Still waiting for the details...

The Australian Labor Party keeps saying (in the very fine print in this article) that it is in favour of proper freedom of information laws and effective protection for whistleblowers, but is still to publish the platform adopted at the Federal Conference in April and even that is unlikely to contain much detail.

Familiar refrains on FOI

A flurry of information commissioner annual reports have hit the news overseas in the last couple of days.

Canada's Federal Information Commission gave a fail grade to the Prime Minister's Department, the Canadian mounties, the Justice Department, Health Canada and Transport Canada, for dragging their feet on freedom of information requests. Apart from these failures the Commissioner also says

"Too often access is denied to hide wrong doing, or to protect officials or governments from embarrassment rather than to serve a legitimate confidentiality requirement".

Still in Canada, the Ontario Information and Privacy Commissioner echoes these thoughts but she is sounding a message:

"After 20 years of experience with the Freedom of Information legislation the learning curve is over and bureaucrats should be farther ahead" she said after releasing her report. "Surely the time for secrecy and withholding information should have come to an end by now. When people come to the Government for information, too many bureaucrats are looking for excuses not to release it, instead of following the spirit of the legislation".

Meanwhile in Ireland the Information Commissioner in her report has again criticised the blanket exclusions of agencies such as the police from freedom of information legislation.

Some of the themes (but not the complete exclusion of police services) have resonance here.

Maybe light at the end of the "hygiene in restaurants" tunnel

We have already congratulated the pro disclosure of councils Blacktown and Woollahra for supplying information about restaurants in their areas. Unfortunately this has not been the case with other councils in New South Wales.

For over a year the Sydney Morning Herald Freedom of Information Editor Matthew Moore, has been trying to pry hygiene standard reports from many of the Sydney councils. They have chosen to use old "business affairs" excuse or parts of the Food Act rather than release this information to the public who deserve to know.

The media attention has finally prompted Minister for Primary Industries Ian Macdonald to step in and promise to amend the Food Act. Mr. Mcdonald said "I am totally happy to do it. I would hope to have it finalised in the spring session in Parliament".

We have suggested only last week that an online register of penalty infringement notices, to include any response from the food outlet is the way to go. All this shouldn't be a freedom of information battle ground.

In the SMH Editorial today "If you only knew how they made it" the paper points out:

"There is no faster, easier way for a government to raise food hygiene standards that to publish what food inspectors find so the world can know, and use the knowledge to decide where to book a table or what to buy".

Exactly.

MPs 'phone home' (yours)

No place to hide from politicians now.

Not only are they outside the scope of the Federal Government's 'Do Not Call' register, but changes to legislation that came into effect last week apparently gives them access to the Telstra-managed database that includes everyone's phone number and address, including unlisted numbers.

Expensive fishing trip

Maybe not quite a record, but this report that the National Tertiary Education Union has been told that a Freedom of Information request for information about workplace changes at universities would cost $455,000, is up there with the best of them!

The estimate is based on location and consideration of 347 files and according to the departments involved would take 12 years to process.

Federal Education Minister Julie Bishop dismissed the request as a "fishing exercise".

Canada's most secret government department

The Canadian Association of Journalists has announced the winner of its 2007 Code of Silence Award, the Department of Foreign Affairs. The Department denied the existence of documents related to the treatment of Afghan detainees, but was forced to release a heavily edited version of the report to the Toronto Globe and Mail in which every reference to torture and abuse in Afghan prisons was blacked out. The Department also failed to respond to 60% of Freedom of Information requests last year and received an "F" grade from the Information Commissioner.

The full details and the list of runners up confirm many earlier reports that Canada's Access to Information Act and provincial equivalents are not working well.

With reference to our last item concerning an important decision about the connection between Ontario's Charter of Rights and Freedoms and the FOI legislation, here is an interesting analysis by Tracey Tyler of the Toronto Star.

Victorian decision illustrates conservative FOI law

In a recent blog we mentioned the Victorian Court of Appeal decision that overruled a Tribunal judgment that would have granted a woman access under the Freedom of Information Act, to advice received by the Attorney General who rejected her mercy petition following a finding of guilt in a murder trial.

The decision in the case, (Secretary, Department of Justice v Osland (2007) VSCA96) illustrates the conservative nature of the legislation, and the very limited circumstances in which the Victorian Civil and Administrative Tribunal has powers to require disclosure of an otherwise exempt document on public interest grounds.

