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Thursday, January 31, 2008

Those affected should be informed about major data security breaches

Yes, the Federal Privacy Commissioner is right in calling for compulsory notification of major data security breaches. It's clear that we are pretty much in the dark here concerning possible breaches that may have significant identity fraud implications.

One intriguing result of this case note published by the Commissioner in January is that she apparently isn't fussed by the fact that some EFTPOS terminals issued by the major banks continue print a receipt that includes the full details of the credit card used in the transaction including name, full credit card number, type of card and expiry date.

The Commissioner found the merchant in this case had not breached privacy principles, but there isn't a word about what is a very unsatisfactory practice, still widespread in this country and full of identity fraud potential.

Have a look at your receipt next time - in my experience it mainly occurs with smaller retailers but in the case above it was an events ticketing company - and think twice about chucking the receipt in the bin.

Wednesday, January 30, 2008

Missed opportunity to illustrate the new era of openness

Following the release last Friday of the six monthly report (to July 2007) on travel by members and former members of Federal Parliament, depending on which paper you read, you may have seen that Prime Minister (then Opposition Leader) Rudd topped the list with $300,000 in travel and expenses; that then Defence Minister (now Opposition Leader) Brendan Nelson spent $74,000 on a trip to the United States; and various other tidbits about former members with that gold pass for life that entitles them to 25 domestic air travel tickets per year.

Like to read the report? Sorry folks, the report isn't generally available except through contact now with the Table Officer of the Parliament.

The news reports were based on paper copies distributed to the Parliamentary Press Gallery. The report itself should have been tabled before Parliament rose last year for the election but somehow the Howard Government didn't get around to it.

I went looking for it on the web but came up with nothing but then spoke to Minister of State Faulkner's Press Secretary (who distributed it) and the Manager of the Ministerial and Parliamentary Services Division of the Department of Finance (who prepared it). No, no consideration had been given to publication on the web. The reports have always simply been tabled in Parliament. It seemed to come as a completely unexpected suggestion that the new government, and the promised 'improved transparency' might take the bold step of putting this sort of information into the public domain for anyone to access.

Senator Faulkner should be working on the basis that his leadership and direction will need to be given on issues such as this. After a couple of months in office, there is a need to put on the thinking cap on how to illustrate the difference between the old and the new. The public service isn't of its own volition about to push the envelope too far.

Queensland review Discussion Paper released

The Discussion Paper "Enhancing Open and Accountable Government" released today by the Solomon Review, has the intended purpose "to raise the major issues that will be considered by the Panel appointed by the Queensland Government to recommend ways to improve and modernise the Queensland Freedom of Information Act 1992".

Full FOI Review Discussion paper

It covers the waterfront by listing a whole range of issues and posing a series of questions that go to the heart of the open government debate - what should legislation seek to achieve in the light of technological and other changes to the Westminster system; how to promote pro active disclosure and access to personal information outside FOI; should the legislation cover the public sector comprehensively, and possibly be extended to others including the private sector; how should the balance be struck between the public right to know and the need for some confidentiality in the conduct of government functions; what are reasonable processing standards and appropriate review mechanisms.

The Paper draws extensively on writings about FOI reform by leading Australian authorities, Rick Snell (so many citations he might reasonably ask for a royalty) and Moira Patterson, and the Canadian Alasdair Roberts. It's all very progressive stuff. It will be interesting to see who, if anyone, advocates the status quo or questions what are clearly moves towards what the Premier of Queensland said was her objective in establishing the review: a complete overhaul and an entirely new Freedom of Information Act.

The Paper provides plenty of food for thought for all FOI policy makers around the country. Would that they and their ministers are interested.

Submissions are invited closing 7 March.

The Review Panel and the Australian Law Reform Commission (with a reference on Federal Freedom of Information in the last days of the Howard Government) will hold a joint public seminar on 6 March - contact the Panel Secretary by 29 February.

Tuesday, January 29, 2008

Freedom of Information and Brian Burke meet up again

The Crime and Conduct Commission in Western Australia released a report (see under publications) last Friday on alleged misconduct by the Director General of the Department of Health, Dr. Fong (who resigned when the report was released) arising from his claims that he had no relationship with former Premier Brian Burke. The Commission recommended consideration be given to disciplinary action against Fong for misleading the minister about the relationship.

