Media FOI moves.

No " What they Won't Tell You" column by Matthew Moore (left) in Saturday's Sydney Morning Herald for the second week in a row- perhaps an unfortunate casualty of his appointment as Urban Affairs Editor in addition to his FOI Editor job. The weekly column has been a must read since inception three years ago and has provided a unique angle on what goes in FOI land.If it has been spiked, it will be missed by many, although governments in Canberra and Sydney probably won't mind.

Changes too at Sydney's Daily Telegraph with the departure of Investigations Editor, Kelvin Bissett (right), a prolific FOI user who used the Act very effectively to dig into NSW state and local government doings over the last five years.Before public servants everywhere take too big a sigh of relief, Bissett has joined the Nine Television Network, so you haven't heard the last of him.

Despite the continuing shortcomings in our FOI regimes, FOI use has been mainstreamed in many media organisations and use by journalists covering all sorts of beats has risen significantly in recent years. However as we all know, expertise in this complex overly legalistic subject is hard to acquire and retain and pretty necessary if you take on a government agency. The Tele will miss Bissett's years of experience and Moore's new responsibilities may mean less time on FOI related work.I'm not sure how and where journalists pick up knowledge in this area but it may say something that one recently asked me where to find FOI for Dummies.

Sunshine Week sets a shining example.

Next week 15-21 March is Sunshine Week in the US- a media initiated annual national campaign designed to heighten public awareness of the importance of open government.This year one feature will be a report on surveys of the information states make available on the web, undertaken in association with the American Society of Newspaper Editors' Freedom of Information Committee, the National Freedom of Information Coalition, and the Society of Professional Journalists' FOI Committee.

The toolkit of terrific resources available free for use by media across the US includes opinion columns, editorial cartoons, informational graphics and public service ads for print and broadcast.

US media owners, publishers and journalists do a great job to build and maintain a constituency for open transparent government, in everyone's interests, by investing in initiatives to improve public understanding of the importance of these issues.This long-term highly professional effort to alert the public to their stake in all this is something the Australian media coalition, Australia's Right to Know, together with like-minded partners, should seek to emulate.The coalition will break new ground by holding a Free Speech Conference in Sydney on 24 March.It's a welcome development, but have a look at Sunshine Week's Calendar of Events and the range of activities and organisations involved- not a one-off either, but part of an ongoing investment of time, money and other resources, deemed worthwhile by the many participants, even in tough financial times.

You'll see some examples of the US materials accompany posts here next week.

House of Reps speakers on Whistleblower Report

In case you were looking for a bit more about the Dreyfus Report on whisleblower protection these comments from speakers in the House of representatives following the tabling the previous day are of interest.I didn't know that Melissa Parke, Member for Fremantle who provided some useful context, worked with the UN in Kosovo, Gaza, Beirut, Cyprus, and New York, and brings with her from there, experience in establishing a UN Ethics Office.

Minister Faulkner says legislation will be introduced in this Parliament.

Thanks to Open Australia for the link.

Shades of Bleak House in NSW ADT

Some NSW Administrative Decisions Tribunal cases roll on and on, provoking memories of Jarndyce in Dickens' Bleak House where the case outlived everyone who knew anything about it.

Take this recent privacy decision by the Appeal Panel in a case by an unnamed applicant (WL) against Randwick City Council. In this decision the applicant won an application for leave to appeal against an earlier Tribunal decision.

(The more interesting legal point was that WL lost on a novel legal argument that the Administrative Decisions Tribunal was a court for the purposes of the Legal Practitioners Act. The Act requires certain documentation to be filed in court proceedings seeking damages including a certificate (Section 347) from any legal representative involved that “there are reasonable grounds for believing on the basis of provable facts and a reasonably arguable view of the law that the . . defence has reasonable prospects of success.” (Reasons at [15-25]). Not required in Tribunal matters was the ruling here.)

This is the short history of the WL case which concerns an alleged breach of privacy in 2005 when a council officer took photographs of allegedly unauthorised building works in an apartment building-no individuals could be seen in the photos-and sent a notice to the strata manager and other owners about the works:

The Tribunal in 2007 decided it had no jurisdiction to conduct a review because the photographs contained no personal information about WL, the owner of the premises; the Appeal Panel upheld his appeal, ruling that if the council officer knew the name of the property owner at the time the photographs were taken the photographs would constitute a collection of personal information (have to wonder about that one) and referred the matter for rehearing; the Tribunal Member who heard the original matter and was now conducting the rehearing rejected an application to disqualify himself from the proceedings on the grounds of bias; the Appeal Panel dismissed an appeal from that decision but ordered the matter to be reheard by a differently constituted Tribunal. Then last week's Appeal Panel decision referred to above granted leave to appeal- with the rehearing of the substantive matters in the case still to come.

