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Thursday, December 21, 2006
The Annual Report of the NSW Administrative Decisions Tribunal whose jurisdiction includes review of freedom of information and privacy matters concerning state government agencies, and local councils, has just been made available. FOI cases have risen from 96 in the previous year to 125, and privacy cases dropped slightly from 34 to 30.
In what must rank as the gentlest of nudges, the President Judge Kevin O'Connor notes that the NSW Attorney General is "presently completing a review to determine whether the policy objectives of the (Administrative Decisions Tribunal) Act remain valid and whether the terms of the Act remain appropriate as required by Section 147 of the Act".
What he didn't say was that Section 147 required the Attorney General to undertake such a review "as soon as possible" after 5 years from the date of assent, and to table a report of the review within 12 months after the 5 year period.
The Act was assented to on 10 July 1997. Five years elapsed on 10 July 2002. The report was due to be tabled in Parliament no later than 10 July 2003. Parliament will not now sit until after the election in March.
I'm sure we'll see this report sometime. The Attorney General may attach a late note. It might even emerge with the statutory review of the NSW Privacy and Personal Information Protection Act - a similar provision in that Act required the Attorney General to table a review report by 30 November 2004. It's never been tabled but privacy has been shunted off to the NSW Law Reform Commission.
I don't know how many other statutory review requirements might similarly have never seen the light of day.
Former Victorian Privacy Commissioner Paul Chadwick, has been appointed to the new ABC position of Director of Editorial Policies. He will report to the Managing Director providing independent assessment of editorial performance. It's another feather in Chadwick's hat, after an outstanding 5 years as the first Privacy Commissioner in Victoria.
Chadwick previously was a journalist with the Age (a Walkley Award winner for Most Outstanding Contribution to Journalism in 1997), wrote a book on FOI in the 1980s. acquired a law degree along the way and also headed the Communications Law Centre in Melbourne.
He is a great appointment to what is likely to be another hot seat.
Wednesday, December 20, 2006
Hmmm, well as we were saying in the blog item below, there are plenty of critics of the trend towards greater government secrecy in the US. OpenTheGovernment.org has published its Secrecy Report Card 2006 (released in September) and given another run to this animation "Are we Safer in the Dark" (3.2 MB download).
The US has been a strong and consistent advocate for over 30 years of FOI as a key element in promoting democracy and public participation in the affairs of government around the world. Its efforts are to be applauded, despite the fact that there are plenty of critics of some aspects of US law and the way it is applied at home.
This speech last week by William Ferroggiaro, a Washington based writer and consultant to a webchat for developing countries organised by USINFO (the Government's international information arm), highlighted the benefits of FOI and its role in good governance.
Australia also spends large amounts of money in its government aid program administered by AUSAID in promoting governance reform, particularly in the Pacific and South East Asia. It's a task for another day to explore what message we actually put out there regarding FOI and what resources Australia devotes to encouraging positive take up amongst our neighbours.
The Federal Government's standing and credibility on access to information suffered this year, particularly in the light of its long drawn out and expensive efforts to head off access to 4 year old documents at the centre of a High Court challenge by Michael McKinnon of The Australian.
Tuesday, December 19, 2006
Privacy NSW has posted on its What's New page a note (see 5 December 2006) concerning local councils and the inclusion on websites of development applications and associated documents. Privacy NSW says that councils should obtain their own legal advice, but suggests it isn't prudent. In any event, Privacy NSW says, councils should remove or black out personal information such as signatures and names/addresses of third parties.
My guess is that legal advice will be to the effect that publication of any document on the web that includes personal information is not a breach of the NSW Privacy and Personal Information Protection Act, where the individual concerned is aware, or likely to be aware, that information of this kind will be included on the council's website. If councils ensure there are appropriate references to plans to pubish certain documents on the web, they are likely to have a defence to any claim of breach of privacy principles.
This doesn't mean that the caution from Privacy NSW regarding the inclusion of signatures in documents posted on the web shouldn't be taken seriously. The rise of identity theft means that councils (and others) may find it difficult to explain why this sort of detail should be disclosed to the world, even though technically it might not constitute a breach of privacy principles.
Posting on the web information about development applications clearly facilitates public access, and will be seen as a much more convenient opportunity for members of the public to follow what is happening in the neighbourhood. It should facilitate increased participation in local government affairs generally. It certainly is a big step forward from the minimum requirement in the Local Government Act and other laws concerning development control matters that state that council must make certain documents available for inspection at council premises during business hours.
Privacy isn't the only issue that councils need to consider prior to posting documents on the web. There are also copyright issues, and the possibility, in publishing public comments received in response to a development application, without a vetting process, runs the risk of exposure to action for defamation in the event that a person's character or reputation could be affected.
There are practical answers to managing these risks, and the more information easily accessible about the conduct of council public functions the better. However councils need go into this type of exercise with eyes wide open, and to manage risks in an appropriate manner.
Thursday, December 14, 2006
We would like to wish you all a great holiday season and a special happy and safe New Year.....
We will be in summer holiday blog mode (relaxed) from now until the end of January with updates as time (and energy) permit....
Thanks to Chris Slane for this timely reminder about the surveillance society
Foreign Minister Downer, in a letter published earlier this week, indignantly dismissed the Sydney Morning Herald allegation that he and the Prime Minister had deliberately exaggerated the claim that white powder - that turned out to be flour - sent to the Indonesian Embassy last year, at the height of the Schapelle Corby drama, was a "biological agent".
Today, Matthew Moore Sydney Morning Herald FOI Editor, gives a full account of his attempts to access documents that provided the basis for public statements - including the Prime Minister's labelling the act as "murderous criminality". The post on his blogsite includes the text of emails between him and ministerial press officers during his inquiries about the matter over the last few weeks.
All could be resolved if the Government let the documents speak for themselves - so far it's the only one to see the crucial Protective Services Coordinating Committee briefing note.
