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Friday, February 29, 2008

Over excitment in Queensland about public records

Queensland Opposition Leader Lawrence Springborg photo ABConline

Both the Opposition and the Courier Mail seem to have gone off the deep end in response to a minor legislative change in Queensland that would have the effect of ensuring that documents of a parliamentary secretary are defined as "public records". All this seems to be is rectifying an anomaly in the law. It ensures such records are created and maintained in accordance with the requirements of the State Records Act. This has been the policy guidance for some time anyway given this instruction from the Premier's Department. It looks like the wrong end of the stick to portray this as some sneaky way of locking these documents up under Cabinet confidentiality.

It shouldn't have any negative connotations for freedom of information applications even where there is no specific mention of parliamentary secretaries in the FOI Act Documents held by a parliamentary secretary (who has no independent authority), would be documents to which a minister has an immediate right of access, and would be caught by the definition of 'minister's documents'.

Some jurisdictions (but not Queensland and NSW), have acted to remove any uncertainty. For example a 1994 amendment to the Federal Act includes documents held by a parliamentary secretary as documents held by a minister for the purposes of the FOI Act.

The Queensland legislation could hardly justify the Queensland Leader of the Opposition's comment that "this is the biggest blow that Queenslanders have ever seen to the access of freedom of information.

Trust me on this one - there have been plenty of more noteworthy blows than this to open government in Queensland.

Things aren't good, and that's before we talk about the weather

Squirrel Designs UK

"He breathes, he lives. At last, NSW Premier Morris Iemma is showing a sign of life, a sign he may yet manage to escape the process of petrification".

So begins this editorial in today's Daily Telegraph commenting on the announcement of reform regarding disclosure of political donations. It might be a little unkind but the smelly mess that has emerged this week about government decisions, donations to parties and candidates, and how you could buy dinner with a minister (for the Minister for Planning that will be $5100 please), to finally force a government response to a smelly issue that has been kicking around for years.

Nothing is resolved yet - no legislation, and while parties might be required to report to the election authority twice a year, its still unclear how long it will take for the information to be made publicly available.

Still as the Telegraph says, it's something. As is yesterday's announcement of some movement on disclosure of penalty notices for breaches of food hygiene standards.

However as Matthew Moore points out in today's Sydney Morning Herald all this falls somewhat short of what was promised a year ago.

And some of us sure missed summer during February.

Victorian FOI amendments: baby out with bathwater

It wasn't just the vexatious applicant provision, and the proposed extension of time up to 75 days to process Freedom of Information applications that didn't survive through the Victorian Legislative Council yesterday - even the good bits went as the entire Bill failed to gain majority support. On crucial votes, the Council split 20-20, with the Greens and opposition parties just managing in effect to vote the legislation down. Where this leaves FOI reform in Victoria is uncertain. The Attorney General is quoted in The Age as saying the Opposition will have to wear the opprobrium of denying the public easier and cheaper access to FOI.

For those interested in the detail, debate starts on page 25 of the Council Hansard for 28 February.

Thursday, February 28, 2008

Forces gathering to urge revision of "vexatious applicant" provision

According to this report in the Age, the Law Institute of Victoria has added its voice to others concerned about the proposed inclusion in Victoria’s Freedom of Information Act of a “vexatious applicant” provision. The Institute says that the provision should incorporate a requirement that a person has acted in bad faith before any finding could be made that they are vexatious. (See background here).

However while the provision could be strengthened (and given the campaign that is running against it, this or its deletion from the Bill seems certain), it’s not that there aren’t already some safeguards. Clause 61C of the Amendment Bill says that any repeat applications considered vexatious must involve “abuse of the right of access”: that the applications were made for the purpose of or have had the effect of obstructing or otherwise unreasonably interfering with the operations of the agency or agencies.

Debate and the vote in the Legislative Council is due soon, perhaps this week.

Wednesday, February 27, 2008

US conference looks at FOI world challenges

Rick Snell of the University of Tasmania is the only Australian attending an invitation only conference of 100 people from 35 countries commencing today at the Carter Center in Atlanta, to address advancements and challenges to world wide access to public information laws. The objectives are to take stock, examine the impact of access to information on development and governance, and explore priority actions to advance the passage and effective implementation of public information laws.

The Carter Center has been active in promoting freedom of information laws particularly in Latin America and Africa, and there is high level developing country representation (including two sitting presidents) and strong support from aid bodies including the World Bank and others who promote better governance as vital for economic and social progress.

Pity our own Ausaid, which has been strongly into governance as an element of our development assistance programs in Asia and the Pacific, is not there, as the issues to be addressed include how to shift politics and the economy more towards openness, creating an environment for transparency, examining roles and responsibilities, developing universal standards and using indicators to demonstrate impact.

Come to think of it, all of us down here including our own FOI policy makers, would benefit from hearing some wisdom on these topics. The Briefing Book for the conference includes some excellent reading provided to participants in advance.

Webcasts of the opening including former US President Carter and a panel discussion involving US experts and the Scottish Information Commissioner are also available.

Pitfalls for the unwary in pursuing review rights

Those who pursue Freedom of Information matters through the available review mechanisms can easily be undone by some of the legal technicalities. In NSW for example there have been a spate of review applications rejected on grounds that the Administrative Decisions Tribunal has no jurisdiction. Its a good reason why another review mechanism that doesn't depend on the technical application of words in an act, such as a general power conferred on an information commissioner, would make a lot more sense. Here are three examples.

In this case (an appeal is pending) the Tribunal decided it had no jurisdiction to review a decision, despite the fact that the NSW Department of Corrective Services had incorrectly told the applicant that she had no right to internal review and therefore had to go direct to the Tribunal. The Department had got it wrong in telling her that the original decision had been made by the Acting Head of the Department - it hadn't. The applicant relied on what the Department said, but this cut no ice with the Tribunal. It decided it had no discretion in the matter. The applicant's failure to seek internal review meant the Tribunal had no jurisdiction to consider the application.

