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Monday, July 31, 2006

SWIFT investigations on a roll but not here

Add the NZ Privacy Commissioner and a group of EU privacy regulators to those investigating the US monitoring of international banking transactions through the SWIFT bank cooperative in Belgium. Thanks to pogowasright for the lead.

No sign of any public response from the Australian Privacy Commissioner despite representations from the Australian Privacy Foundation and the clear indications from Canada, Belgium, Germany, others in the EU and now New Zealand that this is worth a close look.

Gloomy FOI news to start the week

Critics say it hasn’t taken long – 18 months after the FOI Act became fully operational – but a leaked Cabinet document in the UK reveals a proposal to increase fees with a prediction that this will lead to a 17% reduction in applications. The Act already provides that an agency can refuse a request if time involved in the processing would cost more than UK600 pounds (about $A2300) or UK450 pounds for a local authority but there is no current charge for locating or reading the documents.

At the other end of the spectrum in the US where FOI has been in place for 40 years, a report by the Government Accountability Office says response times for applications have slowed markedly and the problem is getting worse. Critics there say urgent action is needed to provide incentives for agencies to deal with their legislative obligations.

Meanwhile in Australia media experience continues to highlight weaknesses identified in a myriad of reports by ombudsmen and other review bodies about slow and inadequate responses to applications. The FOI in the news item posted below includes reports by the Daily Telegraph that it took a year (and Ombudsman intervention) to produce documents concerning the NSW Police Training College and by the Sydney Morning Herald that it took a year to get access to a document concerning illegal land clearing.

Sunday, July 30, 2006

FOI in the news

Media reports based on FOI applications over the last week included:

Daily Telegraph 24 July:
Secret police file of shame” - The NSW police training College at Goulburn has become riddled with poisonous culture where sexual and workplace harassment is rife according to The Daily Telegraph. This report is based on documents released 12 months after the FOI application and following a complaint to the Ombudsman. A separate AAP report said that the Police Commissioner will review all serious allegations of misconduct.

“$1.6m on buses as trains fail” NSW Countrylink spent more than $1.6 million providing emergency buses in the first four months of this year because of derailments, missed connections, late trains and mechanical failures. The figure -- on top of the money spent providing buses when planned trackwork is being done -- has blown out to $4 million over the past two years.

The Australian 24 July: “Aged care Michelin Guide mooted” Choosing a nursing home could be as easy as browsing a Michelin-style guide that assigns a star rating to the food, services, and quality of care providing by different facilities.A five-star rating system was just one of the options considered in a report commissioned by the federal Government on how to best match people with available aged care homes. But the report, obtained by The Australian under Freedom of Information legislation, finds a rating system that could be used by a matchmaking agency not dissimilar to a travel agent is not feasible at present, because long waiting lists mean most people have no choice.

The Herald Sun 25 July: “Fatter and fatter” Melbourne Market Authority chief Bob Penter has spent almost $210,000 in expenses in the past five years and spent a total of three months overseas at a cost of $85,000 between 2000 and 2005.

The Australian 26 July: “Minister exposed on parrot” Federal Environment Minister Ian Campbell ignored explicit advice from his own department that stated a $220million windfarm posed no obvious threat to an endangered parrot and should be approved. Senator Campbell vetoed the project despite warnings from one of his top bureaucrats that using the orange-bellied parrot to stop the windfarm could have widespread ramifications for coastal development in four states. See also this report in the Age.

The Age 28 July: “Switched off on digital TV “ in this opinion piece the author claims the Federal Department of Communications responded to an FOI application for information about conversion from analogue to digital television by saying there was already plenty of information publicly available.

The Weekend Australian 29 July: "Cheques and balances"- this article about Centrelink includes information obtained in response to an FOI application that almost one in two records in a random sample contained errors.

Sydney Morning Herald 29 July: In his weekly “What they won’t tell you column” FOI Editor Matthew Moore in “Dead letter office” reports on a one year delay in seeking access to a letter to a NSW farmer regarding illegal land clearing. You can see the letter that caused the fuss.

As usual some links not available in free content.

Thursday, July 27, 2006

NSW ADT FOI decision: confidentiality provision in a contract trumps all

It’s difficult to reconcile the lofty ideals and objects of freedom of information legislation and a recent NSW Administrative Decisions Tribunal finding that a document is exempt simply because an employee and his employer (an agency covered by the FOI Act) agree that a document should remain confidential.

In Fomiatti v SU (No.2) 2006 NSWADT 210 the NSW ADT found that documents concerning the employment of a vice chancellor at an unnamed university are exempt on the grounds that disclosure would found an action for breach of confidence. There is no reference in the decision to an order prohibiting disclosure of the name of the agency but it has been anonymised in the public report. That's just for starters.

The university had released part of the contract but refused access to 7 clauses and a note on one of its pages. One of the claims was in respect of an address (presumably a home address – no argument there and exempt on personal affairs grounds), but no description is provided about the type of information contained in the other clauses, apart from the comment they contained “provisions dealing with the obligations of the parties….in relation to the Vice Chancellor’s employment”.