One of the main issues was that in response to an FOI application Fong’s initial advice to the FOI staff was that he had received no emails from Burke. As the report reveals the Department IT people subsequently found 9 but only with headers and no text. The CCC having seized Burke's computer identified 33 emails between him and Fong, most initiated by Burke. Some sought Fong's assistance in matters on behalf of Burke clients. Others included an email from Fong asking assistance from Burke to pay for a dinner, and advice from Burke regarding Fong’s employment at Health, and how to handle the media.

The report includes detail about record keeping in the Department of Health and major shortcomings in relation to the retention of emails. The TRIM system (also used widely in the public sector elsewhere in Australia) "is primarily a communication system and is not designed as an electronic records keeping system". Responsibility for ensuring that emails are kept rests with the officer dealing with the matter, with important emails to be downloaded and copied on the file.
"Retention of each individual employee’s emails is limited by the storage limit allocated. Full backups of the exchange information databases, system software and system transactions are run every evening and a three month tape rotation cycle is currently employed by DOH. These tapes are overwritten on a three monthly cycle. Therefore the only records in existence of email content beyond a three month period would be contained in the individual employee’s inbox, sent items folder or copied to a personal folder or stored on disc or on their personal
One of the Commission's recommendations is that the Department of Premier and Cabinet and the State Records Commission consider a whole of government standard in relation to agencies' archival processes and retention of email communications.

The retention of digital records is a major issue in record keeping circles and overseas - the White House was reported recently to have not been able to locate 5 million emails, and only started back up tapes in 2003.

All this has important implications of course if accountability mechanisms, particularly Freedom of Information laws are to work as intended.

Interesting times as they say.

Monday, January 28, 2008

Australia Day gong for privacy and FOI work

I don't know Joan Savic of the ACT, but congratulations on her Public Service Medal in the Australia Day honours for "promoting best practice in privacy and Freedom of Information in Centrelink and throughout the pubic service".

NSW ADT President highlights problems with repeat applicants

In commenting on the year in review in the latest annual report of the NSW Administrative Decisions Tribunal President Kevin O'Connor highlights the "increasingly difficult management problem for tribunals" of the repeat litigant.
"The "querulent" litigant may have suffered a real injustice..... but the wrong may have disappeared from view "as the person pursues procedural complaints against the officials in institutions with whom he or she has dealt along the way........These users will often file mountains of paper, they will regularly arrive at the counter seeking attention or make numerous phone of fax calls.....They will often make formal applications in connection with their filed claims on narrow, procedural points necessitating the giving of notices to their opponent, and the convening of hearings. These activities can place major strain on the capacity of complaint handling institutions including tribunals".
The report does not specify the areas of jurisdiction where this issue has arisen. Without categorising anyone as a querulent, a search of reported decisions dealing with Freedom of Information and privacy matters, reveals three applicants have racked up an impressive list of decided matters: between them, 26 in 2007, 17 in 2006, 16 in 2005 - 59 in the last three years.

President O'Connor says that Tribunals have commenced work on developing common standards and practices to deal with the activities of repeat applicants.

FOI applications to the Tribunal during the year to June 2007 fell from 125 to 114, and 30 privacy applications were lodged, the same as the previous year. Accurate figures were not kept but about 42% of information law matters were resolved without a final hearing. Unfortunately the Tribunal has never published any information about matters resolved in this way. If, as seems likely, in many instances a government agency has agreed to release additional documents after Tribunal proceedings have commenced, this would suggest that the agency decided to concede rather than continue to fight disclosure. This would form part of a broader picture about the quality of determinations in the agencies concerned.

The only performance standards published by the Tribunal relate to time taken to deal with an application. No separate statistics are published about the FOI and privacy cases but Appendix E reveals that of the cases in the relevant division 66% of matters were disposed of in less than 6 months (the target was 85%), and 85% of matters were disposed of in less than a year (100%).

The report also reminds the NSW Government that it has never tabled in Parliament the statutory review of the Administrative Decisions Tribunal Act (required by 2003 ) or provided a response to a Parliamentary Committee report on Tribunal jurisdiction released in November 2002. President O'Connor hoped both would appear in late 2007. Keep hoping Judge - neither have been published to date.

The Annual Report 2006-200

Data loss one of the big privacy issues of 2007

The latest unhappy UK experience of data loss involved the theft of a laptop containing details of 600,000 people who have expressed an interest in or have joined the navy, marines and air force. For those who had submitted written applications, "extensive personal data" was involved including the bank details of 3,500 people.

This revelation came too late for inclusion in this long (but severely limited) list of 2007 celebrated instances of personal information disappearing into the stratosphere (or somewhere more sinister).

