Where's the enthusiasm in Canberra for ending excessive secrecy?

Sometime soon (he says confidently) Senator John Faulkner's speech on the Government's transparency and accountability agenda at last night's Transparency International gathering in Sydney will appear on his website. It's not been posted so far (update- it has now and its a good and comprehensive speech of impressive achievements in many areas) but the only new news according to those who were there was an announcement of the publication of an annual report on ministerial staff employed by federal ministers- how many,what they cost etc.

There was nothing else new, reported at least: just a repeat of the commitment in principle we have heard often over the last 18 months:

"Transparency ensures appropriate visibility to government actions and the political process," Senator Faulkner said. "I've personally taken the view, after many years in both politics and parliament, that there's no better way to achieve integrity and accountability within government and government transactions than by promoting transparency and openness. "Australians must be able to know how their government works and have confidence that authority is exercised appropriately."

I'm sure Senator Faulkner is genuine, but given this sentiment, it's difficult to explain why we haven't to date seen a scrap of change or even a sense of urgency for reform in the FOI field.(Update-this year is again mentioned as the timetable for legislation to abolish conclusive certificates.) Or, apart from the occasional Faulkner speech, anything to progress the much talked about culture change to shift government away from its widely acknowledged preference for secrecy.

On the contrary enthusiasm for practical steps towards governing differently may be dimming in even higher circles, after almost a year of up-close and personal dealings with the public service and complex policy problems.

As John Roskam (of the Institute of Public Affaairs) in an opinion piece in the Australian Financial Review today notes:

"In a speech in Melbourne on Tuesday night, the Prime Minister spoke about the importance of maintaining business and public confidence during these ‘‘unprecedented times''. He went on to say: ‘‘It is incumbent upon all of us in political leadership to be very careful about what we say. Now is not the time to be questioning the head of the commonwealth Treasury. Now is not the time to be attacking the head of the Reserve Bank.''

The PM is right about personal attacks. But no questioning? Isn't that the scrutiny necessary for the transparency and accountability we have a right to expect?

Roskam seems to be reading the PM's remarks in the same way I read some signs from Treasury Secretary Ken Henry last week: these things are best sorted behind closed doors, what we say or consider there has to remain confidential, any questioning of our wisdom may have grave repercussions.Roskam continues:

"The cause of good governance in these ‘‘unprecedented times'' is best served by having more debate, not less.....The Prime Minister has two reasons why he thinks Australians should just sit down and shut up while he makes financial policy on the run. First, he says we must get economic policies ‘‘right'' and this is a process best undertaken without having an argument about them. Second, he argues that the lesson of the bank deposit guarantee saga is that ‘‘politicising'' such issues is ‘‘unhelpful in the markets''. The reply is simple. Making policy in the glare of public scrutiny doesn't guarantee that the policy will be right, but there's a greater chance of it being right compared to having the policy made in secret."

This isn't the time for the PM to be backing off his National Press Club commitment a year ago:"I'll end secrecy"

Two week extension for FOI submissions

For those like me struggling to respond to the NSW Ombudsman's 139 questions about how to improve the Freedom of Information Act and the way it is administered, a welcome extension of the deadline to 14 November.

Smoke still rising from the battle for Beacon Hill

The Save Beacon Hill High School Committee has long ago lost its eponymous battle, but the associated Freedom of Information skirmishes have continued, perhaps concluding with this decision by the NSW Administrative Decisions Tribunal to dismiss proceedings brought against Landcom.Three years after the original application and many slow steps in the process, Landcom released all remaining documents it said it could find about the sale of the school.The Tribunal rejected the Committee's attempt to keep the matter alive on the adequacy of search issue.

The decision highlights yet another problem about what can be done when this type of issue arises in the Tribunal, following the NSW Court of Appeal ruling that the Tribunal cannot go behind an agency's claims regarding what relevant documents are held.

