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Friday, February 26, 2010

McMillan an outstanding choice for Information Commissioner

The Commonwealth Ombudsman Professor John McMillan has been appointed Information Commissioner Designate. This is an outstanding choice and evidences the Government's seriousness of intent in this field. McMillan will bring stature, knowledge, expertise and experience to the position and will be on the job getting things moving from 8 March, before legislation creating the position passes Parliament. The process to find a permanent appointee to the equivalent position in NSW, created by legislation passed eight months ago must be getting close to finalisation, having started last September. Let's hope the state government follows the Commonwealth lead with an appointment of someone with similar standing, respect and credentials as McMillan.

The following are extracts from a tribute in the Canberra Times on 26 January this year after McMillan was awarded an AO in the Australia Day Honours.

"Lawman praised for his integrity"
Commonwealth Ombudsman John McMillan accepts that sometimes his role could more accurately be described as a professional thorn in the Government's side.
As the nation's watchdog responsible for overseeing all government agencies, Professor McMillan is the final word on unworkable policy, bureaucratic ineptitude, and administrative bungles which plague an estimated 45,000 frustrated Australians who make official complaints to his office each year.
His constant stream of reports and investigations are highly critical, fiercely independent and often difficult reading for ministers involved.
Most recently, he has condemned the Rudd Government for its unwillingness to process Freedom of Information requests despite its mantra of open accountability...
He describes the Commonwealth Ombudsman's office as providing invaluable "bottom-up" analysis of the health of federal administration.
"The Government often does its own top-down analysis, but to look at individual complaints often shows how the systems works from the bottom up"...
Professor McMillan was first appointed in 2003 for a five-year term under the Howard government and was reappointed for another five-year term by the Rudd Government.
Chosen for his background in public-interest advocacy, Professor McMillan's experience ranges from being a founding member of the Australian Institute of Administrative Law and the Freedom of Information Campaign Committee, to being convener of the Braddon Resident's Action Group and helping save Northbourne Oval.
He was also the Commonwealth Ombudsman's principal investigation officer in 1979 with an academic background which includes being a professor of law and alumni chairman in administrative law at the Australian National University during the 1990s, as well as a member of the board of the faculties and deputy dean of students. He won the chancellor's medal for distinguished contribution to the ANU, 2004, as well as the vice-chancellor's award for excellence in teaching in 1995.

Thursday, February 25, 2010

Plenty more in FOI decision apart from the kitchen cabinet

The "kitchen cabinet" aspect of the decision by Deputy President Forgie of the Administrative Appeals Tribunal in Telstra wasn't the only element of the decision worth noting . Her examination of the law, precedents and findings concerning the cabinet document exemption (provided in the event she was wrong in concluding that the Special Ministers' group was not a cabinet committee), and the internal working document exemption and associated public interest test, provide something of a case book on these issues, worth filing away for future reference.

Health identifiers off to Senate Committee

The Senate yesterday referred the Government's Healthcare Identifiers Bill 2010  to the Community Affairs Legislation Committee for inquiry and report by 15 March 2010.
Reasons for referral/principal issues for consideration:
Privacy safeguards in the Bill
Operation of the Healthcare Identifier Service, including access to the Identifier
Relationship to national e-health agenda and electronic health records.

In introducing the bills Minister For Health Roxon referred to the strong emphasis on privacy considerations and to three Privacy Impact Statements. The Australian Privacy Foundation wasn't happy with the Exposure Draft. The Committee process will give the issue an, or another airing.

Tuesday, February 23, 2010

Archives to stay a fashion

After posting a Boo, hiss last November over Government plans to close National Archives' offices in Darwin, Adelaide and Hobart, pleased to see an "archivists power" led movement resulted in a roll-over of sorts.  University of Sydney FOI staffer Anne Picot features in the 7.30 Report story on the win.

