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Friday, February 27, 2009

Cover closed on Premier's full book of appointments

Morris Iemma at the ALP Conference on 4 May 2008- Sydney Morning Herald.

Sean Parnell, FOI editor at The Australian was unsuccessful in this case before the NSW Administrative Decisions Tribunal seeking review of a decision by the Office of the Premier refusing access to the diary of former Premier Iemma for 3 May last year, the day during the NSW Labor Party Conference when the former Premier may have met some of those attending the conference as business observers.

The decision turned on whether the diary for that day was a minister's document defined in Section 6 of the NSW Freedom of Information Act as a document held by a minister that relates to the affairs of an agency.The Tribunal accepted that the Premier's diary for any day included details of planned appointments for him in his capacity as Premier and Minister for Citizenship, as the Member for Lakemba, as leader of the NSW Labor Party and as a private citizen, but was not altered to reflect changes that occurred and was not an accurate record of who he actually met on any particular day.

Judicial Member Pearson[30] said a document must have some connection with the affairs of an agency to fall within the definition. A document that relates to the Minister as a member of Parliament, as a member of a political party, or in his or her private capacity would not be a minister's document. She said the wording of Section 6 was sufficiently broad to cover documents held by a minister relating to any agency not just the agency for which the minister was responsible. In the case of the Premier, that would include all government agencies.

Despite Parnell's submission that the Premier attended the Conference as Premier, and that promotional material referred to him and other members of his government attending by their ministerial titles, Judicial Member Pearson[33] found the diary entries for the day related only to the Premier's appointments in his capacity as a member of the ALP. As she was not satisfied that
the document "relates to" the affairs of any agency, there was no right of access under the FOI Act and the application for review was dismissed.

Parnell's successes in getting access to similar information using FOI in Queensland and Western Australia were of no help to his argument. Nor was his submission that "political parties in most states have, for some years, sold access to premiers, chief ministers and ministers through a business observers program at their annual party conference...The attendance of a Premier or Minister is confirmed by their office, using taxpayer funds, time and resources, and invariably involves briefings and preparation by ministerial and departmental staff."

Trust us, we're the government, we're your friends.

Dreyfus reports, plenty of discussion to follow.

The Dreyfus Report on whistleblowers protection is very good in most respects and if acted upon would be a big step forward in this area, given the scant protection currently available to Commonwealth employees in respect of public interest disclosures, and the gaps or weaknesses in the current models operating in the various state schemes highlighted in the Whistle While They Work Report.

But there is plenty of scope for further argument and public debate over the detail-not just the media concern over limited coverage for external disclosures -and turning the report's principles into legislation could be a slow grinding process for the inevitable inter-departmental committee. A working scheme reflecting the necessary culture change to "if in doubt report" and respect and protection for those that do could be years away from fruition.

The Report proposes no changes to secrecy laws (the Australian Law Reform Commission is to report later this year) although it would clear things up through a recommendation that a whistleblower who makes a public interest disclosure as defined, through the proposed internal and external processes, would be immune from criminal or civil action, thus removing the shadow of Section 70 of the Crimes Act.

Nothing in the report goes to Freedom of Information reforms either (Minister Faulkner's second stage paper is expected in March) but there are a couple of references that deserve comment.

Chapter 4 discusses what types of information should come within the scope of a public interest disclosure. I agree that it shouldn't extend to a public servant who simply disagrees with government policy or one who unilaterally decides to leak for personal reasons, to make mischief or the fun of it. But there are some interesting definitional issues about what might constitute "a serious matter relating to a breach of public trust."

A discussion about the values of accountability, integrity and the public interest that should underpin the proposed Act [2.48] includes a statement that"governments have a right to consider policy and administration in private."

This overstates things to some degree, as, apart from cabinet deliberations, there has been no absolute protection for 27 years for Federal government deliberative process documents. In theory at least these processes have been open to scrutiny under the Freedom of Information Act, unless disclosure would be contrary to the public interest.The fact that policy is under development or a decision has not been taken can be a factor that counts against disclosure, but would not automatically or categorically ensure the matter is considered "in private." Other public interests-for example in informed debate and discussion of matters being considered by government- need to be weighed.

In apparent support for at least part of this principle the Report states [4.30]:
"The Freedom of Information Act 1982 provides for a general right of access to information with limitations. One area where the release of information is generally held to be against the public interest is the discussion, within government, of options that were not settled and that recommend or outline courses of action that were not ultimately taken. The reason for this is the potential for confusion or to mislead the public. Disclosures of that type would be unlikely to make a valuable contribution to the public debate and have the potential to undermine the public integrity of the Government's decision making process by not fairly disclosing reasons for the final position reached."
A footnote cites the High Court in 2006 in the McKinnon case as authority.

In the High Court decision the joint judgment of two of the three judges in the majority (two of the five who sat on the case) acknowledged [at 122] this was a "cogent ground" for the purposes of the issue of a ministerial certificate. No-one suggested- neither does the guidance issued by the Department of Prime Minister and Cabinet- that this will always be a sufficient consideration to automatically sway the balance in favour of non-disclosure. In two sentences they gave a tick to then Treasurer Peter Costello's claim (one of seven) to justify the issue of a certificate about why disclosure of information was contrary to the public interest, expressed by Costello as follows:
"The release of a document that discusses options that were not settled at the time the document was drafted and that recommends or outlines courses of action that were not ultimately taken has the potential to lead to confusion and to mislead the public. The release of such potentially misleading or confusing material would not make a valuable contribution to the public debate and has the potential to undermine the public integrity of the Government's decision making process by not fairly disclosing reasons for the final position reached. Decision-making processes are multi-layered and the documents reflect partially considered matters and tentative conclusions."
It's a fair way short of High Court authority for the proposition that release of information is generally held to be against the public interest where it reveals "discussion, within government, of options that were not settled and that recommend or outline courses of action that were not ultimately taken. The reason for this is the potential for confusion or to mislead the public."

In Chapter 8 the Report recommends protection for disclosure to the media only where it relates to serious and immediate danger to health or public safety, and only after a reasonable period has elapsed since an internal report and to the Ombudsman or one of the alternative authorised recipients (extends to members of parliament) and no satisfactory action has been taken.