You would be forgiven for thinking all this is a northern hemisphere phenomenon. Something tells me it just isn't so.

Concern about personal information misuse tops poll

Unisys has been conducting a regular survey of public perceptions towards security since June 2006. The December 2007 results show a moderate change since August last year, with the largest changes occurring in the number of people extremely or very concerned about a serious health epidemic and their ability to meet essential financial obligations (and this before the darker days of January).

Of particular interest is that the top two areas of concern are unauthorised access to, or misuse of personal information, and other people obtaining credit card/debit card details.

Number three? Australia's national security in relation to war/terrorism.

Full details are contained in the December 2007 report which includes state by state breakdown of some responses.

NSW Tribunal limits criteria for public interest disclosure

Another aspect of the NSW Administrative Decisions Tribunal decision in Waite v Hornsby Shire Council (2007) NSWADT 265 worth a comment is the way in which Judicial Member Higgins gave consideration to exercise of the discretion to require disclosure of an otherwise exempt document on public interest grounds.

Since a Supreme Court decision in 2006 that decided the Tribunal has such powers, the Tribunal where it finds that documents are exempt considers whether access should be given if this is the correct and preferable decision based on the material before it.

In previous decisions, Tribunal members have referred to the need for strong public interest considerations in favour of disclosure to be evident if the discretion is to be exercised.

The discretion has been rarely exercised - in this case, access was granted to some documents because disclosure would cause no harm, and the sensitive nature of some information had passed because of changing circumstances; in another, the Tribunal decided that the public interest in informed debate about the most appropriate uses of public assets overrode other considerations; and in this case a document largely covered by the exemption relating to protection of whistleblowers, was disclosed with some information deleted, to allow comparison between the report received from the St. James Ethics Centre and the the text of the same report published on a university website.

However in the Waite case (paragraph 58) Judicial Member Higgins said it was appropriate to apply a test laid down by the Court of Appeal in Victoria: that the discretion should only be exercised where the public interest requires disclosure. That is, where the public interest demands, necessitates or is imperative, or compelling.

She considered that this was consistent with previous decisions of the NSW Tribunal. However my reading is that this represents a tightening of the criteria. The words used suggest that 'strong' public interests in disclosure are not sufficient to justify grounds to exercise the discretion to order release of otherwise exempt documents. It's a mystery why the Victorian test was applied: in Victoria the word requires is the test laid down in the Act for the exercise of discretion by the Tribunal. There is no such limitation in NSW.

Lawyers representing government agencies are sure to find Judicial Member Higgins' comments encouraging. It's another potential hurdle for Freedom of Information applicants in the ADT.

Tuesday, January 22, 2008

FOI applicants: agencies should 'know' what they mean!

A couple of important points for agencies from two NSW Administrative Decisions Tribunal Freedom of Information cases - interpret the application in a commonsense rather than literal manner, and make all reasonable inquiries in trying to locate relevant documents, including your solicitors when appropriate.

So when an applicant sought access to "all annual reports, including financial statements" of a subsidiary body of a consortium in which the University of NSW was involved (McGuirk v University of NSW [2007] NSWADT 270), the Tribunal found that the University had been wrong to limit the search for documents to "annual reports" (which it didn't hold in any event). It should have been clear from the context of the application and subsequent correspondence that the applicant was seeking reports about the overall performance of the subsidiary in terms of the income, expenses, assets and liabilities. No search had been undertaken for documents of this kind which on the evidence seemed likely to be held by officers of the University. While the literal interpretation of a list of documents requested in a schedule to a subpoena is warranted, "an FOI request is to be considered in the overall context (within which) it has been made and not in isolation".

Similarly (Waite v Hornsby Shire Council (2007) NSWADT 265), when an applicant sought access to instructions provided by a local council to a barrister "by email", the council was wrong to have limited the search for relevant documents to emails (it held none). The Tribunal said that the applicant intended to mean that he sought access to copies of instructions including those sent by email. A letter of instructions had been sent to the barrister not by the council but by the firm of solicitors acting on its behalf. In the NSW Act, a document is held by an agency even where it does not physically hold the document but has an immediate right of access to it. In this case the council should have responded to the application by considering the letter held by its solicitors as a relevant document responsive to the application.

Lessons for Australia from UK Information Commissioner experience

Federal Labor, in opposition, announced its intention (among other Freedom of Information reforms) to establish an Information Commissioner with powers to undertake review of FOI determinations, to replace review by the Administrative Appeals Tribunal.

This will be a positive development.