Then there were two Freedom of Information Appeal Panel decisions last week against Michael McGuirk, in which he sought to reopen decisions already made against him by the Panel (one involving the Ombudsman and another the University of NSW), those decisions having followed several earlier Tribunal decisions. These are just the latest in a series of cases involving myriad points about the interpretation of the Act, claims of errors of law, challenges to jurisdiction, arguments about charges, and allegations of bias on the part of Tribunal members, even collusion between the Tribunal and the Ombudsman's office. Mostly to no or little avail.

Everyone should be able to fully pursue rights at law but one shudders at the cost to taxpayers in terms of Tribunal time, and agency time and expense. Bearing in mind the Victorian estimate of $15000-$60000 for each review case, we are talking of hundreds of thousands in some of these instances. There must be a better way.

Federal Opposition shows contempt for transparency and accountability

I can't add anything more or say it better than Bernard Keane writing in Crikey today, so here are most of his comments about an important vote in the Senate that didn't get much attention in the major media:

"...yesterday probably witnessed the low point in political accountability in this Parliamentary term.In the Senate, the Coalition combined with Steve Fielding to block the Government’s electoral reform bill, which would have reversed some of the Howard government’s savage attacks on political transparency, such as returning the donation disclosure threshold from $10,900 to $1000.

The return of the donation disclosure threshold to $1000 was a well-advertised election commitment by the ALP in 2007. It has been blocked by the party that lost the election and a senator elected on the vote of 1.77% of Victorians.

The bill also tightened donation reporting requirements to end the farce that meant we didn’t find out who had donated to parties before the 2007 election until February this year and banned foreign donations.

Shadow special minister of state Michael Ronaldson, who has not supported a single one of the Government’s efforts to increase political transparency and accountability, immediately issued a gloating press release declaring “Labor has only itself to blame” for the defeat of the bill. Well, actually Senator, the people who voted against it are to blame. You and your colleagues and the fragile fundamentalist from Victoria.

Fielding, at least, had a sort of reason why he blocked the bill. Fielding complained that public funding of political parties “has been rife with rorting”. You’d think that, given the bill specifically includes a Pauline Hanson-inspired limit so that parties can only claim funding for their actual expenses, Fielding would therefore support it. Instead, Fielding wants a separate cap on public funding of political parties of $10m, an entirely separate issue. And a limit on public funding -- the Labor and Liberal parties got about $20m each for the 2007 election -- would, one would expect, further encourage reliance on donations. But, nevertheless, that was Fielding’s excuse for voting against it.

Perhaps he’s grumpy that the Government will no longer be participating in the death of women in developing countries who are forced to seek unsafe abortions.

The Opposition, however, have been trying to block this bill from the get-go. They referred it to the Joint Standing Committee on Electoral Affairs, which is conducting the usual inquiry into the last election. This was an attempt to ensure it wasn’t even considered before June this year. Labor circumvented that by bringing forward the inquiry into the bill. To demonstrate how important they thought the inquiry was, the Liberal Party lodged a contemptibly brief one-page submission demanding the bill be withdrawn. Nevertheless, the Joint Committee recommended some amendments to the bill, which the Government accepted. It was good enough for the Greens and Nick Xenophon, but Fielding and the Coalition killed it.....

Faulkner will reintroduce the bill as soon as possible -- possibly next week. The Coalition has placed on record its utter contempt for transparency and accountability. Will Steve Fielding do the same again?"

Business-as usual- in Western Australia.

Six months in office, the Western Australian Premier Colin Barnett on Tuesday in a statement to Parliament outlined the Government's plans for the year ahead. It's a full agenda of issues and challenges. While "Government Accountability" made it into the headline there is nothing much in the speech on the subject although full marks for establishing the Public Service Commission"to restore and reinforce the professionalism and independence of the public service."

That was it really-no mention of Freedom of Information reform or privacy legislation, with bills last debated in 2007 no longer on the table.It's a far cry from September last year when the Government acknowledged the need to do better on transparency and accountability including

"to revive privacy legislation which has languished in the parliament, to scrap Labor's proposal to replace the merits review powers of the FOI Commissioner with the State Administrative Tribunal and to "review the manner in which Departments are administering the FOI process to ensure that Government is accountable and open in accordance with the spirit of the FOI Act."

