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Thursday, May 31, 2007

Still waiting for the details...

The Australian Labor Party keeps saying (in the very fine print in this article) that it is in favour of proper freedom of information laws and effective protection for whistleblowers, but is still to publish the platform adopted at the Federal Conference in April and even that is unlikely to contain much detail.

Familiar refrains on FOI

A flurry of information commissioner annual reports have hit the news overseas in the last couple of days.

Canada's Federal Information Commission gave a fail grade to the Prime Minister's Department, the Canadian mounties, the Justice Department, Health Canada and Transport Canada, for dragging their feet on freedom of information requests. Apart from these failures the Commissioner also says
"Too often access is denied to hide wrong doing, or to protect officials or governments from embarrassment rather than to serve a legitimate confidentiality requirement".
Still in Canada, the Ontario Information and Privacy Commissioner echoes these thoughts but she is sounding a message:
"After 20 years of experience with the Freedom of Information legislation the learning curve is over and bureaucrats should be farther ahead" she said after releasing her report. "Surely the time for secrecy and withholding information should have come to an end by now. When people come to the Government for information, too many bureaucrats are looking for excuses not to release it, instead of following the spirit of the legislation".
Meanwhile in Ireland the Information Commissioner in her report has again criticised the blanket exclusions of agencies such as the police from freedom of information legislation.

Some of the themes (but not the complete exclusion of police services) have resonance here.

Wednesday, May 30, 2007

Maybe light at the end of the "hygiene in restaurants" tunnel

We have already congratulated the pro disclosure of councils Blacktown and Woollahra for supplying information about restaurants in their areas. Unfortunately this has not been the case with other councils in New South Wales.

For over a year the Sydney Morning Herald Freedom of Information Editor Matthew Moore, has been trying to pry hygiene standard reports from many of the Sydney councils. They have chosen to use old "business affairs" excuse or parts of the Food Act rather than release this information to the public who deserve to know.

The media attention has finally prompted Minister for Primary Industries Ian Macdonald to step in and promise to amend the Food Act. Mr. Mcdonald said "I am totally happy to do it. I would hope to have it finalised in the spring session in Parliament".

We have suggested only last week that an online register of penalty infringement notices, to include any response from the food outlet is the way to go. All this shouldn't be a freedom of information battle ground.

In the SMH Editorial today "If you only knew how they made it" the paper points out:
"There is no faster, easier way for a government to raise food hygiene standards that to publish what food inspectors find so the world can know, and use the knowledge to decide where to book a table or what to buy".

Tuesday, May 29, 2007

MPs 'phone home' (yours)

No place to hide from politicians now.

Not only are they outside the scope of the Federal Government's 'Do Not Call' register, but changes to legislation that came into effect last week apparently gives them access to the Telstra-managed database that includes everyone's phone number and address, including unlisted numbers.

Expensive fishing trip

Maybe not quite a record, but this report that the National Tertiary Education Union has been told that a Freedom of Information request for information about workplace changes at universities would cost $455,000, is up there with the best of them!

The estimate is based on location and consideration of 347 files and according to the departments involved would take 12 years to process.

Federal Education Minister Julie Bishop dismissed the request as a "fishing exercise".

Canada's most secret government department

The Canadian Association of Journalists has announced the winner of its 2007 Code of Silence Award, the Department of Foreign Affairs. The Department denied the existence of documents related to the treatment of Afghan detainees, but was forced to release a heavily edited version of the report to the Toronto Globe and Mail in which every reference to torture and abuse in Afghan prisons was blacked out. The Department also failed to respond to 60% of Freedom of Information requests last year and received an "F" grade from the Information Commissioner.

The full details and the list of runners up confirm many earlier reports that Canada's Access to Information Act and provincial equivalents are not working well.

With reference to our last item concerning an important decision about the connection between Ontario's Charter of Rights and Freedoms and the FOI legislation, here is an interesting analysis by Tracey Tyler of the Toronto Star.

Sunday, May 27, 2007

Victorian decision illustrates conservative FOI law

In a recent blog we mentioned the Victorian Court of Appeal decision that overruled a Tribunal judgment that would have granted a woman access under the Freedom of Information Act, to advice received by the Attorney General who rejected her mercy petition following a finding of guilt in a murder trial.

The decision in the case, (Secretary, Department of Justice v Osland (2007) VSCA96) illustrates the conservative nature of the legislation, and the very limited circumstances in which the Victorian Civil and Administrative Tribunal has powers to require disclosure of an otherwise exempt document on public interest grounds.