We will hear plenty of argument about this along these lines, particularly as Dr AJ Brown clearly has reservations about this aspect of the Report.

Some of the reasoning for ruling out protection for other disclosures to the media seems a bit thin. For example [8.76] that "disclosures to the media concerning unsettled policy issues, national security, intelligence and defence could interfere with the proper processes of government." Disclosure of unsettled policy issues seem to be placed in august company.They could also in some instances clearly be in the public interest.

As Richard Ackland comments in today's Sydney Morning Herald there is a lot for the media and others to ponder including what the Report tells us about leaks:
"From mid-2005 to mid-2008 some 45 cases of leaking were referred to the federal coppers. Of those, four were sent to the Director of Public Prosecutions. Under the existing and inadequate procedures to protect "public interest disclosures", 21 bureaucrats were investigated in 2006-07 following a whistleblow. We don't know what happened to those complaints, if anything, because the outcomes are secret. No politicians were referred anywhere for leaking, not even for leaking classified, sensitive security information."
According to Chris Merritt in The Australian, Allan Kessing intends to keep going with his High Court challenge to Section 70 and his conviction, and if unsuccessful may seek a pardon.

Thursday, February 26, 2009

What chance for John and Mary citizen?

From "They don't follow orders.." in the Sydney Morning Herald, some comfort for those who have been sorely tested when trying to get information from Defence- they are not alone:

"The row (in Federal Parliament yesterday) surfaced after special forces soldiers returning from Afghanistan found themselves subject to debt recovery action by the Defence Department following overpayment of allowances. (Defence Minister) Fitzgibbon ordered Defence chiefs to fix the problem in October. They did not. Mr Fitzgibbon's problems were compounded when he could not tell Parliament yesterday how many soldiers and how much of their pay was affected - because Defence could not tell him. (Former Defence Minister Brendan) Nelson said his job as defence minister was the most challenging he had held, more difficult than being opposition leader, a job now held by Malcolm Turnbull who yesterday moved a censure motion against Mr Fitzgibbon. A key problem, Dr Nelson said, had been extracting accurate information from the insular and secretive defence machine."

Wednesday, February 25, 2009

Whistleblowers protection.

The House of Representatives Standing Committee on Legal and Constitutional Affairs has released its report on whistleblowers protection- the report and a podcast of the media conference today are here. Positive responses to the spirit and comprehensive nature of the proposed scheme, to be under the wing of the Ombudsman, which Dr AJ Brown of Griffith University and the Whistle While They Work Project said at the media conference today had the potential to lead to world's best practice legislation. I'll have a comment after a chance to have a read. I see some disappointment already expressed about the recommendation that protections only apply to passing information to the media related to public health and safety, and then only after reporting through public service channels.

Tuesday, February 24, 2009

Exemption arguments dry up on the steps of the Tribunal.

Since July last year I have been representing the Sydney Morning Herald in two appeals to the NSW Administrative Decisions Tribunal against decisions by the NSW Police to refuse access under the Freedom of Information Act to the names of licensed premises and other details of incidents recorded in a data-base developed as part of the Alcohol Linking Program.

The appeals-one application goes back to 2006,the other to an application for similar information made last year- were scheduled for hearing in March after much procedural delay. The Herald withdrew both last week after the Police agreed to release all the information in dispute. The Australian Hotels Association (NSW) who had been joined in the proceedings as an interested party and who claimed its members business interests were involved had withdrawn from the case a couple of months earlier.

The SMH reported on what was revealed on Saturday-here's the quick summary:

"Assaults involving drinkers from pubs and clubs are running at levels up to twice those of official government figures, according to information contained in a confidential state-wide police database.The database of 77,000 crimes and other incidents, obtained by the Herald after a three-year fight using freedom-of-information laws, details 13,086 separate assaults involving drinkers from pubs and clubs in the 11 months to last July."

The related coverage section in the link includes the complete 9mb data-base with information on all the hotels and clubs involved, and separately other details ranking the clubs and hotels according to the number and type of incidents, and the levels of intoxication of the person concerned. Check out your locals!

Matthew Moore in his column on Saturday gave some background on the applications and the Police exemption claims: that the names of the venues and other details of incidents, if disclosed, could be expected to prejudice investigation of possible contraventions of the law and prejudice the effectiveness of methods for preventing or detecting possible contraventions of the law; and that the names of the venues was information concerning business affairs of the clubs and hotels and disclosure would have an unreasonable adverse effect on those affairs or prejudice the future supply of this type of information

The Police submitted three affidavits, each replacing the other, from officers involved in the program (the first officer went to work for the AHA after his affidavit had been lodged, the second went on long sick leave and wouldn't be back until after the hearing originally scheduled for January) outlining why in their opinion the Program would collapse through lack of co-operation from hotels if this information was disclosed; why they wouldn't be able to investigate incidents or conduct secret audits of named hotels; and why the game would be up for the Random Breath Testing program because motorists would twig to likely places where they would encounter a RBT unit. NSW Police also supported three affidavits from publicans who pointed out instances where the data unfairly had worked against hotels that reported incidents on or nearby their premises, and who claimed that the value of their hotels would suffer if this information linking them to incidents was disclosed. (The RBT and business affairs claims were shelved towards the end)

We were prepared to argue that the Police evidence didn't substantiate the claims of adverse effects of disclosure on their investigations or methods, particularly in the light of changes in NSW Government policy enacted last year, including the public naming of the 48 top problem hotels, which meant that any adverse effect on co-operation from hotels had already occurred. At this stage some of the information is almost three years old. We submitted that the Police had not made the case that information would dry up, given the fact that no-one is compelled to tell the Police when questioned where they had last had a drink. The business affairs exemption claim had always seemed particularly weak as the information revealed nothing remotely like the sensitive commercial information contemplated by the exemption.

We had also been prepared to argue that should the Tribunal find for the Police on the exemptions regarding adverse impact on their operations, the public interest override powers should be exercised to order disclosure, and relied on affidavits in support regarding the importance of access by a community activist on alcohol related issues, a local government leader and a prominent academic with research interests in this field.That was until two decisions by the Tribunal Appeal Panel in December that suggested the Tribunal had no such powers when cabinet documents and law enforcement documents were concerned.We were still developing arguments to contest this when out of the blue the Police indicated they were prepared to release everything as long as the Sydney Morning Herald agreed to withdraw and not seek an order for costs. After three years the Herald was happy to do the deal.