This progress report in December after 100 days didn't make any reference to these commitments but gave an update on the Commissioner's position :

"Restore an independent Freedom of information Commissioner- Issue has been before Cabinet. The position has been advertised (closed 18 December) and an appointment will be made in the new year,"

In March 2009 John Lightowler remains Acting Information Commissioner. There hasn't been a permanent appointment since 2004.

The West Australian's interest in these issues has been hard to spot, even under new management- here is what a search on their site for "Freedom of Information" throws up- and Keryn McKinnon's blog is still stuck at July 2008.

C'arn the Sandgropers, keep 'em honest over there.

Sunset and sunrise for Victorian FOI regulation.

That report in The Age earlier in the week about community health centres to be excluded from the Victorian Freedom of Information Act was based on the proposed rewrite of the Freedom of Information Regulation 1998 which sunsets in April 2009. (Thanks to a Queensland reader for the lead!!!)

The draft regulation lists organisations prescribed as agencies for the purposes of the Act and office holders excluded from the operation of the Act.The proposed new regulation and an accompanying 71 page Regulatory Impact Statement setting out the reasoning, costs and benefits of what is proposed is here. For comparative purposes the current regulation is here. If you are concerned about any of this you need to get moving-submissions close 18 March.

The Age report about community health centers was correct - the reason given on page 16 of the RIS is:

"They will instead be subject to a new framework comprising a voluntary registration
scheme and performance standards. Centres which register will be required to be companies limited by guarantee. These changes are the result of the Health Services Amendment Act 2008, which was passed by the Victorian Parliament on 4 December 2008."

I can't see anything to support The Age claim that other organisations that rely on government funding are also to be relieved of FOI obligations.

All our Freedom of Information acts include a power to declare certain bodies as agencies for the purposes of the act, but the detail and specificity in the Victorian regulation leaves most other jurisdictions record looking pretty thin. According to a comparative table (Attachment 2 to the RIS) Queensland, South Australia, Western Australia, Tasmania and the Northern Territory have never used the power to prescribe any bodies.

There are some interesting gems buried away in the RIS, including Table 5- the criteria used to analyse the costs and benefits of prescribing a body as an agency; and some worked examples on the average cost of handling FOI applications in Victoria ( pages19-23): $544 for a straightforward request involving few documents and $5341 for a complex one. And if a matter ends up in the Victorian Civil and Administrative Tribunal add $15000-$60000 to the cost to the taxpayer.

In my view, makes the case for the savings to be had from more pro-active disclosure, for better use of technology in processing applications and shifting from documents to digital information, and for good judgment that ensures agencies only end up and hang in to the end in the Tribunal where essential public interests are at stake.

Senate Committee says yes to no conclusive certificates.

The Senate Finance and Public Administration Committee reported yesterday on the Federal Government's legislation to abolish conclusive certificates from the Freedom of Information Act and recommended....

"that the Senate pass the bill."

That's it, apart from some additional comments from the three Opposition Senators (who supported the Bill in any event) that in reality conclusive certificates had rarely been used during the Howard era, and that of greater interest and concern should be the Rudd Government's record on disclosure under the Act as revealed in the Annual Report tabled last month.

The Committee Report includes good and stirring words about the importance of Freedom of Information as part of the fabric of democratic society, and summarises the points made in most of the few (eight) submissions received, and by witnesses in the one Committee hearing that lasted a little over an hour.

As all the submissions and witnesses favoured abolition it's not surprising the Committee concluded as it did. The only matters that had elicited comment from those of us who did participate were on the couple of consequential changes regarding review and several add-on provisions that the Government slipped in and had nothing to do with certificates. The Committee without any attempt at reasoning just wasn't interested in any of the points raised- things like a suggestion to give the AAT an override discretion to order release of exempt documents on public interest grounds, or several who challenged the necessity to give a blanket exemption for documents received by a minister from security and intelligence agencies.

So another three months has passed since the bill to achieve this first phase FOI change was introduced, and the way has now been cleared to pass an important and almost universally supported reform. But 16 months on from the election of a government committed to fundamental change ( particularly a change in culture) we are still to hear about the Government's big picture Freedom of Information proposals or see any serious effort to send a message to the public service that things should be done differently under the Rudd Government.