The Administrative Decisions Tribunal Act sensibly provides for co-operation between the Tribunal and the Ombudsman on a range of matters and a memorandum of understanding between them (December 2006, pre-dating the Court of Appeal decision), specifically refers to referral by the Tribunal of a matter to the Ombudsman, even one outside Tribunal jurisdiction.The Committee sought referral in this case claiming it was not satisfied about the agency's steps to locate all relevant documents.

However Judicial Member Montgomery accepted arguments advanced on behalf of Landcom that the Tribunal's legislation limited the exercise of the discretion to refer to matters that came within its jurisdition. As the Court of Appeal had decided adequacy of search was outside jurisdiction, the Tribunal could not formally refer such a matter to the Ombudsman.

The President of the Tribunal remarked in a decision prior to the Court of Appeal ruling that it would be perverse if the Tribunal had to accept any agency claim about what documents were held, without powers to test or go behind such claims. He was right then, and the law should be amended to address the problem.This latest decision mitigates against sensible co-operation between two bodies with review powers, and further complicates matters for FOI users.It's another in a long list of necessary changes to the laws.

The deadline for submissions to the Ombudsman's review of the FOI Act was 31 October but I'm sure he is still open to suggestions.

Update:deadline extended to 14 November.

Transparency and accountability, after a fashion.

This isn't just a Victorian problem but The Age comments on the annual "democracy dump" that saw over 200 annual reports tabled in Parliament in one day.While the tabling of the reports in theory means we can all dig through those of interest, there is an issue just about everywhere of whether parliaments have the interest and capability to properly exercise oversight responsibilities by examining reports on executive government activities, and playing their proper role in the accountability chain.

Old ways in FOI decision making surface in NSW.

Yesterday we heard of the NSW Premier's intervention to require disclosure of documents that a government agency had fought for seven months to refuse access.Today a reminder of what the Premier must regard as the bad old days. News Limited papers report that the NSW Ombudsman may have found evidence of an attempt at direct political interference by a member of staff of the then Minister for Roads( now Treasurer) to force an agency determination to refuse an application under the Freedom of Information Act.More details in the Daily Telegraph.

Here are some comments from December 2007 on ministerial involvement in FOI decision making.

NSW to tick another transparency box

Now it's lobbyists in the sights as NSW Premier Rees pursues greater transparency and accountability, with this announcement of a NSW Government Lobbyist Code of Conduct including a public register to be in place by February 2009. It's to be modeled on the Federal and Western Australian precedents, with all of the weaknesses pointed out here in April. But things have come a long way since Premier Iemma made these dismissive comments about the need for any change in April 2007.

NSW Premier Rees tells RailCorp, and a broader audience he means it.

The Sydney Morning Herald today in "Rail blunders put hundreds of commuters at risk" gives details of an internal safety investigation report from RailCorp about two bungled rail projects that have cost NSW in excess of $150 million and that could have cost lives.We are reading about it, as Lynton Besser tells us, "because Premier, Nathan Rees, intervened to order the release of the report after a seven-month battle between the Herald and RailCorp, which is now before the Administrative Decisions Tribunal, to have the document released under freedom-of-information laws."Well to be accurate it's during that fight, with RailCorp represented by a big city law firm, which would have gone into next year.The RailCorp safety investigation report is here.

As Matthew Moore comments elsewhere in the Herald:

"Under Iemma, Bob Carr, Kevin Rudd or John Howard, this document would have remained secret. But Rees is desperate to be different. He told Parliament last week NSW would no longer be the secret state, and promised to change the public-service culture....(In intervening in this case) he's put public servants on notice that the rules have changed and sensitive documents such as this one should be released, even if it embarrasses people."

The Herald has posted the FOI determination by RailCorp to refuse access. Why RailCorp didn't want you to see the report is well-crafted template lawyer's stuff, and illustrates the range of excuses you can grab onto, supported by bits and pieces from decisions in various parts of the country, quoted selectively when they appear to help, to defend a decision to refuse access.There would have been a strong chance that the decision would have stood up to review in the Administrative Decisions Tribunal. A lot of evidence and legal argument beyond the resources of most of us would have been required to try to have the decision overturned.

