While I've been otherwise preoccupied.....

Time flies, although Freakonomics  suggests I'm simply showing my age. Six weeks travel went like that and I'm sure I missed a lot. Readers contributions on noteworthy matters are welcome. From an initial quick browse before boarding a plane, I note:

The imbroglio over the role of the Australian Information Commissioner in determining issues associated with the Government's resistance to producing documents as required by a senate order. See Senators Cormann and Ludlam on the subject in Parliament a few weeks ago. A reminder in this post from February last year that senators from both major parties backed off establishing procedures to deal with disputed claims of executive privilege. Times have changed. So has The Greens clout. When Senator Ludlam  wraps up debate saying "we think this can be brought to a sensible conclusion" that means something these days

Perhaps proving the point, reports that Senator Ludlam has negotiated a deal with the Government to bring NBN Co under the Freedom of Information Act. As mentioned here, NBN Co's exclusion from the act (subsequently confirmed in this the first published decision by the  FOI Commissioner) is the tip of a large iceberg, so interested to see the details, yet to be announced.

Good stuff from Richard Ackland writing in the Sydney Morning Herald: War powers act could stop further debacles ( including how a requirement for parliamentary action could mean the story of our decision making in committing troops to fight might surface before the current 30/20 years); Bill protecting journalists' sources curdles in Canberra ( how legislative action is stuck  and has been complicated by WikiLeaks developments); and Muddle-headed watchdog leaves privacy door ajar ( on ACMA's hard to follow reasoning in finding no breach of privacy standards by the Seven Network following its outing of former NSW Transport Minister David Campbell) which Ackland suggests might not prove to be such a triumph:

This unsatisfactory finding by the authority will reinforce the view, rightly or wrongly, that it is a captive of the industry it is regulating.Meanwhile, the tide continues to turn very much in favour of a law on privacy, hastened by cheap ''gotcha'' stories by the media.Recommendations of the Australian and NSW law reform commissions proposing remedies for breaches of privacy present a nightmare scenario for the media. Injunctions could be obtained for material that may not be found to be a breach of a subject's privacy, but it could take a while for the courts to arrive at that conclusion, and in the meantime the news value of the story could turn stone, cold dead.The revelations in England that the Murdoch press has indulged in widespread phone hacking will hasten the arrival of stronger privacy protections in that country and there will be an inevitable flow-on effect here.The media only has itself to blame.

The Prime Minister put the states in the firing line with this transparency committment for the heath system:

The Prime Minister sealed a deal last night that she said would improve services, take an axe to red tape and deliver "unprecedented transparency" on health.

The Office of the NSW Information  Commissioner has published its first two decisions under the Government Information (Public Access) Act. The two anonymised decisions (not to be standard practice, thank goodness) concern similar applications made by a union to two agencies concerning executive pay that raised different issues in the way each agency dealt with the applications.

And on the "nothing happened" front not a peep out of Special Minister of State Gary Gray about the Belcher Report on parliamentarians entitlements and related transparency issues that the Government has now had for 11 months. Going for some sort of record?

Aiyaiyayai!

I'm in San Francisco gearing up for the flight home early next week, but a week ago spent a little time in Acapulco Mexico, a micro Gold Coast, where apart from the sparkling beach, the most enduring image is of a lot of guys in uniform standing around with machine guns. Not looking for sympathy mind you, but last Friday while I was there seven people died and five vehicles were burned, including four taxis, during clashes between gang members. On Saturday four died and two were hurt after they were apparently involved in a shootout. On Sunday police found a dismembered body in a residential area, five burned vehicles and the body of a 17-year-old boy on the road leading to a beach resort. By Tuesday I was a long way away when the police found three bodies, one decapitated, in the boot of a  taxi stolen from its driver.  Oh and the Mexican Tennis Open was on there at the same time.

Travel broadens the mind they say. Something close to normal transmission should resume here late next week.

The view from Mexico

I'm in Mexico after brief stops in Colombia, Panama and Costa Rica. Mexico's freedom of information law rated very highly in Toby Rendell's 2008 survey, but implementation generally has been hard going with some backsliding as explained by Tom Blanton of the National Security Archive, who I saw when I was in Washington recently.

