Broadband, Communications and the Digital Economy releases Red book: No 5

This is obviously going to be a long haul. Following a Freedom of Information application The Australian has obtained the incoming government brief from the Department of Broadband, Communications and the Digital Economy. The Department is yet to publish the brief. (Update: redacted brief published around 16 November.)

NSW whistleblower protections welcome but short of "world beater" class

The Protected Disclosures Amendment (Public Interest Disclosures) Bill passed all stages in the NSW Parliament on 27 October. The legislation implements most recommendations arising from a review undertaken by a parliamentary committee in 2008 that found the whistleblower law, apart from its shortcomings had been orphaned to the extent it was difficult to ascertain how effective it had been, if at all. The Committee reported in November last year. Opposition speakers were right to lament the slow process. Some minor Government and Opposition amendments to the bill as introduced were agreed to during Assembly debate on 21 October. 

There are many good features in the legislation, including an Australian first in including a reference to a government information contravention as wrongdoing, but in some respects it doesn't match the "world beater" standard of recent Queensland legislation  according to Professor A.J Brown, one of Australia's leading experts in this field, particularly circumstances in which protection is extended to disclosure of wrongdoing to the media. The National Secretary of Whistleblowers Australia was reported as saying " they’ve fiddled around at the edges of the legislation and in the end have set up systems that have a lot of room to do nothing."

The Minister and the Commissioner respond to questions

Transcripts of Q and A at Monday's launch of the Office of Australian Information Commissioner involving Minister O'Connor and Commissioner Professor McMillan at a doorstop at Parliament House, and an interview between the Commissioner and iT News both contain useful insights. 

The Minister resorted to  "Media 101" tactics in responding to questions at the doorstop about concern over a government proposal that companies providing internet access log and retain customer's private web browsing history for law enforcement to access when needed: he instead answered the questions he wished were asked about the new disclosure regime. (The Privacy Commissioner is reported to have said last week he is against such a scheme.) The Minister sounded much more at home answering questions about terroprism threats.

Some of the interesting responses are grouped below.

Australian Information Commissioner launches forth

Professor John McMillan at the launch of the Office of Australian Information Commissioner:

"The OAIC fills a major gap in the system. We will champion open government, provide advice and assistance to the public and promote better information management by government. Our Office will have a comprehensive range of functions, including investigating complaints, reviewing agency FOI decisions, education and awareness, and reporting on compliance," Professor McMillan said. "We will also have a role in advising government on information policy and practice. This function is taken up in an Issues Paper Towards an Australian Government Information Policy, which was released today. The issues paper proposes and invites written comments on ten draft principles on open public sector information....

"The Commonwealth Freedom of Information Act 1982 (FOI Act) has been revised to inject a much stronger pro-disclosure philosophy. A new Information Publication Scheme will require government agencies to publish far more information. Other changes include the simplification and narrowing of the range of exemptions from access, a new single public interest test weighted towards disclosure, and the abolition of application fees for accessing documents. "These changes reflect a broader policy change that acknowledges that information held by the Government is a national resource to be managed for public purposes. We look forward to ensuring that this policy shift becomes a reality for all Australians when they deal with Australian Government agencies", Professor McMillan said.

Comment: It is only Day One, but you wouldn't know anything has changed from a visit to the websites of Prime Minister and Cabinet, Treasury and Centrelink to name three agencies still stipulating payment of the now abolished $30 application fee. Defence, Foreign Affairs, and Immigration to name three others, have updated to incorporate the changes to fees and charges.

Joy to the world and tax lawyers!

Expectations are high. Federal Freedom of Information reforms commence today, as Minister for Privacy and Freedom of Information Brendan O'Connor writes (Sweeping away a culture of secrecy) (earlier glitch fixed) in the Sydney Morning Herald, and other Farfax outlets. Adele Ferguson  in Business Day says the changes are "being greeted with excitement by tax lawyers."

House passes shield law

The House of Representatives passed the Wilkie shield law bill to protect journalists' sources ( the Evidence Amendment (Journalists Privilege Bill) last week, the first private members bill to pass, with Government and Opposition members and The Greens Adam Bandt all speaking  in favour. The debate is here-nothing further was said as the bill went through later stages. (My earlier comments on the bill are here and here.)