However policy and the ground-rules have changed."We are deadly serious about changing the culture when it comes to government information," the Premier said yesterday.It will be an ongoing challenge to get this message through the various nooks and crannies of government agencies. And what will the ADT make of the Premier's statements on the public right to know in considering whether to release otherwise exempt documents in the exercise of it's discretionary powers?

The sun has risen this morning and the earth continues to turn on it's axis, contrary to what RailCorp predicted. And the ongoing debate about management of the rail system in NSW, a matter of major public significance continues, better informed.

How much time and public money was spent on this by RailCorp over the last seven months? How much more time, energy and money is being spent to prevent access to other documents about important aspects of the way our government carries out public functions?

Commonwealth Ombudsman reports on 2007-2008

The 2007-2008 Annual Report of the Commonwealth Ombudsman, Professor John McMillan, is now available, with a chapter (6- pages 114-115) on Freedom of Information. The report outlines various activities relevant to FOI undertaken by the Ombudsman, most of which have been referred to earlier in the year. Good to see the Ombudsman has been involved in whatever internal discussions have gone on within government circles about FOI reform, and that, apparently for the first time, independent government agencies in the Prime Minister's portfolio involved in integrity issues (the Ombudsman, the Australian National Audit Office, Australian Public Service Commission, Inspector-General of Intelligence and Security, National Archives and Privacy Commissioner) now meet regularly as a group. Moving right along now.....

The Ombudsman has been strong on the need for FOI reform but investigating complaints about FOI matters is a small part of what the office does-206 complaints last year out of a total of 18,000 within the Ombudsman's jurisdiction The majority of FOI related complaints were about Centrelink (23%) and Immigration and Citizenship (21%).The main issue raised continued to be delay in processing requests,(about 34% of all complaints) with another 31% about the correctness of the primary decision.

The Ombudsman gives agencies a tickle up over delays, the duty to assist applicants and ensuring staff are adequately trained, but disappointingly fails to give details or comment about the outcomes of FOI investigations or, in contrast to other chapters, to provide any case studies on FOI related investigations.

Getting FOI reform in the fast track

At the end of July I made some suggestions for action Senator Faulkner could take to shift things along on the Federal Freedom of Information reform front apart from the commitment to two phase reform sometime down the track. At that time and probably still, Senator Faulkner thought those complaining about slow progress were "ungenerous critics." My list appears to have made not the slightest impression on anyone in Canberra. So no illusions here about influence but what about a list of initiatives NSW Premier Nathan Rees could consider if he wants to keep the ball rolling in his plan to end excessive secrecy in NSW?

Matthew Moore in the Sydney Morning Herald on Saturday kicked things off suggesting the Premier could push agencies to respond positively to Ombudsman recommendations following the investigation of complaints regarding FOI, and provide guidance on what he expects to be disclosed publicly as a matter of routine, starting with the cost of ministerial trips and the cost-benefit analysis of major government spending commitments such as the staging a V8 car race at Sydney Olympic Park. On the first point, the Ombudsman's Annual report reveals 171 positive outcomes from 190 completed investigations in the year to 30 June, so there are a few from last year reluctant to accept the Ombudsman's wisdom. On the second,for starters get up on the web the register of interests of members of parliament, government grants made to organisations to carry out functions on behalf of the government, and inspection reports on food standards in restaurants, schools and hospitals.

As to other possibilities:

Designate someone with standing and clout (with no connection with the dark arts of the past) to act with your authority to turn things on their head in this area, as you explained your intention last week. Ask the Ombudsman to have his review report on your desk promptly, and in any event to let you have a first report on policy and public management issues by 1 January.

Tell Education and Health there is to be no more foot-dragging on the publication of information about performance in the schools and health systems and that NSW is to stand with, not against, Federal ministers in this endeavour.

Issue a policy directive that documents should be released unless there is clear harm to government, individual or business interests. Get rid of all the wishy-washy and in some cases questionable guidance in the Manual issued last year by the Premier's Department that provides a straw to hang onto for those looking for an excuse to knock back a request.