The Privacy Legislation Amendment (Emergencies and Disasters) Bill creates a new Part of the Privacy Act that will apply to the handling of personal information during a declared emergency or disaster situation. The amendments follow evidence that was confusion and uncertainty about exchange of information, and disclosure during the 2004 Asian tsunami and other recent crises among government agencies and private sector bodies.
Some speakers during debate noted that the Federal Privacy Commissioner and the Australian Privacy Foundation both thought the issue was adequately covered by existing powers for the Commissioner to issue a public interest directive that would override the privacy principles. The Government claimed that new legislation was required to remove doubt and uncertainty.
The new legislation will apply to Federal Government agencies and private sector organisations covered by the Federal Privacy Act, but not to state government agencies in NSW, Victoria and Tasmania where separate state legislation applies. The original idea was to remove confusion and uncertainty, so this leg of the exercise might also require some attention if the objective is to be achieved.
The Anti Money Laundering and Counter-Terrorism Financing Bill (see earlier blog 30 November) also passed both Houses, the Government choosing to not act on recommendations from the Senate Legal and Constitutional Affairs Committee, or to pick up on many recommendations contained in the independent Privacy Impact Statement. The legislation extends existing reporting requirements and requires banks and other financial service providers, gambling organisations and others to take a "risk based approach" to identify and report to Austrac suspicious financial transactions. Some speakers highlighted concerns about the scope of the law, the extension of Austrac powers, privacy intrusions, and the possibility of discriminatory profiling of customers on race or ethnic grounds.
The Telecommunications Amendment (Integrated Public Number Database) Amendment Bill amends the Telecommunications Act following concern for some years about the potential misuse of data stored on the database by directory producers and directory assistance service providers. The database, maintained by Telstra includes unlisted and listed residential and business telephone numbers, and was established to act as a resource for emergency service and law enforcement use and for the provision of directory services. The Bill provides for access for the purposes of research in limited circumstances.
There wasn't much debate due to end of session timetabling, but the Bill was criticised for not going far enough and leaving directory service providers out of the loop.
Some privacy concerns and issues are addressed in the materials, but it will take some time for privacy advocates to consider the detail and respond.
In support of the Government's position that the card will not become a national identity card, the draft legislation includes penalties of 5 years jail and fines of up to $275,000 in the event a business requires its production for identity purposes. However there is nothing to prevent a card holder willingly providing the card for identity purposes.
Tuesday, December 12, 2006
We have mentioned this issue in previous posts but the Union has some interesting material concerning the practices of the major banks.
Key issues include whether the banks refer to the transfer of personal information in their privacy statements, and what recourse, if any, Australian customers have in the event of a failure in any overseas country to comply with generally accepted privacy standards.
Monday, December 11, 2006
We reported some weeks ago that the NSW Court of Appeal found that the ADT had erred in law in finding the Department of Education and Training was responsible for a breach of the disclosure principles in the NSW Privacy and Personal Information Protection Act when a teacher, acting for his own private purposes, disclosed information about a student (MT) to another organisation. See Department of Education and Training v MT (2006) NSWCA 270.
The Court of Appeal did not consider or overturn the Tribunal finding that the Department had, in allowing access to information by the teacher, breached the data security standard by failing to safeguard the information from unauthorised disclosure and misuse.
However the decision upheld the Department's arguments (on grounds that were only incidental to any argument put to the Tribunal) regarding breach of the disclosure principles, and following usual practice, the Court of Appeal awarded costs against MT.
The overall outcome was that the Court of Appeal found there was only a breach of one principle, not two. MT didn't contest the ADT Appeal Panel decision, but ended up on the wrong end of a cost order.
In this latest development in the long running saga, MT sought to vary the decision by going back to the Court of Appeal to seek deletion of the order for costs. The upshot was the Court of Appeal refused the application, decided that there were no grounds for varying usual Court rules, but agreed to the issue of a certificate to MT (if otherwise qualified) under the Suitors Fund Act. The effect of this is that her costs may be reimbursed, after another bureaucratic process, by the Director General of the Attorney General's Department.
So if a government agency isn't happy with an ADT Appeal Panel decision, takes the matter off to court on a question of law and wins, the court will order costs of those proceedings against the other party, even though the proceedings started off in a "no costs" jurisdiction, and through no fault of the applicant, end up in the courts. Of course, the court has discretion to grant a certificate that might, at the end of the day save the complainant/applicant from actually paying up.
In the MT case, I notice the Department of Education and Training told the Court of Appeal that it would not support a variation of the order for MT to pay costs, although it didn't oppose the granting of a certificate. Applicants - in this case, almost an innocent bystander, and a 21 year old with a disability - have to be grateful for small mercies
Its a tough game when you take on a government agency and end up in courts.
This decision resolves a matter on which members of the Tribunal have differed. Judicial Member Smith in Mangoplah Pastoral Company Pty Ltd v Great Southern Energy (1999) NSWADT 93 decided that the Tribunal had such a discretion but in that case, and others that followed, no member of the Tribunal considered it appropriate to exercise the discretion and order release.
President O’Connor in Neary v The Treasurer NSW (2002) NSWADT 261 decided that the Tribunal had no such powers. That decision, followed in the ADT in the University of NSW v McGuirk cases, has now been found to be wrong in law.
The Supreme Court is still to make orders in this case and much of the decision revolves around another procedural issue concerning the conduct of the case by the ADT.
However the findings regarding the existence of discretionary powers are important in that any FOI applicant is now in a position to make submissions in future ADT cases that an otherwise exempt document should ,in the circumstances, be disclosed. This could include instances where exempt matter could be innocuous, is already in the public domain, or where strong public interests justify disclosure, for example of a document that could be claimed exempt on legal professional privilege, or similar grounds.
Will we get an Australian version in 2007?
Thanks to David Fraser's Canadian Privacy Law Blog for the lead.
Friday, December 08, 2006
That's the claim by Sydney Morning Herald FOI Editor Matthew Moore, based on documents obtained under FOI from ACT Pathology and the Australian Federal Police. The Prime Minister in Parliament yesterday denied any wrongdoing and read a sentence from a briefing note which he claimed justified the description.