Bandt and Michael Keenan, Opposition Shadow Minister for Justice both foreshadowed amendments to be moved in in the Senate. Bandt said The Greens would seek to make "explicit that the bill covers bloggers, citizen journalists and documentary filmmakers, and that the privileges provided by the bill cover anyone engaged in the process of journalism, no matter who they are or in what medium they publish," an issue raised here previously. Keenan somewhat confusingly refers to amendments to bring the law into line with NSW law, but that was the stumbling block that sidelined the Government's bill last year. Labor backbencher Graham Perrett seemed to suggest that privilege should only be available to ‘a person who ascribes to the journalist code of ethics as published and codified by Media, Entertainment and Arts Alliance.’

Attorney General McClelland acknowledged the contribution to the pasage of the bill by  Chris Merritt of The Australian and John Hartigan and the Right to Know campaign.

Climate Change and Energy Efficiency releases Red book:No 4

The Weekend Australian with these two reports has the incoming government brief obtained through a Freedom of Information application- neither the paper nor the Department has published the document so far (Update: now published by the Department.)

People stuff

Dr James Popple has been appointed  Australia's first Freedom of Information Commissioner. He is, well until Monday, First Assistant Secretary of the Civil Law Division of the Commonwealth Attorney-General’s Department and an Adjunct Lecturer in the School of Computer Science at the Australian National University. “Dr Popple has a strong administrative law background and extensive experience providing legal and policy advice to government,” Minister for Privacy and Freedom of Information said. Dr Popple's CV, posted on the ANU website provides more details of an impressive list of appointments including a stint working on privacy in the late 1990s, an earlier period as an associate to High Court Justice Gaudron, publications including one on vexatious litigants that may come in handy, and expertise in a legal expert system with the name of "Shyster." Hope he keeps that sort of sense of humour! 

Professor John McMillan, Information Commissioner, Timothy Pilgrim, Privacy Commissioner and Dr Popple are the top level team as the new regime kicks off on 1 November.

Earlier in the month Jenny Mead and Clare Smith (sorry about an earlier mix up with the names) were both appointed Queensland Right to Information Commissioner each on a part time basis.

In NSW applications were invited in last Saturday's Sydney Morning Herald (p28) for NSW Privacy Commissioner- a part time position. I haven't seen it online but if you are interested Laurie Glanfield Director General Department of Justice and Attorney General was listed as the contact 02 (612 if overseas) 8688 7313. Detailed CV and names of at least two referees to appointments@agd.nsw.gov.au by 8 November.

Good and welcome news on Federal FOI charges

Minister for Privacy and Freedom of Information Brendan O'Connor yesterday announced the Government's fees and charges for the reform regime to commence on 1 November, and covered similar ground and a bit more in this answer to a question in Parliament. The new element, beyond what was first announced in March last year, and the subject of a draft regulation in December, is that all applicants will be given up to five hours of decision making time on an application free of charge.The previous proposal was that journalists and non profit organisations would enjoy such a concession. In a submission in January I argued this discriminated against John and Mary Citizen seeking to access information consistently with the new object of the act to increase participation in government processes, or to scrutinise government actiivity, quite apart from issues associated with difficulties in defining a journalist in this day and age.

Combined with the abolition of application fees, removal of all charges for access to personal information, and no charges where an application is not dealt with in time, this will be a big step towards reducing the cost barrier that has stood in the way of more widespread use of the FOI act for the last 28 years. The changes are as follows:

Fee	Now	From November 1
Application	$30	No fee
Search and retrieval	$15 an hour	No change - $15 an hour
Decision making	$20 an hour	First five hours free, after that $20 an hour
When FOI request is not responded to within the statutory time limit	Normal fees apply	No fees
Internal review	$40	No fee

Tasmania still leads in this area having abolished all processing charges while retaining the application fee.

Defence publishes Red book: No 3

Defence, having released the document to two Freedom of Information applicants, has published its incoming government brief. The document, not surprisingly is more heavily redacted than the previously released Treasury and Finance briefs. The Department's Media Release states "Much of this information has previously been made public, including through Senate Estimates, and in preparatory material released for the Afghanistan debate in Parliament." Sean Parnell of The Australian was one of the applicants and has this piece in the paper today, with signs already the brief is contributing to public debate.