The contract had been concluded in 2000. Two later variations and a 2005 draft were also disputed documents in the case.

The Tribunal decision was that all the documents (even those parts that had been disclosed to the applicant) were exempt under Clause 13(a) of Schedule 1 because disclosure would found an action for breach of confidence. A provision in the contract stated that “both parties will not disclose any of the details of this agreement other than by mutual agreement or if required by law”.

On the basis of the reasoning in the case, even disclosing this could found an action for breach of confidence.

Whether disclosure of information would found an action for breach of confidence is a complex issue and has been addressed in detail in a number of other cases in other jurisdictions in Australia. Most of these decisions involve consideration of whether there is a need to take into account various factors about the matter other than simply words used in the contract.

In contrast, Judicial Member Wilson seems to have seen it as a straightforward issue.

There is probably a reasonable basis for the proposition that a provision in a contract can found an action for breach of confidence, although there was agonising about this (not reflected in the ADT decision) in the cases cited as precedents. In at least one Federal ADT case not cited (Re Kamminga) the Commonwealth Administrative Appeals Tribunal took another view.

Judicial Member Wilson seems to have concluded that the only issue was whether the contract contained a confidentiality clause. Once that's established it's game, set and match.

As a result there is no reference to the need to weigh other considerations: the global description (“any of the details”) of the “confidential” information; the nature of the information (“obligations of the parties in relation to employment”) and whether it was of a kind that could be subject to an obligation of confidence; and whether any detriment to the provider needed to be demonstrated.

Perhaps its correct (in the light of some Commonwealth precedents that aren’t mentioned in the decision) that the Act does not require any weighing of public interest factors as Clause 13(a) makes no reference to the public interest. Yet there is no explanation in the decision about how this conclusion was reached, or acknowledgement of the High Court’s Fairfax doctrine of 25 years ago:
“The judiciary must view the disclosure of government information “through different spectacles”. This involves a reversal of the onus of proof. The Government must prove that the public interest demands non disclosure”.
There may have been an assessment that a document of this kind concerning a university should be treated differently than a similar document held by a government body but again this isn’t an issue canvassed in the decision.

I can imagine what Mr. Fomiatti thought of the following observation (paragraph 24):
“The Applicant will readily appreciate the spirit of the legislation in preserving the sanctity of confidences that parties have expressly agreed upon…”
My understanding of the spirit of the legislation is that it seeks to extend as far as possible the rights of the public to access information, subject only to such limitations as are necessary for the proper exercise of public functions.

While there is nothing in the decision to suggest anything untoward, the Tribunal might have also been expected to require satisfaction that the parties had not included the provision in the contract in order to avoid the possibility of disclosure under the FOI Act.

Judicial Member Wilson may have got the decision right – after all the rest of us don’t know what the documents contain. If it is the correct application of the law, it's yet another reason why the FOI Act needs re-examination in order to achieve its objectives.

At a time when the NSW Government is on the back foot about disclosure of contracts, this decision (or Clause 13(a)) opens up significant potential to frustrate the public right to know.

Annual reports of the NSW Ombudsman have previously referred to the investigation of complaints about access to employment contracts of one or more university vice chancellors. The Ombudsman concluded that details should be provided subject to the deletion of any information of a personal nature.

There is obviously a gulf between the Ombudsman’s views and the interpretation of the law by the ADT.

New NSW proposals for access to court documents

A new computer system, CourtLink, for the NSW Court system is being implemented across the Supreme Court, District Court and Local Courts. As part of this process a review of issues associated with access to court information and documents is under way.

A draft review paper "Review of policy on access to court information" (see middle of page) issued by the Attorney General’s Department includes 22 proposals for managing public access including a significant shift away from the current process where the court exercises considerable discretion in deciding whether access to court documents will be granted.

Submissions were invited on the paper and closed on 14 July. Given the issues canvassed concerning rights of access and privacy implications, its had little media coverage. The only article I’ve seen is a straight report “Plan to revamp court access” (no link available) by Chris Merritt, the Australian’s Legal Editor on 9 June.

There has been no mention of the review on the NSW Privacy Commissioner’s website.

The paper makes a strong case that the principle of open justice requires clear rules concerning the public right to access to court information, but acknowledges that the power of technology and online access will require careful handling of some categories of sensitive information considered during court proceedings.

It proposes categorising certain documents and information as open access, with restrictions and legislative prohibitions against media publication of other categories of documents listed as restricted access. It would also give the courts clear powers to require removal of some information from websites where publication may be prejudicial to a trial. Restricted documents that become State Archives will not be available for access for 75 years.

The paper highlights the importance of balancing the principle of open justice and the rights of privacy but notes that currently the NSW Privacy and Personal Information Protection Act does not apply to a court or tribunal when exercising judicial functions.

Apparently courts have approved various arrangements with state government agencies and others such as credit rating organisations to access information in court records but in the absence of legislation there is a lack of rigour in the present system, and no safeguards against misuse of access rights conferred on government agencies.

