Gov 2.0 hits NSW

Meanwhile in NSW, Gov 2.0 is a topic of conversation with this NSW Public Sphere event at Parliament House last Friday, the Government's Information@the centre website announcing work being done to develop a roadmap on how to manage information, an apps competition for ideas and use of NSW data, and that a catalogue of government data-sets will be publicly available soon. Stilgherrian (in Crikey) said the Premier was a surprise speaker at the event (I can't see the speech or media release on the Premier's website). This is worth repeating

"Rees stressed that the digital revolution means government can never be the same again.

The only question is whether political leaders will work with the technology, or fight against it. For us in Australia, there can only be one answer. We must enlist these Web 2.0 technologies in the cause of democracy and freedom. And that means changing the way we do business.

First, it means greater openness. And that in turn means governments have to overcome old habits of secrecy and control. That’s a huge cultural change - something that will take years to accomplish. But we’ve got to begin the journey now.

Second, we’ve got to be interactive. The old one-way street style of politics has to go. Government in the Web 2.0 era is about listening and responding. It’s a dialogue, not a monologue. And I’m determined that the NSW Government will embrace Web 2.0 technologies in everything we do.

Rees says today’s NSW Sphere will be a precursor to a larger, whole-of- government forum to drive these ideas through the NSW Government."

All very good news.

Victoria FOI a mess, no sign of interest in clean-up either

There is nothing to say about the sad state of Freedom of Information in Victoria that David Rood and Jonathon Dowling haven't said in Secret State in The Age today - except in the reform stakes, while mentioning Federal Government plans, they make no reference to how Queensland and NSW have already acted to turn FOI on its head with modern laws that better reflect the Information Age in which we live. Case study 1 and 2 about recent Age experiences help to make their point.

PM on APS- worldbeaters in the making

Prime Minister Rudd's speech yesterday about the Australian Public Service and his priorities included what he referred to as the "entirely reasonable and achievable" aspiration to "make the APS the best public service anywhere in the world" involving "sweeping reform driven by a long-range blueprint for a world class, 21st century public service."Lots of benchmarking to be done, innovation to be encouraged and professional development to be undertaken. But only a passing reference to transparency and accountability - one of those big reform steps of the 1980's - and just audible mentions of the FOI Reform legislation (22 months on, still not quite there on the minor issue of abolition of conclusive certificates) and the Gov 2.0 Taskforce, enough to show they have a place, but hardly at the centre of prime ministerial thinking.

Monty Python and a cabinet convention

From The Advertiser:
South Australian Premier Mike Rann has applied to access former Liberal government Cabinet documents about the state's 1995 United Water contract, under new FoI laws, which from next month will allow the release of Cabinet documents after 10 years. But UniSA law professor Rick Sarre said access would still probably be refused because the documents may contain confidential business information which could not be released under the Act.(It would involve a more substantial test than that.)

The Monty Python aspect of the Premier applying under FOI for documents held by his own department, and getting knocked back, is a first for me- appeal Premier, appeal!!

Second how to continue to justify the "convention"- the same apparently in all jurisdictions - that ministers do not seek internal access "to documents recording the deliberations of ministers in previous governments. In particular, Cabinet documents are considered confidential to the government that created them."?(From the Federal Government Cabinet Handbook- couldn't find the SA equivalent).

When the law, as it already does in several states, removes the cabinet document exemption as a barrier to public access after 10 years (even though other exemptions might still apply) you would have to say the convention preventing ministers accessing the same documents seems to be on shaky grounds.

I take it SA doesn't have this handy convention not to apply the convention too rigorously that appears in the Federal Handbook, and would seem to be tailor-made for Premier Rann's needs :

"175 Where continuity of administration requires reference back to Cabinet documents of previous governments, including Cabinet minutes, departments can provide ministers of the new government with summaries of relevant facts and of operative decisions necessary for an understanding of current issues, including, if essential to that understanding, summaries of Cabinet minutes of a previous government, but not the minutes themselves."