Two years ago I noted these features of Mexico's law that didn't then have a place in our system:

• right to information included in the constitution
• applies to all public bodies including the legislature
• the principle of transparency must be favoured in the interpretation of the law
• failure to decide an application within the time limit is a deemed acceptance of the request and the information must be provided within 10 days for free, unless the independent review authority decides otherwise
• fees limited to the costs of reproduction - searching for documents and decision making not charged
• requests for information and responses themselves must be published
• duty to publish electronically as a matter of routine 17 categories of information including subsidy programs, contracts entered into, and reports completed
• civil servants who fail to comply or fully support the law are subject to administrative sanctions.

We've made a little progress on some but not all since.

Open government

The Office of Australian Information Commissioner is hosting a blog from 8 February to discuss draft principles and issues concerning open government information. Before leaving Australia I said the Commissioner's issues paper setting out ten draft principles  sounded pretty good to me. But not only should every agency have a senior information champion, the agency should have a plan on what it will do to promote and achieve more open access to information. And the Commissioner should establish how performance will be measured.

I'm in Florida at the moment, regarded by some who know as the best US jurisdiction when it comes to open government under Governor Charlie Crist who stood down last November but with an element of uncertainty about how things will go in the new regime headed by Rick Scott. They put Illinois and Massachusetts at the other end of the scale. And the Obama administration is said to talk a good game but results are slow in coming.

WikiLeaks FAQs

Two more useful bits on WikiLeaks related issues as seen from here: this set of FAQs published by OpenThe Government.org, and POGO"s Fact Sheet on the Federal whistleblower legislation as at December, now shrouded in uncertainty/gloom as a result of recent developments

Australians in Washington

Well I'm here, but that's neither here nor there. So is Pat Farmer the ultra-marathon runner and former federal parliamentarian who has received a little coverage as he charges around Washington, acclimatising for his run from pole to pole.

But the big Australian name in town is Julian Assange who featured on CBS Sixty Minutes on Sunday, and the same day was the subject of a long article by Bill Keller, the paper's Executive Editor, in The New York Times Magazine. They provided sharp contrasts.

Hard to believe from a government committed to letting the sun shine in

Plus ca change!

From The Australian on 1 February (Favouring substance over spin-no link available) about changes to ministerial staff"

Based on limited information available, The Australian has led media coverage on the poor quality of advisers in Canberra. The government has shrouded the identity of most of its 319 advisers, no longer releasing a list in its directory. Our request to ministers for a list of advisers has been refused and our Freedom of Information request has been met with an astronomical fee from the Department of Finance, which seems more interested in secrecy.

Stop laughing this is serious!

Heard the one about the independent report the government has sat on for 10 months about federal parliamentarians entitlements, including the adequacy of disclosure requirements?

As James Massola reported in The Australian last week

PRESSURE is mounting on the Gillard Government to release a review of politicians' entitlements that will recommend big pay rises for MPs. Special Minister of State Gary Gray, who has carriage of the Belcher report, promised to release the review before the end of last year.But Capital Circle understands the politically-unpalatable audit, led by former senior public servant Barbara Belcher, has been referred to a cabinet sub-committee....  The delays come as it was revealed today that 65 MPs have been forced to pay back nearly $100,000 in wrongly claimed travel perks over the last five years, including Prime Minister Julia Gillard and Sustainable Population Minister Tony Burke.Mr Burke has made 15 separate repayments involving family travel, totalling almost $7000, while Opposition health spokesman Peter Dutton has made eight separate repayments totalling $4618. Ms Gillard repaid $438 for taxi fares "inadvertently" claimed by a family member.

Blogging not quite as usual

We finished 2010 with 43,381 hits for the year, compared to 30,355 the previous year, and 17,003 and 13,574 for the two years before that. Low expectations meant we didn't keep track in 2006, year one of this little effort. Thanks folks. Particularly pleased with the trend, and the increase in comments. We have a busy Anonymous or a surfeit of Anonymouses.