The proposal for a comprehensive new legislative scheme sounds as if its been a long time in the making and getting a final proposal agreed to by the courts, passed by Parliament, and implemented will be complex and difficult.

While just about every other proposal concerning privacy in NSW seems to be put to one side pending the report on privacy laws generally by the Law Reform Commission it will be interesting to see whether this initiative gets a priority.

UK proposes jail for privacy infringements

The UK Department of Constitutional Affairs has issued a discussion paper “Increasing penalties for deliberate and wilful misuse of personal data”. The paper proposes an increase in penalties for those who seek to profit from illegal trade in personal information or who otherwise wilfully or recklessly disclose information held by public or private organisations.

The maximum penalty would be 2 years imprisonment with the existing unlimited power to impose fines.

The paper has as an underlying theme the importance of sharing personal data within government in order to improve services while at the same time deterring and punishing those who deliberately or recklessly misuse information.
The UK paper says that since 2002 the Information Commissioner has prosecuted 26 cases under the existing law.

Australia’s privacy laws are light on penalties although the NSW Privacy and Personal Information and Protection Act (S62) that applies to the public sector only, makes corrupt disclosure and use of personal information a criminal offence punishable by 2 years imprisonment or a fine of $11,000 or both.

In NSW prosecution is a matter for the Police. There have been no reports of any prosecutions although the NSW Privacy Commissioner in a submission to the Attorney General in 2004 said that he was aware of some matters that warranted investigation but did not have the resources to pursue them.

Another issue for the Australian and NSW Law Reform Commissions in their current reviews of privacy laws.

Wednesday, July 26, 2006

Transparency the key to public trust

"Transparency is the key for consumer confidence"
NSW Attorney General Bob Debus as reported in a front page story in today's Australian Financial Review ("Lawyers forced to disclose full fees" - no link available) about a NSW initiative for the introduction of nationally consistent requirements for upfront estimates of legal costs and associated expenses by lawyers.

He's right. The same principle applies to public confidence in government. Perhaps he might lend his voice to promote more pro-active disclosure of information about the conduct of public functions in NSW, or at the very least compliance with the spirit of the FOI Act.

Tuesday, July 25, 2006

Sensitive police data stolen

Leaving sensitive information in the car can have serious ramifications. Information about investigations by the Victorian Office of Police Integrity was stolen from an unattended vehicle. Victorian Privacy Commissioner Paul Chadwick who earlier this year issued a damning report about the Office said that "it was an accident waiting to happen".

Monday, July 24, 2006

Australian Privacy Foundation calls for inquiry into US SWIFT monitoring

The call to arms for a look at what the US Government has been doing in monitoring international banking transactions by the bank SWIFT cooperative rolls on: the Australian Privacy Foundation has written to the Federal Privacy Commissioner asking for an urgent inquiry ("SWIFT disclosures of Australians' financial information without warrant to the USA") and authorities in Germany are also now investigating.

Plenty of UK FOI stories in Act's first year

Our "FOI in the news" posts provide an insight into Australian media stories based on FOI but hats off to the UK Campaign for FOI which has now published summaries of 500 press stories based on disclosures during the first year of the Freedom of Information Act. They include disclosures under the UK and Scottish FOI laws, both of which came fully into force on 1 January 2005. The stories have been categorised by subject, newspaper and public authority and illustrate the wide range of significant information which has been released. N.B. This file is 1.9 Mb

Thanks to Steve Wood's UK FOI blog for the lead.

Sunday, July 23, 2006

FOI in the news

Media reports based on FOI applications during the week included:

The Sunday Age 16 July:
“Cheaper off-peak travel the ticket –free ride – the future for public transport” - The Victorian Government is considering cheaper off-peak public transport fares to increase patronage. An internal Government briefing paper confirms an analysis by The Sunday Age earlier this year that free public transport would boost patronage by up to 30 per cent.. But it rejects this solution, saying improving services would result in even higher passenger numbers. The Department of Infrastructure paper dismisses free travel or low-cost fares in peak times, but says lower fares during off peak should be considered.

“Lonsdale streets ahead on fines” – Victoria’s most fined street nets the City of Melbourne almost $2 million a year. An average of 103 fines a day are handed out by parking officers patrolling Lonsdale Street in the CBD, making it easily the most fined street in the state. Figures show that, in the year to April, Melbourne City Council slapped 38,000 parking fines on cars in Lonsdale Street. Across the CBD, 412,000 parking fines were handed out.

Daily Telegraph 17 July: "Jail care a $70m sick joke” - Inmates are undergoing plastic surgery, hormone therapy and erection dysfunction procedures as taxpayers fund an expanding prison health system costing nearly $70 million-a-year. Prison medical care has featured 256 elective surgery operations over the past two years.

Herald Sun 17 July:
“Dead suspect protected” – Victorian Police on internal review have confirmed an earlier decision to refuse access to the full criminal history of a suspected double murderer despite him being dead. The decision was based on the fact that a coronial inquiry has yet been held into the deaths.
“Casual teachers a $200m emergency” - Victorian state schools have spent $200 million on emergency teachers to cover classes while staff are away.