The public broadcaster and enthusiasm for FOI reform close to home

ABC Managing Director Mark Scott at Australia's Right to Know Conference in March 2009, (with emphasis added)

"Let me acknowledge that some critics have suggested that it is a bit rich for the ABC to talk about leadership in areas of public access to information, when we ourselves are protected from some scrutiny through judicial rulings and the operations of the FOI act. Critics charge that we are being hypocritical in pushing a free-speech case while keeping some of our own internal documents from public scrutiny. The ABC has indicated to the Government that we are willing to engage in consultation around tightening the current exclusion clause in the FOI Act applying to the ABC and ensuring it is updated for the digital era. The objective must be, though, to ensure that any amendment adequately excludes categories of documents that, if routinely requested, would be likely to disadvantage the ABC in its proper operations. We believe the model used in FOI legislation in places like the UK, Ireland and Canada could and should be applied here. In those jurisdictions, the exclusion carves out a journalistic and creative space for the national broadcasters in order to ensure not just their competitive positions, but also their independence."

Scott in a letter dated 27 August 2009 to the Government 2.0 Task Force (with emphasis added):

"....there is a range of information about its programs and services that cannot be publicly disclosed without affecting the ABC's ability to compete for key staff and content. This is recognised by the Freedom of Information Act 1982 (FOI Act) which applies to the Corporation as a Commonwealth agency but exempts the ABC from acceding to freedom-of -information requests in relation to 'its program materials and its data casting content." This approach is consistent with similar exemptions applying to public service broadcasters' journalistic and creative activities in the UK , Ireland and Canada. The ABC has proposed in the context of the Government's Freedom of Information Amendment (Reform) Bill 2009 ("FOI Reform Bill") that the existing exemption be replaced with a more technologically- neutral formulation.

In relation to questions of government information, the Corporation is supportive of a pro-disclosure information policy within government. As both a "requester" and "discloser" of information under the FOI Act, it believes the Government's proposed freedom-of-information reforms including the underlying policy of greater pre-emptive disclosure of information, can only improve public accountability. The ABC is already ensuring thjat it will be able to meet the expanded publication requirements that it expects will be required once the FOI Reform Bill has been enacted."

A couple of points: the August letter makes no reference to the ABC's interest in discussion with the Government about tightening the exemption - in March this was a key element of Scott's public comment about the scope of the exclusion and its interpretation by the courts (here is some background on this issue); the UK, Ireland and Canada models in August are said to be consistent with what we already have here- in March they were what could and should be applied here to carve out a" journalistic and creative space" for the national broadcaster; on the ABC as a "discloser" under the FOI Act, the Corporation's latest Annual Report (Appendix 18, page 201) records that nine FOI applications were received in the year to 30 June 2008 - eight were refused entirely, and one resulted in partial release of requested documents (nothing was mentioned about the extent to which the exclusion played a role in this); and any submission the ABC has made to the Government on the FOI Reform Bill (which proposed no change in the current position of the ABC) has not been made public on the Government's website or that of the ABC.

Mark Scott's best memory of his days as a journalist before elevation to editorial, and his current managerial position, was using FOI to bring to public attention important information about the NSW education system. Let's hope the analysis above doesn't mean any real dampening in his enthusiasm.

Ten bucks says leaks helpful to government didn't start yesterday

Principle is hard to find when Treasury advice supportive of the Government's position on the stimulus package mysteriously appears courtesy of a leak, while advice more generally must be guaranteed the confidentiality some such as PM&C Secretary Terry Moran says is essential for the proper working of government. But we understand the practice. Shadow Treasurer Joe Hockey had a point:

Mr Hockey has called on Mr Swan to publicly release a protected Treasury document obtained by Fairfax which reportedly backs the government's stimulus measures. He said he believed the treasurer was being selective in the information he has released. "I bet my last 10 bucks that protected treasury document says nothing about higher interest rates and higher taxes to pay off this spending binge," Mr Hockey said. "Wayne Swan should release all the treasury advice in full now." Mr Hockey said he could not recall a situation where Peter Costello in his more than 11 years as treasurer ever released protected treasury advice to a journalist.

Except I'd bet my last 10 bucks that the last sentence shows Hockey's memory is pretty selective.