As Moore says in a follow up article today, the Prime Minister has refused to release the full advice he and other ministers relied on.
There is an easy way to clear this up - simply release all the documents.
Here's a good suggestion taken from the speech:
"If we were looking for steps that could be taken to improve working relationships (between ministers and public servants) and the understanding of accountabilities, I would offer the suggestion that newly appointed Ministers, and possibly aspiring back-benchers, perhaps even together with newly appointed Secretaries or agency heads, might be given the opportunity to attend workshops or seminars on the respective roles and responsibilities of Ministers, Secretaries and other departmental officers under our Westminster-with-Canberra characteristicsIts not just those in Canberra who should consider such a suggestion. I know from personal experience in NSW that ministers and departmental heads don't take up any formal opportunities to learn about such things as the FOI Act. Ministerial staffers are the same.
system. This would include addressing their respective roles and responsibilities under the Public Service Act, the (Financial Management and Accountability) Act, the FOI act, and other relevant legislation. It would also embrace the less formal conventions that support the Ministerial-Public Service relationship. Lest this be thought to be an unduly radical suggestion, I should hasten to say that something like it now runs in the UK".
In my consulting work on FOI since 1988, I can only recall one occasion when I was asked to provide a briefing to a group of ministers and staffers. It was organised by Bruce Hawker, then Chief of Staff to Premier Bob Carr and was a year or so after the election that brought Labor to office in 1995. No ministers turned up and only a few staffers.
To my knowledge, the exercise was never repeated.
Thursday, December 07, 2006
The Commonwealth Ombudsman yesterday released the latest report of his investigations into the 247 cases of mishandling people suspected of unlawful residence in Australia by the Department of Immigration and Multicultural Affairs. These reports concern 20 people, including 10 children. It turns out all but 2 were lawful residents at the time of their detention, including 8 of the 10 children.
In the interests of balance, here is the Minister's Press release and a link to the Department's responses.
These cases were referred to the Ombudsman following the Palmer Report, the unlawful detention of Cornelia Rau and the unlawful deportation of Vivian Alvarez.
The Minister for Immigration, Senator Vanstone, when interviewed by Kerry O'Brien on ABC's 7.30 Report, claimed that the whole exercise was proof of the Government's commitment to openness and transparency. This is spin that even Shane Warne could'nt match, but Kerry O'Brien knows spin when he sees it coming:
AMANDA VANSTONE: I think a minister's job as soon as a problem is highlighted is not to say "I'll fix this problem" and wait for others to come, but to lift up the rug and say, let�s go and find if there are any others. I don't think you can nominate a Government elsewhere in Australia and certainly not in the time I've been in Parliament where a Government has been so open and transparent and said, "Look, there are a few problems here. There could be more. Let's go and find them. Let's send them to an independent arbitrator to make a good and independent report and do a wholesale, lock, stock and barrel fix on this Department". You can't name a Government that's been that open and transparent and sought out the problems in order to fix them.
KERRY O'BRIEN: Senator Vanstone -AMANDA VANSTONE: Kerry, that's a minister's job.
KERRY O'BRIEN: Can we please continue the interview. The rug was actually lifted by the media.
AMANDA VANSTONE: I was wanting to continue my answer, if I might say -
KERRY O'BRIEN: Well, how long is it going to be?
AMANDA VANSTONE: Well, I've just finished. I wanted to make the point. I was only wanting to finish my answer.
KERRY O'BRIEN: Well, I will now make the point that the rug was actually lifted by the media. You were acting in response to scandalous cases revealed by the media.
Freedom of Information Amendment (Open Government - Disclosure of Contracts) Act 2006 No 115
The Act applies to any agency subject to the NSW FOI Act except State Owned Corporations, and until the making of a regulation, local councils. In effect, the legislation creates new publishing requirements under Section 15 of the FOI Act, and amends the business affairs exemption by adding a new limited "commercial in confidence" provision.
As previously indicated here, the Act will require an agency to publish on a central government website within 60 days, contracts for more than $5million, and details of other contracts for more than $150.000. Material variations of any contract must also be published.
Some types of information may be excluded if they come within "commercial in confidence" as defined in the Act - the contractors financing arrangements, cost structure, profit margins, full base case financial model, intellectual property, matter the disclosure of which would place the contractor at a substantial commercial disadvantage.
While these publishing obligations are not entirely new for large government departments and authorities, they will involve a whole new ball game for some organisations such as universities and other bodies subject to the FOI Act, but not normally seen to be part of the NSW government system.
The central government website mentioned in the Act currently seems geared to provide information to prospective tenderers. If the new Act is to provide a useful accountability mechanism, whatever website is used will need to have some additional search capabilities, for example to enable access to information about all contracts entered into by a particular agency, and to details of all contracts awarded to a particular contractor.
Wednesday, December 06, 2006
The Tribunal in an earlier finding, ruled that the disclosure of information in a psychiatric report about the medical practitioner had been forwarded by the Board to the Pharmaceutical Services Branch of the NSW Department of Health, in breach of the disclosure principles in Sections 18 and 19 of the Act.
In this case the Tribunal accepted that the practitioner had suffered financial loss and psychological harm as a result of the disclosure.
Other cases involving award of damages by the ADT include RD v Department of Education and Training (2005) NSWADT 195, where the Tribunal awarded damages of $2000 for a breach of privacy that occurred when the Department sent health information about the applicant to a wrong address.
In two other cases in which the Tribunal found it lacked jurisdiction, it said that it would have awarded $40,000 for a breach involving disclosure of letters about a neighbour sent to the mayor of a local council (NV v Randwick City Council (2005) NSWADT 45) and $15,000 to an applicant who an agency employee described as a "well known trouble maker" to a radio program producer (GR v Department of Housing (No.2) (2005) NSWADT51).
The JD v NSW Medical Board case is the 5th ADT case involving alleged breaches of privacy by the Board or the Department of Health arising from an investigation of a complaint about the medical practitioner and the self administering of drugs.