However in this report the problems associated with a similar scheme in the United Kingdom are evident - the existing backlog of appeals lodged with the Information Commissioner is now so long it would take until March 2010 to clear. The average request takes 18 months.

"Journalists have complained that the huge time lag in dealing with FOI appeals means that public authorities can effectively kick embarrassing requests into the long grass, by refusing them safe in the knowledge that the Commissioner won't compel them to act for at least a year to 18 months".

The answer to this type of problem isn't more resources to speed up the review process, although the Information Commissioner probably has a reasonable claim for more staff.

As mentioned previously the Scottish and UK Commissioners see the need for tough talk and strong action.

Agencies who are a bit blase about FOI decisions should be exposed to something more than a slap on the wrist. Instances where poor decisions are taken, particularly in agencies where this is a systemic problem need a bit of stick. But the answer also lies in more effort to ensure that FOI works better in the first place and the right decision is taken the first time, in order to reduce unnecessary appeals.

Hopefully those in Canberra tossing the Information Commissioner model around will see the need for proper staffing and the relevance of the UK (and other) experience.

Monday, January 21, 2008

WA public service work and wage assessments not so secret after all

An important decision (PDF) in Western Australia in December by a specially appointed Acting Information Commissioner, Christopher Shanahan S.C, resulted in a comprehensive victory (after 20 months of trying) for the Civil Service Association and West Australian Newspapers Ltd., and access to a report prepared by Mercer Human Resource Consulting on the grading and remuneration of senior public servants. Mr. Shanahan was called upon to decide the matter because the then Acting Information Commissioner had a direct interest in the matters covered in the report, and some independent assessment was required.

Access to parts of the report had been refused on the grounds that the agency concerned, the Salary and Allowances Tribunal, was outside the scope of the Freedom of Information Act; that methodology used by Mercer and detailed in the report was exempt as a trade secret or because disclosure would reveal information that had a commercial value; and that some information about the public servants concerned was covered by the personal information exemption.

The Acting Commissioner found that the Salary and Allowances Tribunal was not a tribunal for the purposes of an exemption for such bodies in the FOI Act - it did not exercise judicial or quasi judicial functions, was not an adjudicative body, and some of its decisions were subject to review and final decision by the government.

Despite claims to the contrary by the Tribunal and Mercer, the Acting Commissioner found that information about Mercer's methodology was not highly confidential and sensitive - in fact most of it was in the public domain, either in other reports published by Mercer or in other ways. As the information was widely known, disclosure could not have the claimed adverse effects.

All but three of the 70 senior public servants concerned, when consulted had no objection to disclosure of information about them including names, position titles, functions and duties, and remuneration. In any event the Acting Commissioner concluded that in the case of the three non consenting officers, the public interest was in disclosure of salary and entitlements, and this outweighed considerations of privacy and confidentiality.

From details contained in the decision, Mercer has the game sown up around the country in providing advice about grading and remuneration for senior public servants. Mr. Shanahan's detailed reasoning (all 79 pages) will provide some useful prompts for anyone seeking similar information from other governments about any similar reports.

Keryn McKinnon writing in The West Australian said that the Tribunal was considering a Supreme Court Appeal, but there is nothing on the Information Commission website so far to indicate an appeal.

Friday, January 18, 2008

Discussion of US FOI changes

For those with an interest in the fine detail of the recent US Freedom of Information Amendments, Rick Snell of the University of Tasmania has alerted me to the three podcasts available from the Washington College of Law of panel sessions held on 16 January.

Unfair limits on external review

Updated (21/1) with a couple of additional thoughts that hopefully make the point clearer.

The various Australian Freedom of Information acts provide that if an application is not dealt with within the statutory time limit, this constitutes a 'deemed refusal' of access to the requested documents, and gives rise to rights to seek review.

In the Federal and Victorian FOI Acts, there is a provision for application to the relevant tribunal in these circumstances.

The NSW Act is less precise, and a number of decisions last year have seen the Administrative Decisions Tribunal reject requests for review where the applicant did not respond to the 'deemed refusal' by asking for internal review.