Herald Sun 20 July: "Baldy wants details kept secret" reports on a Victorian Tribunal hearing of a case in which a local resident is seeking access to documents about why a notorious pedophile was allowed to live near a primary school when freed on parole last year.

Herald Sun 20 July: “Waiting to die – Deaths that should cause an outcry” – this opinion piece draws on earlier reports that 250 of the 500 people on Victorian hospital waiting lists die unnecessarily each year.

Daily Telegraph 20 July: “Poisoned by our Harbour – every family tests positive for toxins” - Blood tests on Sydney Harbour commercial fishermen and their families have found that every one of them has dangerously high levels of dioxins in their bodies. The test results, which will be released to the families today, show all 95 people tested have dioxin levels between twice and 10 times the Australian average.

Herald Sun 21 July: “Rocks report ignored" - A consultant's report on the Seal Rocks Centre on Phillip Island has been leaked to the Opposition after a Victorian Civil and Administrative Tribunal decision that the document was not available under FOI because of the Cabinet Document exemption.

The Australian 21 July: “Mandarins told how to beat FOI” – Australia’s top bureaucrats have been briefed on a strategy to prevent embarrassment to their political masters.. The powerful mandarins of Prime Minister, Treasury, Defence and other departments met in Canberra on March 1, and were told how so-called conclusive certificates could be used to stop the release of damaging documents sought under Freedom of Information laws. Details of the meeting, obtained by The Australian using FOI, include guidance that in the event of review, the only issue for consideration is whether “reasonable” grounds existed for the issue of a certificate.

Weekend Australian 22 July: "Diggers go AWOL 2500 times” – Defence personnel have gone AWOL more than 2500 times in the past three years, with some soldiers failing to turn up for flights to East Timor and sailors missing as warships prepare to leave port. Australian Defence Force documents reveal thousands of disciplinary breaches across the services.

Herald Sun 22 July: “$168,000 in freebies for Games“ – Chinese officials, big business and bureaucrats have emerged as big winners in a $168,000 Town Hall splurge on Commonwealth Games tickets.

Sydney Morning Herald 22 July: In his weekly “What they won’t tell you” column FOI Editor Matthew Moore in "What a government charges to open a drawer" invites entries for the slowest public service filing clerk award and includes examples of slow response times to FOI applications, particularly in circumstances where the relevant documents would have already been identified and collated for other purposes.

As usual some links have disappeared from free content.

Tuesday, July 18, 2006

UK universities get together on FOI resources

Those in Australian universities who struggle with the management of FOI and related responsibilities will be a little envious of their UK colleagues - this announcement of a UK200,000 pounds grant to John Moores University Liverpool and the University of Manchester, to develop a gateway of resources and materials concerning information access issues relevant to the higher education sector.

Who's going to run this one by the Australian Vice Chancellors Committee?

Monday, July 17, 2006

Hilarious privacy send up by Newsday’s Walt Handeslman

This fantastic jibe at the US National Security Agency telephone eavesdropping is doing the rounds in North America and deserves an audience in our neck of the woods.

Thanks to David Fraser's Privacy Law Blog for the lead.

Sunday, July 16, 2006

FOI in the news

Media reports based on Freedom of Information applications this week include:

The Age 9 July: “Hospitals lacking 550 beds. Report warns of longer waiting times” –Victorian public hospitals are short of hundreds of beds, making them ill-equipped to cope with the demand for elective surgery, a report has warned. The State Government-commissioned report put the 2005-06 shortfall of hospital beds available for elective surgery at about 550. The worst affected areas were orthopedic and plastic surgery.

The Australian 10 July: “Wildlife may threaten development” - According to documents obtained under Freedom of Information laws, BHP says the petrel and the whale may live in areas affected by a proposed desalination plant in the upper Spencer Gulf of South Australia. The animals are included in a list of flora and fauna referred to the Environment Department as potentially affected by the expansion.

Herald Sun 10 July: “2.7 mil guineapigs - Victoria's animal experiments skyrocket” - More than 2.7 million animals were used for scientific experiments in Victoria in a single year, new figures reveal. Testing on animals rose dramatically in 2004, the most recent data shows.. Experiments included ``burning or scalding'' 66 sheep and ``interference of the central nervous system'' of 6500 animals including 15 cats, five pigs and nine rabbits.. Some 2.1 million chickens were used in a project to test a vaccine for Newcastle disease.

Herald Sun 11 July: “Panda does Paris - Taxpayers pay $30,000 bill” – Victorian Tourism Minister John Pandazopoulos lived it up in the Paris Hilton during a $30,000 taxpayer-funded luxury European trip. The minister cost taxpayers almost $12,000 on first class airfares to London for a journey described as a vital “sales mission'' to Europe and Britain.. Mr Pandazopoulos spent two weeks travelling around Europe enjoying some of the continent's most prestige accommodation.