Wheels and justice move slowly - JD's original complaint about a breach of privacy was made in April 2003.
Rick Snell of the University of Tasmania, in "We can handle the truth" picks up on a theme close to our hearts - the need for strong, consistent and continuing advocacy through a professional and highly visible organisation, to promote open government principles, and FOI laws that work as a means of achieving them.
Snell refers to US, UK and Canadian models that could provide a basis for what should happen here.
The Council's Executive Secretary, Jack Herman says the publication of the articles is a "first step towards reform of FOI law and practice" in Australia. I'm sure he knows it will need a lot more than this.
My view is that the Council, in conjunction with like minded partners, needs to dip into its pocket to fund and develop a national advocacy group designed to hold government's feet to the fire on this issue.
Tuesday, December 05, 2006
It's generally standard "bureaucratese" with most recommendations "noted". Hardly what you would call a positive response. Many of the matters canvassed in the reports are now part of the Australian Law Reform Commission review of privacy laws.
The Government has rejected recommendations that would extend the Privacy Act to small business either entirely (as recommended by the Senate Committee) or to a greater degree (the Privacy Commissioner recommended it should apply to any company that employs more than 20 people).
No one the Government included - seems to be too fussed that Australias current legislation has not to date satisfied the EU adequacy test, but the Government agrees negotiations should continue.
Although the Privacy Commissioner has welcomed the responses, they are hardly anything to get excited about, although the additional $8million in funding for the Commission in this years budget is an important step towards adequately resourcing the privacy regulator and improving public awareness of privacy issues.
Of course all governments do this but it doesn’t justify the blatant misuse of public money for political promotion. We can expect plenty of Federal Government messages to also come our way before that election late next year.
Sunday, December 03, 2006
Those of you in local councils in NSW will be interested in the presentation by Department of Local Government investigator Angus Broad, and a paper on the role of an in house ombudsman.
Thanks to Steve Wood's UK FOI blog for the lead.
Friday, December 01, 2006
- when government is more open to public scrutiny it becomes more accountable
- if people are adequately informed and have access to information, there is likely to be more public participation in the policy-making process and in government itself
- groups and individuals who are affected by government decisions should know the criteria applied in making those decisions
- every individual has a right:
- to know what information is held in government records about him or her personally subject to certain exemptions to protect essential public interests
- to inspect files held about or relating to him or her
- to have inaccurate material on file corrected.
Readers will recall his now famous September rant to the Government Lawyers Conference. Two items in that speech were his strong and unqualified defence of the sacrosanct nature of legal professional privilege, and criticism of those who didn't understand that the administration of justice depended on it; and secondly his strong words about the media, particularly the "disgraceful treatment of former Justice Marcus Einfeld".
Yesterday, Attorney General Phillip Ruddock asked the Australian Law Reform Commission to conduct a review of legal professional privilege, following one of the recommendations from the Cole Royal Commission. The Attorney General said that while privilege was an important entitlement to enable people to talk openly and honestly with their legal advisers, it was important to get the balance right, as it was clear that in some instances, privilege had been inappropriately used to frustrate investigations.
Law Reform Commission President David Weisbrot said the Commission had been asked to determine if there were circumstances in which legal privilege should "bend" to the broader public interest.
(Incidentally, Deputy NSW Ombudsman Chris Wheeler, in the latest edition of the Australian Institute of Administrative Law Forum - not yet available online - has an article questioning why legal advice should be treated in the public sector in any different way to advice on other matters).
Then last night, Michael Beach and Viva Goldner of the Daily Telegraph received a Walkley Award for the best news report for their original story about Mr. Einfeld and uncovering his attempts to avoid traffic fines.
Not happy Ian?
Piers should defer in this area to someone with a bit more expertise about the way government works or should work, someone like Verona Burgess who writes "Government business" in the Australian Financial Review each Friday. Her column to-day includes the following:
"DFAT in disgrace". The Department of Foreign Affairs and Trade's so-called "post box" defence in the AWB affair may have been accepted by Commissioner Terence Cole within his view of what constituted "actual knowledge" of the Commonwealth, but there is no doubt about where it stands in the court of public opinion, including senior public service opinion. The long litany of sins of omission on the part of DFAT and the Wheat Export Authority are widely being read as yet another disgraceful chapter in the story of Prime Minister John Howard's public service.Just another of the usual suspects Piers?
"Worth Special Recognition". One colleague suggests that DFAT merits a special "state of the service" award for its ability to: ignore 35 separate indications of wrong doing and report that all's well; to keep an entire cabinet so completely in the dark that they even blink convincingly under a spot light; and to face with equanimity the shredding of its reputation, apparently in order to keep intact the cover of its ministers"
Thursday, November 30, 2006
The legislation itself has wide support given that it would bring Australia into line with the recommendations of an OECD task force concerning anti-money-laundering and counter terrorism safeguards. Its taken 3 years to get to this point. However its all been a bit of a rush in recent weeks with only 3 weeks for submissions and committee consideration.
The Senate Committee supports the Bill but, (in polite language) draws attention to a number of problems with the legislation and makes a series of recommendations for amendments.
The Privacy Impact Statement prepared for the Attorney General's Department by Salinger & Co. has also been posted on the AG's website together with the Department's response. Only 20 of the PIA's recommendations were reflected in the Bill presented to Parliament. The Federal Privacy Commissioner in a supplementary submission supports the major recommendations not acted on by the Government to date, and most of the others. PDF 99KB
The Bill nonetheless passed the House of Representatives without amendment on 28 November and now awaits Senate consideration.
Tuesday, November 28, 2006
Several commentators have suggested that while the Royal Commission found no illegality in the conduct of ministers or public servants, it might have been a different story if the terms of reference were also to look at neglect, stupidity or naivete in the conduct of those responsible for foreign affairs and trade.
