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Thursday, November 30, 2006

Anti-Money-Laundering and Counter Terrorism legislation makes headway despite concerns

Concerns about the Anti-Money Laundering and Counter-Terrorism Financing Bill expressed by the Victorian and Federal Privacy Commissioners (see item below) were the tip of an iceberg. The Senate Legal and Constitutional Affairs Committee report on its inquiry was released on 28 November. Over 40 submissions were also tabled on its website. This report in the Australian summarises some of the concerns.

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

Shortcomings in standards of government

There is plenty to read about the final report of the Cole Royal Commission. Its 5 volumes come down to findings of potential criminality for a raft of senior AWB executives, but ministers and public servants are in the clear. Their "we knew nothing" stories were accepted by the Royal Commissioner.

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

Shrill whistle about privacy implications of extension of money laundering law

That warning bell from the UK (see item below) has at least this counterpart here - a shrill whistle from the Victorian Privacy Commission about the Federal Government's proposed Anti-Money Laundering and Counter-Terrorism Financing Bill. Hopefully it's loud enough to be heard in Canberra this week.

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.

Warning bells about UK surveillance society echo here

Britain's Channel 4 aired an extraordinary documentary "Suspect Nation" last week. You can view the program (warning it is 47 minutes long but worth every special minute) via the Google video. Thanks to PogoWasRight for the lead.

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.

NSW local council contract disclosure

We have had a number of queries from local councils about the effect of the NSW Freedom of Information Amendment (Disclosure of Contracts) Bill referred to in the item posted on Friday.

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.

Two FOI exposures in the interests of transparency

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

Clover Moore Bill to become law and require publication of NSW contracts

Two of the FOI amendments mentioned in our recent blog passed Parliament but the Legislative Assembly has concluded sittings and won't sit again before the March election so the Bill requiring independent review of the Act didn't survive the cut.

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.

Congratulations Clover.

NZ Opposition Leader not so Brash

The NZ Opposition Leader may have won a restraint order on publication of emails taken from his computer, but is now seeking withdrawal of the injunction, and has announced his resignation.

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

Australian e-health report card disappointing

We have commented before about the difficulty in understanding what, if anything, is happening about the various Federal and state initiatives on electronic health records.

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.

Costs at the forefront of FOI battle at home

Meanwhile back at the Administrative Appeals Tribunal in Sydney, Matthew Moore and the Sydney Morning Herald have had three days trying to challenge a Federal agency refusal to grant a public interest rebate on fees for access to documents now 18 months old. See our earlier story.

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.

Cost battle over FOI in UK

Quite a fuss in the UK, after the Government responded to a report about the first year of operation of the FOI Act by announcing some changes to the fees regime. The effect would be to increase the number of applications that can be rejected on cost grounds and limit applications from the same person or organisation.

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.

NZ Opposition Leader has right to privacy in emails

In what appears to be a first in New Zealand (and maybe anywhere), Opposition Leader Don Brash won an interim injunction in the High Court last week that restrains anybody from putting emails taken from his computer on a website, broadcasting them, handing them to someone else, or revealing what is in them.

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

US transparency blog "world's best"

Deutsche Welle, the German international broadcast service has awarded the US Sunlight Foundation its 2006 award as best blog in the world.

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.

FOI shows NSW ex-premiers double dipping

Kelvin Bissett's front page story in yesterday's Daily Telegraph "Morris defends Bob's book bills" about the cost to the taxpayers of former premiers, was a direct FOI hit but you have to wonder why this sort of material has to be dug out through the FOI process. It's the type of information that should be posted on a government website as a matter of routine. We commented earlier in the year in our blog "Journalist scoops the pool - FOI unmasks MPs expenses", about how information concerning allowances is freely available on the web in Scotland, for example. Check it out here.

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

FOI opens window on plagiarism

The Sydney Morning Herald today "Copying and cheating rife at universities" reports on plagiarism in NSW universities, based on responses received to FOI applications.

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

Victorian Government to ban conclusive certificates in promised FOI review

Hullo, hullo. Premier Bracks on the FOI bandwagon - a promise to ban conclusive certificates under the Victorian FOI Act. Well, at least it's something and got a mention ahead of his plan to "review the use of wigs by parliamentary counsel".

This privacy policy is a joke

David Fraser's Canadian Privacy Law blog provides this link to Southeast Texas and its unique privacy policy statement - unique because it contains some humour. As David rightly says, privacy policy and funny don't hang together, at least intentionally.

Victorian election - FOI reform commitments

According to The Age, "Libs pledge overhaul of FOI system", the Victorian Opposition is committed to FOI reform, including the establishment of an FOI Commissioner to handle complaints and review decisions, and to enforce a code of professional standards for the handling of FOI applications. This is an update on our previous election blog.