Business may have missed the boat on FOI reform

The business community has been hard to spot in the debate in recent years about the need for improved transparency and accountability, in particular freedom of information reform. The Federal Government Exposure Draft Freedom of Information Reform Bill released in March drew over 40 submissions but only one identifiably from business, from the Australian Chamber of Commerce and Industry (Submission 28 here). The submission was primarily concerned about the proposal that all information covered by the business affairs exemption should be subject to a public interest test. Here is an extract:

"Under the Bill business information falls into a category of a “conditionally exempt document” (CED) (cl.31A). The key difference proposed under the Bill, is that the Minister/Agency must disclose CED document unless it is contrary to the “public interest” (see cl.11A(5)). This is a significant change to the existing regime. ACCI does not support such measures without clear evidence that its benefits would outweigh its costs or potential prejudice to the business community. Such documents should remain exempt, unless waived voluntarily by the business concerned. These provisions were created to balance the commercial interests of a firm, and are still required for firms to operate on a profitable and viable basis. By shifting such documents into a CED class, now exposes prejudice to a firm which is what the existing provisions are intended to protect and prevent. A CED document will generally be released under the proposed framework unless it is not in the public interest.... A presumption of disclosure is therefore created which will require an affected person or firm to defend. This is unnecessary burdensome and will impose costs and resources on a person or firm, where there does not appear to be any justification. ACCI is not aware of any inherent problem with the current framework or systemic issues identified by Government, the Courts or the community. The PI test also requires Government to decide whether complicated, sensitive and commercial information should be released. Whilst the current laws require an examination and assessment as to whether it is an exempt document, the proposals in the Bill requires the added task of then determining whether it is not in the public interest according to a range of criteria. How will the Government determine whether a document is or isn’t a trade secret and then assess the public interest to determine whether it should not be released?

... ACCI is concerned that trade secrets, by their very nature, are extremely sensitive information. This should remain as exempt information under the Bill. Other documents that could cause potential damage to a person or firm if released should continue to be exempt.

ACCI Recommendation
1. The Government should continue to exempt business documents from FOI regime. They should not be CED documents.

2. Given the potential for damaging a firm’s legitimate interests, the Government should continue to exempt trade secrets (s.43(1)(a)), information having a commercial value that would be, or could reasonably be expected to be destroyed or diminished if the information were disclosed (s.43(1)(b)) and documents which would, or could reasonably be expected to, unreasonably affect that person or business adversely (s 43(1)(c)(i)).

The submission went on to point out other problems with the public interest test in the Exposure Draft, and the proposed slight shift in the consultation requirements for business affairs information prior to disclosure.There was also a strong "don't go there" regarding an announcement by the Minister John Faulkner in March that the Government intended to ask the Australian Law Reform Commission to examine whether the FOI Act should be extended to the private sector- there hasn't been a word from the Government since about that.

On the state FOI reform front, however, the very things ACCI is worried about federally have come to pass, with the Queensland Act in force from 1 July and the NSW Act to commence early in 2010.Publicly at least there wasn't a submission from business on the proposals eventually adopted, or a complaint since about the dire consequences.

Queensland's Right to Information Act requires consideration to be given to the public interest against disclosure in various circumstances including relevantly, where

" Disclosure of the information could reasonably be expected to prejudice trade secrets, business affairs or research of an agency or person."

However this is to be weighed against public interest considerations in favour of disclosure. Of the considerations listed, the following could, in some circumstances, be relevant to disclosure of business affairs information held by a government agency:

" Disclosure of the information could reasonably be expected to promote open discussion of public affairs and enhance the Government’s accountability.

Disclosure of the information could reasonably be expected to contribute to positive and informed debate on important issues or matters of serious interest.

Disclosure of the information could reasonably be expected to reveal the reason for a government decision and any background or contextual information that informed the
decision.

Disclosure of the information could reasonably be expected to contribute to the protection of the environment.

Disclosure of the information could reasonably be expected to reveal environmental or health risks or measures relating to public health and safety.

Disclosure of the information could reasonably be expected to contribute to innovation and the facilitation of research.

The NSW Government Information (Public Access) Act adopts a similar approach. The test in regard to business affairs information involves weighing the public interest against disclosure of information that may be expected to

(c) diminish the competitive commercial value of any information to any person,or

(d) prejudice any person’s legitimate business, commercial, professional or financial interests,

against any relevant public interest considerations that favour disclosure. The starting point is the public interest in disclosure of information held by a government agency generally (Section 5), with examples given(Section 12) of specific pro-disclosure considerations including:

a) Disclosure of the information could reasonably be expected to promote open discussion of public affairs, enhance Government accountability or contribute to positive and informed debate on issues of public importance.