Patrick Weller is a distinguished Australian academic and an expert on the operations of government. His column today in the Australian "The system is crook" says that the whole affair raises major concerns about public administration and ministerial responsibility and accountability. At the very least there are major shortcomings that the Howard Government should address, once it recovers from self congratulation over the Royal Commissioner's findings.
Monday, November 27, 2006
The Bill is currently the subject of an examination by a Senate Committee due to report today.
In this submission ( 21 November 2006 ) the acting Victorian Privacy Commissioner points to a few inconvenient facts - despite the title, there is a "significant risk that the proposed measures will lead to pervasive monitoring of the financial affairs of ordinary citizens" engaged in what may be ordinary every day transactions; reporting obligations on financial providers and others covered by the law concerning "suspicious matter" will mean that details of financial affairs will be held on a government database without the knowledge of those concerned; a database, in theory developed for counter terrorism and anti-money laundering purposes, may be accessed be a range of other government agencies for a variety of purposes; and state and territory designated agencies will be required to comply with Federal privacy principles where they access data, giving rise to further confusion about the interplay of Federal and state privacy laws.
The Federal Privacy Commissioner has also lodged a submission on the Bill. It's in more muted terms but you get the drift that anyone who thinks seriously about the privacy implications would have grave concerns about the Bill.
This program outlines the extent to which surveillance in the UK and the US is changing the world in which we all live, from a focus on those suspected of wrong doing to a focus on each of us, going about our daily lives.
It points up the potential misuse of data collected about us and fatal flaws in mass surveillance technology.
Just about everything covered - CCTV, tracking movement of cars on tollways and people on public transport, motor vehicle registration identification, RFID, national "Identity Card" and electronic health records, biometric data on passports - is also happening in Australia as well.
The program called for a national debate in the UK about where all this is headed.
View this program and I'm sure you'll agree we need the same debate here.
The Bill as passed confers powers on the Government to make regulations that would apply the contract disclosure requirements to local councils. In the original Bill, as proposed by the Independent Member for Bligh, Clover Moore, councils were included. She subsequently agreed to a Government amendment to simply provide the power to impose such a requirement by regulation.
Moore said during Parliamentary debate that the City of Sydney Council where she is Lord Mayor, would now voluntarily act in accordance with the requirements. There is nothing to stop other councils following the same path.
No doubt Premier's Department (responsible for FOI) and the Department of Local Government will be looking at what, if anything should now be done by way of regulation to apply this requirement to local councils.
With the Cole Royal Commission report on AWB and the UN sanctions now with the Government and scheduled to be tabled in Parliament this week, the Opposition has obtained under FOI documents that show that AUSAID had some dealings in 2003 with the Jordanian trucking company that played a key role in sanction busting.
FOI has also helped in some further exposures concerning the traffic fine evasions of former Federal Court Judge Marcus Einfeld. The Sydney Morning Herald reported that Einfeld went to great lengths to avoid most of the 9 traffic fines incurred while driving his Federal Court supplied motor vehicle over 4 years. Einfeld's lawyers are contesting the release of other documents concerning the fines, on grounds that it would involve unreasonable disclosure of personal information.
In to-day's Sydney Morning Herald "There's spittle under the polish", Paul Sheehan links these new revelations about Einfeld to comments made in September by NSW Crown Solicitor Ian Knight who railed against the media and its "disgraceful" treatment of Einfeld. This was Knight's speech that contained an over the top spray about Parliament and the media obtaining too much information, with FOI one of the contributing factors.
Sheehan today says that Knight didn't include in his analysis the reality that "lawyers are allowed to omit, distort, exaggerate, confuse, dissemble and delay" the course of justice when claiming to act in the best interests of their client. He concludes:
"The Crown Solicitor's commentary suggests that a misapprehension exists in senior legal circles that the Einfeld controversy is an aberrancy, the latest media blood sport, another beat-up. The opposite is true. The story is bigger than Einfeld. The judiciary was a fertile field for his portentous narcissism. A succession of magistrates failed to check his numerous evasions. It was the media, not the Crown, that finally brought this travesty to light"Over to you Mr. Knight.
Friday, November 24, 2006
The Education Legislation Amendment Bill passed both Houses although not without quite a lot of discomfort on privacy grounds concerning the powers granted to gather and disseminate information about students who may pose a risk to safety. There were several amendments made during debate. The consequential FOI amendment is minor. Debate in the Legislative Council is here.
The NSW Legislative Council passed the Freedom of Information Amendment (Disclosure of Contracts) Bill on Wednesday, and it now awaits assent and will become law 28 days thereafter.
The text of the Bill as passed is here, and the debate in the Legislative Council here. The Government contribution to debate came down to - "The Government supports the Bill" said the Treasurer. Greens MLC Lee Rhiannon described it as "a grunt".
The Bill will require the publication of information on a designated government website of information about contracts, including the contracts themselves in the case of those that involve more than $5million. A summary of each contract above $150,000 (there are two classes of contracts) will also be required. The publication requirement is for the information to be posted on the website within 60 days after a government contract becomes effective. A material variation (not defined) must also be published within 60 days.
The Bill exempts from publication certain information including commercial-in-confidence provisions as defined. It will also not apply to contracts entered into by the Department of State and Regional Development that involve the provision of industry support.
The legislation will apply to any agency subject to the NSW FOI Act except State Owned Corporations. While local councils are excluded, the Bill says regulations may be made to apply all or any of the publishing requirements (or a modified version) to them.
The Bill adds to the business affairs exemption in the FOIA, a new limited exemption of "commercial-in-confidence".
The legislation was the initiative of Independent Member for Bligh, Clover Moore, following an earlier attempt to have similar legislation adopted by Legislative Council Democrat Arthur Chesterfield-Evans.
While it's very welcome, it's hardly earth shattering given that similar requirements have existed in other Australian jurisdictions for some years and are commonplace overseas.
There are some interesting issues arising. For example the law will apply to an "agency" as defined in the FOI Act. In addition to state government bodies, this includes any organisation established by an act for a public purpose.