Put some performance measures in place and make it clear performance- particularly timely access- in this area is the responsibility of a senior officer in every agency. As the Ombudsman has pointed out NSW Police appaear to have systemic problems.

Tell agencies that in assessing charges the Government sees a public interest in use of the FOI Act to access documents concerning the conduct of government functions, or that will contribute to debate about matters of public concern, and that charges should not stand in the way of access to these type of documents.

Find out what happened after Morris Iemma acknowledged shortcomings (I use the word loosely) in the disclosure of government contracts on the web, as has been required by law since January 2007, and get things sorted so that local councils are subject to a similar requirement from 1 January 2009.

Check what sort of public money, time and energy is going into defending in the Administrative Decisions Tribunal questionable FOI determinations by agencies to refuse access to documents and convince agencies to pull the plug on those that aren't necessary in a government no longer to be described as the secret state.Ditto regarding any rearguard actions currently in the courts where government agencies are contesting Tribunal decisions.Ditto for complaints to the Ombudsman that haven't yet been investigated.

Go and talk to the next meeting of FOI officers from government agencies who meet in the Parliament House Theatrette on 12 November and tell them your expectations- this group meets every few months and has done so since 1989.It would be a first - none of your predecessors have ever attended a meeting

Whew, all this before getting moving on a new act early in 2009!

Good luck.

Henry on Treasury and transparency

Canberra Times
The coincidence of timing that had Senate Estimates Committees spending hours last week going over the fine detail of the Government decisions of 12 October on deposit guarantees and the fiscal stimulus package, provided rare insights into what happens behind closed doors on major decisions that have to be taken promptly. As someone once said when comparing sausage making with policy development, not a pretty picture and you'd never eat a sausage again. Treasury Secretary Ken Henry's picture also tells a lot about what eight hours before a senate committee can do to you.

This was classic policy on the run (well Treasury had been thinking about the stimulus package since January or February)- great uncertainty, limited information, not much time.So it's not surprising that the process in hindsight looks, well, untidy- little consideration of options, risks, or unintended consequences; limited input from the Government's own experts such as the bank regulator;no modelling or cost-benefit analysis; some round-figures like $10.4 billion plucked out of the air.Nor is it surprising that things need to be refined as events moved forward.

There are plenty of opinions about the rights and wrongs of what was decided, but what does the exercise tell us about attitudes to transparency and accountability? One thing that emerged is that Henry thinks government decision making is best left to insiders and would be improved if pesky people didn't ask questions about it later.

Henry told the committee, “In my view, it would be better if we had not had any media reporting on this issue. [This would] allow the officials the opportunity to reflect soberly and deeply upon the implications of the various options ”

Here is some of the media commentary since.

An editorial in The Australian:

"Dr Henry's evident discomfort at media coverage at Tuesday's marathon Senate hearing is understandable, given the picture that has emerged of a flawed policy process. He is in many ways a fine public servant, but he clearly does not appreciate the importance of media scrutiny, continuous disclosure and accountability in a free and open democracy. It was, after all, his department that frustrated the release of Freedom of Information documents on the technical issue of bracket creep, a case The Australian took all the way to the High Court."

Brian Toohey in the Canberra Times :

"On the contrary, more public discussion may have lead to an outcome that caused less disruption in the financial markets than the subsequent freezing of mortgage funds and so on.

At least Henry did not go as far as the Australian Federal Police Commissioner, Mick Keelty, earlier this year called for a ban on defence lawyers and journalists criticising the role of police and intelligence agencies in a terrorism case “until the full gamut of the judicial process has been exhausted''

When the opposition leader, Malcolm Turnbull followed up The Australian’s report (about disagreement between Treasury and the Reseve Bank) in parliament, Rudd’s initial reaction was completely over the top. He even accused Turnbull of having being on the “strong red cordial”. In his appearance before the committee, Henry criticised Turnbull for earlier calling for guarantee limited to $100,000, saying it was “unhelpful” to canvas the issue publicly.