In another case a third party consulted prior to release of documents objected to disclosure and lodged an application for internal review when the Department of Lands decided to provide the documents to the applicant. The Department confirmed the original decision and sent the third party a notice including information about review rights to the Tribunal. The words were a bit ambiguous and the third party filled in the form and thinking this was what was required mistakenly sent it back to the Department. By the time the application eventually found its way to the Tribunal, the 60 day time limit had passed. The Tribunal found that it had no discretion to consider a late application, concluding that "this is an unfortunate outcome". Indeed.

In a third case on the last day for the making of a determination, the NSW Police had written and posted to the applicant a request for an advance deposit. The day before the letter was received by the applicant, he having not heard a word, lodged an application with the Police for internal review of the initial request. The Police Service said that it would not consider the request as it was not required to do so, having asked for but not recieved an advance deposit. The applicant went to the Tribunal that decided that the "making of a request" for an advance deposit had occurred when the letter was sent, not when it was received by the applicant. He was not entitled to seek internal review by the Police as there had been no deemed refusal. The Tribunal again lacked jurisdiction. The Tribunal concluded:
"It is clearly unfortunate that these events have come to pass in this way and that time will be lost by the parties in processing the application, but the Tribunal has no latitude that it can exercise when jurisdiction is absent".
It's no wonder that those who represent themselves in these proceedings often scratch their head about the intricacies of the Act.

Tuesday, February 26, 2008

NZ shows the lead on privacy and public registers

The New Zealand Law Commission has published a paper on public registers as the second stage of its Privacy Review, suggesting that the statute that creates a register to be open for public inspection should also address issues about any limitation on the use of information, and associated issues such as publication on the web. It lists over 100 such registers in New Zealand and recommends that a year long review be undertaken to examine what is contained in them and what, if any limitations should be imposed on use and access.

The Australian Law Reform Commission Discussion Paper on Privacy released in September last year had little to say about this issue (in the section dealing with "Generally available publications" 8.29) probably because the Federal Government has relatively few public registers. Most such registers in Australia fall within state/territory and local government responsibility. In New Zealand with two tiers of government things are a bit different.

In NSW and perhaps in other states as well, there is still a lot of messiness about what constitutes a public register, and the appropriateness of publication on the web. Presumably an issue for consideration by the NSW Law Reform Commission which has been looking at privacy since April 2006. I'm sure they are busy down there, but in a letter in May 2006 the Commission said it was:
"planning to publish a consultation paper by December 2006. In this paper, the Commission will set out details of the scope of existing privacy laws in NSW, and seek to identify any problems or shortcomings with the current law".
We're still waiting but the Commission has a leg up on the range of issues concerning public registers outlined by the NZ Law Commission

Thanks to PogoWasRight for the lead.

Grand Prix Corporation Chairman on both sides of transparency debate

The Age today in “Truth on crowds could hurt us, admits GP chief” picks up on the recent Freedom of Information decision by the Victorian Civil and Administrative Tribunal to confirm the exempt status of documents about ticket sales at the Australian Grand Prix (see our earlier post). The Age says that the evidence indicates that the attendance figure of 300,000 may have been inflated by 45%, a concern given the fact that the Victorian Government spent about $35million last year on the event.

As The Age notes in the fine print, the Chairman of the Grand Prix Corporation, Ron Walker, is also Chairman of Fairfax Media. At the Fairfax AGM last year Walker said that the defeated Howard Government made the suppression of public information into an art form, and looked forward to working with the Rudd Government to strengthen Freedom of Information laws.

There is no report of what Mr. Walker thinks about the Victorian Freedom of Information Act, the Grand Prix Corporation approach to disclosure, or the VCAT decision.

Monday, February 25, 2008

2020 Summit still open to all comers

For those of you who are still pondering putting themselves or others forward for the 2020 Summit, particularly the discussion of governance including open government issues, the deadline has been extended from today until Friday 29 February. Details here.

NSW Food Authority seals the dirt on hospital kitchens

What is the same and different, between these reports late last year in the UK papers about the state of hospital kitchens in England, Wales and Northern Ireland and this report in today's Daily Telegraph about the same subject here.

The same: all are based on information obtained under freedom of information laws, and show poor compliance with hygiene standards.

Different: in England, Wales and Northern Ireland the hospitals, including those with good performance were disclosed, while in NSW no hospitals were named. The NSW Food Authority says releasing those details would have an unreasonable adverse effect on the business affairs of the (public) hospitals, and they might be uncooperative in complying with future audits.

Another in a long line of timid responses to applications for this type of information, that puts us way behind best practice elsewhere.

Friday, February 22, 2008

Wild west suddenly finds document treasure trove

On the other side of the country, the dramas about the contacts between the former Head of the Department of Health and Brian Burke took another turn yesterday when the Minister released more than 300 pages of internal Health Department documents relating to the affair.

Here's how to offside a Freedom of Information applicant: the documents were given to the media 3 hours before they were released to the Opposition, who had made the application and paid $300 as a deposit!

See our earlier blog for some background.

NSW should give honesty and transparency a try

Photo Sydney Morning Herald

NSW has gone from the 'Premier State' to a state of despair in the last few months, as evidenced by screaming headlines and editorials in today's papers. Ongoing issues about competence now have a whiff of corruption, but with three years and one month to the next election, the government itself is faced with how to dig a way out of these holes of its own making.

It's a big job to rebuild trust and confidence, but Premier, give a bit of thought to how a commitment to honesty, and transparency might be part of the equation. The gravity of the situation surely indicates that even more spin isn't the answer, even though Bruce Hawker an ALP connected consultant told the ABC this morning that his advice to the Premier would be that it is only early days in the election cycle, so don't panic.

The NSW Government has stared down for at least 17 years, calls for review of Freedom of Information legislation, and for strong and enduring leadership on greater openness in the conduct of government functions. If the label 'Secret State' fits, the Government seems to have worn it, almost with pride.