All eyes on Minister Faulkner at the Freedom of Speech Conference in Sydney on 24 March.

Union access and workers privacy-serious issue or storm in a teacup?

Interesting that one of the hot issues in the Senate over the Government's industrial relations legislation to replace Workcover is the union right to enter the workplace and to access records of non-members and members alike in certain circumstances. According to The Australian:

"(Opposition) MPs are expressing varied views on industrial relations, with Liberal backbencher Wilson Tuckey arguing nobody, including unions, should have the power to inspect a person's payroll records without their written approval. He said Workplace Relations Minister Julia Gillard was fiddling around at the edges saying any issue could be referred to the Privacy Commission. “You'd need a staff of thousands,” he said. “And that's just one example of why this bill is about union enhancement, not workers' enhancement.”

The Privacy Commissioner told the Senate Estimates Committee (Finance and Public Administration 23 February pages 88-90) that she had raised concerns about privacy issues in the emerging draft bill with the Department of Employment and Workplace relations last year. Apparently not having received much of a response she made a submission (PDF) along similar lines to the Senate Committee that examined the bill, after it had sailed through the House of Representatives without any fuss. Her concerns were union access to an employer's records could result in access to irrelevant information about an employee's mental health, criminal record, the fact that their wages were garnisheed, or details of child support payments. Her recommendations included the addition of a requirement that access should only be to information "directly relevant" to the dispute or incident, but as emerged at the Senate Committee hearing, this still poses some difficult issues of interpretation.

Deputy Prime Minister Julia Gillard on ABC 7.30 Report last night said unions had a longstanding right of entry to access information relevant to an industrial dispute or workplace safety incident.

In NSW law and I assume in the other states this is the case. I can't recall hearing a peep out of the NSW Privacy Commissioner's office about any privacy concerns or about any complaints. Maybe like most privacy issues here, the low profile helps.

The following is from current guidance issued by the NSW Department of Premier and Cabinet on the subject. There is no reference to "directly relevant" here and there are fines if employers don't provide information:

"Agencies cannot rely on the PPIP Act or HRIP Act to avoid disclosing information that must be provided under other laws. Some examples of the impact of other legislation are given below.

Example 1: Personal information about employees that must be provided under Industrial Relations Act 1996 (IR Act)
Part 7 of the IR Act confers certain powers of entry and inspection on officers of industrial organisations, eg unions. Under section 298 of the IR Act authorised industrial officers (authorised industrial officer is defined in section 296(1) of the IR Act and means an officer or employee of an industrial organisation of employees who holds an instrument of authority for the purposes of Part 7 of the IR Act issued by the Industrial Registrar under section 299 of that Act) may enter, during working hours, any premises where relevant employees (relevant employees are defined in the IR Act as employees who are members of an industrial organisation, or who are eligible to become members of that industrial organisation) are engaged, for the purpose of investigating any suspected breach of the industrial relations legislation or of any industrial instrument that applies to those employees.

For the purpose of investigating a suspected breach, the authorised industrial officer may view any employee records and other documents kept by the employer that relate to the suspected breach. The authorised industrial officer may also make copies of the entries in any such records or other documents related to such a suspected breach. Before exercising their power of inspection, authorised industrial officers are required to give the agency at least 24 hours' notice or, if records or documents are to be viewed, at least 48 hours' notice.

The PPIP Act does not preclude obligations on agencies to provide access to employees' time and wages records where an authorised industrial officer gives the appropriate notice. As disclosure of this information to the authorised industrial officer is required under the IR Act, section 25 of the PPIP Act permits non-compliance with section 18 of the PPIP Act. A number of the HPPs in the HRIP Act provide similar exemptions. Fines may be imposed under the IR Act if the information is not provided.

Example 2: Personal information about clients that must be provided under the Occupational Health and Safety Act 2000 (OH&S Act)
Section 8 of the OH&S Act requires that employers must ensure the health, safety and welfare at work of all employees of the employer and also that people (other than the employees of the employer) are not exposed to risks to their health or safety while they are at the employer's place of work. Section 13 of the OH&S Act requires that an employer must consult with the employees of the employer to enable the employees to contribute to the making of decisions affecting their health, safety and welfare at work. As part of those consultations, agencies must share relevant information with their employees or persons acting on the employees' behalf eg union representatives.