Parliament outside the transparency and accountability loop

David Hawker the federal Liberal MP for Wannon is a former speaker of the House of Representatives and in "Don't starve the watchdog" in The Australian yesterday made a good case for a properly resourced parliament, among other things. Two paragraphs mentioned below deserve comment. Both concern transparency and accountability of the parliamentary departments-House of Representatives, Senate and Parliamentary Services. Hawker is incorrect in claiming the administration of parliamentary entitlements for members and senators is entirely in the hands of the Department of Finance.  But a broader omission is any reference to the absence of accountability and transparency of the legislature as a branch of government allocated significant public funding. The three departments were appropriated $142 million in this year's budget. They should be subject to the Freedom of Information Act, like most of the executive branch, and in respect of matters of an administrative nature, the courts.

The Government to date has shown not a spark of interest in a 1995 recommendation of the Australian Law Reform Commission to this effect. Despite the matter being raised in a number of submissions, and by several witnesses at recent Senate Committee hearings on the FOI Reform legislation, one senator (The Greens Ludlam) asked one question of one witness on the topic. Maybe, like Hawker parliamentarians aren't fully aware of how the system works and the hole in our transparency and accountability framework. But an independent committee due to report next month may give the issue a kick along.

Hawker's two paragraphs -emphasis added- and information about the parliament and that independent committee follow.

FOI in the High Court: Osland case raises soundness of mercy refusal

In the long-running Freedom of Information case that revolves around the circumstances that give rise to the exercise of the Victorian Civil and Administrative Tribunal's override discretion under Section 50(4) of the Freedom of Information Act to require disclosure of an otherwise exempt document where the public interest requires it, the central issue before the High Court will be the Victorian Court of Appeal's view of the proper application of the provision. However the case will also see issues raised relevant to the soundness of the Attorney General's decision to refuse Mrs Osland's petition for mercy.  The grounds for the High Court (Chief Justice French and Justice Keifel) granting special leave to Mrs Osland to appeal were something along these lines:

(a) The Court of Appeal did not perform the task required of it in accordance with the High Court's remittal in that it failed to determine that, in the circumstances of the present case, s 50(4) of the Freedom of Information Act 1982 (Vic) was enlivened as a result of material differences in the various legal advices the Attorney General received

(b) The Court of Appeal erred in concluding that, notwithstanding the content of the press release, there was nothing in the content of the legal advices  and nothing in the revealed differences and the extent between those advices, that attracted the operation of s.50(4) of the FOI Act.

(c) The Court of Appeal ought to have found that the Attorney General's press release announcing his decision was misleading, lacked candour or was otherwise materially inaccurate or incomplete and, as a consequence, s.50(4) was enlivened.

Former Federal Court judge Ron Merkel QC instructed by Nieva Connell of Hunt and Hunt appeared for Mrs Osland.The appeal is likely to be heard in April.

Perhaps it is easy to see from a government perspective why Commonwealth FOI Reform legislation leaves untouched the unique limitation on the Administrative Appeals Tribunal in the FOI area, compared to its powers in other areas of jurisdiction, to not extend to an override discretion. The Law Council of Australia's Mark Robinson argued the case for change at a recent Senate Committee hearing, asserting that full merits review of administrative decisions required that the external review body has all the powers of the original decision maker. Commonwealth FOI decision makers have always had a discretion to release a document found to be exempt. While Opposition Senator Brandis showed some interest, so far no-one in Canberra has been having any of this for the last 28 years.

Mrs Osland was convicted of the murder of her husband, after having endured years of domestic violence, but her son who committed the act was acquitted. She was sentenced to 14 years 6 months imprisonment with a non-parole period of 9 years 6 months and released on parole in July 2005.Mrs Osland initially won the right to access legal advice that formed the basis for the Attorney General's decision to refuse the mercy petition. Appeals have been running ever since.

Monday, February 22, 2010

AWB knew, should government have twigged?

The admission by AWB Limited, in settling a class action brought by a group of shareholders, that it knew money being paid to transport wheat  to Iraq was being illegally siphoned to Saddam Hussein's government all along, after battling through the Cole Royal Commission claiming innocence, is an appalling comment on the standards of honesty of those involved. And a reminder of the way Cole may have been put on a side track by the Howard Government, and a few other things besides.

Howard's kitchen cabinet not the real thing

While making it clear that government leaders are at liberty to establish whatever decision making processes they wish, a decision last week by Deputy President Forgie of the Administrative Appeals Tribunal (Telstra and Department of Broadband, Communications and The Digital Economy [2010] AATA 118) points up the problem that will arise from a Freedom of Information perspective in setting up a group of ministers and treating it as if it is a cabinet committee, even though it isn't. When push comes to shove, as in this case harking back to FOI applications in February and May 2007, documents provided to the group won't qualify as cabinet documents.