The Australian 13 July: “Files turn up heat on Green to resign” - A Not-for-profit body seeking to compete with a monopoly run by two former Labor ministers claims its application was "not treated seriously" by Tasmanian Deputy Premier Bryan Green. Documents show the would-be competitor became so frustrated at the manner of its treatment by Mr Green that it accused the Government of "acting either unconscionably or incompetently". The documents, obtained by The Australian under Freedom of Information laws, will place further pressure on Mr Green, whose resignation is being demanded by opposition parties. Mr Green has been accused in parliament of signing a "corrupt" secret deal in February to enshrine the Tasmanian Compliance Corporation's monopoly on builder accreditation.

The Age 13 July: “Ambo workers' sick claims double” - The number of injured or stressed paramedics and other ambulance officers making WorkCover claims has almost doubled in five years, costing the state more than $13 million in that time. Figures show the number of claims made by ambulance workers in Victoria rose from 106 in 2000-01 to 193 in 2004-05. Of the claims in 2004-05, 120 related to manual handling, lifting and moving patients - likely to become a growing problem if rates of obesity continue to grow.

The Advertiser 13 July: “Rann won't retreat on law” - Tensions between government and the judiciary were "healthy", South Australian Premier Mike Rann said yesterday. Mr Rann said if there was no tension between the various wings of a democratic system then it would be "a cosy relationship" similar to"Queensland in the '60s". Mr Rann's comments came after letters released to The Advertiser under Freedom of Information laws show Chief Justice John Doyle had called on him to show restraint when commenting on judicial and criminal law issues.

The Sydney Morning Herald 14 July: “Displaced public servants survive Iemma Government purge” – The NSW Premier, Morris Iemma, had promised to "tighten" the list of unattached public servants. But figures show the public servants were costing $17.8 million on June 1, three months after the audit, compared with $17.4 million in March. The audit showed there were still 262 unattached public servants on June 1 - among them, 44 people who had been on the payroll without a job for more than a year - up from 33 in August 2005.

The Sydney Morning Herald 15 July - In his weekly column “What they won’t tell you” FOI Editor Matthew Moore in “When you can't trust organic labels” reports on an attempt to obtain details of country of manufacture of organic tampons shown to be falsely certified by the Texas Department of Agriculture.

Herald Sun 15 July: “Our speeding MPs caught” – Victorian Police Minister Tim Holding is among scores of state politicians caught speeding in their government cars.

Sunday Herald Sun 16 July: “Tough at the top” – Victorian Premier Steve Bracks’s recent overseas trip has cost tax payers $250,000.

Thursday, July 13, 2006

UK ID card - fat lady yet to sing but....

With the Australian Government moving ahead with national access card plans – the Australian Financial Review reported earlier this week on the search for a person/consortium to manage the project at around $1million a year – things may have taken a turn for the worse in the UK.

The Government there has initiated a further review, prior to final project definition, to then be followed by a tendering round, prompting The Register "Not delayed, not sleeping, dead - UK ID card scheme goes under" to conclude that the UK ID card project is now doomed.

Thanks to Pogowasright for the lead.

Tuesday, July 11, 2006

Big Australian yawn to US monitoring international bank transactions

No sign of any interest from the Australian Government - simply no mention on the Federal Privacy Commissioner's website - but elsewhere there has been some follow up on the reports a couple of weeks ago (see our link) about US authorities allegedly improperly accessing information about international bank transactions processed by the Belgian based SWIFT financial cooperative. Australia's banks use the system for international transactions along with thousands of others.

The European Parliament has passed a resolution wanting to know what's been going on and the Canadian Privacy Commissioner is examining whether Canadian financial records have been accessed by the US without authorisation.

Australia relaxed and comfortable as usual?

NSWADT FOI decision on internal working documents

The NSW ADT in Howell v Macquarie University (2006) NSWADT 207 found that 13 documents recording communications between the University’s legal officers and other officers in connection with an investigation into an incident and associated matters including legal advice, were exempt on legal professional privilege grounds.

Most of the text of the decision involves an explanation of the background and a lot of consideration of whether another document was exempt as an internal working document, particularly the public interest factors for and against disclosure. The Tribunal was satisfied that a decision had been made on the matter the subject of the communication.

The University’s arguments about the public interest in non disclosure advance principles that the NSW Court of Appeal (WorkCover Authority v Law Society of NSW (2006) NSWCA 84) has expressed scepticism about – disclosure would impair the integrity and viability of decision making processes, because the document concerned deliberations at a high administrative level.

Judicial Member Wilson did not refer to the Court of Appeal decision but found that the evidence did not demonstrate that disclosure would have any adverse consequences on the University’s administrative processes, nor that it would inhibit in any way similar deliberations in the future.

Rather than finding the document was not exempt, the Tribunal referred a decision on it’s status back to the agency, urging the University to examine whether disclosure of the document would reveal a confidential source of information and/or could be the subject of legal professional privilege.

Some might suggest this was being overly helpful to the University as the two issues had not been argued as relevant to public interest considerations in the ADT.