In the lead judgment, President Maxwell was able to distinguish other decisions that formed the basis of the Tribunal finding that legal professional privilege had been waived because the Attorney General publicly referred to the advice provided and what it recommended in a media release. Waiver, not having been found, the legal professional privilege exemption remained, and will remain forever. The Tribunal had committed an error of law in deciding that the public interest justified disclosure. It can only do so where it concluded that the public interest required disclosure and, the meaning of "require" is much narrower than the test applied by the Tribunal.

For further analysis of the decision by Rachel Walsh of Phillips Fox solicitors see here.

In an interesting development, given the fact that Victoria (and the Australian Capital Territory) are the only Australian jurisdictions with a Charter of Human Rights, the Ontario Court of Appeal ruled last week that sections of their FOI Act imposed "unjustifiable limits" on the right to free expression under the Charter of Rights and Freedoms. It's a case involving a request for details of the process that led the wrongful convictions of two men for murder in 1991.

Thursday, May 24, 2007

Government speaks (softly) on information on restaurants

The silence from the NSW Government, mentioned in our blog yesterday about restaurant hygiene was broken with an announcement by the Minister for Agriculture (?) apparently responsible for the Food Authority, that a website will be established listing convictions. As the Sydney Morning Herald points out this isn't much of an advance at all, given the fact that this information is in the public domain already.

There is a lot of talk in the media about "name and shame" in this area. This misses the point that experience elsewhere shows that access to information about restaurant hygiene compliance improves public health outcomes as restaurants take steps to achieve high rankings or improve performance.

Public availability of information about the cumulative record of breaches of standards is seen to be important in achieving better outcomes in the regulation of other sectors. That's why the Australian Securities and Investments Commission publishes online a register of enforceable undertakings entered into by financial institutions found on inspection to be non compliant. And why, as required by the Home Building Act, the NSW Department of Fair Trading includes on it's website information about licensed builders including details of penalty orders imposed.

I'm struggling to understand why penalty orders issued for failure to comply with food hygiene standards shouldn't be in the same category, given the public health issues involved. As reported today, my view is an online register of penalty infringement notices, to include any response from the food outlet is the way to go. All this shouldn't be a freedom of information battle ground.

Interesting to find on the net one council (there may be others) in Australia publicises outstanding performance.

Australian Right to Know Campaign on the move

Irene Moss, former Ombudsman, head of the NSW Independent Commission Against Corruption and a Federal Race Discrimination Commissioner has been appointed to Chair the Australian Right to Know Campaign audit of media freedom. Freedom of Information is one of the isssues to be examined. This story in today's Age "Gagging democracy", about the former Customs officer, Allan Kessing, who blew the whistle on lax airport security and faces a jail sentence tomorrow of up to 2 years, is an indication of the potential scope of the exercise.

Wednesday, May 23, 2007

Another Sydney council comes clean on kitchens

The Sydney Morning Herald today in "Lid blown on hidden food safety breaches" reports about a second Sydney council (this time Woollahra) decision, to release infringement notices issued for food handling offences. The paper has approached each of the businesses concerned and included in the article their responses.

The Herald in an editorial"The other secrets of the kitchen" says that the difficulties in prising this type of information out of the system illustrates an
"obsession with hiding the truth (which) is an Australian phenomenon. The same Sydney diners who are not allowed to know the health record of their local restaurant can find out which restaurants in New York have had trouble with the health authorities, and why, from the New York health Department's website. In Britain, to, freedom of information rules have resulted in the publication of inspection results. It's time this supposedly global city caught up with the rest of the world".
I was asked to speak on this issue at a meeting yesterday of the NSW Local Government Managers Association Governance Network. My talk focused on the policy issue of improving compliance with food hygiene standards by making more information publicly available. Experience in other countries is that a grade card or scores on doors type scheme has the support of those responsible for public health and once introduced results in improved hygiene and better health outcomes. Until this sort of system is introduced, councils in NSW are faced with a dilemma about whether to disclose information sought under FOI.

My own view is that information that records a decision to issue an order or penalty notice is not covered by an exemption in the NSW FOI Act. In any event, a council has authority to disclose such information where it judges the public interest in disclosure outweighs any adverse impact on the business concerned.

A better system would be a database of results of inspections, centrally maintained for example by the NSW Food Authority and published on a designated website, with scope for the business concerned to have included their response and details of any rectification undertaken in response.

The big silence on the issue now is the NSW Government and what it sees as the best way to achieve policy objectives of high standards of hygiene in the handling of food we all consume in restaurants.

Tuesday, May 22, 2007

Passing personal information overseas raises privacy concerns

NZ Privacy Commissioner Marie Schroff, has expressed concern about the amount and type of information on New Zealanders being stored and processed in overseas databases. NZ privacy laws do not apply beyond its shores.