Five months ago the Independent Member for Sydney and Lord Mayor, Clover Moore asked the Premier the following questions:

With regard to the NSW Ombudsman 2005-2006 Annual Report:

  1. Is the NSW Government aware that in 2004-05 NSW had the lowest percentage of full Freedom of Information releases compared to all mainland states?
  2. Is the NSW Government aware that in 2004-05 NSW had the highest percentage of partial Freedom of Information releases compared to all mainland states?
  3. Is the NSW Government aware that over the past 10 years, the percentage of full Freedom of Information releases in NSW has been reducing?
  4. What assessment has the NSW Government made of the NSW Ombudsman's call for a comprehensive review of the Freedom of Information Act?
  5. To what extent is the NSW Government committed to increasing the percentage of full Freedom of Information releases?
  6. What action will the NSW Government take to increase the percentage of full Freedom of Information releases?
Four months ago the Premier replied:
1 to (6) The Director General of the Department of Premier and Cabinet is meeting with the Ombudsman to discuss his concerns regarding the need for a review of the Freedom of Information Act. The recent release of the new FOI Manual, a joint publication of the Department of Premier and Cabinet and the Ombudsman, is a further step in helping to improve decision-making in this area. The manual ensures that all agencies are fully aware of their obligations and, particularly in relation to exemptions, that they apply the Act.
There hasn't been a peep out of the Government since, and contrary to the Premier's view, the the FOI manual is poorly designed, complex and confusing and does little to achieve the objectives of the Act of extending as far as possible the rights of the public to access government information.

Legal privilege should be subject to some qualifications

As the Senate Legal and Constitutional Affairs Committee found earlier in the week, government lawyers can be quick to assert legal professional privilege when questions are raised about advice to government. Privilege is a frequently used exemption when dealing with freedom of information applications in all Australian jurisdictions.

The Australian Law Reform Commission recently released its final report on privilege in the context of the exercise of government investigatory powers - that is whether privilege should trump government powers to compel the production of documents to a royal commission or in other instances where government authorities are conducting an investigation.

The report makes some recommendations for change but reaffirms the right to claim privilege based on the rationale that this is vital to the administration of justice. However rights to privilege can be qualified, even taken away when parliament decides to enact legislation to reflect other important interests.

FOI policy makers should give this some thought. Federal Government guidelines (untouched so far by the Rudd Government) on the application of exemptions state that a 1986 Cabinet decision directed government agencies to only claim an exemption for documents on privilege grounds where disclosure will cause "real harm". This should have been on decision makers' desks since it was issued in a memorandum by the then Secretary of the Attorney General's Department in March that year. The Brazil memorandum is still an attachment to Government guidance on FOI Guidelines - Fundamental principles and procedures. However this hasn't always been applied. It should be given added force in the legislation by a suitable qualification on the exemption for documents that attract privilege. It's a similar situation in the states and territories. A couple of years ago the Deputy Ombudsman in NSW said that in one instance investigated by his office, an agency claimed privilege for the business card of its law firm.

There is also a case for considering whether legal advice, should be released because the public interest in disclosure outweighs the privilege claim in a particular instance. The NSW Ombudsman takes the view that this should be a consideration in the exercise of the discretion by any decision maker to release an otherwise exempt document, but his comments are not reflected in guidance from the lead agency in NSW, the Department of Premier and Cabinet.

Just this week in the UK the Information Tribunal for the first time has decided that legal advice should be disclosed on public interest grounds.

With a bit of buzz and interest in reform obvious in some government quarters this is an issue that deserves a closer look.

Thanks to UK Freedom of Information blog for the UK lead.

Thursday, February 21, 2008

Waterford contrasts Queensland and Canberra on FOI reform

Jack Waterford, editor at large of the Canberra Times and doyen of the journalist's FOI mafia, has given a tick to the fundamental changes to Queensland's Freedom of Information regime suggested in the Solomon review discussion paper.

Waterford contrasts this with Canberra where the Government is "quietly" moving on modest reforms. You can say that again - apart from public commitments to change there hasn't been any public indication of exactly what is going on within the system. The sort of change necessary won't be achieved by simply drafting changes to the legislation, or even appointing a Freedom of Information Commissioner, although both will help. Waterford concludes:
A culture change is now necessary. Twelve years of Howard government paranoia, AFP leak inquiries and witch hunts, and the promotion of the impression by some top public servants that any disclosure of information is a breach of the Crimes Act or public service guidelines have made many public servants gun-shy about discretionary release of information. If Rudd wants a more open service in his new rational and evidence-based paradise, he must not only say so, but show himself relaxed and practice, even when marginally embarrassed. Otherwise a change in the law will mean nothing.
Commendably the PM had no hesitation this week in releasing the Burke emails but if there has been ministerial direction that things should be done differently when dealing with applications for information, we are yet see it in the public domain. Even saying this once won't achieve culture change as that will be an ongoing challenge - see item below.

Thanks to Margo Kingston's webdiary for the Waterford article.

Officials not bowing to Parliament yet

Those winds of change in Canberra aren't whistling down every corridor.

In the Senate Legal and Constitutional Affairs examination of the Attorney General's Department estimates, things were going swimmingly until questions were raised about advice to Ministers. Then some wheels started to come off.

Senator Nettle (the Greens), picked up on press reports that the Attorney General had indicated that any move by David Hicks to sell his story about Guantanamo Bay could result in civil action under the proceeds of crime legislation. Her simple question (page 67) "Has the Department provided advice?" saw the Secretary, Robert Cornall, dig in:
Mr Cornall—We do not normally disclose details of advice that we give to the Attorney-General.
Senator NETTLE—I am not actually asking you what the advice was; I am asking whether you have been asked for advice on it.
Mr Cornall—No, we do not normally disclose that either.
Senator MARSHALL—You are required to.
Mr Cornall—I do not believe we are.
The Chair and Opposition Senator Brandis (just out of his Ministerial office), then gave the Secretary a little lecture, including a reference to Senate procedures, on how he was required to answer questions of this kind, but to no avail.