Monday, July 10, 2006

Ombudsmen looking for ways to deal with "querulants"

Often those who pursue issues concerning transparency and accountability can be seen by the government agencies involved as “difficult” customers.

The Commonwealth Ombudsman in this article “Dealing with difficult complainants” in the Canberra Times last week says that there is growing concern amongst ombudsmen and similar offices of a perception that some complainants can be too demanding and unreasonable. His comments cover the field generally and are not limited to FOI matters.

Ombudsmen have even invented a new word – querulant – to describe this concern.

The Ombudsman says that a project led by the NSW Ombudsman’s Office is looking at practical strategies that might assist dealing with unreasonable complainants, including those who complain about the way their complaint was handled.

Professor McMillan acknowledges there is a difficulty in distinguishing legitimate complaints and unreasonable conduct.

Queensland is the only jurisdiction in Australia that includes in its FOI Act a provision regarding vexatious use of the Act – the Information Commissioner has powers to make a declaration. The NSW Administrative Decisions Tribunal reserves the right to impose a cost order on an FOI applicant in proceedings before it where it finds vexatious conduct.

It will be interesting to see what the ombudsmen come up with.

Sunday, July 09, 2006

FOI in the news

Media reports based on documents sought under FOI over the last week include:

Sydney Morning Herald 3 July: “A city toll we’d be willing to live with” - Sydney residents would accept a congestion tax in the central business district if they thought it would allow them to reclaim the city from cars, secret research by the Roads and Traffic Authority has found. The 117-page report, code-named "Project London", reveals since 2000 the RTA has found some enthusiasm for congestion tolling, similar to a system used in London. The City of London levies a tax of £8 ($20) a day on every vehicle entering the CBD.

Anger over cheap-as-chips native timber exports” - Native timber from south-east NSW's forests is being sold by the State Government for well below market prices to Japanese woodchippers when there is enough Australian plantation timber for chip exports, anti-logging activists say. The Greens MP Lee Rhiannon also accused the Government of covering up how its plantations division allegedly subsidises its native forests division, after Forests NSW refused a freedom-of-information application for the unit price per tonne at which the native timber was sold.

ABC regional news 3 July: “Green group uses FOI to get ruby drilling” A conservation group from the Barrington Tops has used freedom of information (FOI) to uncover details of mining company Cluff Resources' plan to do exploratory drilling for rubies in the area. The chairman of the Save Barrington Tops group requested the information almost two years ago and has only just got her hands on it.

Herald Sun 4 July: “Secret terrorism plan - Experts ready to cope with attack”– a specialist response team of defence, security, police and counselling staff has been established under a confidential Federal Government initiative to respond to mass-casualty attacks against Australians overseas. Hostage recovery elements and experts able to respond to nuclear or biological attacks against Australians have also been worked into the plans.

Canberra Times 4 July: “By all accounts, a government that can” –an opinion piece by Jack Waterford a pioneering user of FOI in Australia includes the following comment - "FOI legislation has been rendered so complicated and expensive - and so subject to novel and arbitrary exclusions, such as the need to protect a minister from possible embarrassment - that it now plays almost no role in the accountability system. This could change as a result of a matter before the High Court, but, given the Government's (and the Attorney-General's) devotion to administrative law, most cynics expect that any inconvenient judicial decision will be overridden by a tame parliament and by fresh administrative obstructionism".

Herald Sun 5 July:
Privacy hazards remain" - an independent investigation into a government department's role in the biggest breach of privacy in the state's history has uncovered serious security concerns. Documents obtained by the Herald Sun reveal that the Department of Justice has been warned sensitive and confidential information is being inappropriately handled and in danger of being leaked again.

“Asher bully claim” - The Bracks Government bullied the Deputy Opposition Leader to stop her inquiring about the misuse of taxpayers' money. Ms Asher said she had been told that if she appealed a decision to refuse access to documents concerning the payment of compensation to the Vodafone Arena during the Commonwealth Games she could be the subject of a cost order against her.

Canberra Times 5 July: “Snow wants inquiry into “illegal sale” – and 6 July: “Secret hearing on land sale “unbelievable” – two follow up reports concerning the sale of a $39million development site at Fyshwick.

The Mercury 5 July: “Negotiator on $2500-a-day” - THE Tasmanian Government paid the boss of the Australian Rail Track Corporation David Marchant $2500 a day to help it negotiate a $128 million rail rescue package. Total cost was estimated at $82,500 with another $200,000 to cover costs of services from other ARTC executives.

The Advertiser 7 July: “ Threat to tram “with change of council” South Australian Transport and Infrastructure Minister insisted warnings in a report from officials about risks to the planned tramway extension in Adelaide in the event of a change in Adelaide council composition at the election had "nothing whatsoever" to do with the Government's decision to extend the council's term.

Sydney Morning Herald 8 July: In his weekly “What they won’t tell you” column “No interest in names of dodgy eateries” – FOI Editor Matthew Moore provides an update on his attempt to obtain details of city restaurants that have been fined for non compliance with food standards. City of Sydney Council has now provided a list of those fined with names deleted. Moore contrasts this approach with the ready availability of these sort of details in major world centres such as London, New York and Vancouver. Some of the responses on the blog are interesting - in North Carolina there's a TV news program about the worst offenders.