(b) Disclosure of the information could reasonably be expected to inform the public about the operations of agencies and, in particular, their policies and practices for dealing with members of the public.

(c) Disclosure of the information could reasonably be expected to ensure effective oversight of the expenditure of public funds.

Both Queensland (Section 37) and NSW (Section 54) also shift from the "must consult prior to disclosure of information concerning business affairs" position that the ACCI argues should remain in the Federal Act, to only requiring consultation when there is a reasonable expectation that the third party would be concerned at the prospect of disclosure, the change proposed in the Federal Exposure draft.

If these changes have been introduced into state legislation without fuss, the Federal Government shouldn't be dissuaded by the ACCI from proceeding with its plans.

Gaps filling in lobbyist registration

Tasmania a week or so ago- Victoria and South Australia in the last few days announce plans for registration. Neither of the recent additions go beyond the basics: a public register and code of conduct for third party lobbyists, and a ban on post-separation lobbying by a minister for 18 months in Victoria (12 months for lesser mortals) and two years in SA after leaving office. Maybe Victoria is the only jurisdiction to require declaration by professional lobbyists of unpaid lobbying work? None of the schemes in place are anywhere near comprehensive in the registration requirement or designed to bring full transparency to the not so gentle art of influence-peddling. Queensland is sounding as if it will end up clear leader, given ideas being talked about there.

Federal Cabinet 101

Verona Burgess in today's Australian Financial Review mentions the Federal Government Cabinet Handbook available on the web at PM&C, in the first Rudd Government edition. A little hard to find even on the only cabinet page so here it is -Cabinet Handbook (Sixth Edition)

Those unfamiliar with the mysteries of cabinet and how it operates, as well as those who work in the system, will find this of (well some) interest. Among a lot of other information about process, and the importance of confidentiality are details of what are regarded as cabinet documents, and co-ordination steps where a Freedom of Information application extends to documents of this kind. An appendix provides the membership list of cabinet committees-information that doesn't seem to be up elsewhere on the web-and the subject of this comment last year.

SA "enhancing democracy" through special FOI exemption

Quite a fuss in South Australia as a result of the Government adding a regulation to specially exempt from the Freedom of Information Act any documents concerning an investigation by former Auditor-General Ken MacPherson into claims of bullying and outside influence at Burnside Council, a hot issue there over the past year. The Regulation also extends to any information relating to the investigation, whenever created, including that held by any agency assisting in the investigation; the Department of Primary Industries and Resources; the Minister for State/Local Government Relations; and the Department of Planning and Local Government.

Russell Emmerson in The Advertiser quotes the Minister as saying the move was aimed at enhancing democracy, not hobbling it.

"It's vital that witnesses feel they can provide full, free and frank information to the Burnside investigation without fear of defamation threats and other reprisals," she said."If people feel intimidated and avoid providing any evidence, or parts of it, then it would completely undermine the purpose of holding this investigation."

In an editorial The Advertiser comments:

"Of course, chief among the reasons the inquiry will be kept secret, save for a sanitised report to be tabled, is damage control.Nowhere in the FoI Act will the reader find the term damage control, but it continues to serve as its primary purpose."

All sorts of investigations happen in and around government everyday. They need to be full and fair.Information, which if disclosed, would prejudice proper investigation needs to be protected. It's surprising standard exemptions in the FOI Act weren't judged sufficiently robust to protect sensitive information in this instance.(Update: The Minister says the investigator requested the change)

South Australia is one of three Australian jurisdictions choosing not to speak the words "fundamental reform" when it comes to access to government information.

WA Premier says charge changes needed to curb Opposition FOI appetite

Western Australian Premier Colin Barnett cried foul in The Australian today about Opposition use of the Freedom of information Act for "frivolous and wasteful" fishing expeditions and threatened changes to the charging regime in response. But this line:

"Mr Barnett said the state's FOI system was something for new special counsel to the state government, former director of public prosecutions Robert Cock QC, to consider."

may represent a narrow view of what's needed, given the fact that the West, along with Victoria and South Australia seems entirely unmoved to date on the need for fundamental re-examination of access to government information laws to meet contemporary expectations . Special counsel?

Charges in WA are generally in line with elsewhere (for non-personal requests $30 application fee and $30 per hour for processing but no charge for time spent to locate relevant documents) and no other jurisdictions are talking about an increase. NSW recently enacted the 1989 rates in the new Government Information (Public Access) Act making it that much harder for changes.Here is a reminder of the pre and post election statements about FOI in the West. Sven Bluemmel was appointed Information Commissioner in May.