Just how many last minute concessions of this kind by government agencies take place in the shadows of the Tribunal steps we don't know as the Tribunal does not publish statistics or comment on the topic. My bet is quite a lot- all at great expense to the NSW taxpayer who funds the agency preparations, often as in this case, involving a major law firm which doesn't come cheap; to the applicants who initiate the proceedings; and to the taxpayer again who pays for the time spent by Tribunal members on matters that end up resolving themselves.

Everyone concerned would be better off if, rather than seeing the light at half a minute to midnight at the Tribunal, agencies improved judgment right back at the beginning of the process reflecting the public right to know about programs carried out ostensibly for our benefit and about what is being achieved, qualified only where there are real prospects of harm to important public and legitimate personal or business interests.

Three and a half weeks before the promised land for Queensland.

After all that positive talk from Premier Bligh since her first day in office, Queenslanders will have to endure another election- replete with promises of what will follow success at the polls- before the much-heralded new era of more open government gets closer to reality. The Courier Mail is underwhelmed by both sides as they start the campaign.

Friday, February 20, 2009

Media well-informed about Ombudsman investigation of their complaints.

Bruce Barbour, Ombudsman

The NSW Ombudsman operates under tight legislative constraints in saying anything publicly about the investigation of a particular complaint other than in a report to Parliament, but the Office keeps the complainant, who is under no such constraints, informed of developments, and when the complainant is a journalist or media organisation, well....

Two seemingly well-informed reports about Ombudsman investigations of freedom of Information complaints in the papers today. This in The Herald in Newcastle about the investigation of a complaint by the paper regarding the University of Newcastle's refusal of a Freedom of Information request for details of bonus payments to senior staff, and the rather angry response by the University to the Ombudsman's recommendation that the information be released.

And this in the Sydney Morning Herald which appears to know more than previously reported about a draft Ombudsman report concerning an investigation of a complaint by the Daily Telegraph that apparently reveals among other things, improper ministerial office pressure on an FOI officer in the Roads and Traffic Authority not to release information.

Sydney Free Speech Conference in March.

This is the media release about the March conference.

Australia’s Right to Know announced today it would host a national televised conference on the state of Australia’s freedom of speech.

The event, in Sydney on Tuesday 24th March, will bring together academics, lawyers, journalists, public servants, politicians and the public to examine Australia’s free speech problems and discuss the best solutions.

The conference will give a rare insight into the daily behind-the-scenes workings of both the journalists whose job it is to get the news and the officials charged with protecting information that could be harmful.

“It’s time to ramp up this vital issue with a mature debate about what kind of free speech we have and what kind of democracy we want,” said News Limited chairman and chief executive John Hartigan.

Confirmed speakers and panellists include:

Justice Ronald Sackville AO, Supreme Court, keynote speaker
Senator John Faulkner, Special Minister of State in charge of reforming The Commonwealth’s Freedom of Information laws
Senator George Brandis SC, Shadow Attorney-General
ABC managing director Mark Scott, News Limited chairman and CEO John Hartigan, and other heads of Australia’s Right to Know
Australian Public Service Commissioner Lynelle Briggs
Arthur Sinodinos, Regional General Manager Business and Private Banking, NAB; Chief of Staff to former Prime Minister John Howard

· Mark Dreyfus QC, MP, chair of the House of Representatives Legal & Constitutional Affairs Committee

· Paul Whittaker, editor, and Paul Kelly, Editor-at-Large of The Australian

· Laurie Oakes, Nine Network political commentator

· Gail Hambly, Group General Counsel/Company Secretary, Fairfax Media

· Chris Warren, Federal Secretary, Media Entertainment & Arts Alliance

The conference will be broadcast live and in full by Australia’s Public Affairs Channel A-PAC (Foxtel/Austar channel 607), streamed at and hosted by Helen Dalley of Sky News.

Journalist Tony Jones of the ABC’s Lateline will moderate a special Q&A-style debate on Freedom of Information.

The conference will address such issues as:

How much should governments tell us, and do we have a right to more?
How restricted is the media’s day-to-day work, and should it change?
The impact of mobile phones and the internet on privacy and free speech
When should an individual’s private life make way for the public interest?
How should whistleblowers be handled when they expose wrongdoing?

Since its launch in May 2007, Australia’s Right to Know – a coalition of the nation’s 12 largest media organisations – has worked to raise awareness, lobby government and facilitate independent research into freedom of speech issues.

Event details

Date: Tuesday 24th March, 2009
Time: 8.30am to 5.30pm
Location: Sofitel Sydney Wentworth, 61-101 Phillip Street, Sydney, NSW 2000

Tickets: $250
To register, visit

For conference information or to arrange interviews, contact Ben Rawling at Mark Communications (02) 9775 7015 / 0424 644 518 or

For queries about the Right to Know Coalition, contact Lucinda Duckett at News Limited on 9288 3125 or

"Open Government" but a tough task to track consultants

Tom Dusevic and the Australian Financial Review ( subscription only) did a great job in analysis in the Wednesday 18 February edition after digging out details of the $514 million in consultancies let by the Rudd Government in its first year in office. Dusevic and Verona Burgess, the Fin's Government Affairs writer today, both highlight how the high use of consultants at a time of across the board cuts in government operating costs continues to impact negatively on public service expertise and in-house research capability.

Up with the leaders in the big league of generalists are Boston Consulting ($18.68 million) and KPMG ($17.28m), with Booz and Company ($7.45m) and PricewaterhouseCoopers ($7.08m) also doing nicely. The Australian Government Solicitor ($9.51m) and Corrs Chambers Westgarth ($6.14m) were the top picks in the legal fraternity.

With a government committed to greater openness and transparency it shouldn't be as hard a job as Dusevic experienced to work out what is going on with our money- a fully searchable database and a big stick to enforce reporting would mean access to information on who is getting work from government, for what, is a breeze.

Here is Dusevic's take on the task:
"There is no systematic or centralised tracking of actual spending on consultancies across the federal sphere. To reach its spending estimates,the AFR analysed annual reports and government tender records,which have been vastly improved since September 2007. Through cross-referencing some 95 per cent of actual spending has been captured; the remaining 5 per cent covering dozens of small agencies has been extrapolated......Some consultancy contracts remain confidential. In a supposedly open era of government, details about many contracts are published several months after they begin, sometimes after they have expired, and often not at all. It makes monitoring consultancies an onerous job."