The Age July 9: “Revealed: how AWB beat Iraq probe" - Eighteen months after the invasion of Iraq, high-ranking Australian diplomats in Washington colluded with an AWB "damage control" team to shield the wheat exporter's actions from a potentially damaging US Senate investigation. Documents reveal for the first time the extent of the extraordinary co-operation between the Howard Government and AWB during 2004 as they worked to defuse the US Senate's probe into corruption of the United Nations Food for Oil Program.

Friday, July 07, 2006

UK FOI- Rupert Murdoch and the Queen in the spotlight

It would be a full time job to try to keep up with important and interesting FOI developments overseas so we limit international coverage only to the very important, or very interesting to Australian readers categories.

We couldn't resist reporting that the UK Information Commissioner has overruled a Cabinet Office decision to refuse access to a request seeking dates of telephone discussions between Prime Minister Blair and media magnates (our once Australian) Rupert Murdoch and Richard Desmond of the Express. The Cabinet Office refused access on the basis that disclosure would be prejudicial to the effective conduct of public affairs. The Commissioner found that in this particular case the public interest required the disclosure of the requested information, provided that the Cabinet Office's records indicated that the discussions which had taken place were of an official nature. The Commissioner also concluded that when refusing the request for information the Cabinet Office should have provided a clearer explanation of both why it considered the information exempt and of its consideration of the public interest test. Full Transcript of Decision Notice FS50086128

And how about this, (our very own) Queen has had to ask for more money to fund three new staff positions to deal with consultations with government departments that have received FOI applications concerning matters in which the Royal Household has an interest.

Thursday, July 06, 2006

NSWADT FOI decision limits business affairs exemption

In Ferns v NSW Police (2006) NSWADT 198 the NSW Administrative Decisions Tribunal considered the exempt status of documents that revealed information about access to the Police Computerised Operation Policing System by officers of the Department of Corrective Services.

The decision involved consideration of two exemptions – whether the disputed documents disclosed information concerning the business affairs of the Department of Corrective Services (Clause 7 Schedule 1 of the FOI Act) and/or whether the documents had been created by the Corrections Intelligence Group of the Department in the exercise of its functions concerning the collection, analysis or dissemination of intelligence (Clause 4(3B) of Schedule 1).

The Tribunal found that the documents were not documents concerning business affairs – they were “purely administrative in nature and have been created so that the Department was able to perform its administrative functions”. It appears to have rejected the interpretation of the terms business, commercial and financial affairs of a government agency adopted by the Commonwealth Administrative Appeals Tribunal in Saxon and Australian Maritime Authority (unreported AAT 19 June 1995) – that these words are “words of very wide application and cover all the aspects of an organisation or undertaking, both fiscal and administrative”; and that they should not be narrowly construed. (This case was decided by the current NSW Ombudsman, Bruce Barbour, then a member of the AAT).

Some NSW government agencies routinely cite the Saxon case and the broad interpretation of business affairs in arguing a Clause 7 exemption. The NSW Premier’s Department FOI Procedures Manual (page 95) says that business affairs issues may arise where an agency is dealing with documents provided by or from other government agencies. “On advice from the Deputy Crown Solicitor the “business affairs” of an agency are the things which it does in its official capacity and therefore it would follow in the normal course that the great bulk of the documents generated by agencies would relate to their business affairs”.

The Ferns decision is the first ADT decision to make the distinction between business and administrative functions.

The Tribunal stopped short of endorsing the approach taken by the Queensland Information Commissioner (Johnson v Queensland Transport; Department of Public Works (2004) QICmr1 -Decision 1/2004 ) that the business affairs exemption only applies to a government agency to the extent that it is engaged in an undertaking for the purposes of generating income or profit.

The Tribunal also rejected submissions by the agency that the exemption in Clause 4(3B) should be interpreted broadly. It decided in effect that the word “created” means what it says: documents created by other parts of the Department of Corrective Services or the NSW Police were not documents created by the Corrections Intelligence Group of the Department.

The Tribunal also reaffirmed its view that it had powers to make the correct and preferable decision regarding a document claimed to be exempt under Clauses 1, 2 or 4 (“restricted documents”). The contrary position has been argued on behalf of the Premier’s Department for years, but the Tribunal shows no willingness to reconsider the matter.

Wednesday, July 05, 2006

Federal Privacy Commissioner case notes of general interest

The Federal Privacy Commissioner has released case notes on 9 completed matters, 5 on
26 June and 4 on 30 June.

Two case notes are of particular interest. In L v Health Service Provider (2006) PrivCmrA11 the health service provider refused access to a medical report about the complainant on the grounds that it had been prepared for an insurance company for a fee. The Privacy Commissioner found that National Privacy Principle 6 – an individual’s right to access personal information - applied regardless of whether the documents had been prepared in response to a request from an insurer. The insurance company suggested it may have had grounds for claiming legal privilege – documents prepared for the dominant purpose of use in legal proceedings – but agreed not to test the claim in this instance.