Australia's privacy law (as it applies to private sector bodies) has some international reach but it is seen to be weak compared to other models. A "reasonable belief" that the transfer is to a recipient in a country with substantially similar law to the Federal Privacy Act is one of a number of "limitations" on transfer of personal information overseas. What is a "reasonable belief" hasn't been tested in the courts and no one knows if any of our major corporations have been quizzed on the issue by the Privacy Commission.

Consent would also justify transfer, but a personal anecdote on this. In order to obtain a travel insurance benefit I was looking to apply this week for a new charge card. One of the fine print details stipulated in the application form was agreement that the company could:
"transfer personal information confidentially to related companies and other organisations which issue or service (the card). This includes transferring personal information to the United States or other countries for data processing and servicing".
No choice about it. Of course US privacy laws aren't all that flash and data held in the US must be provided on demand to security services. As to what goes in the unnamed "other countries", who knows.

The issue of adequacy of Australian law regarding trans border data flows is one of the many issues being looked at by the Australian Law Reform Commission.

Saturday, May 19, 2007

When did Rudd see the light on government transparency?

Federal Labor Leader Kevin Rudd, perhaps sensibly acknowledged that his past record on openness and transparency when Director General of the Queensland Cabinet Office, could come back to haunt him, but he may not have anticipated that the then Queensland Information Commissioner Fred Albietz, would come out of retirement to make sure that we all knew the details.

In FOI 'never recovered from Rudd attack' The Australian reports that Albietz says that changes to the Queensland Freedom of Information Act made on Rudd's watch in 1993, allowed thousands of documents containing public service advice to be claimed to be exempt as Cabinet documents simply on the basis that they had physically been present in the Cabinet room when ministers met. The exemption has not been altered since, and has given rise to anecdotal stories that boxes of documents have been wheeled in and out of the Cabinet room on trolleys to give them protected status. Queensland and Victoria are the only jurisdictions in Australia that include an FOI exemption broad enough to apply in these circumstances.

The article quotes Albietz - regarded in FOI circles as an outstanding commissioner with a long line of reasoned decisions that reflected the open spirit and intention of FOI legislation - as saying that he was regarded as "a zero" by the then Premier, because of his views, and was for the chop if the Goss government was re-elected, but it lost and he stayed on in office until retirement in 2001.

Abietz devoted 24 pages of his 42 page Annual Report in 1994-1995 (starting at page 18), to a detailed analysis and criticism of a range of changes made to the FOI Act and regulations in 1993 on the basis that they reflected a disturbing return to the secrecy that had marked previous administrations in Queensland and had led to the Fitzgerald Royal Commission.

While Rudd has given an indication of general support for the Australian Right to Know Campaign, and may have had a conversion on the road from Brisbane to Canberra, more and specific details of Federal Labor's plans for FOI reform are needed before the election later this year.

UK private members bill gets Parliament off FOI hook

The UK House of Commons voted on Friday to exclude the Houses of Parliament from the Freedom of Information Act (the Bill now goes to the House of Lords), and the Lord Chancellor told a media law conference that the Government plans to proceed with a proposal that will limit requests from the media.

All this is seen as a major blow set back for transparency and primarily designed to reduce access to information about MPs use of public money. The Daily Mail says it's a "dark day for democracy". Quentin Letts, in a a column headed: "Want to know how these graspers spend your money? Get stuffed!" says "Rarely has the seediness of our political cadre been so nakedly demonstrated".

Thursday, May 17, 2007

Victorian Court rules legal professional privilege trumps all

The Victorian Court of Appeal has found that legal professional privilege trumps any right to know in a case in which a woman who was subjected to repeated domestic violence and involved in the murder of her husband, had been refused a pardon on compassionate grounds. The Court in effect ruled against disclosure of the advice given to the Attorney General on whether to grant a pardon by three senior legal counsel.

The decision reverses a Civil and Administrative Tribunal decision that even though the documents were exempt, disclosure to the person directly affected was in the public interest.

The punters might have another view about the balance of the interests involved.

More open book for Education

Now this is more like it.

Newly appointed Director General of the NSW Department of Education and Training as quoted in The Daily Telegraph:
"(Coutts-Trotter) promised more information, previously kept secret by schools, would be released. "We are looking at what more we can do, rather than media organisations (and individuals) seeking it under Freedom of Information".

Federal ALP on board for FOI reform

Federal Opposition Leader, Kevin Rudd agrees that Freedom of Information reform is needed. As a one time Director General of the Queensland Cabinet Office, he acknowledges his record probably shows he isn't Mother Theresa on the question of access to government information.