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

Mr. Moore goes to the AAT

Sydney Morning Herald FOI Editor, Matthew Moore, now has a new weekly spot for his "What they won't tell you" column - it now appears each Thursday in the Stay in Touch section.

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

Privacy and FOI essentials for public sector investigators

I spoke at the 6th National Investigations Symposium last week on "Living with FOI and privacy laws: tips for investigators". A copy of my powerpoints used during the presentation is here and the text of a submitted paper is here.

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

Further exemptions from privacy laws for NSW agencies

The gaps, loopholes and eccentricities of NSW privacy legislation (the Privacy and Personal Information Protection Act) have often been cited here, and the NSW Law Reform Commission is currently giving the whole thing a close reexamination.

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.

Will NSW FOI Bills make the cut?

The NSW Parliament sits tomorrow and for another 10 days thereafter before it adjourns and there are no other sitting days scheduled until the election on 24 March.

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

WA minister foils FOI but not Corruption and Crime Commission

The former WA Minister for Small Business, Norman Marlborough, was sacked last week for deceiving the Premier about his contacts with discredited former Premier Brian Burke, these days a lobbyist but convicted in the 1990's for rorting his travel expenses and stealing campaign donations.

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.
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"
FOI was one thing, but the Corruption and Crime Commission presented an unexpected and more formidable challenge.

Friday, November 10, 2006

Privacy advocates take aim at National Access Card

Privacy experts have thoroughly rejected the Federal Government's "No ID card" claim regarding the proposed National Access Card.

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

Encryption part of Defence battle

This report in the Australian IT says that the Department of Defence is to encrypt data held on laptops and cites the unfortunate loss of a disc containing details of the draft report concerning the mix up over the return of Private Kovco's body from Iraq as one of the reasons.

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".

Privacy and system design issues for National Access card

The National Access Card Consumer and Privacy Task Force first report on architecture issues concerning the card includes 26 recommendations, most of which focus on privacy protection issues that need to be reflected in the design of the system. Force Report

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

Contrasting perspectives on national ID card

While this report in today's Sydney Morning Herald tells us the Australian Government definitely isn't introducing a national identity card, in the UK Prime Minister Tony Blair makes no bones about the fact that the UK must have a national identity system based on biometric data to fight against terrorism, and deal with illegal migration and identity fraud.

Thanks to Tim Warner for the UK lead

Tuesday, November 07, 2006

Deputy NSW Ombudsman corrects record

We recently posted an item concerning the NSW Ombudsman’s Annual Report on FOI in NSW. You will see that the item attracted an anonymous comment, to which Chris Wheeler, Deputy Ombudsman has now responded as follows.
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.”

Privacy concerns about UK e-health project

Further to our blog on "Big Brother", in the UK this detailed report "Warning over privacy of 50m patient files", in the Guardian last week says UK personal medical records are to be uploaded to a central national data base, regardless of the wishes of the patient.

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.

Comparative research relevant to Australian FOI management

The ARMA (American Records Management Association) International Educational Foundation has funded a research project on FOI History, Experience and Records and Information Management Implications in the US, Canada and United Kingdom.

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

Monday, November 06, 2006

Australia's corporate regulator slugs for use of public database

Michael West in the business pages of The Australian on Saturday (Freedom of Information) writes that the Australian Securities and Investment Commission raised $40million last year from charging the public for public information - information about companies, directors and shareholders in the public domain but only available to those who pay. West did a quick survey of overseas practice and finds New Zealand, the US, the UK and Canada all provide similar information free or cheaper than our corporate watchdog.

FOI in the news

FOI has produced some important stories over the last week and also got a run in the televised debate last Friday between the two Victorian party leaders as part of the election campaign.

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

UK and US insights into FOI and privacy challenges

This interview with the UK Information Commissioner Richard Thomas provides some useful insights into current and emerging FOI and privacy issues.

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

Friday, November 03, 2006

Study shows Australia needs privacy review

It's no wonder the Australian Law Reform Commission is conducting a "Review of Privacy". Looks like we really need it if you consider our ranking in the world.

In a study from Privacy International that ranked countries on various privacy-related issues Australia proved wanting. Which coutries had a written constitution with specific mention of privacy, the use of ID cards, electronic surveillance cameras, access of law-enforcement agencies to private data, surveillance of travel and financial transactions, and global leadership in promoting privay, were just some of the many issues considered.

Australia was placed 24th overall out of 37 countries. Our neighbour across the Tasman (where a review of privacy legislation is also being conducted) rated 18th.

Congratulations must go to Germany in 1st place and Canada 2nd.

Thanks to David Fraser for bringing this item to our attention .