The same issue arose later in the day when (Page 69) Senator Brandis himself asked about advice to the government on questions of potential liability arising from the 'Sorry' statement to Parliament last week, even giving rise to a departmental officer refusing to indicate whether advice had been given in writing or orally. Senator Brandis thought he might be on a winner when he later (page 73) asked about advice to the Government concerning arrangements for Parliamentary sittings without the need for a quorum or questions, but dipped out again.

It was on again with the same result (page 118), when questions about advice were raised (page 118) with the Australian Government Solicitor's Office.

The best the Minister in the chamber Senator Ludwig could manage was that he would ask the Attorney General whether answers could be provided, and the Committee is seeking further advice about the point of principle.

Separately from all this, Senator Ray, raised in the course of the examination of the Prime Minister's Department (page 92 in the transcript referred to in the item below), the suggestion that it should be compulsory for the Government to table in the Parliament legal advice as to the constitutionality of an act of government. At least there the Minister, Senator Evans, said that he could see the point and would have a further look at this.

Lots of grey about ministerial code of conduct

Monday was a long day for the Senate Finance and Public Administration Committee and officials from the Department of Prime Minister and Cabinet as they went through the biannual Finance and Public Administration process. They started at 1.30pm and finally wrapped up after 11pm. The media reports focused on the 'news that matters' such as the Prime Minister's child care arrangements, how the family dog is coping at the Lodge, and who paid for the PM's New Year's eve party (his wife did).

In all this no one raised any questions about Freedom of Information and privacy policy, but Opposition senators had a lot to raise regarding the government's commitment to openness and transparency.

They didn't get much in the way of answers to questions about aspects of the Ministerial Code of Conduct including the lack of definitions of behaviour that would constitute a breach. At the end of the day, the Prime Minister will be the sole judge of whether there has been a breach and what should be done about it. Senator Andrew Murray mused about the need for a parliamentary ethics adviser or authority but wasn't rushed with takers.

The Government has missed its deadline to have in place other parts of the accountability and integrity framework by the time Parliament commenced. Officials said that the code for ministerial staff and the register of lobbyists is nearing completion but the discussion suggested that many important aspects (for example who is a lobbyist and what constitutes a meeting with one) are still to be finalised. It sounds like there is some significant wriggle room regarding a pre election commitment that ministerial staff will be available to answer questions posed by parliamentary committees: this now seems only to be applied where a staffer has been improperly involved in executive decisions.

Two noteworthy tidbits about the way things were: the answers to 34 questions taken on notice at the previous Estimates Committee meeting went to the Prime Minister's office on 27 July last year and stayed there, finally being made available to the Committee by the new Government last week just before the Committee hearing. Nothing important really, just things like the wine supply and the costs incurred by the then incumbents at that 'home away from home' - Kirribili House. And the average time taken to provide answers to questions on notice directed to the former Prime Minister during the year ending July 2007, was 182 days - the requirement is to respond to questions in the House within 60 days, and the Senate 30 days.

Tuesday, February 19, 2008

Happy Birthday to us

February (and nearly 1000 posts later) marks the end of two years for this blog, so thanks to regular readers for your continuing interest, and hullo to those who stumble upon us from time to time. One of the amazing results of the exercise is the interest in developments in this part of the world shown by readers beyond our shores - the stats are that 12% are from the USA, with strong interest from the UK, Canada, New Zealand and others spread around the globe.

Monday, February 18, 2008

Still in the dark about Albert Park

Two separate decisions by the Victorian Civil and Administrative Tribunal to uphold determinations by the Australian Grand Prix Corporation (a statutory corporation subject to Victoria's Freedom of Information Act) illustrate the significant barriers to access to information concerning the operations of the Corporation in conducting the Grand Prix in Melbourne.

The annual business plans of the Corporation (required by statute to be submitted to the minister), in this decision, were found to be exempt because of a special provision in the Australian Grand Prix Act includes a special exemption for information about a contract with the International Grand Prix authorities; another provision of the Act protects a business plan for 5 years; as the plans were mainly created to brief the minister on issues to be considered by a Cabinet Committee, they were exempt as Cabinet documents; and to boot, the internal working documents, professional privilege and business affairs exemptions applied to all or part of the documents.

Some parts of plans now 10 to 12 years old have been released by the Corporation, but the Tribunal upheld the decision to refuse access to the entire plans for 1999 - 2001, for various reasons along the lines mentioned above. In declining to exercise the discretion to disclose these documents on public interest grounds, the Tribunal, in line with the recent Court of Appeal decision in Osland, said that the barrier is now very high, requiring a finding that the case for access is "irresistible".

In this separate decision the Tribunal also upheld a Corporation decision to refuse access to information relating to the 2005 Grand Prix about total ticket sales, the number sold to overseas and interstate visitors and the total number of free tickets issued. Save Albert Park Inc. sought access in order to test public claims about attendance at the event and the economic benefits for the state. The Tribunal found that the information was of a business commercial and financial nature and would expose the Corporation "unreasonably to disadvantage". Again the barrier to be crossed to justify public interest was not reached.

These might be reasonable decisions based on the law but raise an issue about whether the balance has been properly struck between the public right to know, and the confidentiality necessary for the efficient conduct of (government) business.

Despite the high direct and indirect cost to the Victorian taxpayer, confidentiality has trumped the community interest in knowing about plans, finances and whether the attendance claims are based on fact, even information of this kind now some years old.

New winds in the corridors of power?

This could be just a straw in the wind, or a decision to provide access to documents that turn on the particular facts and circumstances. Then again, it might indicate a new approach by the Rudd Government. In a case involving the Minister for Broadband, Communications and the Digital Economy, and Telstra, the parties reached agreement last week to provide Telstra access to documents about the award of a $958million contract to one of its competitors. The documents requested include communications with OPEL, advice from any probity or process adviser and the assessment of the Telstra and OPEL tenders.