Queensland Special Purpose Vehicles outside scope of RTI act

In its first decision concerning the Right to Information Act, the Queensland Civil and Administrative Tribunal found the Information Commissioner erred in law in deciding that City North Infrastructure Pty Ltd (CNI), a Special Purpose Vehicle established by the government to assist in the delivery of certain infrastructure projects including the Airport Link, was a public authority and subject to the RTI act. The decision means any such company established by the Queensland Government solely under the Corporations Act, a Commonwealth act, is not subject to the RTI act, and raises a policy question concerning the extent to which government bodies created in this way should be subject to different levels of accountability and transparency than others.

The decision does not concern the status of a Government Owned Corporation or a subsidiary of a government owned corporation, both specifically included in the definition of agency in s 14 of the act. Such bodies are within the ambit of the RTI act if established as a body corporate under an Act or the Corporations Act; and declared by regulation to be a GOC (Government Owned Corporations Act 1993 s5.)

Walkley Awards finalists know their FOI

Journalists who know a thing or two about Freedom of Information (correction they all do these days) feature in the finalists for this year's Walkley awards.

Linton Besser of the Sydney Morning Herald is a finalist in two categories: Investigative Journalism for “The wrong stuff” about Defence contracting, and Print News Report, with Sean Nicholls and Nick O'Malley, for “Freebies for Labor minister” about then NSW cabinet minister Ian Macdonald's failure to declare $30000 in airline upgrades. Interestingly both reports had their genesis in information available on the public record, although there was plenty of digging thereafter.

While not mentioned in the citation, Paul Toohey and Janet Fife-Yeomans, also finalists in this category for The Azaria files, obtained jury notes, documents, photos and transcripts of conversations with police in the Chamberlain trial 30 years ago through a freedom of information application. 

Tim Lester, with Andrew Meares, is in the Broadcast and Online Interviewing category for online interviews on smh.com.au- “Bishop’s passports”, “Gillard Challenge” and “Hockey’s Costings.”

Update: And this from Anonymous:
Dont' forget Nick McKenzie and Richard Baker for 'Dirty Money' (Four Corners, ABC TV and The Age, about the Reserve Bank and international bribery, commended for Investgative Journalism) - while they had an insider, they followed up for documentary evidence using FOI on several of the Cth agencies involved. Has FOI become such a tool that journalists (or more pointedly sub-editors) don't feel they need to mention.. that FOI was the method used to obtain documents?


Congratulations to all.

Wikileaks, continued

I don't think I can say anything different than last time, when Afghanistan, not Iraq was in the frame:

"This is a whistleblow outside any legal framework, and raises the issue of criminal liability for whoever was involved....In the court of public opinion we will hear a lot about the public interest and the right to know generally the details of a war involving loss of life and billions of dollars, about what is happening on the ground... And specifically about civilian casualties not previously revealed, and any lies, deceptions and cover up that may have been involved.... On the other hand you can't run a war or any system where anyone can reveal whatever they like. The questions-ethical as much as legal, and never asked in the Kessing case-come down to whether disclosure causes real harm to an identifiable public interest such as the protection of national security that is not outweighed by the public interest (benefit to the community as a whole) in disclosure."

Andrew Wilkie has reservations as reported in the Sydney Morning Herald:

Photo Gary Schafer

"I have a high level of confidence that this is fair dinkum material," said Wilkie, a former army officer and intelligence analyst who resigned from his position at the Office of National Assessments (ONA) in 2003 over concerns that the Howard government invaded Iraq for political purposes. "I'm a whistleblower myself, I support whistleblowers, I support the role WikiLeaks has generally to publicise official misconduct, but if they have crossed the line and if they are genuinely putting people at risk then I think that's unacceptable." "I do have a certain restlessness here. I find it a bit hard to be confident that they have not put someone at risk or perhaps exposed some sort of operational procedures," he said, adding he could have walked out of the ONA in 2003 with "a brief case full of incriminating documents" but chose not to. "I think even if you're a whistleblower you do have an obligation not to be reckless, to not put lives at risk, to not disclose genuine secrets, to not disclose operational capabilities or technical capabilities."

Crossing the line and calling the shots on genuine secrets will never be for the fainthearted.

Wilkie told Tim Lester in the video interview on that link of his commitment to legislation to provide whistleblower protection but added:

"I don't encourage whistleblowers. But if you are absolutely sure you have seen official misconduct you have to follow your heart and accept the consequences."