In N v Utility Provider (2006) PrivCmrA13 the complainant alleged that their ex-partner, an employee of the utility provider, improperly accessed the complainant’s records to ascertain information about the complainant’s assets.

The Privacy Commissioner found that the utility provider held personal information about a large number of individuals, and given its nature should be given a high level of protection, as unauthorised access could lead to serious consequences for customers. The automated billing system however, had no capacity to identify instances where staff browsed records. The Commissioner said that the absence of an audit trail was a breach of the requirement to take reasonable steps to safeguard information from unauthorised access and misuse.

In the light of this finding public and private sector organisations might want to have a look at whether their IT systems have such a trail – my guess is this could be a common failing.

Sunday, July 02, 2006

FOI in the news

Media reports based on FOI this week include:

Sydney Morning Herald 26 June: "Teachers banned after abuse claims" - Forty-nine teachers from public schools were banned from having contact with students in the two years to April this year and placed on "alternative duties" after child protection allegations were made against them.

Daily Telegraph 26 June: "Power price shock - richer households paying less for their electricity" - Households in Sydney's west and country NSW are paying up to $221 more for the same amount of power as families in the affluent eastern half of the city. Analysis of electricity pricing compiled by Integral Energy reveals the extent of price discrimination in NSW. The excuse for the discrimination is the cost of maintenance and expanding services to new subdivisions.

Herald Sun 29 June:
"Composite classes galore" - Every second class in the Victorian primary school system is a composite of younger and older students - less than 5 per cent of state primary schools don't have composites.

"Speedcam "victims" fight back" - Furious Victorian motorists fed up with speed camera fines are turning their anger against operators, intimidating them and even smashing up their cars. The number of acts of vandalism committed on fixed and mobile cameras continues to rise each year.In 2003, there were eight attacks on fixed-location speed and red light cameras, 23 attacks in 2004 and 39 attacks in 2005.

The Age 29 June: "Secrecy on Howard's nuclear trip" - Details of nuclear talks between Prime Minister John Howard and American officials are being kept secret to ensure the US does not shy away from communicating with Australia about key issues. The Department of Prime Minister and Cabinet has refused to search for documents about the nuclear talks in response to a freedom of information request from The Age. The department has made a blanket assumption that documents would be exempt from release due to their sensitivity. The decision by the Prime Minister's department prevents the public from knowing who Mr Howard and other Australian officials met in Washington for talks on nuclear issues or the nature of their talks.

In his weekly "What they won't tell you" column in the Sydney Morning Herald on Saturday 1 July - "Butting heads with your local council" - FOI Editor Matthew Moore reports on an unsuccessful attempt by a Camden resident to obtain details about Council inspections of septic tanks.

Privacy - steps forward and backward in the national capital

A few strands from the last week of Federal Parliament sittings two weeks ago – pollies, as per usual have fled the national capital as winter draws on and aren’t scheduled to return until August.

The Government’s Do Not Call register legislation passed through Parliament unscathed despite an attempt in the Senate by Senator Stott-Despoja (Australian Democrats) and Senator Fielding (Family First) to remove the exemption for political parties and candidates. There are plenty of holes in the proposed register, including charities, research organisations, government organisations and politicians.

Senator Stott-Despoja also introduced a private member’s bill - Privacy (Extension to Political Acts and Practices) Amendment Bill 2006 - to amend the Privacy Act to remove the exemption political parties currently enjoy. She said that political parties have extensive databases that include names, addresses, date of birth, party affiliation, political donations, ethnic identity and other information relevant to voting preferences. Politicians apparently add details to these databases when constituents contact them in their capacity as members of parliament. The exclusion from the Privacy Act meant there was no limitation on collection and use of information for political purposes and the individual concerned had no right of access or right to correct.

The Second Reading Speech is at page 13 in the Senate Hansard for 22 June.

Although debate was adjourned, as both major political parties oppose the Bill, this is going nowhere.

The Electoral and Referendum Amendment (Electoral Integrity and Other Measures) Bill passed Parliament. The Bill, amongst other things raises the limit for donations to political parties that do not need to be disclosed from $1,500 to $10,000 – apparently to protect the privacy of donors. Apart from politicians there are few who saw this as a pressing privacy concern – most commentators suggest it is an unfortunate step in the direction of secret donations to the powerful or potential powers that be.

The Parliament also released the annual disclosure of all gifts over $350 received by parliamentarians. The list included freebies like airline upgrades and corporate box invitations to sporting events and gifts received by the PM and ministers from foreign governments. The irony seemed to escape our leaders that a gift worth $350 must be disclosed but a donation of money to political parties of up to $10,000 may be kept secret. As some commentators point out this means that a single donor can donate $9999 to all of the branches of a political party – totalling close to $70,000, without fear that this will become public knowledge.

No wonder concerns have been raised about potential for "secret" influence.