Some of the outcomes are ridiculous. Take this (Cianfrano v NSW Premier's Department (2007) NSWADT 211) for example:
  • 9 May 2006 - FOI application lodged with the Office of the Minister for Primary Industries
  • 9 October 2006 - application (with the knowledge of the applicant) transferred from that office to the Premier Department in accordance with the Act
  • 8 November 2006 - Premier's Department determines no documents held
  • 10 November 2006 - applicant lodges request for external review by the Administrative Decisions Tribunal. The applicant seeks review of the 'deemed refusal', based on the failure of either agency to determine the application within 21 days. The Crown Solicitor's Office on behalf of the agency says that the applicant had a right to seek internal review of this decision by lodging an application before 27 June 2006. No application was lodged. The Act states that where an applicant has a right of internal review but fails to exercise it, the Tribunal does not have jurisdiction to review.
  • 13 September 2007 - Tribunal accepts this argument and decides it has no jurisdiction to hear the matter on the grounds that the applicant had a right to internal review but had not exercised this right. The Tribunal interpreted the Act to mean that it only had jurisdiction to review a decision made on internal review, or a 'deemed refusal' of an internal review application.
All this suggests that way back in May 2006, the applicant's failure to seek internal review of a decision that hadn't even been made at the time meant that further rights of review were jeopardised because of the failure to seek internal review. In any instance where a decision on the application has not been made, the applicant can't bypass the agency and go direct to external review.

The decision in this case is not an isolated one - the same view has been taken in a number of other decisions.

I think there is an argument that these cases have been wrongly decided. None of the decisions give any weight to a provision in the Act (Section 56) that implies a right to seek review of a 'deemed refusal'. However if they are right there is a need to change the law to bring it into line with the more generous and sensible approach taken in the Victorian and Federal Acts. It's particularly important because the NSW Ombudsman has been pointing out for years that failure to respond to requests within time is a widespread problem.

This is yet another reminder to FOI applicants of the need for vigilance, in this case by keeping your eye on the calendar. If you don't receive a reply from a NSW government agency within the specified time, you need to fork out $40 to ask for internal review. Otherwise trotting along later to the ADT, you are likely to encounter an argument from the other side that the Tribunal has no jurisdiction to review the decision.

Cult members and former PM's cosy correspondence revealed

Anyone's entitled to write to the Prime Minister or any other minister, and to enjoy some degree of confidentiality regarding sensitive personal or commercial information.

But those who seek to influence government decision making shouldn't have the same expectation.

So now that the federal election is ancient history, The Age has been given access to correspondence between the Exclusive Brethren and the former Prime Minister, and has posted the six letters on the web.

Deleting names and addresses of the correspondents might be justified where they were acting in a personal capacity, but it's a bit rich if, as seems the case, they were in touch with the former Prime Minister in their capacity as church representatives. We should be entitled to know as a matter of routine who is out there pushing or promoting ideas with government.

Then there is the question about why all this took 14 months from the Freedom of Information request until access was granted.

Here is an interesting development in the UK - thanks to Alex Hawkes of Accountancy Age - as a matter of routine information about meetings between Treasury ministers and interest groups is published on the web. Not much detail and some exclusions, but it's a step in the right direction. In the US, a federal judge recently ordered release of White House visitor lists, but an appeal is imminent.

Tuesday, January 15, 2008

Australia flunks privacy exam

This isn't a map where colours indicate the old British Empire. But red and black indicate those countries with exceedingly poor form when it comes to privacy protection.

Privacy International and the Electronic Privacy Information Center have released results of their 2007 survey of the state of privacy protection in EU countries and a number of others including Australia. Countries were graded across 14 criteria. It's not a pretty picture anywhere, with the growth of all sorts of electronic surveillance. Australia features in the second worst category - "Extensive surveillance societies" - just a few points outside the worst - "Endemic surveillance societies". We are a long way behind Canada, but a bit in front of the US, the UK and others including China and Russia.

The full country report on Australia is here - the summary as follows:
  • "No right to privacy in federal constitution, though one territory now includes the right to privacy within its bill of rights
  • Comprehensive privacy laws at federal level and others within some states and territories, but there are broad exemptions that have precluded action by the privacy commissioner against small businesses and political parties; and does not meet international standards
  • Power of commissioner diminished because determinations are not legally binding
  • Numerous reports of data breaches, including at the taxation office, child support agency, and even amongst the police
  • High level of interception activity; no notification requirement to innocent participants to communications
  • Expanded surveillance powers in 2004
  • Movement towards electronic medical records but no opt-in protections as yet
  • De-identified medical data has been approved by the privacy commissioner for sale to pharmaceutical companies, despite protests
  • Expanded financial surveillance and secret reporting
  • DNA collection only for serious crimes at the moment
  • Made preliminary steps to secure passports in 2006
  • New government promised to abandon ID card plans; the office of access card has been closed but senior staff have moved to other department hinting at possible proposals to emerge
  • Document verification service for use by public and private sector is being implemented despite lack of privacy considerations
  • Abusive case of visa revocation of individual related to suspects in UK anti-terrorism case"
The only report of the survey that appears to have made it into the mainstream Australian media is this report in The Age that failed to mention anything about our own performance - but after all it is summertime!