It shouldn't be.

Thursday, February 19, 2009

FOI dilemna over disclosure to the world at large

I was involved in a panel discussion in Sydney yesterday about the extent to which the motive, intent or identity of a Freedom of Information applicant is an irrelevant consideration in a decision to release a document, and whether there should be an automatic assumption that release of documents to the applicant is in effect "disclosure to the world at large." The discussion was prompted by
this NSW Appeal Panel decision along these lines last year. The Victorian Supreme Court's contrary view that the Appeal Panel declined to follow then was later upheld by the Victorian Court of Appeal in a unanimous decision handed down in three separate judgments with some differences in reasoning.

Both cases involved examination of what are relevant considerations in deciding whether disclosure of information to the applicant of information concerning the personal affairs of another person would be "unreasonable." They revolved around argument by the applicants that they had a particular interest in access to the documents for a specified purpose; that their interest in access was over and above any public right of access; and that they had no intention of disseminating the information widely.

As a result we have NSW authority that disclosure to the applicant is disclosure to the world
; and Victorian authority for the proposition that the proper test is to consider the particular circumstances of the case-a relevant factor being what is known about the applicant and intentions regarding further dissemination, and that an automatic assumption in every case that disclosure to the applicant is disclosure to the world at large is wrong in law.

Neither the NSW nor Victorian acts include a provision found in the Commonwealth (and Western Australian) act that motive or identity of the applicant is an irrelevant consideration.

In my view the NSW Appeal Panel attempt to distinguish the Victorian case by asserting differences between the objects of the acts and citing another unique provision of the NSW Act concerning the public interest was unconvincing. So was their observation that the scheme of the Act didn't contemplate the same document being released to one applicant but not to another. It emerged yesterday that another case involving the same issues is awaiting decision in the NSW Court of Appeal so we may have useful higher wisdom shortly.

Regardless of the interpretation of the courts there is an important policy question here.Identity, motive or intent of the applicant is irrelevant in the making of an application. But it can be a factor in some cases in making a judgment about whether disclosure is in the public interest or unreasonable- spelled out in various court decisions and in some detail in the NSW FOI Manual 2007[4.9].

Sure disclosure of documents about the workings of government or other documents relevant to the conduct of public functions that reveal nothing about the personal affairs of members of the public should be disclosed and one applicant's case for access will be the same as any other.That's why more information of this kind should be released to the world pro-actively and why information released to an applicant of potential interest to a broader audience should be brought to public attention via the web.

When it comes to personal affairs information, as the Victorian decisions point out, where the applicant is a journalist, media organisation, interest group, politician etc, a decision maker can safely assume disclosure to the applicant will be followed by wider dissemination.In those instances and where there is nothing to indicate what the applicant might do with the information, there is a need for careful consideration by the decision-maker of the nature of the information, the views of the person concerned, and the public interest in deciding whether disclosure would be unreasonable.

However where we know particular factors such as a familial relationship or a particular reason why this applicant has a case for access over and above others and it is unlikely the information will be disseminated further, there needs to be some recognition in the law for special circumstances.It's not a new issue -as mentioned here a Senate Committee in 1978 and the ALRC in 1995 both suggested doing something about it. No-one in Canberra has so far.The NSW Ombudsman's Review report includes a limited (view only- no copy) response to the problem [6.7].

The NSW ADT Appeal Panel case referred to above involved highly personal information about the victim of sexual assault and the applicant was the convicted perpetrator who wanted access for the purposes of further court proceedings. That application should be assessed on public not private interest grounds- that is whether the public interest in justice to the individual is served by disclosure to this applicant. There are precedents that establish relevant criteria.The argument doesn't appear to have been raised in the case.

On the other hand this hypothetical cited in the Victorian Supreme Court decision is one where an individual interest should prevail. We can safely assume release of the document is not disclosure to the world at large.I can think of plenty other examples.
“Suppose Julie is an eight year old girl, exhibiting some difficult behaviour. Her father, Stephen, thinks that Julie may have a psychiatric problem which may be genetically inherited from her maternal grandfather, who suffers from a serious psychiatric condition and attempted suicide several times. The grandfather cannot now be located. In an effort to help Julie, Stephen has sought access to the grandfather’s files, being the psychiatric records held by the Department of Human Services."

The case for secrecy.... sometimes.

Professor Noah Feldman writing in the New York Times Magazine last week (In Defence of Secrecy) wasn't defending the excessive government secrecy of the recent past, or arguing against greater transparency in financial markets. He was talking about getting the balance right- something the US and Australia both need to further address. Feldman provided some good examples to support the proposition:
"The effective operation of even the most democratic government requires secrecy and surprise as well as transparency and predictability."

Wednesday, February 18, 2009

FOI issues continue to surface in Haneef controversy.

Missed this decision last month by the Commonwealth Administrative Appeals Tribunal in another Haneef Freedom of Information appeal- this time against a decision by the Australian Federal Police to refuse access to some documents concerning the investigation that led to his detention and cancellation of his visa in 2007. Haneef won on a few points that the Tribunal has now referred back to the AFP for reconsideration, but in large measure the Police exemption claims- 11 of the 18 exemption provisions in the Act were invoked-were upheld.(See this post on the decision last July in a case involving Immigration)

Those interested in the fine detail of the Haneef fiasco will find the Tribunal decision and what it reveals about the information received from UK authorities, and the AFP itself, of interest.

There is nothing new in the decision regarding interpretation and application of the Act, but a couple of comments.

There were many documents relevant to the FOI application and, it turned out, some problems in the AFP in managing the complexity involved. Deputy President McPherson admitted [18-21] to being puzzled by aspects of the proceedings which revealed that some information that the Police claimed exempt had already been released to the applicant.

While AFP exemption claims were largely upheld, its decision-making reeked of excessive caution. Just one of a number of examples was a claim for legal privilege, rejected by Deputy President McPherson as not meeting the criteria in the first place, for information passed to an inspector of the Queensland Police by the Director of Public Prosecutions concerning "a state of affairs which has already taken place and that is now in the public domain"[70-72].