   

Summary of FOI reforms

At the request of Toby McIntosh I provided this summary of the 1 November changes to the Commonwealth Freedom of Information Act and related Australian developments for freedominfo.org, the global network of freedom of information advocates. The new page on the sidebar lists and links to Australia's information access laws as they stand at present,  something put together for the purpose of that article.

Reflections on 2000 posts

Not that I've been counting, but Blogger has, and tells me that we have just passed this milestone. A bit over 400 posts a year since we started on 3 February 2006. I was pushed in this direction at the time by Susan Timmins, and Nicolette Davey working here while undertaking journalism studies at UTS, who both suggested a blog to replace an occasional  client newsletter that had been around for years beforehand. (Nicolette is doing good things now at Baw Baw Shire Council in Victoria, with this commendation recently for an innovative radio series on sustainability.)

David Fraser's Canadian Privacy Law blog was the first source of inspiration about what might be, although privacy as an issue has been a secondary interest, and such a broad topic that I readily admit failure to do it justice.

Content has changed somewhat over time shifting from an initial focus on NSW, although the local scene still looms larger than others.The publishing philosophy has been simple-essentially what interests me!

The FOI landscape has changed for the better since 2006, these days accompanied by welcome discussion and movement towards more open government generally. 

I've eschewed the invitation to put ads on the blog, or to experiment with pay per view content, so not surprisingly report this is not the way to make money online.

As to psychic rewards, I've enjoyed it, and am pleased if the blog has had a little influence here and there. In the first couple of years it was heartening to have 50 or so readers a day. More latterly it's 200 + and at best around 400. Hardly in the big league but I take comfort from the fact it is a specialised field. Numbers each year have increased by 40% to 50%.

Most readers seem to be in and around the public sector, hence (in my view) the low number of comments and the high resort to Anonymous as the identity of choice. And the drop in readership outside business hours on weekdays.

About 80% of hits are from Australia, 8% from the US, with the UK, Canada, New Zealand, India, Japan, Ireland, Germany and Malaysia rounding out the top ten.  Email contact from students seeking help with projects, often puzzled inquirers from outside Australia, and people on both sides of the FOI table here wrestling with issues and problems have all been welcome. Thanks to those who have had generous things to say in Testimonials posted on the sidebar.

Blogging is terribly addictive. I have no idea how long this will last.

But I do know my golf game has gone to pot.

Thanks for your interest.

How Finance decided to publish the red book

The concerns of journalists about the potential effect of disclosure logs on their FOI exclusives from May next year were no doubt heightened, for those who made Freedom of Information applications including Sean Parnell at least, by the decisions by Treasury and Finance to publish on the internet their incoming government briefs. In the Senate estimates  Finance and Public Administration  hearing on the Department of Finance and Deregulation last week, where (some) questions seemed better informed by what was in the brief, questions were also asked about the decision to publish the red book.

David Tune

The Secretary David Tune said the Department had three Freedom of Information applications on hand at the time, the first received on the Monday after the election from Michael McKinnon at Channel 7, followed by requests by Parnell from The Australian and Shane Wright from the West Australian. The decision to publish a redacted version was taken by the Department alone, possibly while the government was in caretaker mode, and the Prime Minister's Department was informed, not consulted. There was no mention of the minister being involved. Tune said Finance had released a redacted version of the the brief after the 2007 election in response to a request from Laura Tingle of the Financial Review, something less publicised than the similar decision at the time by Treasury to release its brief to Michael McKinnon. That brief was then published on the 7 Network site.


Extracts for Estimates junkies follow.

Australian Information Commissioner prepared for action

More from Australian Information Commissioner Designate Professor John McMillan in this report today by Sean Parnell in The Australian- a surge of Freedom of Information access applications are expected when the Commonwealth reforms commence on 1 November ( abolition of the application fee will no doubt be a contributing factor for those that know about it, but still no sign of the regulation with details of the new charge regime); the level of preparedness among agencies is mixed, with the larger agencies in particular well prepared; and his office expects to be hit with numerous review applications from the middle of next month.

Parnell reports that journalists at the Commissioner's briefing took a special interest in the disclosure logs, part of broader publication requirements that will operate from 1 May, concerned that publication within 10 days of documents released under FOI would " devalue (individual journalists') ideas, efforts and financial investments in FOI."

