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Tuesday, July 31, 2007

Barack Obama commits to transparency in government

Short posts, on holidays.

Its still a long haul until the US Presidential election in November 2008.

However the candidates are starting to make important and specific commitment. For example, one of the leading Democratic Party contenders Senator Barack Obama, has just released a statement about his plans to improve transparency and accountability.

They include a requirement for members of the Cabinet to use modern technology to engage in "21st century fireside chats"with the nation; restore meaning to the Freedom of Information Act to require release of documents unless there is a reasonably foreseeable harm to a protected interest; conduct regulatory business in public by enabling access to agency deliberations about issues, and use all available tools to allow citizens not just to observe, but participate and be heard on issues; and to make publicly available communications between persons outside Government and all White House staff concerning regulatory policy making.

In Australia, there isn't long to go before our Federal election but we still haven't heard anything from the major parties about specifics on these issues. The Australian Labor Party is committed to "FOI reform". However three months after its Federal Conference, the final text of the party platform containing policy on these and other issues is still to be released.

Accountability for public monies

Short posts, on holidays.

I'm with the Federal Minister for the Arts, George Brandis: "....expenditure of public monies ought to be in the public domain".

His comment as reported in the Courier Mail, followed a decision by the Australia Council to refuse access under the Freedom of Information Act, about the 552 grant projects funded by the Council which have been completed late or not at all.

The Australia Council decided that disclosure would be unreasonable in that it would "embarrass artists or organisations by releasing names", and "unfavourable publicity might harm an applicant's ability to secure more sponsorships".

It makes about as much sense as the Queensland Government's decision a couple of years ago Io change the law so that grants to businesses shouldn't be released for 7 years, and the NSW Government decision to exempt from contract disclosure requirements contracts for industry support entered into by the Department of State and Regional Development.

As Senator Brandis said....

Monday, July 30, 2007

Privacy Foundation election challenge

Short posts, on holidays.

The Australian Privacy Foundation has published its 2007 Federal Election Privacy Challenge, inviting the parties to respond to eight major privacy concerns.

Important questions but even more important answers, if any are forthcoming.

UK guide to vexatious applicant

Short posts, on holidays.

The UK Information Commissioner has issued guidelines on what constitutes a vexatious Freedom of Information application that could be useful in those Australian jurisdictions where the act includes a similar provision.

A vexatious application is one that imposes a significant burden in terms of distraction or expense to an agency and also meets one of the following criteria:
  • clearly doesn't have any serious purpose or value;

  • designed to cause disruption or annoyance;

  • has the effect of harassing the agency;

  • can otherwise fairly be characterised as obsessive or manifestly unreasonable.

The UK FOI blog provides a link to the document.

Saturday, July 28, 2007

Advice documents off limits

Short posts, on holidays

The reasons given for refusal of access to advice documents reported in Matthew Moore's "What they won't tell you" column in last Thursday's Sydney Morning Herald, seem so broad that they could be used to refuse access to almost any such document at any time. This couldn't be what was intended when Freedom of Information was introduced. If advice documents were to be exempt because disclosure would mean public servants wouldn't commit advice to paper, or because release would cause confusion, you would think Parliament would have provided a specific exemption to head off such calamities.

As previously mentioned here, a large gulf has developed between Federal and some state jurisdictions over what can be argued as 'public interest grounds' for refusal of access to public service advice.

Wednesday, July 25, 2007

University practices in responding to police requests

Short posts, on holidays.

In a further development to recent reports about university practices in providing information concerning students and staff to law enforcement authorities, The Sydney Morning Herald reports that the University of Wollongong only provides information in response to a warrant.

The fact that practices vary widely illustrates the broad nature of privacy laws, and the large areas of discretion left to each organisation to decide what to do when the police and others ask for cooperation.

Identification for SIM card sounds like overkill

Short posts, on holidays.

While I haven't seen all the details, the suggestion by NSW Police Commissioner, Ken Moroney, that a 100 point identity check should be required for anyone seeking to buy a SIM card, sounds like a solution in search of a problem rather than vice versa.