Monday, January 14, 2008

Progress on a couple of fronts

Two other "good news" tidbits.

The Victorian Government has released documents about major projects, found to be not exempt by the Court of Appeal, rather than seeking to take the matter further. The Court of Appeal decision is a valuable precedent on what constitutes a cabinet document.

The new Federal minister responsible for the Australian Research Council says that the Council will be made more transparent, and that any ministerial decision to reject a recommended grant will be publicly explained. A Freedom of Information application for documents about vetoes of then Minister for Education (now Leader of the Opposition) Brendan Nelson, has been kicking around in the Administrative Appeals Tribunal for over a year. The new minister says it will be settled within a fortnight.

FOI in the news

Regular readers will know that we don't usually highlight every media report based on documents released in response to a freedom of information application. One of the reasons is there are just too many reports of this kind.

A look at the papers over the last few days for example, is a reminder that a lot of information finds its way into the public domain through the use of freedom of information laws. What these reports don't tell us is whether what was sought was provided promptly and at reasonable cost. Here are some just from the week end:

"Critical delays for ambulance patients" - Daily Telegraph (The Department of Health says there is only a short waiting time when the number of patients is averaged out).

"Hundreds expelled from Victorian state schools" - Herald Sun.

"Addiction to drugs rife in jails" - The Age.

"State Government slammed after expensive move" - Herald Sun.

"More than a third of its fleet cops traffic fines" - Herald Sun.

"Doors fly open on trams" - The Advertiser.

"Boom in baby bonus for rich" - Weekend Australian.

Those who claim that FOI is a 'joke' or that the media doesn't utilise FOI are clearly off the mark. As often noted here, FOI works to a degree but responses are patchy - much could be done to improve, particularly in the Federal sphere (is Senator Faulkner beavering away in the background?).

Big stick approach to making FOI work

It's well established that more than a reasonable 'access to information' law is necessary to make Freedom of Information work in practice. A whole range of other issues concerning culture, processing requests, costs, and rights of review also need to be addressed. Incentives may also have a place in this.

There is also scope for a bit of stick, something clearly recognised by the information commissioners in the UK.

The Scottish Information Commissioner Kevin Dunion, was in New Zealand late last year at an international conference. In this interview with the New Zealand Herald Dunion commented about his approach:
"Dunion was aware public authorities, and particularly central government, wanted him to regard using his enforcement powers as a last resort. Fat chance."That's entirely the wrong way to go about it. I'm not an ex-civil servant. My background is as a campaigner and a troublemaker. I felt the appropriate way to go about things was to be quite firm, quite antiseptic about what was required of the authorities. And yes, we know the authorities are now second-guessing what will happen if they get into my clutches. I think that's pretty good."
And his counterpart in London, Richard Thomas, Information Commissioner for England and Wales, has started the year with a warning that public organisations that fail to fully comply with Freedom of Information requirements from here on will face legal action:
'Those who know they need to get their act together will be hearing from us,' Thomas told The Observer. 'We've had to neglect some of our work in this area because all of our work has gone into complaint handling, but we can ultimately serve enforcement notices and we'd like to be more effective in targeting those public authorities who need a mixture of persuasion and a stick. Watch this space.'

Thomas said there was a need for more central and local government departments to be 'proactive' in releasing information and that this would be another area his office would be investigating in the new year".
In most Australian jurisdictions where we have a body responsible for making FOI work, it doesn't have powers to undertake enforcement action where it finds significant systemic failings.

Something else our policy gurus should be contemplating.

Thursday, January 10, 2008

Victorian ministerial travel 'found' in cyberspace

With reference to our item on 2 January about the publication of ministerial travel expenses in Victoria, a reader (in Queensland - thanks) managed to track down the hard to find details. . They are located here.

The Department's home page doesn't exactly lead you straight there. So congrats on proactive disclosure, but come on guys, you could make it easier to find.

Wednesday, January 09, 2008

Senator Faulkner beefs up 'FOI expertise'

Some good news.

In reporting on appointments to ministers' offices in Canberra, The Australian Financial Review yesterday said Kate Harrison had been appointed Chief of Staff to Special Minister of State, Senator John Faulkner.