To be meaningful however, reform will need to go beyond getting rid of conclusive certificates, the only specific ALP commitment to date.

Mark Day in the Australian is another who tells us why.

"Right to know" monkey on PM's back

The Prime Minister's advocacy of the public right to know, at least about what the state governments should tell us about the extent of bullying in public schools, is probably going to mean that he and his ministers will be regularly asked to explain particular decisions by his own government to refuse access to information of important issues. Matthew Moore in today's Sydney Morning Herald says that the media funded watchdog will be playing an important role in this in the lead up to the election.

Today's case in point is likely to be the refusal of the Department of Environment to release documents relating to the decision to provide the $10billion funding package for the Murray Darling Basin.

And of course there are many examples from the past of refusal by Federal Government agencies that make good copy - this article by Kelvin Bissett in The Daily Telegraph recounts (among others) an unsuccessful attempt to access Family Impact Statements prepared in the course of consideration of legislative proposals, even the list of relevant bills.

Best of the year so far though has to be Australia Post going to the Federal Court to (successfully) argue that the list of post offices and their addresses are exempt from disclosure.

The answer for the PM to get this monkey off his back is an announcement of change - revised laws, proactive disclosure of information that should be in the public domain, culture change within the government, adequate resources and speedy independent review.

Should Parliament be exempt from FOI laws?

In the UK, debate on a private member's bill that would exempt the Houses of Parliament from the Freedom of Information Act, will resume on Friday. It's been a hot topic there for months with some suggestions recently that the Government, or at least some prominent government MPs, are rallying the numbers to support the move.

Meanwhile in New Zealand, things may be going in the opposite direction. The Speaker of the House wants the Official Information Act extended to include the Parliament, and the Deputy Prime Minister thinks the idea has merit.

As previously noted here, none of the Australian FOI Acts cover the parliament. There may be better answers - requiring routine publication of information about payments, expense claims and travel undertaken by members of parliament, would be a boost to transparency and accountability.

Tuesday, May 15, 2007

Open government laws that work better protection from liars

According to today's papers, Julian Burnside QC, in speaking to the Future Summit in Melbourne brought the house down with his suggestion: "If we really want to make things better, I suggest we introduce a law that makes it an offence for politicians to lie".

Burnside apparently is serious. He says that the provision in the Trade Practices Act that makes it an offence for companies to engage in misleading or deceptive conduct provides the basis for his idea that politicians should be held to those same standards.

We all know this idea isn't going anywhere, but that in itself is a comment on the cynicism widely felt about what politicians say and do.

Transparency and open government laws that work offer better prospects of holding our political leaders to account.

A quick Google fails to reveal anyone who has written the book about lies and Australian politics, but plenty of examples will come to mind including "children overboard" and others. It's not clear whether porkies about political intentions would be caught by Burnside's proposal but Nicholson's "Dancing on lies" says it all.

In the US, lies from those in the Oval Office have been explored in many books, recently in Carl Cannon's "Untruth and Consequences". There is an imposing list that goes far beyond Nixon and Watergate, and Clinton ("I did not have sexual relations with that woman").

Of course history is still unfolding about Iraq.

So far only the Chief of Staff to the US Vice President has been convicted (of perjury).

Monday, May 14, 2007

FOI issue turns into public health debate

Food handling standards in restaurants, in NSW at least, is fast becoming a public health issue. Tim Elliott in the Sydney Morning Herald on Saturday quoted an expert in the field - some kitchens are "straight out of Monty Python with rat infestations and more cockroaches than you would believe".

Its hard to know whether things are any better now than in the 70s when three steak houses were prosecuted for selling horse meat. An expert says "when the news got out they were finished: local fellas would pop their heads in and yell out, "who ya got on today chef? Phar Lap or Bernborough?".

The Freedom of Information issue - that some local councils, and presumably the NSW Food Authority take the view that information about fines should not be disclosed because of possible harmful effects on the restaurants concerned - remains. Elliott quotes Des Sibraa, a former Chief Food Inspector for NSW as saying "thats the bloody idea. Name and shame - the public deserve to know".

Elliott also reports that Parliament will consider in July a bill to make council inspections mandatory. It's probably a surprise to most of us that it isn't already.

Let's hope Parliament also provides a lead on the public right to know about a major public health matter. The experts say it's time for Sydney to follow the international trend towards transparency with a Scores on Doors or similar scheme to put inspection reports on public display.

PM in rare reference to "right to know"

Maybe it's just a coincidence, but three days after the launch of the Australian Right to Know Campaign, the Prime Minister in his weekly radio broadcast started to use language we haven't heard for a long time.