Right to know not always paramount

Short posts, on holidays

This report in the Herald Sun "Rapist loses bid for medical file" about a Freedom of Information decision by the Victorian Civil and Administrative Tribunal, illustrates the tricky balancing act required in assessing an individual's right to know, and the privacy interests of others.

Thursday, July 19, 2007

FOI bid for rejected research applications

Shorter posts, on holidays.

The research community will be interested in the outcome of a Freedom of Information application for details of nine research projects recommended to the then Minister for Education, Brendon Nelson, by the Australian Research Council but rejected by him. In this latest round the Government has withdrawn an appeal against an Administrative Appeals Tribunal decision that it consult the nine applicants, prior to consideration of disclosure of documents.

FOI delivers some details of Blair-Murdoch talks

Shorter post - on holidays.

After a four year Freedom of Information battle the UK Prime Minister's office has released details of the dates of telephone conversations between former Prime Minister Blair and Rupert Murdoch. The documents reveal a series of telephone conversations in the lead up to the UK decision to support the US military intervention in Iraq. The substance of the conversations has not been disclosed. Originally the response to the FOI application was refusal on personal affairs grounds.

Journalists joined in battle over Einfeld travel documents

Shorter posting - on holidays.

Matthew Moore and Michael McKinnon - two of Australia's leading journalist exponents of the use of Freedom of Information - have been successful in an application to be joined in a Commonwealth Administrative Appeals Tribunal case, concerning former Justice Marcus Einfeld. Einfeld and his wife are arguing that documents concerning travel allowances and reimbursement claims during the period when he was head of the Human Rights and Equal Opportunity Commission, should not be disclosed.

Wednesday, July 18, 2007

UK Information Commissioner "reliable ally" for FOI and privacy rights

Shorter posts, on holidays

UK Information Commissioner Richard Thomas has blasted chief executives of private and public sector bodies over serious security lapses that have led to data security breaches concerning personal information. Thomas said that his message to those at the top of organisations, is to take privacy issues seriously, and to add "to be sure you are not the business or political leader who failed to take information rights seriously".

The Guardian took this opportunity in an editorial to praise Thomas for his role in siding "with the individual whether they are battling to get their hands on paper that the government would rather keep secret or trying to safeguard their privacy by ensuring that personal secrets are treated with respect".

There is a lesson here for those in Australia who might be interested in new ways to promote Freedom of Information and ensure adequate privacy protection. Thomas in the UK has wide powers on both fronts, and has been prepared to use his position to speak out strongly about the importance of open government and privacy principles. He also apparently also has the personal qualities to make others sit up and listen. Someone of this calibre can exercise responsibility for FOI and privacy and get the balance right.

Monday, July 16, 2007

Aussie academic promotes Freedom of Information in Cambodia

Short posts, on holidays.

While I'm on holidays and not asking for any sympathy, spare a thought for Rick Snell, one of Australia's foremost FOI academics who is engaged on a seven week consultancy in Cambodia to help draft a policy paper on Freedom of Information. You can read the details on Rick's blog. This was always going to be a tough gig, but I imagine even Rick was surprised to be on the receiving end of a two hour lecture from a government minister about why Cambodia doesn't need freedom of information, and to be told by the Minister for Defence that copies of legislation that stand in the way of disclosure of information couldn't be made available to him.

Keep your spirits up Rick.

Saturday, July 14, 2007

Universities disclosure practices in the spotlight

Shorter posts, on holidays.

Both the University of Technology Sydney and the University of Sydney have taken a bit of a hammering after Freedom of Information responses to the Sydney Morning Herald, concerning information provided to the Police and other law enforcement bodies about students.

As pointed out in these articles, disclosure of information in these circumstances where the agency is satisfied that disclosure is necessary for a law enforcement purpose does not involve any breach of NSW privacy laws. Those laws of course do not require disclosure so the matter is left entirely to the discretion of the agency.

NSW government agencies should ensure that their statement of privacy policy indicates whether personal information may be disclosed to law enforcement authorities in the absence of a warrant or order.