The contract with OPEL was awarded by the former communications minister Helen Coonan. Telstra sought preliminary discovery of the documents to enable it to form a judgment about contesting the decision, given the fact that published guidelines for the tender, stipulated that the amount available under any contract would be $600million.

Those of us looking for hopeful signs would have also been encouraged by the decision yesterday of the Prime Minister to release emails between himself and the infamous Brian Burke in 2005.

Thursday, February 14, 2008

Open government commitment still up there in lights

The Federal Government keeps emphasising its good intentions. This from the Governor General's speech on Tuesday in opening the new session of parliament:
"The Australian Government is committed to building a modern Australia capable of meeting the challenges of the future. It is committed to bringing a fresh approach to governing. It is committed to being a government that listens to the Australian people, that consults with the Australian people and that is up front with the Australian people on the problems it can solve - and the problems that lay behind the powers of any government to solve".
In a section of the speech headed "Governance and transparency" the Governor General said the Government will implement new measures to help make government more accessible to the community and more transparent in its decision making, and went on to mention Community Cabinet meetings and the Australia 2020 Summit, and this:
"Rules relating to government information will be enhanced by promoting a culture of disclosure and transparency. This includes enhanced Budget transparency by providing greater disclosure of accessible and useful government financial information. A Freedom of Information Commissioner will be appointed to take overall responsibility for access to government information and improve review processes".
All this given some added significance as a result of the Prime Minister's response to an Opposition question about election promises yesterday, as reported in today's Australian Financial Review (no link available):
"Honouring commitments to the Australian people - not consigning them to boxes called "core promises" and "non core promises" - is in fact the life blood of an effectively operating democracy".

Wednesday, February 13, 2008

Heads up for Sorry Day

A blog concerned with openness and transparency in government can take a little license today to welcome the Prime Minister's historic apology to the 'Stolen Generations' and to express the hope that honesty and decency remain entrenched values in the way we do things in this country.

Australia 2020 Summit topics just a little clearer

There is now a website for the Australia 2020 Summit, which includes details of how to lodge a submission, and/or nominate yourself if you think you might be overlooked in the process and think you have something to offer. It also provides some elaboration of the summit topics.

The Governance topic - to date described as: "the future of Australian governance, renewed democracy, a more open government (including the role of the media), the structure of the Federation and the rights and responsibilities of citizens" - has now been more broadly described as follows.

"The Australian Government is committed to greater access to freedom of information, effective parliamentary reform and removing as many dysfunctional dimensions to the Australian Federation as possible. The Government is also examining ways in which Australians can increasingly deliberate in the making of government policy through a range of mechanisms, including community cabinets, as a part of a commitment to contemporary democracy.

The Australia 2020 Summit will examine:

  • How best to implement an effective an (sic) agenda of open government which best balances the legitimate requirements of the media and the confidentiality requirements of cabinet government in the Westminster system
  • How best to engaged the community in government decision making
  • What forms of Federation reform are appropriate for the future to maximise outcomes for the economy and the community
  • How to ensure the future viability of local government operations and infrastructure provision".
There is plenty here to keep some of our best and brightest fully occupied for two days in April but it's not clear whether discussion is limited to the dot points above. If so it seems unnecessarily narrow to limit discussion on open government to the requirements of the media. And what happened to the "rights and responsibilities of citizens"?

Tuesday, February 12, 2008

$157.53 too much to pay when priinciple is at stake

Qualifying for a rebate or remission of freedom of information charges under the Federal Freedom of Information Act has always been tough going, but a recent Administrative Appeals Tribunal decision opens the door just a chink further.

The case involved prominent Melbourne businessman Alex Encel who sought access to information about government expenditure on supporting digital television, but then contested the Department's requested for a deposit of $157.53 (the total estimated charge was $630.11). Some people (good on them) have a real interest in arguing points of principle.

Encel in this case won the point that no charges should apply because of the public interest in the giving of access to documents not in the public domain.

Deputy President Forgie makes it clear (paragraph 78) that the law doesn't require that the payment of the charge would result in financial hardship, and that the giving of access is in the public interest, parting company on this point with some other Tribunal decisions. The charge can be reduced or remitted if either applies, or any other relevant factor justifies. She says (paragraph 82) that Deputy President Walker in the Peatling decision gave consideration to to questions which she regards as not relevant - whether the information is potentially misleading or confusing; whether parts of the information have been overtaken by events and are out of date; whether disclosure might lead people to act in a way which has adverse impacts on themselves or others.

Deputy President Forgie also decided (paragraph 90) that a government agency is wrong to give consideration to whether the documents "if released will come to the attention of the public or a considerable portion of the public". The issue is simply whether the "giving of access", and the consequence of that is in the public interest.

The rules are far too complex, restrictive and subjective. Hopefully another matter for close re-examination soon.

Victorian FOI 'reform' passes lower house

Last week in Victoria saw government aspirations about improving transparency and accountability clash with a hefty dose of reality.

The aspiration was there with the release of the 2008 Statement of Government Intentions, with a website devoted to informing the public of the Government's plans and encouraging public input. In speaking to the statement in Parliament on 5 February, the Premier said that the Government stayed true to the values of fairness, democracy and opportunity - "by democracy I mean striving to give every Victorian a chance to participate in the debates and decisions that shape their state". Sounds good.

The reality came later that day in the resumed debate in the Parliament on the Government's Bill to amend the Freedom of Information Act. Page 31 - 64 of the Hansard for 5 February. There was plenty of use of choice quotes from the Ombudsman's 2006 special report on the Act, particularly regarding delay and political interference in decision making.

Even allowing for some political point scoring, Opposition speakers were able to illustrate how poorly particular FOI applications have been handled, including lots of stories of high cost and legal technicality. As the Member for Bulleen (pg. 43) recounts three requests to the Premier's Office resulted first in a query about what he meant by 'reviews and investigations', then another about what was meant by 'purchases and expenditure', and finally what he meant by 'documents'. The Deputy Leader of the Opposition recounted how she had won a case before the Tribunal, to be advised by a government agency that the matter would go to the Supreme Court and it would be seeking costs if it won (a threat subsequently withdrawn, and the Government again lost).