In the lead judgment, President Maxwell was able to distinguish other decisions that formed the basis of the Tribunal finding that legal professional privilege had been waived because the Attorney General publicly referred to the advice provided and what it recommended in a media release. Waiver, not having been found, the legal professional privilege exemption remained, and will remain forever. The Tribunal had committed an error of law in deciding that the public interest justified disclosure. It can only do so where it concluded that the public interest required disclosure and, the meaning of "require" is much narrower than the test applied by the Tribunal.

For further analysis of the decision by Rachel Walsh of Phillips Fox solicitors see here.

In an interesting development, given the fact that Victoria (and the Australian Capital Territory) are the only Australian jurisdictions with a Charter of Human Rights, the Ontario Court of Appeal ruled last week that sections of their FOI Act imposed "unjustifiable limits" on the right to free expression under the Charter of Rights and Freedoms. It's a case involving a request for details of the process that led the wrongful convictions of two men for murder in 1991.

Government speaks (softly) on information on restaurants

The silence from the NSW Government, mentioned in our blog yesterday about restaurant hygiene was broken with an announcement by the Minister for Agriculture (?) apparently responsible for the Food Authority, that a website will be established listing convictions. As the Sydney Morning Herald points out this isn't much of an advance at all, given the fact that this information is in the public domain already.

There is a lot of talk in the media about "name and shame" in this area. This misses the point that experience elsewhere shows that access to information about restaurant hygiene compliance improves public health outcomes as restaurants take steps to achieve high rankings or improve performance.

Public availability of information about the cumulative record of breaches of standards is seen to be important in achieving better outcomes in the regulation of other sectors. That's why the Australian Securities and Investments Commission publishes online a register of enforceable undertakings entered into by financial institutions found on inspection to be non compliant. And why, as required by the Home Building Act, the NSW Department of Fair Trading includes on it's website information about licensed builders including details of penalty orders imposed.

I'm struggling to understand why penalty orders issued for failure to comply with food hygiene standards shouldn't be in the same category, given the public health issues involved. As reported today, my view is an online register of penalty infringement notices, to include any response from the food outlet is the way to go. All this shouldn't be a freedom of information battle ground.

Interesting to find on the net one council (there may be others) in Australia publicises outstanding performance.

Australian Right to Know Campaign on the move

Irene Moss, former Ombudsman, head of the NSW Independent Commission Against Corruption and a Federal Race Discrimination Commissioner has been appointed to Chair the Australian Right to Know Campaign audit of media freedom. Freedom of Information is one of the isssues to be examined. This story in today's Age "Gagging democracy", about the former Customs officer, Allan Kessing, who blew the whistle on lax airport security and faces a jail sentence tomorrow of up to 2 years, is an indication of the potential scope of the exercise.

Another Sydney council comes clean on kitchens

The Sydney Morning Herald today in "Lid blown on hidden food safety breaches" reports about a second Sydney council (this time Woollahra) decision, to release infringement notices issued for food handling offences. The paper has approached each of the businesses concerned and included in the article their responses.

The Herald in an editorial"The other secrets of the kitchen" says that the difficulties in prising this type of information out of the system illustrates an

"obsession with hiding the truth (which) is an Australian phenomenon. The same Sydney diners who are not allowed to know the health record of their local restaurant can find out which restaurants in New York have had trouble with the health authorities, and why, from the New York health Department's website. In Britain, to, freedom of information rules have resulted in the publication of inspection results. It's time this supposedly global city caught up with the rest of the world".

I was asked to speak on this issue at a meeting yesterday of the NSW Local Government Managers Association Governance Network. My talk focused on the policy issue of improving compliance with food hygiene standards by making more information publicly available. Experience in other countries is that a grade card or scores on doors type scheme has the support of those responsible for public health and once introduced results in improved hygiene and better health outcomes. Until this sort of system is introduced, councils in NSW are faced with a dilemma about whether to disclose information sought under FOI.

My own view is that information that records a decision to issue an order or penalty notice is not covered by an exemption in the NSW FOI Act. In any event, a council has authority to disclose such information where it judges the public interest in disclosure outweighs any adverse impact on the business concerned.

A better system would be a database of results of inspections, centrally maintained for example by the NSW Food Authority and published on a designated website, with scope for the business concerned to have included their response and details of any rectification undertaken in response.

The big silence on the issue now is the NSW Government and what it sees as the best way to achieve policy objectives of high standards of hygiene in the handling of food we all consume in restaurants.