Thanks to whoever is behind Australian Blog Sites for the mention and the wrap generally for the blogosphere.

I'm travelling for much of the next month or so, including time in Washington where I'm catching up with some of the open government community. I was in Palm Springs last week where you're likely to see anything- that's me in the white socks (truly) in long time family friend jennifer lyn browne's photo

FOI for the private sector an interesting idea one year, dead duck the next

Whether a government owned monopoly such as NBN Co, so vital to our future as the government says, should be outside the scope of the Freedom of Information Act is a topic that has excited recent interest and it's not finished yet.


But what about transparency standards and the right of access to information held by private sector organisations, where there are equally important bodies who hold information of great potential impact on the community as a whole? Should those corporations whose functions, size, or potential or actual effect on the well being of the rest of us, be subject to something along the lines of the disclosure regime imposed on government related entities?


Almost two years ago the Rudd Government stated publicly these questions should be asked, and answered by the Australian Law Reform Commission.


But they were never put to the Commission then or since.


An attempt to find out what this was all about, using the FOI act, suggests the idea owed much to the initiative of then Special Minister of State John Faulkner, and that it languished within government for the next year during which time Faulkner moved to Defence.  According to documents released to Open and Shut the Attorney General's Department in April last year recommended other references take priority, given the long and unexplained delay in finalising the reference as announced by Senator Faulkner a year earlier.


There's plenty to suggest this remains an important issue. But  with Senator Faulkner no longer in the cabinet or ministry, unless someone within the system picks it up and argues the case  for further inquiry,  it seems to be a dead duck.

Good intentions... again.

Things I meant to do before heading off overseas, but won't get around to:

Tell you that Christmas came and went and still not a word about the Belcher Report on entitlements for federal parliamentarians, that hopefully addresses transparency issues. The Government has had the report since last April.

Comment before submissions closed on 14 January, on the NSW Information Commissioner's consultation paper on the privacy issues arising from the GIPA requirement for online publication of submissions and objections to a local council on development applications. I would have said that submissions and objections are attempts to influence decion making, should as a general rule be available for public inspection, and that publication on the internet facilitates public engagement, discussion and debate. However publication of personal details-signature, home address for example-on the web is unnecessary and inappropriate. And there should always be scope for individuals to submit, for reasons they need to outline, that their name shouldn't be published either. The same rules should apply to any submission to any agency seeking input on policy or regarding the exercise of decision making powers.

Comment before 1 March on the Australian Information Commissioner's issues paper setting out ten draft principles on open public sector information.They all sound pretty good to me. Not only should every agency have a senior information champion, the agency should have a plan on what it will do to promote and achieve more open access to information. And the Commissioner should establish how performance will be measured.

Draw attention to the Guidelines issued by the Australian Information Commissioner under s 93A that an agency must have regard to when they are performing a function or exercising a power under the FOI Act. ("Must have regard to" seems to mean something along the lines of "can't be ignored" but short of "must act in accordance with.") Nothing yet published on the crucial issue of the application of the public interest test in conditional exemptions which now have a more pro-disclosure flavour.

Try to catch up on a raft of interesting decisions handed down in December including by Justice Emmett in the Federal Court in Secretary Department of Health and Ageing v iNova Pharmaceuticals (Australia) Pty Limited; Judge Brebner in the South Australian District Court in Ekaton Corporation Pty Ltd v Chapman& Department of Health; the Western Australian Information Commissioner in Australia First Party Inc v Department of Commerce , and Apache Northwest Pty Ltd v Department of Mines and Petroleu; the Administrative Appeals Tribunal in Petroulias and Commissioner of Taxation and Snell and Civil Aviation Safety Authority

As it's now seven months since the end of the 2009-2010 year, have a look at the annual report of the NSW Administrative Decisions Tribunal (but the link on that page to reports doesn't work) and Privacy NSW (but the report didn't make it onto that website before it folded into the Information and Privacy Commission in January and isn't on the Commission website either.)

Good intentions...