While the 1 November issues no doubt preoccupy thinking at the moment, there are aspects of this publication requirement that remain to be clarified in the next six months. One, the new Section 8 states ((2)(g)) the obligation extends to documents to which an agency "routinely gives access in response to requests" subject to the exclusion of certain categories of information of a business or private nature and ((3)) information that the Information Commissioner determines "would be unreasonable to publish." No determination has been issued to date.( I won't go on about this but the Commissioner has no powers to require publication of anything that goes beyond what is stipulated in the act, and a raft of other things including contracts and grants- at least subject to parliamentary and administrative directions-could and should have been included.)

Two, the significance if any of differences in the wording of the two relevant sections of the act. Section 11C headed "Publication of information in accessed documents" doesn't refer, as section 8 does, to publication of information in documents "routinely given", but to information (presumably any) where an agency or Minister has given a person access in response to an access application. The former seems narrower than the latter, which goes beyond the similar schemes introduced and operating in the reform states. Those disclosure log requirements are limited to publication of information released that is or may be of interest to the community generally. They don't appear to have given rise to the problem raised in Parnell's article although it's early days for the NSW and Tasmanian schemes, and Hobart and Brisbane are one paper cities. Presumably a larger pool will be keen to pick up any morsels released to someone else when this becomes a requirement under Commonwealth law.

If it's any solace to Parnell and other journalists, publication will be required within 10 working days.

The text of sections 8 and 11C:

Earth moves:Treasury releases legal advice

Hard to tell if this is a welcome sign of new times or an example based on an unknown formula for selective exercise of a discretion to disclose an otherwise exempt document, but in any event the release by Treasury in response to a Freedom of Information application of legal advice from the Australian Government Solicitor is a rare event. Particularly as the advice was that the super profits tax could be found to be unconstitutional if just one State changed a royalty rate. The advice (Constitutional issues) along with other documents released in response to its application is on the West Australian's webpage. Opposition Senator Brandis caught AGS on the hop, apparently unaware of the disclosure, when he asked questions (taken on notice) at this Senate Estimates hearing last Monday, questions based on the reasonable premise that privilege had been waived by release.Legal and Constitutional Affairs  (L&C 110)

NZ red books published; red faces anyone?

Anonymous, without even trying to rub any local noses in claims about our open government practices, has brought to attention the New Zealand Government webpage containing the set of briefings for incoming ministers published in December 2008. There might be a difference in content-the briefing released publicly for the Prime Minister is straight down the line about the department with little about issues that need to be addressed, although the couple of others that I looked at contain more along these lines- but Anonymous has made the point without the slightest hint of the hype that sometimes crops up in making trans tasman comparisons. Anonymous could have but didn't also refer to the NZ practice of publishing (admittedly selectively) cabinet documents, for example this recent paper summarising  climate change initiatives and proposals to reduce greenhouse gas emissions in the transport sector, or other papers identified in this google search. Thanks Anonymous-whatever side of the ditch you are on.

Red book questions, FOI answers

 During Senate Estimates hearings on Monday (Finance and Public Administration), Opposition Senator Cormann asked officers from the Department of Prime Minister and Cabinet (F&PA 38) about Freedom of Information requests received for the incoming government brief. The issue was taken up later by Senator Abetz (F&PA 52).

Applications have been received from the Seven Network and the West Australian, the first two months ago, but no decision on release has been taken. Each applicant has been told the important news first, that access would cost them $3740.80, and no splitting the cost between them should they each proceed. No one appears to have raised with the PM the question of publication of parts of the brief in line with the Treasury and Finance precedents, or pointed out how this might usefully contribute to public debate on matters of public interest-even on the topic of open government. Officials and the minister at the table were strongly attached to the idea that precedents set by others mattered not a jot, and that a departmental officer independently would make a decision on the applications free from ministerial direction. Sounds good, except the questioners were right to point out that the Prime Minister could simply direct that parts of the brief be published thus providing access at no cost and presumably to anyone interested.

That would be in line with her stated commitment to a new style of openness in government. And send a message to help with that transformation from 1 November that Australian Information Commissioner Designate McMillan spoke about earlier in the week.

Some of you just love your FOI and the cut and thrust of Estimates as well. For you, extracts follow: