then Detective Sergeant Philip Neville Arantz decided he had had enough of the official deception -- the annual announcement of ridiculously high crime clear-up rates. He was determined the public should know the truth.

Mr Arantz, who died yesterday at Dubbo Base Hospital at the age of 68, created history when, through the agency of journalist Basil Sweeney, he had official figures published in The Sydney Morning Herald showing reported crime in 1971 was 75 per cent above the figures for 1970. The difference was so huge that it could not be explained by a crime wave.

Mr Arantz had pioneered computerisation in the NSW Police Force and headed the computer unit. But the Premier, Sir Robert Askin -- backed by the Police Commissioner Mr Norman Allan -- blustered.

Mr Arantz was immediately identified as the "leak," certified mentally sick by the Police Medical Officer, Dr A.A. Vane, and frog-marched on the day of the Herald story to a psychiatric hospital where he was kept for three days. The psychiatric report said there was "no evidence of psychosis ... an intelligent man with some obsessional traits, but they are not out of control and in the interview he was at all times alert, rational and showed appropriate effort".

Suspended without pay on December 7, Mr Arantz was charged with departmental misconduct for refusing to answer questions and on January 20, 1972, he was dismissed from the police force with no pension.

His appeal was unanimously dismissed by the Crown Employees Appeal Board. The then Opposition Leader, Neville Wran, referred to Mr Arantz as "this honest man".

Figures were later tabled in Parliament indicating Mr Arantz's version of crime rates was the true one, but he was out in the cold. Sir Robert let it be known that the NSW Government would regard any company that used his services as having committed "an unfriendly act".

Mr Arantz, father of three boys (one deceased) and three girls, stood as an Independent for the NSW Parliament and even contemplated bidding for appointment as police commissioner.

The incoming Wran Government in 1976 was less fervent in support of him than it had been in opposition. But when the Deputy Police Commissioner, Mr Bill Allen, was allowed to retire in disgrace in 1982 on the pension of a first-class sergeant, the unfair treatment of Mr Arantz produced a howl of outrage.

In 1985, the Wran Government paid him $250,000. He was finally cleared by special legislation, allowing him notional reinstatement in 1989. With his victory behind him, Mr Arantz retired to Dunedoo in mid-western NSW, and in 1993 published his story, Collusion of Powers."

Cloud cookoo still hanging over some in NSW Parliament

It's been on again this week as the NSW Government had another go at getting rid of the absurd law that would ban print media in NSW from publishing what everyone seems to describe as "crude league 'tables" of school performance. Here is some background if you missed it. It went down by one vote in the Legislative Council on Wednesday. The two Hansard extracts are here and here. . Government's role in all this is to publish and keep up to date accurate information on the best indicators of school performance, to tell us how to best analyse and interpret the information, and then get out of the way. The newly appointed head of the national body responsible for this sounds fully aware of the real issues.The mind boggles at what terrors some will see as Gov 2.0 moves forward and more data on all sorts of subjects becomes available.

Premier Nathan Rees told the PANPA newspaper conference yesterday that the ban on newspapers publishing information in the public domain was ''the greatest assault on press freedom in Australia in 50 years''- even allowing for a bit of rhetoric, it's up there with the best of them, in any event.

''The Greens-Coalition amendment undermines the capacity of our democracy to engage in healthy public debate,'' he said. ''It strikes at the very right of journalists and newspapers to report public issues without fear or favour …''This amendment may well be unconstitutional. It is certainly unethical and indefensible.'' The Herald understands the Government is considering seeking legal advice on whether the fines are unconstitutional. The Minister for Education, Verity Firth, said the Government had given the Opposition the chance to ''see sense on this issue, and they failed dismally''. The amendment would punish newspapers alone for republishing information that's already legally in the public domain''.

Action on entitlements by Labor, but Howard Government looked the other way

Senator Eric Abetz, Liberal Tasmania, Deputy Leader of the Opposition in the Senate. Shadow Minister for Innovation, Industry, Science and Research.

Plenty of media coverage today so I won't repeat the gory details of the parliamentarians' entitlements scheme and the way it has "worked" as revealed in the Auditor Generals' report released yesterday. In light of an email exchange with my local member, Opposition Leader Malcolm Turnbull in May about the lack of transparency, and his staunch defence of the adequacy of the system, I'll ask if he has anything more to say on the subject.

What doesn't get mentioned much in the media is that the Auditor General reported twice years ago about the same overly complex, poorly administered scheme, and the need to fix it, recommending a comprehensive review of the framework "against approaches adopted in similar jurisdictions as a basis for developing suitable proposals to improve flexibility, transparency and accountability... ." What happened? (Report 52)

"Various changes have since been made to some individual entitlements, sometimes to provide additional benefits (including to legitimise existing uses of entitlements) or to address particular instances of misuse. In addition, Finance has undertaken work seeking to strengthen or make clear the basis for entitlements. However, no fundamental changes were made by government to the framework in response to either the 2001‐02 Audit Report or subsequent 2003‐04 Audit Report, which made similar observations in relation to the framework governing the administration of Parliamentarians’ entitlements."

Then this from from the Department of Finance response to the draft report (pages 292-293) as a bit of an explanation for "confusion" regarding printing etitlements, of which the Department was unaware for five years:

"Finance’s guidance to Parliamentarians on, and its administration of, the Printing Entitlement was based on the document known as the ‘31 statements’. The document was developed during 2004 by the then Special Minister of State who sought considered advice from Finance on its contents. In preparing its advice to the then Minister, Finance consulted with the Department of the Prime Minister and Cabinet and with the Australian Government Solicitor. The content of the document, as subsequently agreed between the then Special Minister of State and Finance, was incorporated into advice provided to Senators and Members on entitlements use during an election campaign.

It was only on 22 July 2009 that Finance became aware that another reference point, known as the ‘42 questions and answers’ document, was apparently being relied upon by Parliamentarians in guiding their use of entitlements. This document had been provided to Finance by the office of the then Special Minister of State in 2003 as an internal working paper with no particular status. The document was never endorsed by Finance, nor was it incorporated into advice provided by Finance to Senators and Members on entitlement use during an election campaign. However, if the components of the 42 Questions and Answers document were read separately by Parliamentarians and relied upon, as we now understand has occurred, then the number of printed items that would fall outside of this guidance would represent a very small proportion of the items sampled by the ANAO."

The Special Minister of State in Howard governments from 2001 to 2006 was Senator Eric Abetz, who enjoyed a rare moment of fame (?) for his involvement, with Mr Turnbull, in the Godwin Gretch affair earlier this year, the subject of a previous Auditor General report.
Update: in debate in the Senate yesterday, Senator Ronaldson for the Opposition supported the recommendations but made no mention of the previous missed opportunities to fix the system.

Thanks to Open Australia for the Hansard link.

Reform, openness, transparency- for parliamentarians

The Australian National Audit Office Report Administration of Parliamentarians' Entitlements by the Department of Finance and Deregulation was tabled in Federal Parliament today (Steve Lewis of News had a couple of pre-release exclusives). Its not a happy tale of a cosy generally opaque system that has gone merrily along since the last comprehensive review (in 1971!!!!) with limited regard for the sort of standards we should expect, even when (make that particularly when) our politicians are on the receiving end of a swag of public money. All aided by a "gentle approach" to oversight by the Department of Finance and Deregulation. More on that in another post.

The good news was this announcement by Special Minister of State in response that the Government has accepted all the ANAO recommendations and major reforms to the parliamentarians' entitlements are on the way, in two phases.

"We are committed to reform, openness and transparency to ensure that we maintain the trust and confidence of the Australian people,” Senator Ludwig said.

From 1 October:

• a further 25% cut to the current printing entitlement, from $100,000 to $75,000 per annum for Members and $16,667 to $12,500 for Senators (this is in addition to the 33% cut by the Rudd Government when elected to office);
• ending the use of printing entitlements for electioneering such as printing how to vote cards;
• capping, for the first time, expenditure by MPs on office consumables such as toner and paper;
• combining the current printing and communications allowance entitlements into a single entitlement;
• establishing a rigorous vetting and checking system within the Department of Finance to ensure the material Members and Senators print is within entitlement;
• reforming the current newspapers and periodicals allowance; and
• expanding the current reporting system to publish all expenditure of Senators, Members, former Parliamentarians, family members and employees, of entitlements administered by the Department of Finance and Deregulation. ( I understand "online" despite the fact Report the media release didn't mention this.)
  

Other matters- including reform of a complex framework based on "a mix of Acts and Regulations, Remuneration Tribunal Determinations, Ministerial determinations, executive decisions, procedural rules, non-binding conventions and ‘accepted practices" - have been referred to a panel for report within six months. I don't see the terms of reference anywhere but ABC News quotes the Minister or some source that it will cover

".. entitlements provided at Parliament House itself, remuneration allowances including the current electorate allowance, private plated vehicles, overseas study travel, entitlements to life gold pass and severance travel, entitlements of former prime ministers."

Particularly pleased that the entitlements administered by the Parliamentary Departments (which include payment of electoral allowance as a straight no questions asked entitlement, period) is to be under the microscope.

Memo state governments:take a leaf out of this book.

Private life of public figures.

The resignation of NSW Health Minister and premier-plotter John Della Bosca last week after revelations of an affair with a woman half his age revived discussion of the line between public life and personal affairs.

Lenore Taylor in The Australian thought publication was in the public interest, given some links between the affair and official duties, and the plans he shared with the lover about toppling the boss; some quoted in this report in The Age thought we had a right to know because of a breach of public trust but others disagreed; Adele Horin in the Sydney Morning Herald was at least pleased we are a little more adult about such things than the Americans but we may be on a slippery slide.

And what effect will all this have on thinking in government about the recommendations on the table from the Australian and NSW law reform commissions for a statutory cause of action for breach of privacy? Both Richard Ackland in the SMH last Friday and Jonathon Holmes on Media Watch tonight think the media campaign against is likely to suffer as a result. Holmes found these highly relevant parts of the NSWLRC report:

"As regards personal relationships, information about sexual relationships is generally private, at least in the case of consensual relationships between adults. This... generally applies to adulterous relationships...

The information would not... be private if the public interest in disclosure of the sexual relationship outweighed the plaintiff's interest in privacy in the circumstances"

and cast doubt about some of the public interest claims used to justify publication, with additional information that hadn't previously come to light.

If a cause of action did exist-and the two proposals aren't the same, so the elements of any action are not settled at this stage and governments haven't responded - I'm not so sure Della Bosca would have had a reasonable expectation of complete privacy about the affair, although the publication of some hot emails between the two might be harder to justify. But given that he was holding out to some that he was the best man for the top job (married to a Federal MP with her own claims to notoriety and the two a power couple in NSW politics) it might prove to be a challenge to convince a court his right to privacy was absolute and outweighed the public interest in knowing about his character, particularly his intention and capacity to deceive ( the wife and maybe the rest of us). No doubt there are plenty of other opinions out there.