Where there is a suspected breach of the OH&S Act, the authorised representative (under the OH&S Act, the authorised representative of an industrial organisation is the same as an authorised industrial officer as defined in the IR Act) of an industrial organisation may enter the premises where an agency's employees work and may require the production of documents which "directly affect or directly deal with the occupational health and safety of employees working at those premises" (see section 81 of the OH&S Act). Such documents may include personal information about clients. By operation of section 25 of the PPIP Act and HPPs 4,5,6,7,8, 10,11,12, and 15, the requirements in section 81 of the OH&S Act lawfully authorise disclosure where it would otherwise be in breach of the legislation.

Entry of an authorised representative must be in accordance with Division 3 Part 5 of the OH&S Act. Although this allows entry to the premises without notice, the agency should be notified of the authorised representative's presence on the premises as soon as reasonably practicable unless

• to do so would defeat the purpose for which the premises were entered or would unreasonably delay the authorised representative in a case of urgency, or

• the agency is already aware that the authorised representative has entered the premises or was notified in advance (see section 78 of the OH&S Act).

It is an offence under section 84 of the OH&S Act to refuse or fail to comply, without a reasonable excuse, with a requirement made by an authorised representative.

Public sector agencies that are satisfied that documents may be disclosed to authorised industrial officers under the IR Act or authorised representatives under the OH&S Act must make it clear to those representatives that the documents provided must not be used for a purpose other than that for which they were required. In some cases the industrial organisations involved (such as unions) will be bound to do so by application of the Privacy Act 1998 (Cth)"

Victorian dabble with FOI change.

According to this article in the Sunday Age some changes afoot in Victoria to remove community health centres and other organisations that rely on government funding from the Freedom of Information Act. The article is short on the source and the detail, so not sure of the fine print.The broader issue raised by Professor Spencer Zifcak is that privatisation, or contracting out, of parts of government has led to a vast array of government bodies which were previously subject to the FoI process being removed from that system. He's right although I'm not sure whether the community health services were ever a part of the government structure.They clearly exist and are funded by government for public purposes. Reviews in Queensland and NSW have suggested changes to address the problem.Sounds as if the Victorian Government is yet to recognise there is one.

Does anyone know the Victorian Government's position on broader Freedom of Information reform? It's over a year since the Legislative Council threw the baby out with the bathwater.

Must read-only joking-the weekly.

Some comments from Rick Snell, Michael Head of the University of Western Sydney and me about the NSW Ombudsman's Freedom of Information review report, and the challenges ahead, in this week's Lawyers Weekly.

Victorian Supreme Court on secrecy provision and FOI.

Justice Beach of the Victorian Supreme Court in Secretary to the Department of Justice v Western Suburbs Legal Service Inc [2009] VSC 68 had to consider the relationship between the Freedom of Information Act and secrecy obligations imposed by the Corrections Act in an appeal against a VCAT decision that a 2004 report by the Corrections Inspectorate entitled “Review of the Administration of Separation Orders – High Security and Maintenance Units" was not an exempt document.

The Victorian FOI Act (Section 38) provides:

"A document is an exempt document if there is in force an enactment applying specifically to information of a kind contained in the document and prohibiting persons referred to in the enactment from disclosing information of that kind, whether the prohibition is absolute or is subject to exceptions or qualifications."

Unlike better practice as illustrated in the Commonwealth Act and the Queensland draft Right to Information Bill, there is no list included in the Victorian FOI Act of those acts that contain secrecy provisions which in effect take precedence over it.

Justice Beach rejected a submission that Section 38 should be interpreted narrowly:

"20 There can be no issue that the Court should strive to interpret the FOI Act “in a manner harmonious with its objectives, doing so to the fullest extent that the text allows”. Similarly, “[a]n approach hostile to disclosure of information in documentary form” must be eschewed. However, the approached (sic) required to be taken in interpreting s 38 of the FOI Act does not permit the Court to disregard or take liberties with the text of the Act. To the contrary, whilst the Court should strive to interpret the FOI Act in a manner harmonious with its objectives, it should do so only to the fullest extent that the text actually allows.

21 In this case the text of s 38 is plain. In order for a document to be exempt, the relevant enactment must prohibit “persons referred to in the enactment” from disclosing the relevant information. Section 38 does not provide that the enactment must prohibit the person in possession of the document or the person to whom the document was provided or the person to whom the document was addressed from disclosing the relevant information: it only provides that the enactment must prohibit persons referred to in the enactment from such disclosures."