According to this report in the Herald Sun, the Prime Minister said: "Parents of school age children had a right to know statistics about the true extent of bullying, truancy and bad behaviour in schools".

Well, that would be a good start, and shows someone is listening: this was one of the examples of information refused under Freedom of Information used by John Hartigan at the launch.

The Australian Press Council is on board with this article by Executive Secretary Jack Herman.

The Campaign has been the subject of further lead articles and editorials including "Your right to know" in the Herald Sun:
"For all tiers of government in Australian, no news increasingly is good news. To that end the spin-doctoring and stonewalling apparatus has never been more sophisticated or more active. What we need to know of the workings of our most essential services - police, health departments and schools - is routinely kept hidden within a bureaucratic tangle. The Freedom of Information Act has become almost Orwellian in its application, a devise to lock away embarrassing truths"
The (Adelaide) Advertiser in "Fight for our rights" said "Australia's hard-won reputation as an open society is under threat from an insidious erosion of basic freedoms by governments and bureaucrats". The Courier Mail had this article by Madonna King "Only make believe" illustrating the emphasis on spin, rather than accountability.

The launch of the Campaign by Australian media organisations was picked up by the international wire services and made news around the world including Tonga, New Zealand, the US, Qatar and Taiwan.

Friday, May 11, 2007

Media splash for Australian Right to Know Campaign

The Australian Right to Know Campaign (see item below) is widely reported across the country today with a articles about the launch in The Australian, The (Adelaide) Advertiser, Australian Financial Review and Sydney Morning Herald (and probably others).

In an editorial "Unity on the Right to Know" The Courier Mail includes this piece about Freedom of Information in Queensland:

Queenslanders have every reason to be as concerned as any other Australians, perhaps more so, given the State Government's long-established liking for secrecy and news management, the absence of an upper house and the current one-sided state political landscape. Government-owned corporations such as water and electricity utilities and port authorities, for example, are exempt from Freedom of Information legislation. Last year, when the Opposition proposed scrapping such exemptions, Deputy Premier Anna Bligh ridiculed the move, claiming it would give private competitors to organisations such as Queensland Rail and the Queensland Investment Corporation unfair commercial advantages. And even when files are "released" under FOI, paragraphs or entire pages of sensitive detail are often blacked out. Deliberate gags to save political embarrassment, in the form of Cabinet exemptions, are not unusual.

The Age editorial "Right to know is at the heart of freedom" says "Freedom of Information has been neutered by judicial rulings as governments become more secretive" and continues:
When the powerful escape scrutiny, freedom shrivels and good political and economic governance along with it. But public opinion is freedom's great ally. In another time of threat in the 1950s, US broadcaster Edward R. Murrow also took his fight to the public. "Most of us probably feel we couldn't be free without newspapers," he said, "and that is the real reason we want the newspapers to be free." The digital revolution has changed the media, but their role as a cornerstone of freedom is the same. The Age and its media allies will continue this perpetual fight for the public's right to know.
The Sydney Morning Herald "The gags are getting tighter" says:
FREEDOM of information has become a term of which George Orwell's Ministry of Truth would be proud. It was not always so. Malcolm Fraser, who introduced the first freedom of information laws in 1982, had earlier declared the electorate should have the greatest possible access to information. "How can any community progress without continuing and informed and intelligent debate? How can there be debate without information?" But the state and federal laws which he and others introduced in good faith contained a Trojan horse: the procedure by which governments can legally suppress information. That procedure was meant to be used for exceptions, but exceptions have become the rule. The State Government, for example, has recently rebuffed Herald requests for information on which hotels attract crime, and what repairs our state schools need. This information is in no way sensitive - unless you are a politician.

This newspaper has played a leading role in pushing for freedom of information. Media groups including Fairfax Media, the publisher of the Herald, have joined together to campaign against the restriction and censorship of free speech. Pressing governments for freedom of information is not about finding material for scandal or violating privacy. It is not about chasing circulation or ratings. It is about guaranteeing a fundamental principle of democracy, the right to know.
The Media Entertainment and Arts Alliance has supported the initiative (Read the full Press Release here...) and established its own Press Freedom Committee. (Read the full press release here...)

Media reports referred to above quote ALP Federal Shadow Attorney General, Joe Ludwig, as welcoming the media group's plans. Nothing so far from his state and territory colleagues who happen to be in power in every jurisdiction.

Thursday, May 10, 2007

Our news organisations label Australia "lightweight" democracy

Congratulations to Australia's major newspapers, television and radio networks for the joint initiative today in launching the Australian Right to Know Campaign.

We've been urging an initiative along these lines since the High Court decision last year that showed the Federal Freedom of Information Act badly wanting when it came to our right to access information that any minister concludes would be contrary to the public interest.