Harrison is a partner with the law firm Gilbert+Tobin. Apart from being a "leading intellectual property lawyer" Harrison has had a long association with Freedom of Information matters, including the publication of a 'how to' guide on using the Commonwealth Act (Documents, Dossiers, and the Inside Dope - for those public servants scrambling for a copy, I think it's now out of print). Harrison was a founding director of the Communications Law Centre at the University of NSW.

She has kept up with FOI, including recently acting on behalf of prominent competition lawyer Brent Fisse in seeking access to a four year old report of a working party chaired by the Federal Treasury on the details of planned criminal offence provisions for cartel behaviour.

The Treasury refused access to most of the report and the matter is now awaiting hearing in the Administrative Appeals Tribunal. Treasury claims that the document is exempt as a Cabinet document and as an internal working document include old gems such as 'disclosure would inhibit frank and objective contribution to working party discussion in future', and that disclosure 'may lead to speculation about possible future reforms which are not government policy'. I'm not sure what's happened with the case (if anything) in the last few weeks but the new Assistant Treasurer, Chris Bowen, has been happily telling the world that the government intends to act to criminalise cartel conduct.

Harrison will be well equipped to help Senator Faulkner sort wheat from chaff as the Government (hopefully) moves forward with FOI reform.

FOI disclosure not necessarily disclosure to 'world at large'

There were a few important Freedom of Information decisions around the country over the last month or so (will try to catch up soon) but a decision by Justice Hansen in the Victorian Supreme Court has overturned in that state at least, a time honoured concept that a decision about disclosure of documents in response to an FOI application should be dealt with on the basis that disclosure, in effect releases documents into the public domain and should be considered disclosure to the 'world at large'.

In Marke v Victoria Police (2007) VSC522, Justice Hansen found that the Victorian Civil and Administrative Tribunal had erred in law in taking this approach in deciding whether disclosure of information to the applicant involved unreasonable disclosure of information concerning another person's personal affairs.

Justice Hansen said that the personal affairs exemption, and the test of unreasonableness of disclosure required an assessment of all relevant circumstances. One relevant consideration was the extent of the likely disclosure. In some cases, for example where the applicant was a journalist or someone else clearly in a position to make information publicly available, disclosure to the 'world at large' was likely. However, while subsequent use of documents released under the Act was entirely in the hands of the applicant -
"it does not follow as a matter of logic that the applicant will disseminate the documents widely, or at all. Further in my view there is nothing in the FOI Act or the authorities that require the Tribunal in this case to assume, without reference to the appellant, that disclosure to the appellant would effectively be disclosure to the world at large".
Justice Hansen said that any person was entitled to make an application for documents, and there was no requirement that the applicant have standing or have any special interest in the document. In this respect the characteristics of the person making the request are irrelevant. However in deciding whether a document was exempt, a decision maker must apply the relevant exemption provision. Where this involved assessment of "unreasonability", the characteristics of the person making the request (to the extent they may be known) are relevant. The Tribunal was wrong in law in concluding that release of the documents, including the identity of people who had complained about the FOI applicant, would be unreasonable because the world at large would then know who they were. Justice Hansen referred the matter back to the Tribunal for a proper assessment of whether disclosure in this case would be unreasonable.

The Federal Freedom of Information Act (Section 11) is the only Australian FOI Act with a specific provision that says that the identity or purposes of the applicant in seeking access, are not to be taken into account in assessing whether a document should be disclosed - a provision that the Australian Law Reform Commission 12 years ago said should be amended.

There and in the other states however the general guidance on the interpretation of the Act (and decisions by the NSW Administrative Decisions Tribunal, and the Information Commissioners in WA and Queensland), has been that disclosure should be judged on the basis that disclosure is to the world at large. This approach has produced some strange results. The Victorian decision may mean that it's back to the drawing board not only in Victoria but in other jurisdictions where this has been the recommended approach to assessing "unreasonable" disclosure.

NSW Privacy Commissioner has big task ahead

The NSW Government has finally made a permanent appointment of a Privacy Commissioner, after four years of short term acting appointments. Judge Ken Taylor, formerly of the District Court who also had a couple of years as Acting Head of The Health Care Complaints Commission, was appointed in December for a five year term.

It shouldn't take him long to work out that he has taken on a big task. NSW privacy legislation is in poor shape with so many holes it's hard to work out what the law is in some cases; nothing has been heard on this aspect of a NSW Law Reform Commission review established almost two years ago; the Privacy Commission is under resourced and little effort has been put into guidance and training. As for compliance within the NSW public sector, no one has had a close look since the privacy legislation came into force over seven years ago. The anecdotal evidence is that many areas of the public sector in NSW are significantly underdone in terms of awareness and application of privacy principles.