Turnbull refused to accept that either opposition politicians, or the media, should stay silent. He said, “We live in a democracy. With great respect to Dr Henry, while it might be desirable from his point of view if the civil servants of Australia could make all these decision out of the gaze of the public, and no doubt the politicians, that's not the type of society we live in”.

Turnbull was right on this. As Michelle Grattan in the SMH said

"By being overaggressive the Coalition senators failed to make the most of their hours of grilling Henry. On the other hand Henry left himself open to criticism by sounding as though these matters were secret business of the Government and the "Official Family" - the Treasury, Reserve Bank and other regulators."

Henry also made the following revealing comment about his view of the public interest in access to information about public service advice: it can be disclosed where this will correct some apparent misreporting in the media.

'Whilst I would not normally entertain questions such as this one, and in my 24 years of appearances before these committees never have, I think on this occasion there probably is a public interest in my confirming that in respect of the advice that was tendered to the Government, and that supported the decision that it took on Sunday the 12th of October, Mr Stevens and I were of one mind,'' he said.

Earlier, Dr Henry told the committee that suggestions Mr Stevens had opposed the bank deposit scheme prior to its announcement were "W-R-O-N-G”.“Were reservations expressed? No,” Dr Henry said.

“We noted there would be matters of detail to be sorted out in the implementation of the package, we did not express reservations.”

“I'm surprised that people would imagine that things could possibly be otherwise in announcing a package of this size that it could be implemented without matters of detail, having subsequent to the announcement, having to be sorted out.”

No-one seriously thinks that. If they do it's because government goes out of it's way to try to sound as if it has all encompassing solutions to black and white problems.Routine disclosure of what the government's experts think would also encourage informed debate and public understanding of the issues and options.

More not less transparency, and honest straight talk would be in all our interests.

FOI reform movement not quite complete

I hadn't seen any sign of South Australia showing much interest in Freedom of Information reform but there is a glimmer in this strongly worded editorial in The Advertiser, deploring Australia's "miserable" 28th ranking in the Reporters Without Borders world press freedom rankings mentioned here yesterday:

"Premier Mike Rann has made some positive noises regarding reform of Freedom of Information laws but he needs to transform his well-known ability to talk into his less well-known ability to take action. Other states are taking up the challenge."

The other big gap in the Australian FOI reform pantheon is Victoria where the Government seems to have packed it in after a misguided effort came a cropper in the Parliament in February.

C'mon guys, all aboard!

Premier Rees clear message to NSW public sector:The public has a right to know

In addition to the media release issued yesterday, NSW Premier Nathan Rees made a statement in Parliament on improving transparency and accountability. The full text is at page 33 of Hansard.

Without repeating much of what was in the media release the following are some important points from the Premier's statement that ministers, ministerial staff, public servants and those who seek information from government agencies might keep in mind. They're the views of the man in charge (emphasis added):

"In the estimates hearing last week....I indicated my clear preference for publicly releasing reports that the Government has commissioned. Transparency and accountability are the cornerstones of good government. The people of New South Wales should be given as much information as possible about the activities of the Government.....

I have examined the(Freedom of Information) Act and met with the Ombudsman over the last six weeks and it is clear to me that this Act is broken. I plan to fix it. The days of a secret State are over. Queensland has done its own review recently. I support what Premier Bligh is doing and the direction she is taking: in particular, applying a stricter public interest test, reducing the number of freedom of information exemption categories and having more effective provisions so that time limits are complied with.

While it is tempting to just take the recent Queensland review and implement it here, the Ombudsman has asked me not to simply adopt those recommendations just yet but to wait until his report is complete in the new year. I have taken that advice and given my support for his review.

I intend to create a new Freedom of Information Act in New South Wales early next year after receipt of the Ombudsman's report. One should bear in mind that this Act is 20 years old, designed well and truly before the electronic age. It is broken and we will fix it. Obviously I cannot commit to implementing all of the recommendations sight unseen but I do commit to fundamental reform of the Act.