National Information Law Conference Canberra March 2011

Information law, a topic probably still not taught as such in many Australian law schools, has arrived with the National Information Law Conference organised by Australian Government Solicitors' to be held in Canberra in March. It's a good thing that the field now gets this recognition and the program of Australian and overseas speakers sounds interesting and attractive. But spread over three week days and at $1500 per head (plus $100 for the Conference Dinner) there are limits on who has the time and money to share the wisdom beyond the public services and others who can get three days off work, with an employer prepared to foot the bill (plus travel and accommodation for those who don't live there.) I don't expect there will be too many self employed, community activists, NGOs, journalists and academics on tight budgets (other than the couple listed to speak) or just interested citizens in attendance.

A big law conference like this and the yawning gap in the Australian conference calendar of non-legal events about  the lie of the land regarding public information, open government, information rights, relations between government and the populace, public participation etc demonstrates one of our problems in the FOI area: that it is seen too frequently inside government and out as lawyers' business.

The different beast we don't see here (yet, he says hopefully) is something along the lines of the one day 13th annual National Freedom of Information Day Conference  that will be held in Washington DC a week earlier than the Canberra gathering:

"Hosted each year by the First Amendment Center, the conference brings together open records advocates, government officials, judges, lawyers, librarians, journalists, educators and others to discuss timely issues related to transparency in government and public access to official records. The program is conducted in partnership with the American Library Association, The Reporters Committee for Freedom of the Press, OMB Watch, OpenTheGovernment.org, and The National Security Archive at George Washington University; and in cooperation with the annual "Sunshine Week" initiative sponsored by the American Society of News Editors."

The conference is a full day of panel discussions and presentations-and here' the rub: there is no charge to attend.

We have a lot to learn about how to to build and sustain a community of interest around the  topic.

The Red Book publishing phenomenon

I haven't done any more Red Book sleuthing so don't know if others have popped up recently but the following are extracts from an article by John Ross of Campus Review (subscription) who wrote extensively about the brief provided to the incoming government by Department of Education Employment and Workplace relations, and the encouraging release of other incoming government briefs:

Company structure shouldn't shade NBN Co from sun shining in

 Business Spectator:

The National Broadband Network Co (NBN) will be exempt from freedom of information laws, unlike other federal government agencies, according to a report by the Australian Financial Review (AFR)...The NBN's exemption, on the basis that it is an incorporated company according to NBN chief legal counsel Justin Forsell, is in contrast to the precedent applied to Telstra prior to its privatisation when the telecommunications company was subject to FOI laws.

Technically Mr Forsell is right, but whether that's the end of the matter is another question.  The Government claims to be committed to openness and transparency, suffered some political pain because of its patchy record and foot dragging approach to disclosures concerning the NBN, and doesn't have the numbers in Parliament.The Prime Minister
brushed it off this morning saying it's the result of "the ordinary operation of the Freedom of Information Act." The Opposition and The Greens foreshadow a challenge when the Senate resumes.

The definitions in Section 4 of the Freedom of Information Act  scope its application. An agency is a Department or prescribed authority. Prescribed authority includes a body corporate, or an unincorporated body, established for a public purpose by, or in accordance with the provisions of, an enactment or an Order‑in‑Council, other than  an incorporated company.... Mr Forsell's point.

However other elements of the definition open the door to extending the act to NBN Co. The definition of prescribed authority goes on to include "any other body, whether incorporated or unincorporated, declared by the regulations to be a prescribed authority for the purposes of this Act, being...(i) a body established by the Governor‑General or by a Minister; or (ii)  an incorporated company...over which the Commonwealth is in a position to exercise control.."

The broader issue of what bodies are, are not and should be covered by the act, was not addressed in the Rudd Government's 2009-2010 reforms, and hasn't been the subject of serious debate and analysis since the act was drafted in the 70's and 80's. There has been a lot of privatisation and engagement by private sector players in what used to be exclusively government business in those days. 

Definitional issues to one side, the act also includes a list of bodies exempt in respect of all or some functions. That needs re-examination as well. Sensitive commercial information is well protected by normal exemptions and doesn't require that the agency be excluded from the act.