While universities and other bodies have long accepted that the Act applies to them, no one to my knowledge has ever put together a full list of who might be covered by this provision. One of the first ADT cases in NSW, for example found the Royal Society for the Prevention of Cruelty to Animals was an agency for FOI purposes, and now presumably for the publication of contract purposes. There are probably quite a few others that we normally don't associate with "government" who may be subject to these new requirements.
Depending on when the legislation receives assent, it could be a busy Christmas end of year for those who are responsible for making it all ready to work.
Should do a lot for book sales of "The Hollow Men - a study in the politics of deception" - the book about to be published on the NZ National Party.
Its expected revelations about the Exclusive Brethren may have some reverberations on this side of the Tasman.
Thursday, November 23, 2006
I don't know Dr. David More, but his blog on e-health confirms that the report card for what has been achieved in 2006 is pretty ordinary and likely to be a disappointment for Federal Health Minister Tony Abbot who, in September 2005 said that he would do everything he could to deliver benefits from the $128million national electronic medical health records program within 12 months.
It's big business in the US, but cost and privacy concerns remain. Thanks to PogoWasRight for these two leads.
Moore's account today of the hearing has the Government's key witness (a lawyer from an outside firm and not even a public servant) trying and failing to explain the calamitous events that would occur if these documents were published.The reality is that claims like this are made every day and are rarely tested or publicised.
Good on the Herald for bringing the ridiculous nature of the assertions about the public interest to the attention of a broader audience.
One of the documents released is a research report by Frontier Economics. It includes some interesting detail about the cost of FOI - the total for central government agencies is 24.4million UKpounds. The average cost of the 7.5 hours involved in dealing with the typical application is 254 UKpounds.
Here is what one critic says of the Government proposal. There is plenty more on Steve Wood's UK FOI blog.
Given the global reach of the internet, its not hard to imagine how this order could be circumvented, at least outside NZ.
It's turning into a broader restraint on speech issue, with doubts cast, but now removed, concerning the impact of the court order on the publication later this week of a book about the NZ National Party.
The Australian Privacy Act (Section 98) provides for an injunction to restrain conduct that would constitute a breach of privacy principles.
What was unique in NZ was the scope of the order restraining "anybody", and no one was named in the order. The Australian Act would seem to only contemplate action restraining a named person.
Tuesday, November 21, 2006
Sunlight Foundation is about increasing transparency in government, in particular by enabling citizens to learn more about what Congress and their elected representatives are doing.
It recently reported that 40 citizen volunteers had helped figure out that Congress is a family business, finding that 19 members had paid their spouses a total of $US636,000 this year.
The Tele has a couple of good follow ups today.
As the Premier says "Ex-premiers free to spend", the expenditure is in accordance with guidelines which do not spell out how the money can be spent. Perhaps the guidelines will get an overhaul in the current pre election climate.
This opinion piece "Free subscription to our dollars" reinforces the point that the whole idea of special lifetime benefits for ex premiers doesn't make much sense in an era when they go straight onto subsequent lucrative careers.
Former premiers Carr, Greiner and Wran epitomise the double income strategy, but congratulations to Barry Unsworth who didn't claim a cracker and still pays his fare on public transport. But he may be the last of the Mohicans.
Monday, November 20, 2006
It's not surprising that plagiarism is a major problem and is on the rise, but it is interesting that, according to the report, Sydney University posts the number of incidents on its website, while the University of NSW and University of New England are yet to even respond to the FOI applications.
Friday, November 17, 2006
As we have noted before, every opposition party running for office in any Australian election makes these sort of noises. So while a commitment to reform is a good thing, it's a first step in a very long journey that often gets sidetracked the moment they arrive in office.
The Bracks' Government - likely to be re-elected - isn't saying anything.
The party that probably would do something about FOI is Stephen Mayne's "People Power" party running candidates in the Victorian election for the first time. Its Governance policy, "Cleaning up politics" is a good read ( download policy ) and the sort of thing that any informed voter would support but I'm afraid its chances of seizing power are about as good as mine - and I don't even live in Victoria.
Thursday, November 16, 2006
His column today "What price the public interest", is a continuation of the battle with the Commonwealth Department of Employment and Workplace Relations over a request for a 50% discount on public interest grounds on an estimated charge of $13,000 for access to documents about the development of the Government's Welfare to Work policy. The online version of the column includes a link to the letters received from the Department - have a read and weep!
Moore estimates the Federal Government is spending around $200.000 on high powered legal advice and representation in an attempt to save $6500. It comes down to a government agency fighting on all fronts, just because it can, and has the resources to do so.
FOI can become a technical, legal battleground and a far cry from its spirit and intent.
Matthew Moore versus the combined forces of the Government in the Sydney Office of the Administrative Appeals Tribunal next Monday should be worth watching. It will be a bit like that idealistic James Stewart character taking on a corrupt US Senate in the old movie "Mr. Smith Goes to Washington"
Tuesday, November 14, 2006
The relevant privacy and FOI rules that apply to public sector agencies vary. Public sector investigators need to be familiar particularly with privacy laws and how the impact on the handling of personal information in the course of an investigation.
Non compliance with privacy laws by those charged with responsibility for investigating the compliance of colleagues with law and agency policy isn't a good look.
Monday, November 13, 2006
That hasn't stopped even more exemptions appearing as the Acting Privacy Commissioner has issued Directions that provide some government agencies with relief from some aspects of the law.
The latest is this Direction on the use of information for investigative purposes. The Direction - said to be temporary pending the making of a Code of Practice on this issue by the Attorney General - has been around in slightly differing forms since 2000. This latest version extends the exemption from compliance with disclosure principles to information provided by one agency to another agency to assist in the conduct of an investigation by the latter.
On 1 April 2005, the NSW Administrative Appeals Tribunal in NW v NSW Fire Brigades (2005) NSWADT 73 decided that the Direction did not protect the Fire Brigades for conduct involving the provision of information about a firefighter's non attendance at work to assist his primary employer to conduct an investigation into the taking of sick leave. The President of the ADT commented at the time that the Direction was ambiguous and if it was the intention to apply to these circumstances the Privacy Commissioner should redraft and clarify. The Fire Brigades decision itself reversed earlier Tribunal findings that the exemption covered this type of disclosure.