The case also serves as a reminder of the breadth of some of the exemptions in the Commonwealth Act.For example Section 33(1)(b) exempts a document where disclosure "would divulge any information or matter communicated in confidence by or on behalf of a foreign government, an authority of a foreign government or an international organization to the Government of the Commonwealth, to an authority of the Commonwealth or to a person receiving the communication on behalf of the Commonwealth or of an authority of the Commonwealth.”

Deputy President McPherson observed:
  1. .... it is not a requirement of s 33(1)(b) that the information itself be confidential but only that it be communicated in confidence. The second comment, which is related to the first, is that, as the Full Court said when speaking of s 33(1)(b) in Secretary, Department of Foreign Affairs v Whittaker [2005] FCAFC 15; (2005) 143 FCR 15 [at 25]:
“If the disclosure of a document would divulge any information or matter communicated in confidence by a foreign government to the government of the Commonwealth, that is sufficient to attract [s 33(1)(b)]. The fact that the information or matter may no longer be confidential is not to the point. The only question is whether the disclosure of the document would divulge information or matter that has been communicated in confidence.”
Deputy President McPherson said he was bound by the Full Court interpretation, so there was no point in Haneef's counsel arguing about the nature of the information.

There is justification for continuing confidentiality for information passed to us by foreign governments that remains sensitive and a lot will, but to pay no regard to whether the information deserved or needs to retain a confidential character, or to any other factors that might justify disclosure, seems far too generous.Some governments I can think of regard the time of day as confidential. And surely it should be a relevant factor if the information is now in the public domain in the country it came from, or if a compelling public interest would be served by disclosure in this country to the FOI applicant?

Another issue for policy and legislative attention.

Tuesday, February 17, 2009

Don't keep quiet about secrecy laws.

Just a reminder, if you have something to say about Australia's secrecy laws, the Australian Law Reform Commission at Talking Secrecy is very interested to hear from you.

Digital no go for FOI at Digital Economy Department.

Further to the post last week on on-line FOI applications, and Queensland's example of Smart Service, here's a little tale of frustration from an applicant seeking to pay an application fee to the Commonwealth Department for Broadband, Communications and.. wait for it.. the Digital Economy, by credit card, to be met with:
Unfortunately, I can’t accept your credit card authorisation - we only accept a cheque or money order for the $30 application fee, and so at this stage I can’t accept it [The FOI] as a valid request.“ I stood in front of my computer stunned, stared at my colleague and screamed loudly. Surely the Department for Broadband, Communications and the Digital Economy would accept a form of digital payment?
They came good eventually with a direct deposit option, after consulting those with it types in Accounts.

Consistency issues in NSW ADT decisions.

So much for the NSW Administrative Decisions Tribunal Appeal Panel view (not only in the decision mentioned here last week but also in another [at 37]) that the Tribunal has no "override discretion" when it comes to restricted documents - those found to be exempt as cabinet documents or concerning law enforcement and public safety: Judicial Member Montgomery in this decision [73-74] delivered two months later, didn't refer to either Appeal Panel decision about limitation on powers, and adopted the usual approach of considering whether the discretion should be exercised after finding documents exempt under the law enforcement exemption. He then decided it should not be exercised in this case. Not sure where this leaves anyone arguing the toss about the matter in the Tribunal at the moment. Let's clear it up promptly, along the Montgomery lines, by legislation if necessary.

And in this decision Deputy President Handley found that records of work completed and invoices for work carried out by a backhoe operator for a local council were not exempt under the business affairs exemption. This included the hourly rate charged for the work undertaken. Deputy President Handley said "it seems likely that the approximate hourly rate usually charged for this type of work... would be a matter of common knowledge in that line of business."

I'm with Deputy President Handley, but this decision is in contrast with quite a few in the past that have ruled that the hourly rate for work undertaken for a public sector body- particularly by lawyers including the Crown Solicitor's office- is sensitive information that if released would have an unreasonable adverse interest on their business affairs.These decisions go all the way back to a case decided by President O'Connor in 1999-
Neary v State Rail Authority [1999] NSWADT 107 at [40] and [41].

Queensland follows the lead on lobbyist register.

Queensland Premier Anna Bligh last week fell in line with developments elsewhere around the country to announce in a statement to Parliament on 12 February the introduction of a lobbyist register.[It's a little messy in the original so the text of the statement in cleaner form follows at the end of this post.]

I saw somewhere that Queensland Labor had committed to this in 1998?

Premier Bligh went further than most by also announcing a two year "cooling off" period for any former minister (18 months for parliamentary secretaries, ministerial staff and senior public servants) in respect of lobbying on matters dealt with in their last two years in office. (But no retrospectivity that will impact on the burgeoning lobbying industry in Brisbane peopled by former ministers in the Beattie Government and escapees from Canberra.)

Plus the introduction of a new offence of misconduct in public office into the Criminal Code and intention to clarify the conflict of interest provisions in the Public Service Act. And she is seeking advice about how the government might restrict success fees in contracts for government work, after media reports that two former ministers received success fees of $500,000 following a client's success in winning the Airport Link contract. All this flows from recommendations in a December report from the Crime and Misconduct Commission.

The details of the Queensland register are still to come. However the emerging Australian standard registration requirement is weak given the exclusions, particularly for in-house lobbying by employees whose job is to seek to exercise influence on behalf of their employer, and the failure so far to require much else such as reporting on contact with government or issues currently the subject of lobbying, and a complete ban on gifts of all kinds and political donations.

Canada goes further than any of us here but this
report about free food and drink gatherings for members of parliament and public servants in Ottawa that may be just within the law illustrates the magnitude of the task.

For those of you really into this:
Premier Bligh Ministerial Statement Legislative Assembly 12 February 2009
"I have made very clear my commitment to open and transparent government. One of my first acts as Premier was to commission an independent panel led by Dr David Solomon to review Queensland’s freedom of information laws, and I released the draft legislation at the end of last year for consultation.
Today I am pleased to announce another move toward greater accountability and transparency. This government will introduce a Queensland Contact with Lobbyists Code to deliver greater accountability standards for former ministers, parliamentary secretaries, ministerial staff and senior public servants. This code will adopt the highest standard of accountability and transparency. We are adopting all of the CMC recommendations from its report to strengthen the legislative framework governing ethical standards in Queensland.
Under the new code, a two-year ban will be put in place to prohibit former ministers from lobbying government on any matter they have dealt with in their last two years of tenure. Parliamentary secretaries will be banned for 18 months from lobbying government on any matter that they dealt with in their last two years of tenure. An 18-month ban will also prohibit former ministerial staff and senior public servants from lobbying government on any matter in which they had official dealings during their last 18 months of tenure. This goes above and beyond the standard applied by the Commonwealth government in relation to post-separation employment.