The NBN issue is the tip of a large iceberg. 

There is a strong case for applying the highest standards of accountability and transparency to bodies carrying out essential and critical community service roles-like a national broadband network- regardless of structure or ownership.

Some cabinet papers still too sensitive after 30 years

National Archives of Australia released the cabinet papers of 1980 under the 30 year rule on 1 January. Archives are moving towards open access after 20 years, but NAA didn't have resources to release the 1981 records, as required in what would have been the first step in this transition. Over 3000 documents were released, with about 25, around the same number as last year, withheld, three entirely including the subject, and parts of others.

Information and Privacy Commission in NSW operative from 1 January.

The Information and Privacy Commission in NSW is formally up and running from 1 January, bringing together the existing Office of the Information Commissioner and Privacy New South Wales (media release).

Here is an earlier post on the legislation that Parliament passed in September. 

The  Privacy and Government Information Legislation Amendment Act 2010 No 71  also

• establishes formal consultation arrangements between the information and privacy commissioners, 

• broadens existing oversight of the Information Commissioner by a parliamentary committee to the Privacy Commissioner, 

• brings procedures for the appointment and dismissal of the Privacy Commissioner in line with those relating to the Information Commissioner,

•  addresses a previous oversight in the GIPA act that meant there were two different schemes for applications to amend personal information, and

•  creates an advisory committee to both commissioners.

Whistleblowing and leaks

Someone at Fairfax seems to have had a better thought about the headline to a report on the investigation of Commonwealth government leaks, after the SMH paper edition conflated whistleblowers and leaks thus: "War on whistleblowers: Labor uses a bigger stick to keep its secrets safe."( Well no, it is online as well.) The story on-line, taken from The Age and modified in other respects is headed "Rudd witch-hunts cost police, money."

An interesting report that points out that leaks referred for investigation "overwhelmingly concerned cases of political embarrassment rather than security breaches." An unnamed police source (in the SMH) and unnamed former senior Federal police source (online) said " both Labor and Liberal and everyone in between gets the shits when their policies are undermined or their big announcements appear on the front page of the newspapers 24 hours before they announce it.''

The media love leaks, and love even more details of futile attempts to find leakers.

But the SMH headline suggests all leakers are whistleblowers, people by definition who seek to have wrongdoing addressed and need and deserve protection against retribution. They aren't. While many leaks cause no real harm no organisation, government or otherwise, can operate effectively where any employee can do what they wish with information that comes their way. Sensible laws and policies are needed. We don't have this right at present.

"Confidential" legal settlements involving alleged government wrongdoing.

Insisting on the "confidentiality" of settlement terms of legal proceedings is no doubt Standard Operating Procedure for lawyers acting for a defendant, on the basis that it involves no admission of liability or of wrongdoing that can be admitted in evidence in any future court proceedings, and the amount involved doesn't sit as a public benchmark for anyone else inclined to take similar action. But can anyone (lawyers excluded) enlighten me on why this should be the accepted norm in cases where government wrongdoing is allegedly involved, in particular why it should extend to the amount of public money that might form part of the settlement?

I somehow doubt if it's in your interests or mine.

As for example, the case of Dr Haneef, below, where action against the Federal Government and former Minister Andrews was settled on agreed confidential terms without apology. And that of Mahmdoud Habib, right, where  a suit alleging government involvement in some way with treatment while he was held by US authorities was settled for an undisclosed amount without admissions. Former Foreign Minister Alexander Downer thought this "an appalling waste of public money" but he would say that wouldn't he?

Mr Habib said the government made him sign a confidentiality clause. "I can't discuss the price with anybody," he said, according to The Australian.

Confidential settlements of this kind fail Accountabilty and the Public Right to Know 101.The fact that such provisions form part of the agreement in each case mean a Freedom of Information application for the terms of settlement would almost certainly fail.

The Prime Minister's call to "let the sun shine in" sounded good to me. 

Then again actions speak louder than words.