It's only taken 19 months for the clarification, and it was obviously judged important enough that action had to be taken even though the Law Reform Commission has a brief to review the entire Act. Perhaps there has been some behind the scenes problems that have provided the catalyst for this development, but as the Privacy Commission doesn't explain, defend or justify these directions we'll never know.
There are three relevant FOI Bills in the system but the schedule for these remaining sitting days will be heavy and that's without even taking into consideration the slanging matches that can be expected in the light of recent ministerial catastrophes, and pre election positioning.
The Freedom of Information Amendment (Improving Public Access to Information) Bill proposed by The Greens Lee Rhiannon, passed the Legislative Council on 19 October, despite the fact that all Government members voted against it, but now has to pass the Legislative Assembly where the Government has the numbers.
The Independent Member for Bligh, Clover Moore, finally found Government support for her Freedom of Information Amendment (Open Government - Disclosure of Contracts Bill) (after it sat on the Notice Paper for a year), and it passed the Legislative Assembly on 26 October. It now needs to get on the agenda for the Legislative Council but would be likely to sail through if it gets a run.
The third Bill is the Government's own - a relatively minor amendment to the FOI Act that would provide for a new exemption for information obtained by the Director General of Education from a "relevant agency" about a student seeking enrollment in a public school where the student may pose a risk to teachers.
The Education Legislation Amendment Bill 2006 is primarily about providing powers to the Minister for Education (to develop guidelines) and the Director General of the Department to gather information. The FOI Amendment would exempt access by anyone other than the student and his/her family and is a side issue to some extent.
The Bill itself seems to have significant privacy implications as pointed out by Parliament's Legislation Review Committee in Digest 16 released last week. It's come to pass because of some recent decisions that have gone against the Department of Education concerning its duty to provide a safe workplace for teachers, and some rather shocking incidents involving assault in the class room.
The Committee has sought more information from the Minister about the justification for the detail about what type of information can be collected and from whom, isn't spelt out in the legislation but would be entirely in the hands of the Minister. There is nothing on the record to indicate that the NSW Privacy Commissioner was consulted or had a view about the privacy issues arising.
While this Bill hasn't passed either house, given that it's the Government's own proposal, the odds on it getting through both stages are good, despite the end of term squeeze. The other two Bills are of much greater significance but there will be plenty of opportunity for the Government to lend its weight to other items of business in the hectic few sitting days left.
Sunday, November 12, 2006
Burke provided Marlborough with advice including how to handle Parliamentary questions about their relationship, as evidenced in this transcript of intercepted telephone calls released by the Crime and Corruption Commission. Smiths Beach Development at Yallingup: Telephone/Surveillance Intercept 8/11/2006.
It's nice to know the former Minister wasn't entirely ignorant of Freedom of Information: a conversation between them about the way to manage their secret phone calls includes the following.
"Marlborough (stutters): you see even on this, the house phone's picked up by the Premier's (department). So you can't. You can't f....... use it anymore.FOI was one thing, but the Corruption and Crime Commission presented an unexpected and more formidable challenge.
Burke: calls from your house phone to a mobile get picked up but calls from a house phone to house phone don't.
Marlborough (stutters): the safest, the safest is, what they're not able to FOI is the electoral office. That's the safe haven. They're not allowed to FOI the electoral office"
Friday, November 10, 2006
At a public forum in Sydney last night, organised by the Public Interest Advocacy Centre, Anna Johnson, Chair of the Australian Privacy Foundation, and Professor Graham Greenleaf from the Centre for Cyberspace Law and Policy at University of NSW, both said that the proposed card will be a National ID card, and highlighted important privacy, security and cost concerns.
Professor Greenleaf said that despite assurances to the contrary, the proposed card posed far greater dangers than the attempt 20 years ago to introduce the Australia Card. In particular the decision to include on the face of the card a unique identity number and the digitalised signature of the holder posed major security risks. Professor Greenleaf says that on key issues such as this there appear to be significant differences between the Task Force and the Minister for Human Services.
Anna Johnson said the card proposal should be rejected because it was unjustified, unnecessary, unpopular, unsafe, wasteful and discriminatory. She questioned the independence of the Task Force, and the continuing secrecy surrounding the Privacy Impact Assesment undertaken by Clayton Utz for the Government but which has never been released.
The full text of her speech is available on the Australian Privacy Foundation website - Speech to public forum 'The Access Card – fallacies and facts' (9 November 2006). She has a letter - "Access Card will be our national ID" in today's Australian Financial Review (no link available).
These speakers and others including Kelvin Thompson, the Shadow Minister for Human Services, and Michael Raper of the Welfare Rights Centre, questioned the cost benefit assessments that underpin the project - spending $1billion over 4 years to save $10billion over the next 10 years, according to Anna Johnson is a worse return than putting the money into a savings account.
Michael Raper said that all the current evidence is that fraud in the welfare system, while still a problem, amounts to 0.05% and hardly justifies proposed expenditure on the project as alternative less expensive measures are available.
They all expect actual costs to far exceed current estimates.
Thursday, November 09, 2006
It's not only Defence that should be thinking about such a step - every government agency might need to better protect data in this way. I'm not aware that privacy commissioners in Australia have been advocating such a development, but it would seem to be a good practice standard expected of those who hold significant personal information.
A recent survey in the US found that 88% of organisations agree that automatic encryption of data on portable devices is the best way to avoid security breaches. According to ComputerWorld data security is a top priority for US IT managers in 2007.
Australian IT reports that the Defence Department has had 28 laptops lost or stolen since June 2005. Its sure bet that Defence aren't alone in this, but little information of this kind comes into the public domain here, in contrast to the running score card of data breaches in the US maintained by the Privacy Rights ClearinghousE - Starbucks is the latest addition, having lost 4 laptops with 60,000 employee names and records recently.