As I have discussed with the Ombudsman in recent weeks, the three most important protections that I think the freedom of information system needs to preserve are: first, the confidentiality of a citizen's personal information; second, the confidentiality of commercially sensitive information that might prejudice business community members; and, third, the confidentiality of Cabinet deliberations to protect the collective responsibility of Ministers in Cabinet, a notion that has served our Westminster system well, here and overseas, for centuries. Other exemptions are important but my general view is that the public interest is best served by making information freely available.

Many of the people I have spoken to in recent weeks about this matter said that it is as much about culture as it is about black letter law. In advance of a new Act I also committed to making changes promoting a pro-disclosure culture and practice in the public sector that go beyond the Freedom of Information Act. I firmly believe that the routine disclosure of information outside of freedom of information fosters transparency and makes the Government more accountable for its actions. It also cuts the taxpayer-funded cost of dealing with reams of freedom of information applications.....

Next week I expect more reports and information to be available. It is time for the culture within government to change. My clear message to the New South Wales public sector is this: The public has a right to know."

28 the number for Australia's press freedoms

Australia was 28 in the 2008 world press freedom index of Reporters Without Borders released this week. No change from last year, another indication of slow progress on the package of promised reforms (for example FOI, whistleblowers protection, shield laws for journalists) and of some of the extreme provisions in our anti-terror laws.The Australian report for 2008 is here.

With a brilliant sense of timing given their current place in the news, Iceland was first.Some of our usual comparators: New Zealand equal 7, Canada 13, United Kingdom 23 and US equal 36 (an improvement on last year but with with 135 countries ahead in the rankings.)

Transparency flag flying in the US as well.

Of course it's not just NSW where the call has gone out for more openness and transparency.Here, from Sunshine Week, is a list of, and links to, some of the voices urging improvement in the US, on the eve of Presidential and other election contests on 4 November.

Reporting on the death knell of the secret state.

The Sydney Morning Herald report today on Premier Rees announcement of the end of excessive secrecy in NSW unexpectedly describes me as a former head of the freedom of information unit in the Premier's office. For anyone scratching their head about this, I was never in that position nor ever an employee of the NSW Government. Merely a consultant including to Premier's for the first couple of years in getting FOI up and running in NSW.These days more commenting than consulting.

Premier Rees says days of a secret state are over

Well a powerful editorial in the Telegraph and look what happens? NSW Premier Nathan Rees issued this media release this afternoon Rees acts to end Government 'secrecy
A couple of extracts:

Mr Rees said he would turn the Freedom of Information system on its head to end a culture of secrecy within the Government and bureaucracy.“I’ve examined the Act and met with the Ombudsman over the last six weeks and it’s clear to me that this Act is broken,” Mr Rees said.“I plan to fix it - the days of a secret state are over.Mr Rees said he had written to the NSW Ombudsman offering the Government’s strong support of his review of the Freedom of Information Act 1989 (NSW).
“Today I am issuing a Memorandum to all Ministers asking them to ensure that their agencies take a more proactive approach to the release of ‘public interest’ information.“In particular, agencies will be directed to routinely publish information that is released regularly under the FOI Act.“The days of NSW acting like some kind of secret society have ended. It is time to change the culture of information exchange between the Government and the public.“I’m disappointed that some Government agencies – whose job it is to improve services – believe they should do so under some kind of black veil.“While certain details will always need to be kept confidential for legitimate commercial or security reasons, the public has a right to know a wide range of other details to give them confidence in Government decision making.”

This is exactly what is needed but strong,consistent and visible leadership from the Premier,ministers and senior public servants will be vital if NSW is to shake the secret state tag worn with apparent pride for many years. The devil will be in the detail of the law, policy and day to day implementation of the new order.

No getting away from it, it's great news.