The issue in this case was whether Section 30 of the Corrections Act-which prohibits disclosure of certain types of information held by specified persons- satisfied the criteria, and whether the Secretary was a person who held a position referred to in the provision.Most of the positions specified are those of people working in the prison system. Although it had not been argued in the Tribunal, Justice Beach found that as Section 17 of the Corrections Act gave the Secretary "all or any of the powers or functions of a Governor of a prison or a prison officer or escort officer under this Act,” the Tribunal had erred in law in finding that the Secretary was not a person prohibited by the Act from disclosing information of the kind contained in the report.The matter was referred back to the Tribunal for reconsideration in accordance with reasons in the judgment.

While the need for security in the prison system is unquestioned, Victoria and the other states should follow the Commonwealth lead (now with the Australian Law Reform Commission) and that of Queensland to re-examine the secrecy provisions in other acts to ensure consistency with open government principles, and to list the legislation that withstands re-examination in the FOI Act itself.The 2007 Independent Audit of Free Speech Report ( page 86) identified 45 Victorian acts containing secrecy provisions.

Police wall more formidable than APEC security.

The"Great Wall" that divided Sydney during the 2007 APEC Summit cost $2million, and most memorably couldn't keep the Chasers out.But the most intriguing aspect of the report by Edmund Tadros in The Australian yesterday was this:

"Police have been fighting a Freedom of Information request for the full price tag of the fence for more than 16 months. It was only after the intervention of the NSW Ombudsman that the force relented and released the costings to news.com.au."

Just a reminder:Premier Rees on 24 October 2008:

"My clear message to the New South Wales public sector is this: The public has a right to know."

We need dreamers.

www.smh.com.au

I haven't read Geoffrey Robertson's new book "The Statute of Liberty: How Australians Can Take Back Their Rights"( Vintage Australia) but an extract published in the March 2009 Australian Literary Review (no link to the article I'm afraid) consisted of a draft of an act "to declare the rights and freedoms of the people and to make better provision for liberty in Australia."

Robertson (not everyone's cup of tea, I know-see Paul Toohey for his experience of a recent Hypotheticals) who has well-earned standing in this field says

"any statutory enumeration of basic freedoms should list those the advanced world holds to be universal, but the Australian statute should be infused with a spirit that reflects national pride and national progress. The adoption of a statutory charter would provide an opportunity for Australians to incorporate some of their struggles and achievements in the advance of human freedom and to reflect traits that (optimistically perhaps) we regard as self-definitive. A charter works for ordinary people (a condescending phrase used by lawyers to describe persons who are not lawyers) and it is they who must understand it."

The draft includes a long preamble citing achievements and regrets, 25 provisions on rights, one to allow derogation in times of national emergency, and another on the duties of Australians and plonks on the table as the National Consultation gets underway.

Robertson's ambitious list seems miles ahead of the debate we are about to have , and the extract doesn't go to how these rights might be best protected, which seems to be one of the crucial issues. It includes proposed words on freedom from slavery; prohibition on torture; right to life (after birth); freedom from compulsion; right to be set at liberty; rights on arrest; the open justice principle; right to trial by jury; the right to fair trial; no punishment without law; freedom of movement; freedom of thought, conscience and religion; right to own property;right to work; right to wellbeing; right to education; right to democracy; rights of parliamentary representatives; prohibition of discrimination; rights of children; rights of disabled people; right to a pristine and healthy environment, and special rights of indigenous people. Whew!

And the following, still leaving plenty of room for debate about the right to publish (12(iv)) and the right to privacy (13):

"12 Freedom of expression and the right to know

(i) Everyone has the right to freedom of expression, which includes the right to hold and express opinions, and to receive and impart information and ideas without interference by government.

(ii) Journalists shall have a right to protect their sources, subject only to overriding considerations of public interest.

(iii)The above rights shall be accorded especial importance in any civil court proceedings in which they are properly invoked.

iv) This right shall create a presumption in favour of publication, rebuttable only if the restriction sought to be placed on such publication is necessary in the interests of a democratic society to guard against incitement to crime or disorder, or to safeguard national security, or to enable other citizens to stop lies being told about them, or to preserve confidential information or to protect privacy as defined in Article 13.

(v) Citizens have a right to know about the workings of their government. In addition to their rights under the Freedom of information Act, and subject to vi) below, all cabinet papers and other government documents shall be made public within 10 years of their creation.

vi) These rights may be invoked by media corporations on behalf of their journalists and editors, and-or on behalf of their readers, viewers or listeners.