2006 might indeed be called the "Year of the stolen laptop".
The Government's response accepts most of the recommendations. Response
The Task Force has taken the Government's assurances that the card is not a 'national identity' card at face value, but part of the ongoing debate is certain to focus on the prospect of "function creep", after the card's initial development.
One thing that is clear is that there is a hell of a lot of work to be done to bring this initiative to fruition.
Federal Privacy Commissioner Karen Curtis has generally welcomed the report and response. Views from card sceptics are yet to be given much air time.
Minister for Human Services Joe Hockey told the National Press Club yesterday that card holders will have an opportunity to store data of their choice on the microchip - including such things as bank account details - and that this issue would be flagged for discussion in the next round of Task Force deliberations.
Wednesday, November 08, 2006
Thanks to Tim Warner for the UK lead
Tuesday, November 07, 2006
In the interests of correcting the record, it appears that Anonymous has attributed a statement to the Ombudsman which was not made in his Annual Report or in his report on the audit of FOI reporting by agencies. Specifically, the Ombudsman did not “categorise an increase in the number of applications partially released as symptomatic of a culture intending to frustrate the disclosure of information generally…”.
What the Ombudsman actually said in his Annual Report was:
“There has been a significant and disturbing downward trend in the percentage of applications where all documents requested were released in full – from 81% of determinations in 1995-96 to 55% in 2004-05.”
In his report on the audit of FOI reporting by agencies the Ombudsman said:
“Since we started auditing, there has been a significant and disturbing downward trend in matters where it is reported that documents were disclosed in full.”
In the Press Release for the tabling of his Annual Report in Parliament the Ombudsman said:
“The significant and disturbing downward trend in the full release of documents under FOI has continued for the ninth year running.”
The Ombudsman went on to say:
“NSW has the lowest rate of full release of documents of all mainland States and the Commonwealth, … The rate of full release in NSW is 20% below the average for these other states and the Commonwealth.”
The data base will be accessible by up to 250,000 National Health Service staff, and there is continuing uncertainty about access by other government agencies including the police and security services.
The Guardian is promoting a boycott. Professor Ross Anderson of Cambridge University says if enough people protest, "with a bit of luck the service will be abandoned".
Australian medical practitioners and the Australian Law Reform Commission have recently highlighted concern about privacy laws and medical records.
The NSW Healthelink pilot project is based on automatic inclusion of health records on a data base unless a person acts to opt out. One of the privacy concerns about the project - similar to UK concerns - is that it does not provide for differential access. Any person who has access to the data base can access the complete health record of an individual.
The project was undertaken by the Constitution Unit, Department of Political Science/School of Public Policy, University College London.
The report has just been published. FOI - USA, Canada and the United Kingdom
It's an outstanding piece of research and analysis and highlights the practical aspects of managing FOI responsibilities. Understandably it includes a section on how and why records management issues are crucial to access to information regimes.
Research of this nature is rare, and many of the findings are likely to be of universal application.
The key findings of the report are:
- In practice, freedom of information (FOI) works differently to the ideal vision of how it should work.
- The costs and benefits of FOI are unclear; further research is required to assess each.
- Monitoring FOI forms an important component in any successful implementation; however ,monitoring requirements and standards vary considerably across the USA, Canada, and the UK.
- There is a core set of exemptions common to almost all FOI laws, which includes those relating to national defense, international relations, personal information, legal proceedings and policy advice.
- Some FOI regimes, most notably the UK’s (which entails a "government veto" that enables it to withhold information), illustrate a certain degree of reluctance to move to genuinely "open government".
- The proportion of a country’s population that use FOI is very small. Citizens in the United States are more active users of FOI than citizens in the United Kingdom or Canada. Despite what one might think, most journalists do not use the Act; how a core group of reporters and editors do use the legislation; often to great effect.
- Private individuals (i.e. ‘members of the public’), businesses and the media are the most frequent users of FOI.
- There are very few FOI ‘horror stories’; the release of information has rarely impacted negatively on the public interest.
- The new security environment has had a marked impact on freedom of information, especially in the United States where several measures have been introduced to restrict access to information.
- In spite of drawbacks and problems encountered in each jurisdiction, more information is being released into the public domain and there are signs that FOI legislation helps create a greater culture of openness in government.
- Records management is at the heart of successful implementation of FOI legislation; essentially, if the information cannot be efficiently located it is unlikely to be released.
Monday, November 06, 2006
The Daily Telegraph in "You dam fools" based this story about reserves of Sydney's drinking water not meeting standards on a 2005 consultant report obtained under FOI.
The Australian in reporting the introduction of speed limits in the Northern Territory, revealed that advice to the Government that such a step would reduce loss of life, had been rejected, with the Government claiming that alcohol not speed was the main problem on Territory roads. A year later, it's speed.
Given the fact that law and order is a hot issue around the country, The Advertiser's report based on documents released under FOI that almost half those who apply to join the South Australian Police Force don't survive the recruitment process, may be indicative of what happens elsewhere. In South Australia, they're turning to the UK for recruits.
Matthew Moore's FOI column in the Sydney Morning Herald on Saturday about refusal of an application for documents about breaches of the Oil for Food sanctions (the issue was blogged here last week) has prompted 27 comments to date concerning the Government's attempt to hide information about the allegations and investigations.
In Victoria, Opposition Leader Ted Bailleau pushed Premier Steve Bracks on the issue of transparency, and FOI in the televised debate. In addition to the article cited last week, the Age has had follow up reports concerning public private partnerships, an alleged $8million contract rort, and this editorial "People are starving – give them information".
Saturday, November 04, 2006
Here's the short version – and this is the link to the full text which will give you plenty of interesting, thought provoking reading – all 20 pages.
And if you really want to know about just how much “big brother” is watching in the UK, have a read of this.
In the US a documentary "Big Brother, Big Business" has just been shown on CNBC. Not sure when it will run here but in the meantime here is a site that shows some interesting video clips.
Thanks to David Fraser's privacylawbog for the lead on CNBC