Openness and transparency should be at top of NSW list

The editorial in today's Daily Telegraph, "Rees should unshackle FOI " puts reform at the top of current challenge list in NSW: "Premier Nathan Rees has much to do in his new job, but nothing so urgent as reforming the State Government's openness and transparency,"and concludes:

"The NSW Ombudsman Bruce Barbour this year initiated his own inquiry into the state's ageing FOI laws, which have become inadequate with new technology. Incredibly, Barbour has been left alone to sort out government transparency - a task requiring much assistance. Nathan Rees, as a matter of priority, needs to put on the table his reform plans for FOI, as has taken place in other states. Included in those plans must be more accountability for MP perks, publication of private sector deals and penalties for anyone who willfully abuses FOI laws."

Kelvin Bissett's article on the Ombudsman's Annual Report includes the following:

"Mr Barbour said yesterday there are "cultural issues" within government that continue to work against openness. He said any application that concerns sensitive information, or a request from a journalist, can be expected to be met with fierce opposition."

PM&C solution for leaks and other sundry wisdom

Senate Estimates hearings such as the Senate Finance and Public Administration Committee on Monday(see post below for a link to the transcript) often throw up little gems.The Department of Prime Minister and Cabinet material starts on page 20.

Who outside government knew the significance of a reference in an article in a magazine in October that the Secretary of the Department of Prime Minister and Cabinet Terry Moran had told staff of all departments after the FuelWatch leak in May " to watch their language" in co-ordination comments on cabinet submissions in case they later surfaced publicly?

Well no one present at the hearings on Monday could say whether these words had ever passed Mr Moran's lips- they plan to ask him and get back- but it was revealed that the leak had led to a decision in the Department to stop putting comments in writing . As Deputy Secretary Mrdak told the Committee, since 28 May, the Department has only provided verbal comment on cabinet submissions being brought forward by other ministers. It turns out it is still the case five months later. Mr Mrdak assured the Committee "we are looking to shortly recommence providing written coordination comments."That's a relief, as was his observation that the verbal only procedure was limited to PM&C. Let's just hope he's right and this good practice lead hasn't spread like wildfire across the public service in the meantime.

The response to the FuelWatch leak was to batten the hatches across government in the handling of cabinet material .Mr Mrdak told the Committee that apart from an Australian Federal Police investigation and an internal departmental investigation( outcome: the leak didn't come from PM&C):

"A number of measures have now been put in place inside departments to restrict the availability of material to those who need to know and see material. Additional security measures in terms of education and auditing of processes and also some additional security measures on the CabNet network are now being processed. Once those are all in place, which we expect to take place in the next week or so, we believe we will be in a position where we have enough assurance to recommence providing written coordination comments."

Inevitable probably. Alas no mention of my suggestion in June about another possible response to leaks that reveal, after a decision has been taken, differences of opinion among public service policy advisers:

"We... don't usually get to see what goes on behind closed doors,( apparently) in the interests of the government sounding decisive, wise and at one in choosing a particular course of action. If in announcing the decision to proceed with FuelWatch, the Government had indicated that expert opinion on the results for petrol prices was divided, even released a summary of what its advisers said, but concluded it held enough promise to go ahead, there would have been little room for subsequent embarrassing disclosure of differences in the ranks. Of course it would have been otherwise if the case for the proposal was threadbare. Maybe in that case the wise would not proceed."

I'd say the same applies to the current issue of who thought what about the deposits guarantee.

On another topic Geoff Mulgan, Adelaide's Thinker in Residence and formerly the director of Tony Blair's strategy office has been engaged to provide advice on the establishment of a similar division in the Prime Minister's Department and to provide advice on the Government response to the 2020 Summit recommendations, due by the end of the year.

And on something that had a big run in Estimates last time around, Senator Faulkner stuck to his guns that information about private functions of the Prime Minister at official establishments, such as last year's New Year's Eve bash, would not be disclosed but this commitment: "that for every official function we will make public guest list and costs."Senator Ronaldson raised the perfectly reasonable point that the result was that all the PM had to do was pay the bill to avoid any public knowledge of who he might wine and dine on taxpayer funded property that goes with the job. Senator Faulkner batted that one back by pointing out that the Howard government disclosed nothing about cost or attendance at any event hosted by the PM.