13 Right to privacy

Everyone has the right to have his or her home or stable family life respected and to prevent passing on, or publication of, intimate personal details, or disclosure of personal matters concerning children in their care. Public authorities shall not interfere with the exercise of this right unless such interference serves the public interest and is in accordance with legally prescribed data protection principles or ethics codes promulgated for the media."

Don't laugh this is serious too.

Ah you've got to love those sentinels protecting government information. ZDNet reports on vigorous efforts by government agencies to protect crown copyright in information that is or should be in the public domain and, in everyone's interests, should be used and reused for public purposes.

This from NSW this week about RailCorp's threats to a Sydney software developer of legal action if he failed to withdraw an iPhone and iPod Touch compatible application that lets users search timetable information for services on Sydney's railway system. The application is currently the second most popular application in its category in Apple's App Store.

This from Victoria last month about the Department of Sustainability and Environment refusal to provide data on fires on public land to Google Australia to allow real -time overlays on Google Maps. The Country Fire Authority had provided information for this purpose on fires on private land. And what about the nearest loo?

"The bushfire situation wasn't the first time Google has crossed swords with Crown copyright. The company had similar problems recently when it asked the Commonwealth Department of Health and Aging for access to the data in the National Public Toilet Map, which it sought to offer as an overlay to Google Maps."

In October 2006 I commented:

"Access to government information continues to be an important accountability issue but in this day and age, access to such information to enable use and reuse to promote social and economic advancement, should also be recognised in our right to information law."

We're yet to get there anywhere in Australia as far as I'm aware.

Canada and Australia share cultural heritage.

There are parallels in many fields between Australia and Canada.This wisdom from Professor Michel Drapeau of the University of Ottawa, writing in Open Government Volume 5, No 1 (2009) about the implementation of the Access to Information Act at the Federal Government level has a familiar ring for Australians:

"The most obvious lesson learned is that the mere existence of an access statute does not, in and of itself, guarantee access to information. Unless there is a firm, manifest and unequivocal political will to make the statute work; a dutiful commitment on the part of the highest echelons of the Public Service to show respect for this quasi-constitutional right of the citizenry; and, an Ombudsman with both the powers and the capacity to police and discipline the process by investigating complaints on the part of the users in a timely fashion, the access system will not work."

Professor Drapeau says the three pre-conditions are absent in Canada today and these and other factors including a two year delay in investigation of complaints by the Information Commisioner highlight the enduring problem of public service culture:

"There is no panacea in making open and accountable government a reality. Given the existence of a deep-rooted culture of secrecy within the Canadian Public Service, what is required and hoped for by the Canadian democracy, particularly in the wake of the Gomery Inquiry, is not only more transparency but a shift in culture to bring about the essential change in attitude from the civil service on the related issues of record-keeping, archiving and disclosing of government information as well as adherence with the existing principles and spirit of the Access to Information Act."

As our government ponders an election commitment to create one,Professor Drapeau offers some timely advice about the qualities needed in an information commmissioner:

"One thing is certain, however, a cultural change of this magnitude does not happen overnight in government institutions unless changes are led from the very top. And, leading the charge for such a cultural change must be Parliament’s appointed Champion of Access, the Information Commissioner. Regrettably, however, at present that position appears untenanted.In his new job,( the Commissioner) Mr. Marleau is, quite naturally, relying on the very qualities and characteristics that gave him long and successful tenure as the Clerk of the House of Commons. But, history has shown that the Information Commissioner requires a different skill set. The Office of the Information Commissioner requires someone who is unafraid to stand up to the mandarins and, where required, someone who has the fortitude to take a position critical of his elected masters. That is the very nature of the job."

Radical idea- let's all know what goes.

Daniel Roth in Roadmap for Financial Recovery: Radical Transparency Now! in Wired proposes radical transparency for financial markets as one needed response to the current breakdown. Governments in a wide range of fields could heed his suggestion that we should stop treating information in the hands of regulators like a temple secret, only accessible and to be interpreted by the temple priests:

"..we need to rethink our entire philosophy of regulation. Instead of assigning oversight responsibility to a finite group of bureaucrats, we should enable every investor to act as a citizen-regulator. We should tap into the massive parallel processing power of people around the world by giving everyone the tools to track, analyze, and publicize financial machinations. The result would be a wave of decentralized innovation that can keep pace with Wall Street and allow the market to regulate itself—naturally punishing companies and investments that don't measure up—more efficiently than the regulators ever could.