News Limited Chairman John Hartigan at the launch speaking on behalf of the many media organisations involved, said that erosion of freedom of speech and the public right to know had reached a point where a line in the sand had to be drawn.

In two international surveys Australia ranked 35th and 39th on press freedom, a long way behind comparable countries such as Canada, the UK and New Zealand, after Bosnia and Bolivia and just in front of El Salvador.

Hartigan announced the commissioning of an independent audit of state and federal legislation in the light of the fact that there are now 500 legal prohibitions on freedom of speech in Australia. The main priorities will be to address concerns regarding anti-terrorism legislation, sedition laws, suppression orders and Freedom of Information.

He used as examples of information widely available in other democracies but not here, recent refusals of access to information under FOI concerning schools where bullying was prevalent; restaurants that had failed hygiene standards and been fined; hospitals that had the best health care performance; the incidence of violence at hotels; and provided a new piece of information about refusal of access to an auditor's report about politicians abusing and rorting their allowances.

This is an important opportunity for serious debate about a vital element of our democratic system. The Australian Right to Know Campaign should ensure that politicians and the public are presented with compelling information about the way to improve access to information and related laws.

It should also ensure that it sticks around to keep an eye on governments and hold them to account in the very long term. A job like this is never done!

Research paper questions "Cabinet document" excuse

The NSW Parliamentary Library Research Service has published a background paper "Parliamentary Privilege: Major Developments and Current Issues".

The paper, by Dr. Gareth Griffith, includes a section on disclosure of information by the Executive to Parliament, particularly issues associated with orders for papers issued by the Legislative Council where the Government of the day has been in the minority for many years (Chapter 4).

The exercise of these powers has been hailed by the Clerk of the (Federal) Senate, Harry Evans, as a positive "major shift in favour of the Parliament and against the Executive", but the paper includes the comment by NSW Crown Solicitor Ian Knight last year that "the power is beginning to produce a distortion in the roles of the legislative and executive arms of government". (See our earlier blog on Ian Knight's speech). Dr. Griffith says that while the Council must ensure that its power is exercised responsibly, "whatever happens, the Executive is likely to find cause for complaint as it seeks to minimise the effectiveness of this and other accountability mechanisms".

As noted in the paper, the Government has sought to counter the increasing number of orders to produce papers by claiming that certain documents are Cabinet documents and therefore privileged from production. The courts in the few cases that have arisen, have left open to some degree what documents could be subject to such a claim. The paper discusses the NSW Freedom of Information Act exemption for Cabinet documents and findings the NSW Administrative Decisions Tribunal in various cases about what constitutes information "concerning any deliberation or decision of Cabinet".

Tribunal members have differed on whether information of this kind could be contained in a document prepared before consideration of a matter by Cabinet, or whether it would only apply to a document prepared at the time or after Cabinet met. The latest view by expressed by Tribunal President Judge O'Connor, is that a document prepared prior to a Cabinet meeting could be exempt on these grounds and that it is sufficient to "show that the information related to a matter of concern to the Cabinet, even if the neither the information nor the matter was ultimately the subject of discussion, careful consideration or decision making". The paper suggests this is too broad an interpretation.

Dr. Griffith says that one significant weakness in the production of documents in response to an order is that Parliament lacks the capacity to test assertions by the Executive that documents are Cabinet documents. Reasons should be provided, and documents inspected by an independent arbiter to confirm their status.

Monday, May 07, 2007

NSW Advanced FOI Update Workshop 2007

Our Advanced 2007 FOI Update workshop will be held in Sydney on 13 June 2007.

Special guest speakers are Deputy President Magistrate Hennessy of the NSW Administrative Decisions Tribunal and Matthew Moore, FOI Editor of the Sydney Morning Herald.

This is an opportunity for experienced Freedom of Information officers working in NSW state and local government agencies, to update knowledge and skills particularly in the light of court and tribunal decisions regarding interpretation of the Act and the "good practice" management of FOI responsibilities. See the full outline of the day and booking form, or email or phone us if you need more details.

"Plausible" deniability in two states

The "I knew nothing" defence had a run last week in both Victoria and NSW, with both governments on the back foot about what they knew of important matters prior to election.

In Victoria the Water Minister told Parliament denied he had seen or been briefed before last year's election about a bleak assessment on the drought, prepared by Melbourne Water in November 2006. According to The Age the report painted a picture much worse than the Government had admitted at the time.

A Freedom of Information application for the briefing documents has been refused by Melbourne Water because release could lead to "confusion or unnecessary debate".