After almost writing a book on what constitutes "the government" and related issues and considering the evidence, Deputy President concluded:
When I have regard to all of the matters to which I have referred,  I have concluded that the Senior Ministers’ group was not a committee of Cabinet. It was treated as a group that was analogous to a committee of that sort but its being treated in that way does not make it a committee of that sort. There is no evidence of Cabinet’s having decided that the Senior Ministers would be able to make decisions on certain matters that would be binding upon Cabinet itself, as in the case of the NSC, or that their decisions required Cabinet’s discussion and ratification, as in the case of decisions of the ERC. If the Senior Ministers were a committee of Cabinet, it would be expected that there would have been some formal decision about the status of their decisions. On the evidence I have, there is none. It would be expected that there would be some reference to the work of the Senior Ministers in material available to the public or at least to the legislative arm of government. An obvious place to reveal its existence would have been in PM&C’s Annual Reports. If not there, then it would be expected that information about its existence would have been available from the Cabinet Secretariat as directed by the Cabinet Handbook but it was not. There is no reference to be found. Unquestioningly, the former Prime Minister was within his rights to create the Senior Ministers’ group and to direct its tasks as he would. Having regard to the findings I have made, however, I am not satisfied on the evidence that I have that he established it as a Cabinet committee either on an ongoing or an ad hoc basis.[149]
The decision covers important ground regarding public interest considerations in the internal working document exemption, the subject of another post. The "kitchen cabinet" issues were as follows.

Slow-no?- progress in the Capital Territory.

Whatever happened to the ACT Assembly Committee inquiry into the Freedom of Information Act?

Impressive terms of reference were adopted in April last year, but apart from three published submissions including one from the Australian Press Council there is no visible sign of activity since, and no report date for the Committee. Given the ACT Act is basically the same as the Commonwealth Act, perhaps it's been shelved until those reforms are settled, but no-one seems to have said as much.

NSW guidance on GIPA Act

The NSW Office of Information Commissioner published more guidance material on Friday on the Government Information (Public Access) Act including two Knowledge Updates-  transition arrangements on repeal of the FOI act, and application of the public interest test, the latter pretty basic in terms of the sort of thing agencies are looking for. And a revised Business Plan that includes a reference to regulations already drafted that are set to commence with the GIPAA but no indication of what the regulations address.  There has been nothing further from the OIC on when the act will commence since "in the near future" started to appear this year.

Sunday, February 21, 2010

Senate Committee hearing on FOI Reform bill

The transcript of the Senate Committee hearing on Freedom of Information Reform legislation in Melbourne on 15 February has been published although not as of now up on the Committee page. All witnesses  highlighted areas that warrant further consideration, or raised questions about why other changes had not been included. There were some questions from committee members on areas of possible interest but I wouldn't be at all confident we struck much of a chord. Somewhat ominously NSW Labor Senator Cameron, who together with Victorian Labor Senator Ryan appeared to be the only member other than Chair Senator Polley from Tasmania. to stay throughout all the evidence at both hearings, asked every witness whether they supported the bill even if no changes were made. We all individually said yes. My guess is this fact will feature prominently in the report due on 16 March. Even though there is plenty of room for warranted improvements.

But I'm still open to surprises.

Friday, February 19, 2010

Advice documents mostly sacrosanct

A couple of weeks ago Minister for Climate Change Penny Wong was quick off the mark releasing what was described as a summary brief containing analysis by the Department of the just announced Opposition policy. However when the issue arose in Senate Estimates hearings of what other advice she had received, in addition to the two pages released, it emerged there was plenty more, but don't expect to see it until the Government is good and ready, or maybe in open access records in 20- 30 years.  Here is the thrust of the discussion( Finance and Public Administration 08/02/2010 F&PA 118):

Curiosity or legitimate public interest?

Roll on that foreshadowed culture change. In the meantime...