After five hours of debate, the Government chose not to respond, and pushed the Bill through to a vote on 7 February gagging the Opposition amendments to the Bill.

Speakers rightly pointed to a whole series of problems with the proposed amendments (many of which have been mentioned here previously). As the Government doesn't control the Legislative Council, some of its proposals will be strongly resisted there. The 'vexatious applicant' provision which would empower the Tribunal to find that an applicant is vexatious is cited as a major potential problem because the lodgment of a Tribunal application would have the effect of stopping the processing of any applications in the applicant's name.

The Bill itself is a half hearted attempt at reform. The Government would be well advised to have another think about how to enliven democracy through real change in the law, policies and procedures that encourage broader access to government information.

NZ review of privacy

The New Zealand Law Reform Commission has published a study paper as the result of stage one of its review or privacy. The paper provides a broad overview of the issues that will be addressed in three further stages. There is a strong emphasis throughout on the need to balance privacy and other interests and values, and to avoid general propositions about privacy that do not reflect the forces at play when considering privacy in a particular context.

Monday, February 11, 2008

Public debate on education funding in the public interest

There is no connection but since the post here last week about lack of transparency concerning government allocation of school funding, a leaked document has been the basis of a number of reports in Fairfax papers of an analysis by the Federal Department of Education that shows all sorts of anomalies. Many private schools are getting more than they should even under the Government's generous formula; others, such as the Exclusive Brethren are getting more because of a loophole.

There is no doubt that the leaked report is prompting public debate - Gerard Noonan's open letter to the Minister is just an example - but we may not have been having this debate if Freedom of Information had been left to deliver. Here is a piece from the fine print in today's Sydney Morning Herald:
"The Rudd Government refused to release (the report) to the Herald under a freedom of information request. The leaked report recommends dealing with the extra funding by gradually taking money away from many schools until they receive their correct entitlement".
I'm guessing that the letter of refusal to the FOI request argued that disclosure of this deliberative process document would be contrary to the public interest; that information about the financial affairs of the schools if released would have an unreasonable adverse effect, but gave little if any consideration to the public interest in informed debate about the proper allocation of large amounts of public money.

Let the debate roll on.

No place for improved transparency in Shergold reflections

Dr. Peter Shergold, the retiring head of the Department of Prime Minister and Cabinet, has been a dedicated and able public servant, and his reflections on 20 years of service in his valedictory speech last Friday make interesting reading for anyone interested in government affairs.

But we particularly liked this letter "A civil servants duty is to serve the public as well as the master" published today from Gordon Pears, who takes Shergold to task over his assertion that the duty of the public servant is simply to serve the minister of the day.

Pears says that too many senior public servants knowingly served John Howard in pursuit of his overriding priority - to remain in power as long as possible and at any cost. When this was on the agenda, truth and other priorities did not get a look in.

"What can we do about the unhealthy relationship that has built up between the public service and the elected government? The most important single answer is transparency. This must be achieved in two ways: first Parliament, like the United States Congress, must have the power - and the will - to question any public servant on any aspect of his public duties at any time.

Second, freedom of information acts must mean exactly what their titles claim, as they do in the better democracies. Only in the most exceptional circumstances should anyone have the power to deny information on the grounds that it is not in the public interest.

Ninety-nine times out of 100 this means "not in the interests of the minister and/or department".

In a fine piece of bureaucratic prose, Dr Shergold refers to "the point at which frank and fearless advice, given in confidence, appropriately concedes to the will of elected government". Why should the advice of a public servant be any less frank and fearless because it might see the light of day?

Kevin Rudd has committed himself to greater transparency. He will meet enormous resistance. We, the people, must give him our full support".

Dead right.

Political party secrecy - one of world's worst

Stephen Mayne in yesterdays' Sun Herald wrote about political parties and election funding and concluded after looking at returns for the last eight years that "Australia has one of the world's worst financial disclosure systems for political parties".

It's not just that there is great mystery about the balance sheets of the parties, it is also that what is disclosed on donations can be so late in the piece as to be irrelevant when the citizens make their choice at the ballot box. There should be no secrets here - see our blog last week on this subject.

No stars for Victorian food report

I'll leave it to the experts to judge the report of the inquiry into food regulation in Victoria by the Competition and Efficiency Commission and the Government response to the report released yesterday. However it's another disappointing result for those who believe greater transparency about breaches of standards would better inform the marketplace, and lead to improved standards, as evidenced by experience elsewhere.

While the Australian Financial Review reports the outcome under the headline "Sub-par food outlets to be named", the Government response was to agree "with the spirit" of the recommendation that there should be a mechanism to publish details of those convicted for breaches of food laws. It will 'examine' amendments to legislation to require this information to be included in annual reports of the regulators. This falls short even of the Commission recommendation that a public register of successful prosecutions be established. What is proposed will mean that publicly available information about what happened in court will be made publicly available in a report up to 12 months later. Big deal!

The Commission report (10.3 - 10.4) discussed broader issues concerning a rating system but did not recommend this approach although the reasons aren't very clear. It acknowledges that some councils in Victoria already publish ratings. The Government response says it is "not inclined at present to support the establishment of a central website of the results of council inspections of restaurants and cafes".

Just far too timid an approach. The NSW commitment (15 August 2007) to doing something along these lines has so far come to nothing.

Friday, February 08, 2008

Faulkner sticking to his guns on conclusive certificates

Dr. Ken Henry AC - Secretary to the Treasury.

The Sydney Morning Herald today gives wider publicity to the revelation here on Tuesday that the Federal Treasury voiced concern to the new government about its election commitment to abolish conclusive certificates - "Treasury battles to keep secrecy laws". A spokesman for the Special Minister for State however told Matthew Moore that the Government will stick to its policy on certificates: "Our policy is to abolish them.....there is no change" and that FOI reform will be acted upon before the end of the year. That's hardly rushing things.