In addition, all lobbyists seeking to conduct lobbying activities with a Queensland government representative will be required to register their details on a lobbyist register maintained by the Department of the Premier and Cabinet. I reiterate today what I told the House yesterday, and that is that the government is of the view that some of the reported success fees paid by private firms to lobbyists are much too high and unnecessary. I have, therefore, sought advice about how the government might restrict success fees in contracts for government work, and I will report to the House when I have that advice.
My government will also introduce a new offence of misconduct in public office into the Criminal Code and clarify the conflict of interest provisions within the Public Service Act 2008 in line with the recommendations of the CMC. This is about making it crystal clear that any person in public office has a duty to serve the public interest over any private interest. We will deliver a means to prosecute any former public officials who have abused their office. The people of Queensland rightly expect this to be the case, and I am committed to delivering a stringent set of ethical standards to ensure that this occurs."

Monday, February 16, 2009

Conference calls.

After a long period of little happening around the country on the conference front, suddenly two announced in the last few days.

An ad in The Weekend Australian gave some details of Australia's Right to Know Freedom of Speech Conference in Sydney on 24 March, featuring Minister Faulkner, John Hartigan of News Ltd, and others including a Q&A with Tony Jones."Join Australia's leading academics, lawyers, journalists, politicians and public servants for an important debate on our freedom of speech" it says. See or call Dina on 02 9775 7000.

Then in Tasmania the Environmental Defenders Office has a two day event on 6-7 April exploring issues concerning access to public information- A Privilege or a Right?- with David Solomon, Rick Snell and others. They are calling for papers, so content is still something of a work in progress and want the conference to provide input to the Tasmanian review of the FOI Act.

ACT FOI changes.

Thanks to Ray Polglaze of the ACT who did some checking on what happened last week in the ACT Assembly and confirmed as follows.

The legislation as passed abolishes conclusive certificates in relation to documents affecting relations between the Commonwealth and States, executive (cabinet) documents and internal working documents but retains certificates for documents claimed exempt on national security grounds.(The last point wasn’t picked up in the Canberra Times which reported all certificates had gone.You have to wonder why the ACT retains this power when the Commonwealth Government’s own bill before the Parliament would abolish all conclusive certificates.)

There is a new provision that excludes cabinet notebooks from access under the FOI Act. (The Government’s other proposals that would have added some new exemptions for example for question time briefs, to ensure “frank and candid advice” appear to have all been rejected.)

On the wider FOI review agreed between The Greens and the ALP as part of the deal that enabled the ALP to form government after the last election, this seems likely to now be undertaken by the Standing Committee on Justice and Community Safety. The Assembly also voted unanimously to change the standing orders to create a new position of independent arbiter to determine whether claims of executive privilege on Government documents ordered to be tabled were legitimate, similar to the role played for some years now in the NSW Legislative Council by former chief justice Sir Laurence Street.

Gloomy outlook, not just for your superannuation.

You can listen to Rick Snell on 2ser's Razor's Edge discussing the state of NSW and Federal Freedom of Information reforms, welcoming the NSW Ombudsman's report, noting the less than fulsome immediate endorsement of Premier Rees and ending on the gloomy note that there must be doubt whether the Rudd Government will get the job done and dusted in this term in office.Pretty sure he wasn't smiling at the time.

Senate Committee short hearing for FOI Bill.

The Senate Finance and Public Administration Committee took just over an hour last Thursday for the hearing on the Freedom of Information (Removal of Conclusive Certificates and Other Measures) Bill 2008. Nothing much new or startling in the transcript of testimony as Michael McKinnon, Rick Snell, the Public Interest Advocacy Centre, and the Australian Press Council spoke to their submissions.The Department of Prime Minister and Cabinet (PM&C) provided some comments about the approach taken in the Bill.The latter when asked, weren't able to add anything to the "as soon as possible" and "this year" commitments to cabinet consideration of second stage reform issues such as the establishment of an information or FOI commissioner.

Senator Moore raised a good question [transcript below at 14] with PM&C witnesses about whether, given all the talk, there is anything in the Government's own FOI training programs that goes to the issue of culture change.PM&C ducked- training is not their baby despite the transfer of FOI responsibilities from Attorney General's in December 2007. Courses are conducted by the Australian Government Solicitor's Office. A senior officer volunteered that "we think it likely" the information commissioner will be putting out the culture change message. That should be a relief, probably to have some effect in 2010 or later!!!

PM&C also wasn't able to help with information on whether records have been kept about the level and extent of training across all government agencies, but intends to find out.

The transcript of the hearing is here-Senate Committee-12/02/2009.

Just on the training front any course for public servants that promises excellence in decision making has to sound like a good thing. That's what the Australian Government Solicitor's Office and the Faculty of Law at the University of Sydney are offering in " Excellence in Decision Making", a five day administrative law program in Canberra, 30 March- 2 April 2009, for "all those who work in government" particularly decision-makers and those with any involvement in decision-making processes, administrative law practitioners, new agency staff, policy officers and lawyers. Sessions will cover the gambit including Freedom of Information, privacy law and other important topics.

The brochure provides the details- the fee,$3450, being the most important. You would like to think any new policy settings on the interpretation and application of the Act, if there are any, would be up there in lights even in a heavily lawyer-oriented program such as this, but it's perhaps telling there is no sign of Minister Faulkner or anyone from the policy department, PM&C, on the speakers list.But the audience may get a bit more than the Senate Committee did on thinking about the information or FOI commissioner when the position is established.One of the speakers is the long-time former Acting WA Information Commissioner Darryl Wookey now Senior Executive Lawyer, AGS Canberra, speaking on models for FOI review.

Sunday, February 15, 2009

Why a journalist's lot is not a happy one- and why it matters.