In NSW the Roads Minister announced the first back flip on campaign promises by ditching the planned widening of the Spit Bridge. Having initially said he only knew of a blow out in the cost after the election, he then conceded that the Roads and Traffic Authority had alerted him about this in December. In the lead up to the March election, the Labor Government made much of its plans to widen the Bridge.

The newly elected Liberal Member for Manly who opposed the plan lodged an FOI application for documents about the cost of the project months ago, but is still to get a reply.

Hardly the stuff likely to do much for trust and confidence in our politicians and government generally.

Friday, May 04, 2007

University practices regarding VC employment contracts

The Sydney Morning Herald attempt to use the Freedom of Information Act to access the employment contracts of vice chancellors' employment contracts from the 10 NSW universities, has produced interesting comparative information. Information that may even be useful to academics (among others) at universities who teach the subject.

The FOI Editor Matthew Moore in his "What they won't tell you" column yesterday, summarised the responses to the same request which range from full disclosure by three universities, to complete or partial knockbacks from the others.

In the online version "Academe rewards are kept behind the screen" the contracts released by Macquarie, Newcastle and UTS and the partial disclosure by Wollongong are published, together with the letters of refusal from Sydney, Charles Sturt, UNE, Southern Cross, NSW and Western Sydney.

Most of the justifications for refusal of access are on personal affairs grounds or confidentiality. Several rely on an Administrative Decisions Tribunal decision which we suggested at the time had significant defects.

It's certainly possible that an employment contract may contain some sensitive personal information, or commercial information, for example about university strategic plans that aren't in the public domain. However the idea that the university and the vice chancellor can simply get together to agree on a confidentiality agreement that covers all aspects of the employment relationship is a bit rich. I know there might also be differences between a contract of employment and a standard AWA for academic and general staff, but the AWAs on offer certainly don't contain a confidentiality clause. In what appears to be a model used in most universities, the template agreement (see proposed AWA Clause 4) says that parties are not restricted from disclosing information to others.

The NSW Ombudsman has made it very clear in a number of published reports that employment contracts for senior public servants (excluding any personal affairs information) should be in the public domain.

While the expectation is that public sector bodies should conform with high standards of transparency, the refusal to disclose information about vice chancellor employment by some universities stands in stark contrast to private sector standards for companies listed on the Australian Stock Exchange.

The 10 principles that are the basis for the Stock Exchange Corporate Governance Guidelines include one concerning remuneration which requires disclosure of the material terms of the employment contract of the CEO. The requirement is to disclose "the components of the remuneration contract which are aimed at influencing CEO behaviour that would be relevant to the market at the time of appointment". As an example, here (
Terms of contract for new MD and CEO) is the disclosure relating to the contract of employment of the Managing Director of the Stock Exchange, itself a publicly listed company, disclosed on the ASX website on the appointment of Mr. Elstone on 14 July 2006.

We appear to have a major disconnect between emerging private sector governance, and disclosure practices in some public institutions. Perhaps some vice chancellors (if they were the ones who insisted on confidentiality) will need to do some re thinking if they plan to move on to the corporate world in due course.

Queensland Information Commissioner FOI resources

The Queensland Information Commissioner's website has been revamped and includes a more comprehensive set of information sheets now called "FOI concepts" on key interpretation issues, particularly common exemption provisions. While written specifically on Queensland's Freedom of Information Act, and relevant Information Commissioner decisions, these materials are valuable to anyone around the country working in the field or interested in FOI. Differences in legislation, and any particular court or tribunal decisions that apply, of course need to be taken into account.

The Decisions Page has several indexes including one that links relevant decisions to sections of the Act.

An interesting recent decision (Murphy Schmidt Solicitors and Department of Justice and Attorney General, Application no. 210083), PDF involved consideration of an important issue - whether the public interest of enabling the applicant to evaluate and possibly pursue a legal remedy against a third party, justified disclosure of information concerning the personal affairs of others.

Assistant Commissioner Henry, acting on the precedent of an earlier decision, ruled in favour of disclosure. While such a public interest needs to be weighed against other considerations, and to the extent known, the greater the loss or damage and or the prospects of success will also be relevant, the test laid down is that the FOI applicant in these circumstances needs to demonstrate that:
"(a) loss or damage or some kind of wrong has been suffered, in respect of which a remedy is, or may be, available under the law;
(b) the applicant has a reasonable basis for seeking to pursue the remedy; and
(c) disclosure of the information held by the agency would assist the applicant to pursue the remedy, or to evaluate whether a remedy is available, or worth pursuing"

Right to privacy trumps pesky calls

Australia's 'Do not call' register opened for business yesterday, and seems to have been inundated with householders seeking to have their name on the list.