Holiday time folks

I am travelling for the next couple of weeks so posts on this site will necessarily be shorter and limited in terms of coverage.

Friday, July 13, 2007

Federal ALP puts toe in water on transparency

It's good to see that Federal Opposition Leader Kevin Rudd, sees greater transparency as one of the ways of improving government processes. Last week he said that a national, online, searchable database that would allow anyone to track development applications, would produce significant efficiency gains, and improve decision making with the potential to reduce housing costs by 15%.

While many local councils in NSW already provide such a tracking service, no one to date has identified the savings or improvements that have resulted. In any event greater openness in these processes is a step forward in accountability.

But Mr. Rudd, why stop there?

If you put your mind to it there are a whole range of potential improvements that would come from disclosure of information about the conduct of public functions, at all levels of government.

Let's hope the Federal ALP takes a broad and comprehensive look at the wide range of possible improvements that would come from greater transparency in government.

Wednesday, July 11, 2007

New federal privacy case notes

The Federal Privacy Commissioner has published 13 new case notes.

Issues concerning medical practitioners keep cropping up. In K v Health Service Provide (2007) PrivCmrA13 a medical centre initially refused to provide a person access to a document on the grounds that to do so would pose a risk to health. The Commissioner agreed with another consultant that disclosure would pose no such threat. With respect to another document which included information about the complainant sent to the medical centre by another family member, the Commissioner supported the decision to refuse access.

In M v Health Service Provider (2007) PrivCmrA15, a medical practitioners practice of taking a photograph of each patient and attaching it to the file was held to involve an unnecessary collection of personal information.

Even lawyers can fall foul of the privacy principles. In G v Law Firm (2007) PrivCmrA9, solicitors acting for two different insurance companies, used and disclosed personal information acquired in respect of one claim in handling a separate claim by the same person with a different company. The Commissioner didn't accept the law firm's claim that this was necessary for the purposes of an investigation.

Tuesday, July 10, 2007

Audit scrutiny for National Access Card

According to AustralianIT the Federal Auditor General is planning to audit the administrative processes undertaken in the Natioanl Access Card project. As Senator Stott-Despoja says, this could prove to be interesting particularly in the light of the expenditure of large amounts of public money before major details have been settled, and long before the legislative package has been presented to Parliament.

No intellectual property in top cop's expenses

In the FOI field, there is no end in sight of ingenuity and creative thinking.

In Belfast a member of the Northern Ireland Assembly obtained access under Freedom of Information to details of expenses of the Chief Constable of the Police Service. The head of Police Corporate Services told him that the information could not be passed on to anybody else or published because it was protected by the 1998 Copyright and Patents Act.

The Sunday Life newspaper published the expenses when its legal adviser said the claims were without foundation and totally absurd.

Hear, hear.

Monday, July 09, 2007

Welcome to new FOI blog in the west

Keryn McKinnon, Freedom of Information Editor of the West Australian, now has a blog.

The latest post picks up on an issue mentioned here at the time the FOI Amendment Bill was introduced earlier in the year - the proposed inclusion of grounds for refusing access on frivolous or trivial grounds. As we blogged at the time, there are other grounds in the Bill for refusal that could become a barrier to access. For example what will qualify for refusal because "the application amounts to an abuse of the right of access created by the Act".

Saturday, July 07, 2007

Drum roll for reform in US

American Independence Day - 4 July - every year also coincides with the anniversary of the signing of the Freedom of Information Act in 1966.

The National Security Archive at George Washington University used the occasion to release findings of an Open Government survey that revealed some requests have not been dealt with 20 years after they were first lodged. The survey also revealed significant differences between what agencies had reported to Congress about outstanding requests and the situation revealed when the Archive lodged an FOI application asking 87 agencies for the 10 oldest or pending FOIA requests.

Proponents of FOI reform also took the opportunity to urge the Senate to act on a bill, already passed by the House of Representatives which would solve some of the persistent problems in FOI administration.