Thursday, November 02, 2006

Victorian election opens up on open government

Accountability, and FOI reform is getting a run in the Victorian election campaign.

The Age reported that a bipartisan group of academics and former MPs are putting forward a charter to renew accountable government. The Opposition leader has said he will have a look and consider signing up.

The former Auditor General has defended the Government, pointing to a number of reforms that enhanced the powers of that office.

The Treasurer has promised that the Government will be less secretive about public private partnerships.

The Greens have drawn up a wish list of reforms, including abolition of the exemption for Cabinet documents.

The Age kicked things off a few weeks ago with this article on "Bracks' secret state".

And its still early days, with the election scheduled for 25 November.

6th National Investigations Symposium

I'm speaking at the 6th National Investigations Symposium at Manly tomorrow on the subject "Living with FOI and privacy laws: tips for investigators" and look forward to catching up with readers who happen to be attending.

Australian data security breaches swept under carpet

A visiting US expert is reported in the Sydney Morning Herald to have said that data security breaches are likely to occur every day in most big Australian organisations, but are swept under the carpet and may not even be brought to the attention of senior management.

Dr. Larry Ponemon says the law in Australia should require notification to those affected.

We first drew attention in June to what seemed at the time an enormous contrast between the almost daily disclosures of data security breaches in the US and the relatively little public information about what happens here.

Australian Federal Privacy Commissioner Karen Curtis has lent her support to such a disclosure requirement and the Australian Law Reform Commission issues paper (question 4-35) seeks feedback on this option.

Dr. Ponemon doesn't entirely dismiss the proposed Australian National Access Card on privacy grounds and makes some comments about the growing use of Radio Frequency ID.

Telstra has been criticised by the Australian Council for Civil Liberties for its use of RFID devices to track service vans. I'm sure they're aware of the NSW Workplace Surveillance Act - while it mightn't apply to Telstra as a Federal Government business enterprise, it could be a new world come privatisation.

FOI application thwarted but new oil-for-food allegations now out in open

News reports reveal that the Australian Federal Police are investigating 7 allegations that Australian firms breached UN sanctions over the Iraq oil-for-food program that are outside the terms of reference of the Cole inquiry.

This all followed an exchange in Federal Parliament on Tuesday when the Foreign Minister first claimed no knowledge of an alleged illegal importation of oil from Iraq, then returned to Parliament to correct the record.

The ABC 7.30 Report included a segment on this. Reporter Michael Brissenden said that the program, following a tip from a source in Customs, sought access to documents under FOI in May this year.
"We were told that while there were 15 documents that fell within the terms of our requests, they would not be released as it wouldn't be in the public interest to disclose them".
I'm sure there were more detailed reasons given than this, but it's not a good look, now that some information has been forced out of the Government, to see that FOI again failed to produce documents about a matter of great public significance.

Mark Day in "Truth lies in detail-wary Downer's too-hard basket" in today's Australian says that the media played the major role in initially bringing the AWB wheat scandal to public attention, despite Government attempts to stare down those who dared to question.

Day comments that over the last few days Foreign Minister Downer has sought to stonewall and fob off obvious and important questions on the basis that these are complex stories and too detailed to discuss in public. Day says
"if ever there were a case for the media to fulfill its role as the public watchdog, this is it. Politicians simply cannot be allowed to dismiss inquiries into allegations of wrong doing on an international scale by declaring that it's all too complex and detailed for us to be bothered about it".
NSW Crown Solicitor Ian Knight probably sees no worthy purpose to be achieved by this prying, and would no doubt dismiss it all as evidence of the media "lust" for information.

Wednesday, November 01, 2006

Watering down FOI

Water use is a hot topic these days in Australia.

The Daily Telegraph in "Water use hike in top firms" struck out in trying to obtain information under FOI about the names of the largest non residential water users in Sydney, but had enough to disclose that more than half of the biggest users have increased water use in the last 3 years, and use by the biggest Sydney Water customer went up by 5%.

No names, no pack drill seems to be the current position in NSW.

In Victoria, The Age had a similar experience, but shortly thereafter the Victorian Water Minister introduced legislation into the State Parliament on 3 October to allow the top industrial water users to be identified - water authorities will be required to publish a list of top water users in their annual reports from next year. However the list will not be in order of water use.

Given the scarcity of water, and the widespread recognition that it is a public resource, some including The Sunday Age Science Reporter ("Wishy-washy Bracks") suggest that naming and shaming water wasters (not necessarily the largest users) has potential to assist the situation.

Its another example where proactive disclosure of information makes sense. It should'nt be left to a battle between an FOI applicant and each water authority.

There is nothing in the NSW Minister's comments reported in the Daily Telegraph article to suggest that NSW is following even the Victorian lead.

It surely lends itself to a uniform approach by all water authorities.