John Hartigan chairman and CEO of News Ltd in "Suffocating in Secrecy" in yesterday's Weekend Australian outlined why our freedoms are not as robust as they should be, and spells out particular concerns about the state of Freedom of Information and whistleblowers protection laws.

While acknowledging that the media is imperfect and journalism sometimes flawed, Hartigan makes the case for the important role the media plays in holding government to account. And why it's not a happy story:
"As a journalist, my perspective on democratic freedom is largely through the prism of the media. Briefly, here's what I see: increasing intimidation, including a police raid last year on one of our newsrooms; journalists - approximately a dozen last year alone - being interrogated in the star chambers of state crime commissions to force them to reveal their confidential sources, or face jail; journalists' phone and bank records being intercepted to find the sources of their stories; courts being difficult - and sometimes obstructive - when it comes to releasing information and documents that should be freely available; unprecedented levels of spin from government, a pervading culture of secrecy and a deep resistance to, and fear of, allowing people to know how they are governed. In my 45 years in journalism it has never been more difficult for a journalist to get and verify a news story than it is today."

Friday, February 13, 2009

Public broadcasters all struggle with split personality.

In November we commented about the Australian Broadcasting Corporation's almost perfect record last year in refusing Freedom of Information applications, perhaps aided by a very generous court decision a few years ago which endorsed a broad interpretation of the exclusion that applies to the ABC "with respect to documents in relation to its program material." (No typo, but Parliamentary Draftsman please stand).That case was an unsuccessful attempt to access complaints about ABC bias in the coverage of the first Iraq war.

The BBC similarly enjoys an exemption from the UK FOI Act in respect of information held for the purposes of “journalism, art or literature” but has just lost a battle in the House of Lords, arguing that this extended to an internal report on a possible anti-Israel bias in its coverage of the Middle East.Now it's back to the High Court to argue the substantive issues in the case.Public broadcasters are easy pickings for criticism in these circumstances..The
Times Online says it's pure " Yes Minister"-you couldn't make it up- and concludes:
"The BBC's website contains a section called Open Secrets - A Blog About Freedom of Information. Very good it is, too. It makes freedom of information requests and reports on those made by others. And yet here is the BBC itself spending hundreds of thousands of pounds of licence-payers' money in the courts resisting the very Act it uses every day. It is one thing testing the law. But it has tested it now and lost. Enough."
The Brits can sort that one out. But when Minister Faulkner gets around here to those second phase of FOI reforms, we should look again at what protection the ABC really needs to cover information concerning its commercial and competitive interests.

Where else but Queensland.

Online Freedom of Information applications have been possible in Victoria for some time (at least to the 10 Government Departments and Victoria Police). In Queensland the Government's Smart Service website now shows the way with a more comprehensive online application service. Just about everywhere else in the country it's still paper and pen, but glad to be corrected. Queensland is also now selectively posting on the web information about issues considered by cabinet and cabinet decisions - the latest for matters considered last October. The earth still turns, the sun still rises....

We're Three!

A small milestone-we've been banging away on this blog for three years this month.
1260 posts later thanks to readers out there for the encouragement( take a bow). Most of you are from Australia of course but 12% from the US and significant numbers from the UK, Canada, and NZ and a regular stream from just about everywhere around the globe. Thanks for your continuing interest.

Thursday, February 12, 2009

ACT Assembly scuttles some Government FOI proposals.

According to these Canberra Times and ABC reports, The Greens and the Opposition Liberal Party combined with success to force some changes to the Government's Freedom of Information Bill in the ACT Assembly.The reports are a bit skinny on the detail, but conclusive certificates seem to have gone completely and some proposed new exemptions appear to have been rejected. I'll be interested to see something more on exactly what has transpired when the ACT Hansard appears.

Here is what I said in December about the Government's proposals, so good on The Greens:
"The Government's Bill (Hansard 11 December 285-287) would abolish conclusive certificates for cabinet documents and internal working documents (but not for documents that could attract the national security exemption). The reference in an Attorney General media release at the time that "the Freedom of Information Amendment Bill 2008 also proposes additional amendments to protect certain documents that ensure Ministers can fully exercise their responsibilities to the Assembly and its committees" turns out to be new proposed exclusions from the Act for question time briefings, incoming government briefings, annual estimates briefs and cabinet notebooks. The Attorney General used the Queensland Solomon Report and that government's plans to do the same thing as justification, arguing"that to preserve and promote individual ministerial responsibility, to ensure free, fearless and frank advice, certain communications between government and its public service advisers must be protected. This reinforces the personal, individual responsibility of ministers and their ability to govern effectively and to account to parliament and its committees appropriately. It is in the public interest to preserve the confidentiality of this kind of advice. We all know when in government that the effectiveness of these documents is compromised by the knowledge that such documents may be disclosed under the legislation as it currently stands. "Do we? Are blanket exceptions of this kind vital to enable ministers "to govern effectively and to account to parliament and its committees appropriately. "Don't current exemptions work satisfactorily to ensure sensitive information (of the cabinet-notebook variety, for example) is protected from disclosure? And no explanation for acting on these issues in advance of the comprehensive review planned for next year. The Greens who get to call the shots might have some interesting issues to weigh when the Assembly resumes."

External review should encompass full merits review and discretion to disclose.

Whether an external Freedom of Information review body should have power to require release of an otherwise exempt document- either on public interest or other grounds- is one of those important policy matters that can spark plenty of debate.

It's an issue several submitters are running up to the Senate Public Administration and Finance Committee in Canberra this afternoon.The Federal Act since enactment has stipulated that a finding by the AAT that a document is exempt is the end of the matter.
Elsewhere the Victorian Civil and Administrative Appeals Tribunal has legislative power to exercise an override discretion where it decides the public interest "requires" disclosure of an otherwise exempt document. The courts have narrowly defined requires to mean necessitates or compels.

In NSW there is no specific legislative power in the relevant legislation but the Supreme Court (Nicholas J) in University of New South Wales v McGuirk [2006] NSWSC 1362 at [102] ended years of uncertainty and differing decisions by tribunal members when it decided that the Tribunal had the same discretion as the original decision-maker in every case where a document has been found to be exempt: that is to consider whether disclosure or non disclosure was the correct and proper decision, consistent with the objects of the Act.