Stephen Kirchner of Institutional Economics and the Centre for Independent Studies writing in The Australian today, recounts efforts, including finally a successful Freedom of Information application, to obtain a copy of a speech last September by Executive Director of the Foreign Investment Review Board whose other hat is General Manager of the Trade and Foreign Investment Division in Treasury. What to make of attitudes to the free flow of information where a speech on an important topic the subject of wide debate isn't routinely posted on the web, and requires a formal application? And as characterised by rejection by Colmer of an application for waiver of the $30 application fee on public interest grounds:
"mere curiosity on the part of a person or a substantial section of the public will generally not constitute a public interest ground. I am not satisfied there is a public interest sufficient to warrant the waiver of the $30 application fee in this case"
Mere curiosity? More like a legitimate public interest in informed discussion and debate on a matter of major national significance.

Kirchner says the speech is still not available from the FIRB (how will they cope with the  disclosure log proposed in the FOI Reform Bill?) but he has posted a copy on his website, as he says, for the benefit of the many foreign investment professionals and journalists who also suffer from "mere curiosity".

Public interest immunity to protect collective cabinet responsibility

In recent Senate Estimates hearings for the Department of Prime Minister and Cabinet, amid questioning of Minister Ludwig and officials about the Government's claim that no special deal had been offered those on board the Oceanic Viking, Liberal Senator Ronaldson made a concerted effort to get the names of those who attended a meeting of the Cabinet border protection committee where decisions on the matter were taken, in particular those from the Prime Minister's office.  The Minister refused, claiming public interest immunity and providing this statement of reasons (Finance and Public Administration 08/02/2010 at F&PA74).
"Disclosing the identity of ministers who attend cabinet meetings or cabinet committee meetings—I will deal with this issue first—would be contrary to the public interest because it would tend to undermine, as I indicated earlier, the collective responsibility of cabinet. It does that by inviting speculation about the collective basis of agreed outcomes, and this is consistent with the practice of successive governments. The relevant staff may attend meetings of the cabinet and its committees and working groups to provide advice when required depending on the subject matter under consideration, but they are not decision makers. Disclosing the name of ministerial staff who were present at particular cabinet meetings or cabinet committee meetings would also tend to undermine the collective responsibility of cabinet."
Senator Ronaldson responded that the names of members of  cabinet committees were public knowledge ( they are in the Cabinet Handbook, but remember this from earlier last year ?), called the Committee into a couple of closed meetings where it decided not to press the matter further, and finally said he may ask the Clerk to investigate. Given the fact that Labor and Liberal senators who sat on the committee have recently recommended against an independent arbiter proposal to deal with these sort of stand-offs, the issue won't run too far.

Revealing names of ministers in the room at a particular meeting would reveal also who was not there, so this must be what the Minister meant by the line invite "speculation about the collective basis of agreed outcomes." And the name of ministerial staff present could maybe suggest the subjects being discussed or angles being considered, or indicate whether that minister was or wasn't present. Still it seems something of a stretch to suggest disclosure "would..tend to undermine the collective responsibility of cabinet."

Thursday, February 18, 2010

Queensland first RTI review decision published

There is a long tail to the review of Freedom of Information decisions by the Queensland Information Commissioner, with half a dozen decisions (going back some time) published in the last month or so, on applications made under the FOI Act, the act replaced by the Right to Information Act in July. Transition arrangements mean anything on hand at that time, and the pursuit of available review rights are to be dealt with under the FOI Act.

But a decision made in October and only recently published (why so slow?) appears to be the first review of a decision under the RTI Act. The decision in the end is primarily about a refusal to neither confirm nor deny documents are held. The published summary of Tolone and the Department of Police (220006 9 October 2009) gives the gist of how the Police took a while to get on the right track in pressing the right exemption claim and the complex steps involved in following the RTI public interest decision-making formula, something the full text brings home more clearly. The formula as the Commissioner sets out is:
Section 49 of the RTI Act sets out the steps which must be taken when deciding whether disclosure of information would, on balance, be contrary to the public interest.  The requirements of section 49 of the RTI Act must be read in conjunction with the public interest factors listed in schedule 4 of the RTI Act.   Schedule 4 of the RTI Act sets out factors  irrelevant to deciding the public interest; favouring disclosure in the public interest (Part 2 Factors)favouring nondisclosure in the public interest (Part 3 Factors); favouring nondisclosure in the public interest because of public interest harm in disclosure (Part 4 Factors.) In determining whether disclosure of information, would, on balance, be contrary to the public interest under section 47(3)(b) of the RTI Act, I must  identify any irrelevant factors that apply in relation to the information and disregard them; identify public interest factors favouring disclosure and nondisclosure that apply in relation to the information; balance the relevant factors favouring disclosure and nondisclosure; and decide whether disclosure of the information, on balance, would be contrary to the public interest.