Intelligence services review won't go into accountability and transparency either

BBC series

Accountability and transparency issues don't feature in the terms of reference for the independent review of Australia's intelligence services to be conducted by Robert Cornall, former head of the Attorney General's Department, and Associate Professor Rufus Black announced by the Prime Minister just before Christmas. Unless it could be worked into examination of "arrangements and practices within the intelligence community for collaborative work, including legislative arrangements." Seems a stretch.

Appropriate protection of sensitive information about intelligence services is necessary and important. Blanket secrecy goes too far.

The Government indicated at the time FOI reform was before the Parliament last year that a review two years after the commencement of the reforms "will also need to include a consideration of whether the exclusion of agencies, including intelligence agencies, from the application of the Act is still appropriate and necessary. Naturally, such a consideration would require reference to international practice and consideration of what is in the Australian public’s interest."

The current review would have provided a better context to at least make a start on this, as it is to make international comparisons with the operations of intelligence agencies in other respects (the US and New Zealand haven't found blanket exclusions from information access laws necessary), and would have ensured more timely consideration of this hole in our transparency framework.

The aim of the review is to address these six issues:

1. how well the intelligence community is positioned to support Australia’s national interests, now and into the future;
2. development of the intelligence community over the last decade, including implementation of intelligence-related reforms;
3. working arrangements and relationships between the intelligence agencies and policy and operational areas of government;
4. working arrangements and relationships between the intelligence agencies and their international partners;
5. arrangements and practices within the intelligence community for collaborative work, including legislative arrangements; and
6. level of resourcing dedicated to the intelligence community and apportionment of resources across the community, noting that any future proposals would need to be offset consistent with the Government’s overall fiscal strategy.

Australian foreign aid review should explore accountability and transparency issues

Hollway is Review Panel Chair

The terms of reference for the review announced late last year of Australia's foreign aid program include no specific mention of transparency and accountability, although examination of "the effectiveness and efficiency of the Australian aid program" including performance of the program and lessons learned, the appropriateness of current arrangements for review and evaluation, and the management of fraud and risk are wide enough to encompass such issues, should the panel wish to go there.

A year ago the Auditor General in the Performance Audit Report AUSAID's Management of the Expanding Australian Aid Program identified the need for further improvement in transparency and accountability, particularly for better performance information and detailed program running costs, and the publication of review studies.

Australia did reasonably on transparency in the Quality of Aid Report last year and again in the recently released first global survey of aid transparency by the UK based Publish What You Fund, in the Moderate category, with a score of 65% and eighth overall of 30 major donor countries. However we were behind the Netherlands (score 85%) by a long way, and the UK , EC, Ireland, Asia Development Bank and Sweden. The Assessment compares aid transparency across seven weighted indicators that fall into three categories:

• Commitment to Aid Transparency
• Transparency of Aid to Recipient Government
• Transparency of Aid to Civil Society Organisations

Presumably AUSAID's incoming government brief, now six months old, is buried away and hidden from public access in the Department of Foreign Affairs brief stamped SECRET and AUSTEO, despite what it might do to promote understanding and public debate of aid issues.

There has been criticism over insufficient transparency and public disclosure for example concerning aid to Afghanistan.

And on a related note, many countries we assist aren't transparent themselves. Another recent survey revealed countries that receive significant Australian aid and fail to meet accepted transparency standards in their own budgets include Papua New Guinea, Philippines, Indonesia, and Thailand. Malaysia, Pakistan,Timor-Leste and Afghanistan are  worse. Cambodia, Vietnam and China are worst of all.

Film maker James Ricketson wrote last week in the Sydney Morning Herald about his difficulties in trying to get information on aspects of the $60 million in Australian aid spent in Cambodia. A small issue in the scheme of things perhaps, but culture usually shines through.
(Update: transparency issues featured in Crikey's Hot Topics reports last year on Who profits from our foreign aid.)

The Panel should interpret the terms of reference broadly and make sure accountability and transparency in the aid program at home, and in recipient countries, gets some attention. Submissions close 2 February.

(Further update: for more on issues relevant to the review see the Lowy Institute Blog)