The register won't save us from all cold calls - substantial exemptions cover charities, educational and religious organisations, politicians, government organisations market researchers, and those who can claim the call is based on an established business relationship.

The Government rejected submissions (including from the Federal Privacy Commissioner) that we should have a right to opt out from these calls as well.

The register doesn't extend to phones in the name of businesses, or faxes - the latter is a real pain.

But at least it's a start.

Wednesday, May 02, 2007

WA dirt on full display

If ever a case study is needed to support the argument for transparency in the public sector, the ABC 4 Corners program "The Dark Arts" screened on Monday, fits the bill. The ABC website includes a great collection of resources and links that live up to the dark arts title.

It's the background story to the revelations about the lobbying activities of former Western Australian Premier Brian Burke and former Minister Julian Grill that have so far led to the resignation of three ministers, three ministerial chiefs of staff and one Federal Minister, and caused a bit of pain for Opposition Leader Kevin Rudd along the way. Hidden funding for local council candidates, confidential off-the-record chats and long lunches with ministers and public servants, and lots of special influence, all under a heavy shroud of secrecy.

The WA Crime and Conduct Commission is still to report its findings, so this isn't the last word.

It's also pause for thought that while most states now have an anti corruption complaints body, we still don't have a conduct commission in Canberra to keep an eye on what happens there. And that in all jurisdictions except WA and Victoria, none of our governments show the slightest interest in seeking to regulate the activities of lobbyists.

Tuesday, May 01, 2007

South Australian FOI knockback: sorry you wouldn't understand

The Adelaide Advertiser this week ran a story "Secret plan to bring home Hicks" that revealed that the South Australian Government has been planning for the return of David Hicks from Guantanamo Bay since at least September 2006, despite the fact that the Government claimed in late March that it had not been contacted about the possibility.

But it didn't get anything more from its Freedom of Information application other than a brief description of the documents.

According to The Advertiser, the Department of Correctional Services refused access to all 13 documents held on grounds that "disclosure would be misleading and therefore contrary to the public interest".

Well, that certainly is about as vague and amorphous as any exemption claim I've heard in a while.

FOI best memory for ABC boss

In this profile piece in The Australian Magazine at the weekend (Scott of the ABC), Caroline Overington gives us all we ever wanted to know about the Managing Director of the Australian Broadcasting Corporation, Mark Scott, including his affection for FOI.

Overington, in the course of the interview, asked him what was his biggest achievement in his previous incarnation at the Sydney Morning Herald where he had been Education Editor, then News Editor, Editor in Chief of Metropolitan Newspapers and Editorial Director. The betting from a former colleague who put Overington up to this, was that it would have to be the coverage of the Sydney Olympics in 2000.

The surprise answer?

"When I was doing the education round, I put in a lot of FOI (freedom of information) requests. There was a lot of information on school performance that had never been made available to parents. We were able to get that information in the newspaper".

Good to know that FOI has a friend in the top job at the ABC.

Federal Labor: limited "new thinking" about FOI and transparency

The newspaper headlines about the Labor Party National Conference last weekend have understandably focused on industrial relations, climate change and uranium, and on Kevin Rudd's "success" in repositioning the Party as "new thinkers" about our future.

The Party platform discussed and adopted at the Conference of course covers lots of other issues, and Labor is yet to put on their site the final version of the document.

What we know is that Chapter 11 of the draft "Reforming Government" submitted to the conference included a commitment to restore public confidence in government, and "improve the openness, transparency and accountability of parliament, government and the public service". Further details of this part of the draft are here.

Apart from the rhetoric, specific commitments on Freedom of Information reform are limited, and as follows:
53. Labor will promote transparency and open government through improved freedom of information legislation. Conclusive certificates will be abolished and internal working documents that do not compromise national security will be accessible. Reports on the operation of government and government-funded agencies will be regularly tabled in parliament.
54. Freedom of information provisions should be available to all. Labor will ensure that the costs involved in using freedom of information procedures do not put them out of reach of the community.
55. Labor will ensure that considerations relating to outsourcing, privatisation, notions of commercial confidentiality and corporatisation are not used as excuses to allow government and government-funded agencies to escape the requirements of open government and accountability. The rights of clients and other recipients of such services, including rights to access to information, privacy, correction of inaccurate information and, where necessary, redress, will be maintained.
I'll keep track of the final version when this becomes available.

Let's hope in the lead up to the Federal election later this year that transparency and accountability (or the current lack thereof) bite as election issues and we get something more comprehensive and specific from Labor, a mea culpa from the Government and a commitment to fundamental reform.

Well there is nothing wrong with hoping......