Good luck Judge. You may have the necessary stature and clout to give privacy issues some visibility here. The Attorney General's announcement of your appointment emphasised the complaint handling skills you bring to the task of mediating complaints. Like me, you will be intrigued by the fact that the Commission performance measure in this area is the number of matters resolved within - wait for it - 12 months!

Things are worse in NSW than this gloomy snapshot of the Federal privacy scene by Senator Stott Despoja published today in ONLINE opinion.

Monday, January 07, 2008

Big Brother getting bigger

But one thing we aren't much concerned about apparently is how technology now has the potential to expose large elements of our private lives to scrutiny. This article in today's Sydney Morning Herald uses some examples in the Australian Law Reform Commission Issues Discussion Paper on Privacy about RFID and CCTV.

The Federal Privacy Commission reported last year that a survey of public opinion showed most Australians were aware of a rise in the use of surveillance devices but weren't worried about their use.

The Law Reform Commission is due to report in March 2008 on what we should do to fix and modernise our privacy laws.

If you are still sitting back in holiday mode ordering up the occasional pizza, here's a reminder about the wonders of the database - we have blogged this American Civil Liberties Union clip previously but it's worth a rerun here.

Lots of voices out there for making democracy work better

GetUp! the citizen activist group that had quite a bit of impact during the federal election, followed this up with a series of over 320 "GetTogethers" in December during which participants were invited to talk about the most pressing priorities for the next parliament.

Anne Summers provided an overview of the results last week in the Sydney Morning Herald.

No surprise that climate change topped the list and a whole range of issues to do with civil liberties and social justice came in second, followed by concern about the situation of indigenous Australians and treatment of refugees.

But according to Summers, what did surprise organisers was the "huge" desire of participants to improve the process of democracy, including ways to make the political system more transparent.

Greater openness in the conduct of government functions, including Freedom of Information laws that work effectively, is not only necessary for accountability purposes, but also to enhance understanding of issues, and to encourage participation in public affairs. Our democracy is the poorer as a result of the ongoing culture of secrecy that still pervades many areas of government activity.

The lesson for those politicians (read the Rudd Government and the Premiers of Queensland and Victoria) who have spoken about the need for change in this area, is that they should keep moving to translate words into action; and for those political leaders satisfied with the status quo (read the other state and territory governments with a particular mention for NSW and SA) that they need to listen more closely to the voices for change.

Friday, January 04, 2008

South Australian Government backward in coming forward

Summer holiday blog

I'm not sure whether this is a record or how it compares with other jurisdictions, but The Advertiser reports that in South Australia over 1000 questions on notice in the Parliament remain unanswered. The government says responses to Freedom of Information applications and annual reports contain most of the answers.

In a follow up today The Advertiser helps with a bit of context by reporting on the run around the Opposition has received in response to many specific FOI applications.

The South Australian Government is one of those apparently 'not moved' by calls for review and improvement of FOI and its implementation.

(Relatively) positive start for US FOI in 2008

Summer holiday blog

President Bush this week signed the OPEN Government Act, the first significant freedom of information reforms in the US for years. While the reforms have been welcomed by the media and others, many (including me) got it wrong in suggesting that the final version contained a provision that required disclosure unless harm would result. Steven Aftergood of Secrecy News has put us all (even the Washington Post, the New York Times and the Wall Street Journal) right by pointing out that this provision was dropped in final negotiations between the Senate and House of Representatives.

The stand out feature of FOI at the federal level in the US that we should seek to emulate is the wide and generous approach taken to rebates on fees and charges for journalists and anyone else who seeks access to documents about the conduct of government functions. The OPEN Government Act extends the waiver to independent journalists (including bloggers).

Wednesday, January 02, 2008

Ministers travel information in cyberspace somewhere?

Summer holiday blog

This article in the Herald Sun prompted me to think that the Victorian Government should also get a tick for delivering on its commitment to publish on the web details of ministerial travel expenses quarterly.

But I'll withhold praise for the time being as I've been completely unsuccessful in trying to find these details on the website mentioned in the article, the Department of Innovation, Industry and Regional Development.

Perhaps a Victorian reader will enlighten me about its whereabouts.

Information of this kind should be published by all our governments without the need for applications under the Freedom of Information Act. Preferably somewhere mere mortals will be able to find.