My post seems to be the only online access to the actual Treasury briefing note on Freedom of Information.

The Australian Financial Review today also publishes my comment on an opinion piece yesterday by former Labor Leader Mark Latham, about MPs perks - while it won't solve the perks problem, as I said, improved transparency would be a first step.

Thursday, February 07, 2008

FOI delivers for Daily Telegraph

Photo - Daily Telegraph

Freedom of Information diligence award for the week (and its not even finished yet) goes to Kelvin Bissett Investigations Editor of the Daily Telegraph who in the space of 4 days has told us about documents released in response to FOI applications that reveal:

Education none for three to start the year

Three recent decisions by the NSW Administrative Decisions Tribunal also suggest a 'could do much better' for the Department of Education when it comes to managing Freedom of Information responsibilities.

It's worth remembering that the Director General at the time of his appointment last year said he had plans to make more information publicly available. But if as seems likely these two cases are the tip of a rather large iceberg, things aren't going well in the FOI field.

In this case concerning an application for an audit report requested in May 2006, the Tribunal made an extremely rare order for the Department to pay the applicant's costs because of the Department's handling of the matter had unreasonably delayed Tribunal processes. There is a long litany of failure to comply with requirements to respond to correspondence, to directions by the Tribunal on preliminary matters, and on one occasion the Department failed to turn up to a hearing. Despite the Department's readiness to continue to argue for the exemption of the report, the Tribunal did not have to make a decision on its status, as the applicant had obtained a copy as a result of a summons in separate industrial relations proceedings.

In another the Department failed to produce evidence to the Tribunal in support of its submission concerning the exempt status of some of the documents in dispute, and didn't seek to argue the case, leaving the Tribunal no alternative but to order disclosure. The Tribunal in addition concluded that two of the documents it found to be exempt should be released in the exercise of its override discretion.

In a third case the Department lost another argument about its refusal to amend documents when the Tribunal rejected arguments that information about the applicant's conduct was not 'personal affairs' information.

All in all not a great start to 2008 for the FOI team at Education.

Fail grade for transparency about education funding

In so many fields, recently health, today education, our governments still don't quite get it when it comes to transparency.

Australian governments spend over $30 billion on primary and secondary schools each year. However according to the Australian Council for Educational Research (ACER) lack of transparency means "the process of school funding, including the way in which amounts are calculated distributed and reported upon, is unavailable not only to the wider public but to some extent even to those working in education. ACER has made a call for a common financial reporting instrument for government and non-government schools based on principles of comparability and transparency" (Download Media Release)

The paper Australia's School Funding System by Dr. Andrew Dowling says that school funding has always to some extent been a political exercise.
"But the school funding debate might rise above a sterile ideological battle if Australia was to have a national and transparent model based on comprehensible measures of need applying equally across the sectors. Such a national model is not foreseeable, at least in the short term.....(S)imply providing information on the actual quantum of resources is a radical proposal at the present time. Not only does this information not exist uniformly but some States are incapable of reporting at the school level".

So $30 billion a year, but we can't tell you how much government money goes to any particular school. Take your pick between 'fail grade' or 'could do much better'.

Your right to freedom - not

This editorial in today's Herald Sun highlights the weak nature of Premier Brumby's legislative changes to the Victorian Freedom of Information Act. It's hard to keep a straight face with the proposal to extend the time limit to 75 days when third party consultation is required. Legislative changes won't in any event address underlying problems of culture, leadership and oversight.

Tuesday, February 05, 2008

New Year present for Chinese Consulate

Good luck to Melbourne City Council in its claim (reported in The Age) that all correspondence from the Chinese Consulate is exempt from disclosure because the Chinese Consulate is immune from Freedom of Information laws under the Vienna Convention on diplomatic immunity.

Hate to break it to our friends from China that anything they have sent to the Council or copies of anything the Council has sent to them isn't automatically exempt under our FOI laws, and to the Council that they bought a pup in accepting the advice of their lawyers who sold them on the exemption claim.

Federal Treasury says: quality of advice at risk from FOI reform

The release of parts of the Federal Treasury's briefing book for the Treasurer, in response to a Freedom of Information application by Channel 7 (FOI Editor Michael McKinnon), was big news last week. Treasury's concern about the economy and the significance of climate change was consistent with the message that ministers have been telling all and sundry since the election.

Some of the document released was posted on the 7 News website. FOI Treasury documents

It's worth a look as a perfect example of the neat use of the black pen and what has been claimed exempt (almost entirely as internal working documents) seems to exceed what was released. Try page 18 on the Budget process and transparency: everything after the sentence -
"An effective budget process will need to be established almost immediately to ensure budget-decision making remains consistent with your Government's priorities and your medium-term fiscal framework".
has been deleted. You can imagine the calamity that would follow disclosure of anything more about making the budget process more transparent! Michael McKinnon says that this FOI experience shows that Treasury "is unreconstructed" when it comes to decisions about disclosure of documents of this kind. He detected no sign of any movement in their thinking about these issues.

Some parts of the document released were not published on the Channel 7 website. They include comments about matters that go beyond the Treasury portfolio, including the Government's election commitment to Freedom of Information reform, particularly the proposal to abolish conclusive certificates. What was released on this issue is here on page 51-a fair chunk was claimed to be exempt.

Treasury, consistent with views previously expressed by the Secretary Ken Henry, is again raising the flag that abolition of certificates, particularly for deliberative documents will impact on the provision of 'frank and fearless advice. This ignores the fact that provision of 'frank, honest, comprehensive, accurate and timely advice' is enshrined in the Australian Public Service Values. The Values and the associated code are part of the Public Service Act. All public servants have a duty to comply. Heads of agencies have a responsibility to encourage a culture that respects these values.