There are loads of trivia on other topics including the Prime Minister's household arragements, and more seriously, two breaches of the Code of Conduct for ministerial staff currently under investigation, but I'll spare you.

The short story of seriously progressing a high priority reform

Caucus Secretary and Minister of State Senator John Faulkner appeared before the Senate Finance and Public Administration Committee as part of the supplementary estimates hearings on Monday and was questioned about Freedom of information reform plans. It took a lot of questions (page 30) to get confirmation that phase one of the reform process, legislation to abolish conclusive certificates, will proceed; and that phase two reform including the establishment of an information commissioner "is being seriously progressed within government" and remains a high priority for the first term of a Rudd government.(The Government's term runs to near the end of 2010.)

What if any significance should be attached to the fact that there was no mention of "this year" in connection with phase one, or to an original timetable of late this year- subsequently changed to possibly next- for a discussion paper on phase two, I don't know, but some might fear the worst. In any event, for something being "seriously progressed" as a " high priority" for a government elected 11 months ago, visible progress on FOI reform is sooo slooooow.

Senator Faulkner hopefully will have more to say on the topic when he talks to Transparency International on 30 October.

The hearing covered many issues (a couple to be mentioned in my next post) and stretched from 9am to 11 pm, so a full reading of the transcript Finance and Public Administration could be seen to be cruel and unusual punishment. As for those who asked and answered questions.....

Two small steps for the right to know...

In addition to the brief summary in the last post, two other issues in the NSW Ombudsman's Annual Report Chapter 10 - Freedom of information.pdf represent small steps in the right direction.

The Ombudsman, supported by advice from the Solicitor General,makes it clear that an exemption in the Act (clause 13(a) Schedule One) where disclosure could be expected to found an action for breach of confidence, does not extend to a contract of employment where the parties have simply agreed to put in a confidentiality clause. The issue came onto the Ombudsman's table when a number of NSW universities refused access to the employment contract of the vice chancellor, and followed a decision supportive of this position in July 2006 by the NSW Administrative Decisions Tribunal.At the time we commented that the ADT decision was highly questionable and that the Ombudsman for years had been pushing the line, correctly in our view, that public sector employment arrangements, at least those for senior officers, should be in the public domain. The Solicitor General advised the Ombudsman:

“clause 13(a) is principally directed to cases in which a person has provided confidential information to a government agency and another person seeks to obtain access to that information by lodging a request under the Act. A right of action arising under a confidentiality clause of a contract would be for a breach of the agreement, not for a breach of confidence...The Solicitor General did not consider the disclosure of Vice Chancellors’ employment contracts would meet these criteria because the contracts would be unlikely to contain confidential information imparted by the VC to the university or vice versa."

The universities response could have been somewhat firmer:

"We have shared the Solicitor General’s advice with the universities and they have all indicated they would consider it in any future application of clause 13(a)."

The Ombudsman also reports success, again with some input from the Solicitor General,in persuading the Department of Education that it should revise a policy direction that any report of a school incident was for the dominant purpose of use in legal proceedings, and was thus subject to the legal privilege exemption in the Freedom of Information Act.This always seemed ridiculous: surely a report would be prepared so that there was an accurate contemporaneous record of what happened, and at the time no legal proceedings were underway or in reasonable prospect. Here is the relevant extract:

"Last year, we suggested the Department of Education and Training (DET) consider redrafting their reporting school accidents policy in regard to the application of legal professional privilege. DET’s policy stated that legal professional privilege will apply to all school accident reports, thus pre-determining a blanket exemption for such documents requested under FOI. Our view, supported by the Solicitor General, is that this approach is wrong. DET has advised us that they have now amended the policy to state that legal privilege ‘may apply.’"

So change in this field is by way of small steps I'm afraid.

However the Ombudsman's review of the Act proceeds, and the new Premier has said some of the right things and made what passes in NSW for bold decisions- ministerial media releases to be on the web, disclosure of payments to briefly employed spin doctors, release of a consultants report on what's wrong with RailCorp.

Who knows where this might lead.