Passing personal information overseas raises privacy concerns

NZ Privacy Commissioner Marie Schroff, has expressed concern about the amount and type of information on New Zealanders being stored and processed in overseas databases. NZ privacy laws do not apply beyond its shores.

Australia's privacy law (as it applies to private sector bodies) has some international reach but it is seen to be weak compared to other models. A "reasonable belief" that the transfer is to a recipient in a country with substantially similar law to the Federal Privacy Act is one of a number of "limitations" on transfer of personal information overseas. What is a "reasonable belief" hasn't been tested in the courts and no one knows if any of our major corporations have been quizzed on the issue by the Privacy Commission.

Consent would also justify transfer, but a personal anecdote on this. In order to obtain a travel insurance benefit I was looking to apply this week for a new charge card. One of the fine print details stipulated in the application form was agreement that the company could:

"transfer personal information confidentially to related companies and other organisations which issue or service (the card). This includes transferring personal information to the United States or other countries for data processing and servicing".

No choice about it. Of course US privacy laws aren't all that flash and data held in the US must be provided on demand to security services. As to what goes in the unnamed "other countries", who knows.

The issue of adequacy of Australian law regarding trans border data flows is one of the many issues being looked at by the Australian Law Reform Commission.

When did Rudd see the light on government transparency?

Federal Labor Leader Kevin Rudd, perhaps sensibly acknowledged that his past record on openness and transparency when Director General of the Queensland Cabinet Office, could come back to haunt him, but he may not have anticipated that the then Queensland Information Commissioner Fred Albietz, would come out of retirement to make sure that we all knew the details.

In FOI 'never recovered from Rudd attack' The Australian reports that Albietz says that changes to the Queensland Freedom of Information Act made on Rudd's watch in 1993, allowed thousands of documents containing public service advice to be claimed to be exempt as Cabinet documents simply on the basis that they had physically been present in the Cabinet room when ministers met. The exemption has not been altered since, and has given rise to anecdotal stories that boxes of documents have been wheeled in and out of the Cabinet room on trolleys to give them protected status. Queensland and Victoria are the only jurisdictions in Australia that include an FOI exemption broad enough to apply in these circumstances.

The article quotes Albietz - regarded in FOI circles as an outstanding commissioner with a long line of reasoned decisions that reflected the open spirit and intention of FOI legislation - as saying that he was regarded as "a zero" by the then Premier, because of his views, and was for the chop if the Goss government was re-elected, but it lost and he stayed on in office until retirement in 2001.

Abietz devoted 24 pages of his 42 page Annual Report in 1994-1995 (starting at page 18), to a detailed analysis and criticism of a range of changes made to the FOI Act and regulations in 1993 on the basis that they reflected a disturbing return to the secrecy that had marked previous administrations in Queensland and had led to the Fitzgerald Royal Commission.

While Rudd has given an indication of general support for the Australian Right to Know Campaign, and may have had a conversion on the road from Brisbane to Canberra, more and specific details of Federal Labor's plans for FOI reform are needed before the election later this year.

UK private members bill gets Parliament off FOI hook

The UK House of Commons voted on Friday to exclude the Houses of Parliament from the Freedom of Information Act (the Bill now goes to the House of Lords), and the Lord Chancellor told a media law conference that the Government plans to proceed with a proposal that will limit requests from the media.

All this is seen as a major blow set back for transparency and primarily designed to reduce access to information about MPs use of public money. The Daily Mail says it's a "dark day for democracy". Quentin Letts, in a a column headed: "Want to know how these graspers spend your money? Get stuffed!" says "Rarely has the seediness of our political cadre been so nakedly demonstrated".

Victorian Court rules legal professional privilege trumps all

The Victorian Court of Appeal has found that legal professional privilege trumps any right to know in a case in which a woman who was subjected to repeated domestic violence and involved in the murder of her husband, had been refused a pardon on compassionate grounds. The Court in effect ruled against disclosure of the advice given to the Attorney General on whether to grant a pardon by three senior legal counsel.

The decision reverses a Civil and Administrative Tribunal decision that even though the documents were exempt, disclosure to the person directly affected was in the public interest.

The punters might have another view about the balance of the interests involved.

More open book for Education

Now this is more like it.

Newly appointed Director General of the NSW Department of Education and Training as quoted in The Daily Telegraph:

"(Coutts-Trotter) promised more information, previously kept secret by schools, would be released. "We are looking at what more we can do, rather than media organisations (and individuals) seeking it under Freedom of Information".