The revolution will be powered by data, which should be unshackled from the pages of regulatory filings and made more flexible and useful. We must require public companies and all financial firms to report more granular data online—and in real time, not just quarterly—uniformly tagged and exportable into any spreadsheet, database, widget, or Web page. The era of sunlight has to give way to the era of pixelization; only when we give everyone the tools to see each point of data will the picture become clear. Just as epidemiologists crunch massive data sets to predict disease outbreaks, so will investors parse the trove of publicly available financial information to foresee the next economic disasters and opportunities.

When data is kept under lock and key, as mysterious as a temple secret, only the priests can read and interpret it. But place it in the public domain and suddenly it takes on new life. People start playing with the information, reaching strange new conclusions or raising questions that no one else would think to ask. It is impossible to predict who will become obsessed with the data or why—but someone will.....

Keeping the rest of us safe can no longer fall to government regulators alone. But if we enable a system in which everyone is a regulator, there just might be enough eyes, enough checks and balances, enough promising DIY economists out there to make sure the financial world doesn't innovate the real world into depression ever again. Brandeis argued that electric lights were the best police force. Now it's time to give everyone a flashlight."

A blast at Dreyfus.

Bill De Maria of the University of Queensland, who has been writing about these issues for years is cited as an authority in the Dreyfus report on whistleblowers protection, but in this article in The Australian didn't hold back from expressing himself in his usual straightforward manner on what he thought of the Committee's efforts:

"It is mean and narrow in its vision, embarrassingly conservative in its proposals and will do nothing more than send commonwealth whistleblowers, like lab rats, into management-controlled bureaucratic mazes......

All we can hope for now is that the parliament rises to the occasion and seriously renovates this proposal into a strong response to assist all Australians who care about official integrity. However, if this proposal released on February 25 becomes law, my advice to commonwealth whistleblowers of the future is to keep your mouth shut."

There are of course other views.

Psst ministers- stay away from FOI; pass it on.

Daily Telegraph Sydney 26 February:

"Ministers have been ordered to stop tampering with Freedom of Information requests after a damning investigation into the Roads and Traffic Authority. Premier Nathan Rees has sent out an official memorandum ordering ministers to keep away from FOI decisions following findings that the RTA referred requests by The Daily Telegraph to former roads minister Eric Roozendaal's office for approval. A NSW Ombudsman's report, based on evidence from 14 witnesses, revealed the RTA had a secret policy of passing on FOI decisions to the minister."

"Has sent" orders maybe, but as at the time of writing on 3 March, no sign here in the published list of any memorandum to ministers from the Premier, or a circular from his department, or even anything relevant in the Premier's news releases.

Straw the man when it comes to a veto.

Jack Straw UK Minister for Justice

Matthew Moore in the Sydney Morning Herald on Saturday joined a chorus of UK commentary about the Minister for Justice Jack Straw using a veto power in the Freedom of Information Act for the first time to overrule a decision by the Information Tribunal requiring release of cabinet documents that would reveal consideration of the Government's legal advice prior to the decision to join the war in Iraq in 2003.The Tribunal had upheld the Information Commissioner's decision that the public interest justified disclosure in these special circumstances.

With the Federal Government's Bill before Parliament here to remove ministerial powers like this, Moore suggests the UK controversy will alert policy makers to the dangers of a public interest test in the cabinet documents exemption in the rewrite of the Federal and NSW Freedom of Information acts now or soon to be underway.The Queensland draft Right to Information Bill- now in pre-election limbo- has an absolute exemption for cabinet documents, at least more tightly drafted than the current provision which is broad enough to exempt documents simply because they where wheeled into the room while cabinet was meeting.

Straw said he acted to protect 'aspects of our structure of democratic government' and ensure the exchange of free and frank ministerial discussions of controversial issues in the future' even though the minutes reveal no individual views or details of contributions to discussion. Straw was Foreign Minister at the time. The Economist suggests the minutes mightn't reveal much at all and that was the real reason for acting to prevent disclosure:

"It is unlikely in any event that the minutes would reveal much that is not already in the public domain. Since 2003 no fewer than four of the ministers who sat in cabinet then have spoken or written of the meetings. This, said the tribunal, was evidence of a dwindling respect for the doctrine of collective cabinet responsibility, to which confidentiality is said by the government to be so crucial. It also suggests that, in refusing to publish the minutes, a more serious concern for the government than the possible inhibition of free and frank debate in cabinet was the probable confirmation that on this occasion, at any rate, there wasn’t any."