In IPART v Services Sydney [2008] NSWADTAP 79 the Tribunal Appeal Panel has qualified the effect of the McGuirk decision. Although not the central point in the case, the Appeal Panel decided [46] that the discretion did not extend to documents found to be exempt under clauses 1, 2 and 4- "restricted documents" in the language of the NSW Act.

The main issue before the Appeal Panel was the interpretation of the NSW FOI Act concerning Tribunal review powers when an agency has decided that a document is exempt under clauses 1,2 or 4 .The Act (Section 57) states that the Tribunal is to consider and decide whether there are "reasonable grounds for the claim." The issue was whether Section 57 was a specific contrary provision that ousted the more general Tribunal powers on review set out in Section 53 of the Administrative Decisions Tribunal Act:to make the "correct and preferable " decision on the status of the document, that is undertake full merits review of the original decision.

The Appeal Panel [33-45] accepted a submission that the High Court in the McKinnon case had established a relevant precedent for what constitutes
a ‘reasonable grounds’ inquiry. That case involved consideration of what the law required when review was sought of a decision to issue a conclusive certificate - whether there were reasonable grounds for the claim.There was enough said in the judgments of the majority to satisfy the Appeal Panel that the High Court had accepted that when an act set out two different procedures for review Parliament meant the more particular to limit the more general. That is where the NSW FOI Act stipulated a "reasonable grounds" review for a decision that a document was exempt, this served to limit the Tribunal's general powers to undertake full merits review of the decision.

In my opinion full external merits review of decisions to refuse access should be available for all exemption claims. The Federal Government appears to have accepted this and has a bill before Parliament which will achieve this result. What an irony that the significance of the High Court's decision in McKinnon will wane in the Federal arena as a result, but in line with this Tribunal decision will continue to limit full review in NSW of any decision to claim documents as exempt as cabinet documents or, of even more concern, of documents claimed exempt under Clause 4 (law enforcement and public safety), an exemption used very frequently by NSW Police. All this in a state where the Premier has announced the end of secrecy and plans to turn the Freedom of Information Act on its head.

The NSW Ombudsman's review report didn't include any commentary or specific recommendations on these matters. The Premier should commit,
in the new Open Government Information era, to full merits review for all exemption claims and to an override discretion for the external review body.

Tuesday, February 10, 2009

Opaque law making at Privacy NSW.

I've been rabbiting on for years about the complex and confusing nature of NSW privacy legislation with its many gaps and loopholes in the hope that- in the fullness of time as they say- something will be done (eventually) about it.

In the meantime .....

The NSW Privacy Commissioner announced in January that he had
"re-made 8 public interest directions under section 41 of the Privacy and Personal Information Protection Act 1998. Public interest directions allow NSW public sector agencies to deal with personal information in a manner which, in other circumstances might breach the Information Protection Principles. The Privacy Commissioner will only make such directions where he is satisfied that it is in the public interest to do so." (Emphasis added)
Now Section 41 confers very significant powers-to authorise a government agency to do something that would otherwise be contrary to the law- and the Commissioner's exercise of the power is not even subject to disallowance as it would be in the case of a regulation.

So you might expect the Commissioner would lay out publicly the reasoning behind any decision to exercise the power. Some of the more recent of the eight directions include a few words before the Commissioner concludes he is satisfied that it is in the public interest to make the direction. Such as this in the Direction to allow some personal information handling practices as part of the Anti Social Behaviour Project (no, hold tight, I'm sure the project team know what they are doing):
"This Direction has been made to allow the ASBP Participating Agencies to collect, use and disclose personal information for the purpose of implementing the objectives of the ASBP Project. I am satisfied that the public interest in making this Direction to enable the implementation of the ASBP Project is greater than the public interest in requiring the agencies named in Schedule 1 to comply with the IPPs as referred to in the provisions set out below. A corresponding direction applies to the ASBP Project in respect of the Health Records and Information Privacy Act 2002."

Other directions that have been extended year after year for years now don't even go that far- not a word explains or justifies the direction or explain the public interest considerations.

Some uses of the power are highly questionable. For example this direction- extended now for a ninth year- covers a number of exchanges of personal information between government agencies, including simply where the agencies had an agreement to exchange personal information before privacy legislation commenced in July 2000. Maybe there are public interest arguments to support this, but the Commissioner doesn't provide them. And what agreements exist between government agencies to share information about us that need to continue in place 9 years after a law was passed by Parliament that imposed new standards and requirements regarding the handling of personal information? Well the Commissioner doesn't publish a list, and neither did his predecessors who like him were satisfied that the public interest required continuation of old pre-privacy law arrangements

The NSW Law Reform Commission has been looking at privacy legislation now for close to three years, with no finish date in sight.In the meantime no-one seems to be paying much attention to what amounts to law-making at Privacy NSW.

Freedom of Information Conclusive Certificates for Senate Committee hearing this week.

The Senate Finance and Public Administration Committee has a half day scheduled this Thursday for a hearing on the abolition of conclusive certificates bill. The line-up of witnesses is here (PDF 7KB). The hearing was bumped from last Thursday as a result of the Senate's close interest in the Government's plans to spend $42 billion. A week is a long time, as they say- last week then Deputy Secretary (Governance) of the Department of Prime Minister and Cabinet Mike Mrdak was down to appear.He's now off on other things having since been appointed Co-ordinator General in charge of herding cats for the management of expenditures associated with the economic stimulus package(s).

UNESCO World Press Freedom Conference in Brisbane in 2010.

In a first for Australia and the Pacific, the University of Queensland, home of Australia's oldest school of journalism, has won the right to host UNESCO's global World Press Freedom Day conference and Guillermo Cano World Press Freedom Prize-giving ceremony in Brisbane on 3 May 2010. The theme is 'Freedom of Information: The Right to Know', focusing particularly on freedom of expression issues in the Asia-Pacific region. Organisers plan to also encourage a wider 'fringe' program of activities to promote the importance of media freedom to the general public. Let's hope by that time that a series of very positive host-country reports are justified by developments on Freedom of Information reform, whistleblowers protection, shield-laws for journalists, winding back some of our over-reaching secrecy and anti-terrorism laws, clear principles regarding privacy and the right to know and publish, and the generous approach to court suppression orders in some jurisdictions.