Federal ALP on board for FOI reform

Federal Opposition Leader, Kevin Rudd agrees that Freedom of Information reform is needed. As a one time Director General of the Queensland Cabinet Office, he acknowledges his record probably shows he isn't Mother Theresa on the question of access to government information.

To be meaningful however, reform will need to go beyond getting rid of conclusive certificates, the only specific ALP commitment to date.

Mark Day in the Australian is another who tells us why.

"Right to know" monkey on PM's back

The Prime Minister's advocacy of the public right to know, at least about what the state governments should tell us about the extent of bullying in public schools, is probably going to mean that he and his ministers will be regularly asked to explain particular decisions by his own government to refuse access to information of important issues. Matthew Moore in today's Sydney Morning Herald says that the media funded watchdog will be playing an important role in this in the lead up to the election.

Today's case in point is likely to be the refusal of the Department of Environment to release documents relating to the decision to provide the $10billion funding package for the Murray Darling Basin.

And of course there are many examples from the past of refusal by Federal Government agencies that make good copy - this article by Kelvin Bissett in The Daily Telegraph recounts (among others) an unsuccessful attempt to access Family Impact Statements prepared in the course of consideration of legislative proposals, even the list of relevant bills.

Best of the year so far though has to be Australia Post going to the Federal Court to (successfully) argue that the list of post offices and their addresses are exempt from disclosure.

The answer for the PM to get this monkey off his back is an announcement of change - revised laws, proactive disclosure of information that should be in the public domain, culture change within the government, adequate resources and speedy independent review.

Should Parliament be exempt from FOI laws?

In the UK, debate on a private member's bill that would exempt the Houses of Parliament from the Freedom of Information Act, will resume on Friday. It's been a hot topic there for months with some suggestions recently that the Government, or at least some prominent government MPs, are rallying the numbers to support the move.

Meanwhile in New Zealand, things may be going in the opposite direction. The Speaker of the House wants the Official Information Act extended to include the Parliament, and the Deputy Prime Minister thinks the idea has merit.

As previously noted here, none of the Australian FOI Acts cover the parliament. There may be better answers - requiring routine publication of information about payments, expense claims and travel undertaken by members of parliament, would be a boost to transparency and accountability.

Open government laws that work better protection from liars

According to today's papers, Julian Burnside QC, in speaking to the Future Summit in Melbourne brought the house down with his suggestion: "If we really want to make things better, I suggest we introduce a law that makes it an offence for politicians to lie".

Burnside apparently is serious. He says that the provision in the Trade Practices Act that makes it an offence for companies to engage in misleading or deceptive conduct provides the basis for his idea that politicians should be held to those same standards.

We all know this idea isn't going anywhere, but that in itself is a comment on the cynicism widely felt about what politicians say and do.

Transparency and open government laws that work offer better prospects of holding our political leaders to account.

A quick Google fails to reveal anyone who has written the book about lies and Australian politics, but plenty of examples will come to mind including "children overboard" and others. It's not clear whether porkies about political intentions would be caught by Burnside's proposal but Nicholson's "Dancing on lies" says it all.

In the US, lies from those in the Oval Office have been explored in many books, recently in Carl Cannon's "Untruth and Consequences". There is an imposing list that goes far beyond Nixon and Watergate, and Clinton ("I did not have sexual relations with that woman").

Of course history is still unfolding about Iraq.

So far only the Chief of Staff to the US Vice President has been convicted (of perjury).

FOI issue turns into public health debate

Food handling standards in restaurants, in NSW at least, is fast becoming a public health issue. Tim Elliott in the Sydney Morning Herald on Saturday quoted an expert in the field - some kitchens are "straight out of Monty Python with rat infestations and more cockroaches than you would believe".

Its hard to know whether things are any better now than in the 70s when three steak houses were prosecuted for selling horse meat. An expert says "when the news got out they were finished: local fellas would pop their heads in and yell out, "who ya got on today chef? Phar Lap or Bernborough?".

The Freedom of Information issue - that some local councils, and presumably the NSW Food Authority take the view that information about fines should not be disclosed because of possible harmful effects on the restaurants concerned - remains. Elliott quotes Des Sibraa, a former Chief Food Inspector for NSW as saying "thats the bloody idea. Name and shame - the public deserve to know".

Elliott also reports that Parliament will consider in July a bill to make council inspections mandatory. It's probably a surprise to most of us that it isn't already.

Let's hope Parliament also provides a lead on the public right to know about a major public health matter. The experts say it's time for Sydney to follow the international trend towards transparency with a Scores on Doors or similar scheme to put inspection reports on public display.