Here's another interesting US list - the top 25 censored stories of 2007.

The updates for each provide new information about some of these 'hidden' stories that have been around for a couple of years. The update on #2 "Halliburton charged with selling nuclear technologies to Iran", includes as a source in the update section comments by Vice President Cheney to our very own Illawarra Mercury: "I think we'd be better of if we, in fact backed off those sanctions (on Iran) didn't try to impose secondary boycotts on companies.....trying to do business over there.....and instead started to rebuild those relationships".

Thursday, July 05, 2007

Privacy in the work loo for Victorians

Victoria's Surveillance Devices (Workplace Privacy) Act came into force on 1 July. The Act imposes criminal penalties for employers who put surveillance devices in workplace toilets and change rooms.

As we commented recently in connection with the NSW Government's response to a Law Reform Commission report, governments here don't seem too concerned about the broader and growing issue of surveillance in public places, or of people outside the workplace.

My guess is that we still have plenty of surveillance related privacy problems. Just like others, for example this report about the use of video surveillance in a methadone clinic in Canada that resulted in an image of a woman giving a urine sample being picked up by a camera device in a nearby car.

Thanks to an alert reader for the Canadian link.

Wednesday, July 04, 2007

"Because of the privacy act" rears head again

The tragic result of a power company cutting off supply to a house in which a woman was dependent on an oxygen machine, and her subsequent death, has been a major issue in New Zealand over the last week.

The electricity provider said it couldn't provide details about the amount outstanding to family members, because of the privacy act, as the account was in her name, and couldn't reconnect supply until the outstanding account - $34 - had been paid in full.

Prime Minister Clark, reflecting nationwide criticism of the company, said reconnection policy was callous; the jobs of the Chairwoman and Chief Executive of the publicly owned power company are under a cloud and the NZ Electricity Commission has published new guidelines on disconnections and arrangements to help those on low incomes and are vulnerable to pay their bills.

In your face with Facebook

If you have taken the jump into Facebook, or have been thinking about it, have a read of this examination of the privacy issues by James Massola in New Matilda.

The friendly invitation to allow Facebook to search your address book in order to see how many of your friends were already signed up is one thing. The suggestion that you give them the email addresses of other friends who might like to know you now feature is another.

In both cases they keep the information and their privacy policy puts you on notice that the company "may share your information with third parties including responsible companies with which we have a relationship".

Massola rightly suggests enter with caution, and enjoy if you must.

I've got the message.

FOI Treasury documents spark public debate

Channel Seven - with Michael McKinnon as FOI Editor - scored quite a hit with a Freedom of Information request for access to Treasury documents concerning housing affordability. According to Peter Martin, Economics Editor of the Canberra Times the release of documents was "unprecedented". His blog provides a link to the text of the 180 documents released and some useful commentary as well. The notice of determination says of the 81 documents within the scope of the request 23 were exempt in whole or in part, apparently on internal working documents grounds.

The release of documents resulted in widespread media coverage and touched off a debate about housing issues.

Treasury Secretary, Ken Henry quoted in The Australian said reporting on the content of the documents had misrepresented their content. He was "outraged" that a reference in the documents to concern about affordability was interpreted to mean that Treasury was indicating an interest rate increase before the election.

Treasurer Costello seemed pretty quick to emphasise that the documents revealed that the biggest affordability problems arose from state government attachment to stamp duty, and their failure to release sufficient land to keep up with demand.

Sunday, July 01, 2007

Can't see the forest for the trees

This post on another blog by Ken Jefferys, General Manager Corporate Relations Forestry Tasmania, includes claims about openness and transparency in the conduct of their business, and a distinct failure by the Greens and NGOs involved in forestry issues to do likewise.

A couple of months ago, Matthew Moore in the Sydney Morning Herald in "Shiver me timbers - the pulp friction cools down" reported on a small victory in Tasmania where the Ombudsman had required disclosure of some parts of the Forestry Tasmania contract with Gunns Limited, in response to a Freedom of Information application by the Greens. However the Ombudsman stopped short of requiring disclosure of information about the price or the volume of logs sold for pulp wood. The Ombudsman said these details would allow a competitor "to predict with a greater degree of accuracy future pricing for contracts involving the sale of pulpwood".