Privacy trumps on payments to ex MPs in the west

From the West Australian:

"The State Government has refused to release the names of 39 former MPs who racked up a total of $80,000 in travel on the public purse last financial year. The West Australian obtained the figure through Freedom of Information legislation but the Department of Premier and Cabinet decided not to release the names of the former politicians to protect their privacy.....

The Department of Premier and Cabinet said: "Protecting the privacy of individuals is paramount and favours the non-disclosure of the names of former members of the West Australian Parliament."

No mention of what if anything the Department said about the provision in the WA FOI Act that states personal information is not exempt if disclosure would, on balance, be in the public interest.Even the Premier is struggling with this one:

"Colin Barnett, who with Alan Carpenter will qualify for ex-premier benefits when he leaves Parliament, said if MPs accessed benefits they were entitled to, he believed they should be publicly accountable."

A right to privacy in public, sometimes

Mark Day in The Australian writes on two recent instances of media reporting on events that happened in public and puts the view:" no reasonable case can be made against the media’s right to film or report on events in public." But Day agrees that in the case concerning Channel Ten, its treatment of the person was "over the top, unnecessary, insensitive and unfair", shortcomings best addressed in Day's opinion by newsroom education rather than what he sees as an increased interest in tighter regulation by the Australian Communications and Media Authority(ACMA).

However Day himself- a welcome media voice for calm consideration of the ALRC recommendation a year ago for a statutory cause of action for breach of privacy- is a little over the top in claiming a right to film or report on anything that takes place in public. As the ALRC (74.124-127) and the recent NSWLRC report (5.27-28) argue the test should be whether in a particular situation a person has a reasonable expectation of privacy, not on whether something happens in a public or private place.

The expectation in a public place in full view of everyone else would not be high in most cases, and even lower for public figures. But we can all imagine circumstances where ordinary folk such as a woman in distress outside an abortion clinic, or a couple under a blanket in an obscure corner of a park at sunset deserve some privacy, particularly from that fellow lurking nearby with a hidden camera. Or the privacy interests of the person in Channel Ten’s segment which showed a boat-owner who had lost both parents in an explosion " in close-up, sobbing on a hospital trolley as he was being wheeled to an ambulance. The filming took place on a public road, and in view of public spectators. In a 12-second segment, the man appears distraught, then agitated and angry at the presence of the news crew filming him. He is shown jumping off the trolley, strongly remonstrating with the crew, shouting abuse at them and forcefully throwing a towel in their direction."

Maybe a bit more training, as Day suggests is the answer, but patience is wearing thin. Higher standards and stronger incentives/disincentives may be warranted. Day quotes ACMA to the effect that "privacy guidelines attached to broadcasting codes of practice currently provide inadequate guidance on material that amounts to an “invasion of privacy” and planning to review them shortly. This is not just a problem for commercial television but for all media groups, as the ALRC's found last year. Day got it right on this one: "The issue of privacy is one of the media’s more vexed questions."

Some aspects of the NSWLRC report's discussion of this issue are couched in broader terms than many would accept, for example:

"While persons who appear in a published photograph of a crowd scene in a public place or appear incidentally in a photograph of that place cannot complain of an invasion of their privacy, they will be able to do so where the public place simply formed the background of the photograph and they constitute the real subject matter of the photograph."

And the following needs qualification if it's suggesting that information in every public register can or should retain some privacy character.

"We agree with the Hong Kong Law Reform Commission that the law should take account of the “practical obscurity” of personal information that is held in public registries or that has already been disclosed. Therefore, the fact that information has already been disclosed or is publicly available should not of itself preclude a plaintiff from bringing a cause of action for invasion of privacy, a proposition supported in some submissions."

Discussion underway about privacy cause of action

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

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

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

MPs allowance exclusives

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

Thanks to Open Australia for the Hansard link.

Frank advice remains confidential in Victoria

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

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

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

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

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

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

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

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

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

Complex questions about access to information about a child

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

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

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

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

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

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

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

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

A spring in your step with eDiscovery software

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

NSWLRC calls for input on personal information issues

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

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

FOI scope question resolved after 13 years

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

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