While some federal agencies have tried (with limited success) to argue this issue over the years, few courts and tribunals buy it, even when wrapped up recently in an associated claim that disclosure of a document will mean that public servants won't in future commit advice to paper. The Australian Law Reform Commission, after considering this and associated issues for two years, recommended 12 years ago that conclusive certificates for deliberative documents be abolished. Some in the public service clearly resist this as certificates are subject to limited review and will be upheld if one 'reasonable' ground can be cited to justify refusal on public interest grounds.

Treasury is wrong in its note to the Treasurer that access to information under the Act needs to strike a balance "between ensuring public interest in political debate and ministerial accountability, and .............promoting frank and fearless advice". The balance is between the public interest in disclosure, and the efficient and effective performance of government functions. Some documents including advice will be sensitive because of the content or circumstances but such claims need to be considered and weighed against the public interest in disclosure. Blanket claims that documents cannot be released in the interests of promoting frank and fearless advice just don't wash. Nor does the present system of limited review of certificates sit comfortably with the objects of the Act.

Over to you Senator Faulkner.

Monday, February 04, 2008

Way off the money on timeliness of disclosure of political donations

Lots of interest about contributions to political parties as a result of a report released by the Australian Electoral Commission. However a system that discloses information, in some cases up to 19 months after the donation, is not one to be proud of. In addition, according to The Age what has been released is information up to June 2007. It doesn't cover donations in the lead up to the Federal election which won't be published until May - 7 months after the election.

The anonymity provided for donations up to $10,300 and the technicality that allows the NSW Labor Party to report many contributions as "other" do not provide the information we should expect about who is seeking to oil the wheels of the political system. Only 264 donations qualified for disclosure of the source - 1000 less than those disclosed before Howard government legislative changes last year.

I mentioned here 2 years ago, how difficult it is to get into the details published on the web. It doesn't look any easier now.

The Federal Labor Party has plans to go back to $1500 for the disclosure threshold, and to remove tax deductions for political donations. There is also some speculation about banning overseas donations.

The Government should also be moving towards disclosure within weeks of political donations and making this information available without a year or longer passing before we are to know who opened the wallet. The NSW Electoral Commission will this week put up on the web its report on contributions for the 2007 election - almost 1 year after the event.

In the US campaign contribution reports are required quarterly (with some reform ideas swirling around). Here is the latest on US Presidential contenders to December 2007.

The NSW Government in 2005 was interested in a ban on donations by developers if a national approach was taken to this issue. John Howard said "not practicable". Times have changed. With Labor governments everywhere, just the right circumstances to do something if integrity in government is a high order issue.

We can all draw our own conclusions about what donors expect. As the head of the Australian Hotels Association, John Thorpe said a few years ago "Democracy isn't cheap".

Open government in the top 10 issues facing nation

Great to see that the announcement yesterday by the Prime Minister of the Australia 2020 Summit to help shape a long term strategy for the nation's future includes:

"The future of Australian governance: renewed democracy, a more open government (including the role of the media), the structure of the federation and the rights and responsibilities of citizens"
The details are in this media release.

This recognition of the importance of the issue, and the link between open government, citizen participation in government affairs, and making democracy work more effectively in all our interests, is a giant step forward from what we have heard from political leaders for years. Freedom of information is one element but the discussion clearly will involve a broader perspective on these related issues.

At his press conference yesterday, the Prime Minister said that submissions from the public are welcome, the summit will include some participants from the media as well as others, and will be fully open to media coverage.

Friday, February 01, 2008

Payments of public money should be in the public domain

Verona Burgess in today's Australian Financial Review reports that the Federal Auditor General has again drawn attention to the fact that the remuneration of ministers and executive officers are not included in the Government's Consolidated Financial Statements. Burgess continues:
"You'd certainly hope the Rudd Government would take (the Auditor General's suggestions for change) on board. There is no secret about ministerial salaries or allowances, so disclosure shouldn't be a problem, while the cult of secrecy around the salary packages of senior public servants and other commonwealth executives needs to be dismantled.

If it is good enough for the corporate sector to reveal the details, it is surely good enough for the commonwealth.

And since Rudd is planning to abolish performance pay for senior public servants as well as the secret Australian workplace agreements that now apply to the entire Australian Public Service senior executive service, there is an opportunity for improved transparency before he loses his first-term appetite for accountability"
Hear hear.

But don't stop there. In addition we need the details of public money paid to and spent by members of parliament, not just the hard to get six monthly travel report prepared by the Department of Finance. One of the weaknesses in the system is that the Federal (and all the state and territory) parliaments are excluded from freedom of information legislation. The Australian Law Reform Commission recommended that this be rectified 12 years ago.

The UK Information Commissioner has recently ordered disclosure of more detailed information about allowances paid to MPs and the Parliamentary Standards overseer has put MPs on notice that they must introduce more transparent rules and a system of checks on how MPs spend allowances and expenses.

Hear hear again!

Minister saves media from Keelty's size 12s

Australian Federal Police Commissioner, Mick Keelty, has been left standing quite alone on the deck with his call for a media blackout on terrorism cases until they get to court. Attorney General McClelland in a statement yesterday said "Commissioner Keelty's comments represent his views not those of the Rudd Government".

Here's a McClelland quote to keep handy: "Access to government information and decision making are keys to a healthy and vibrant democracy".

Richard Ackland has a typically breezy comment on the issue.

Greater transparency for hospital performance but don't mention "league tables"

You would be justified in reading into the headlines today that no one is quite sure what was agreed or not agreed at yesterday's health ministers meeting about data on comparative performance on hospitals - "Health deal undermined" (AFR); "Ministers avoid talk of hospital scorecards" (SMH); "Roxon to push for hospital scorecards" (The Age) etc. etc.

The NSW Health Minister is reported to have said that the Federal Minister has abandoned league tables which enable comparison of the performance of hospitals, while the Federal Minister told the ABC "We think it is appropriate that the public are able to see how our hospitals are performing and compare across the public and private sector and across states". Que?

This summary from ABC Radio's PM suggests that beneath it all this is still a work in progress, but whatever emerges we won't be calling them "league tables".