I understand that all state government forestry agencies take a somewhat similar view about the sensitivity of information about the sale of logs. There is a current case before the NSW Administrative Decisions Tribunal on this issue which has yet to be decided.

An expert in this area has told me that the details of quantities and prices of all major grades and species of logs sold from every government forest and other key conditions governing the sales, should be in the public domain in the interests of an efficient and informed market. The US Department of Agriculture says this type of information is essential if private timber owners are to be properly informed of market developments. Australia provides no official information of this kind.

There is also an accountability issue given that such sales involve the disposition of public assets. In NSW and elsewhere there is a general requirement these days about disclosure of contract information, including price, but special case exemptions apply.

I note that Mr. Jefferys doesn't get into this sort of detail, after telling us about Forestry Tasmania setting out "on a mission to establish a new benchmark for openness and transparency in the debate over the management of our forests". But at least they have thrown open the doors to the media, started briefings round the state, have a newsletter, and are subject to the FOI Act.

No FOI strings for access to car owner details

The name and address of the owner of a registered motor vehicle isn't the most sensitive information in the world, but it's just become a little easier for those who claim they are owed money to get access to these details. Privacy considerations don't get much of a go.

Since February 2006 the NSW Roads and Traffic Authority (RTA) has been arguing in the courts that Australian National Car Parks can't require it to provide information by way of discovery under the Uniform Civil Procedures Rules about the owners of 294 vehicles which have parked without paying in one of the suburban car parks it manages.

The RTA argued unsuccessfully in the Local Court and then on appeal in the Supreme Court that any request for such information needed to be made and processed under the Freedom of Information Act. Their normal procedures would then be to consult the owner and then make a decision on disclosure.

The NSW Court of Appeal has now decided that the RTA cannot insist that a prospective plaintiff in proceedings must follow these steps. The Uniform Rules provided for discovery in certain circumstances. The requirement to lodge an FOI application was not a necessary prerequisite and was not what was contemplated by a provision in the Rules that said an order for discovery could only be sought after 'reasonable inquiries'.

The Court of Appeal also rejected RTA argument that the name of the owner of the vehicle was not information that would tend to assist in ascertaining the identity of the driver of the vehicle at a particular time. While the owner may not have been the driver, in the Court's view the owner was in a position to help identify a prospective defendant.

As the Uniform Civil Procedures Rules apply in all states and territories, the Court of Appeal decision will be of some significance to motor vehicle registries across the country, but in a South Australian case (Care Park v Registrar of Motor Vehicles No 179/2005), the Supreme Court had already reached a similar decision.

According to this report in the Sydney Morning Herald, the NSW Government sees no need to change the law.

One quirky aspect of the Road Transport (Vehicle Registration) Regulation - referred to as relevant in the judgment - is that it includes a reference to the Federal Privacy Act - legislation that doesn't apply in the normal course of events to any state government authority such as the RTA.

What the decision will do to parking habits is anyone's guess.

Privacy and cross border data flows on international agendas

Cross border data flows and the regulation of privacy issues that arise, are a major challenge for policy makers. Most countries are still struggling with domestic regulation of privacy issues. The impact of global movement of personal information, and the cooperation needed to apply appropriate standards, raises big and complicated policy problems.

This issue was on the agenda at the APEC Data Privacy Seminar in Cairns last week, and last week saw this announcement, that OECD governments have agreed on a new framework for cooperation in the enforcement of privacy laws by the regulators. The framework urges governments to improve arrangements for enforcement and mutual assistance.

All this is important stuff but just how far it all has to go is perhaps illustrated by the statement by the OECD that "initiatives to implement the recommendation are already under way". Governments have agreed on the creation of a list of contact points in each country to coordinate requests for assistance, and on "a form for use by an authority in requesting assistance".

Well at least it's a start.