Wednesday, February 17, 2010

FOI reform comparisons- the Commonwealth and NSW

In preparation for speaking to an audience in Sydney today about the Commonwealth and NSW Freedom of Information reforms, I put together information about the reform processes and some high order comparisons between the two laws based on the Commonwealth Reform bills, as introduced, passing the Parliament. My notes, if you are really interested.

Monday, February 15, 2010

FOI Reform half a loaf, but needed soon, so grab a few extra slices

That's in essence what I told the Senate Finance and Public Administration Committee hearing on the Freedom Of Information Reform bills this morning, in my appearance by telephone. I used my opening remarks to welcome the legislation as a step in the direction of more open and accountable government. Many points made in the various submissions to the Committee had previously been raised in response to the Exposure Draft a year ago, with little reaction from the government and even less explanation, so it was a pity the opportunity for discussion and debate about best practice had been missed. With the Committee with a month to report, and an election somewhere down the track this year, it was now important that the legislation pass, with the broader, wider reforms perhaps left for another day. However while grabbing the half a loaf on offer, the Committee should be interested in a couple of additional slices.

Mrs Osland's Christmas yet to come-HIgh Court to decide again

Thanks to Harley Schumann at The Lamp Post, which keeps a close eye on the High Court, for alerting me that the Court on Friday granted another special leave application to Marjorie Osland in the long running battle over a Freedom of Information application for documents concerning her petition for mercy. Here's Harley:
Secretary, Department of Justice v Osland (No 2) [2009] VSCA 69 Marjorie Osland is back in the High Court. She is still seeking documents under FOI legislation that relate to her petition for mercy. It must be like Christmas over at Open and Shut.
Christmas? Not quite, but I think it's a reference to comments I made at the time about observations by the Victorian Court of Appeal in a decision that overturned a decision of the then President of the Victorian Civil and Administrative Appeals Tribunal in exercising his public interest override powers, to grant access to documents containing legal advice . Like this for example, which to my mind was a significant reading-down of the discretion:
"(i)t is.. outside the scope of s50(4) for this Court to decide, as a matter of generality, whether there should be public scrutiny of legal advices received by a Minister in connection with the making of an executive decision. That is so whether the public interest is said to reside in greater transparency or in greater accountability… Whether ministerial accountability entails the production of legal advices relied on by ministers in making decisions, and if so in what circumstances, is a policy question which will fall to be considered, if and when it arises, by the executive or by the legislature."
I don't know the grounds for the application or what was said in granting it, but look forward with interest to reading the transcript and to the eventual hearing on the substance.

ABC Radio has just picked up the story.

Thanks again Harley.

NSW information about Government Information

The Office of Information Commissioner NSW on Friday published four fact sheets for members of the public about the Government Information (Public Access) Act (not commenced), and an e-learning module that is pretty basic, but a useful resource for anyone who hasn't followed the development of the act, and for those public servants who need only the general gist of the new law.  The materials don't address the nitty-gritty isues that agencies who face the task of applying the Act on a day to day basis require. Except this from the Fact Sheet What is the public interest test? was heartening, and prospective applicants might like to keep it handy:
Under the Government Information (Public Access) Act 2009 (GIPA Act), all government agencies must disclose or release information unless there is an overriding public interest against disclosure....

The identification of one or even several public interest considerations against disclosure is not sufficient justification to refuse to provide information. Agencies will make their decision after balancing the relevant considerations for and against disclosure. In each case, agencies will consider a range of factors, including:
·  the nature and context of the information
·  in the case of an informal or formal request, any factors special to the applicant
·  the relative weight of public interest considerations for and against disclosure.
Agencies should refuse to disclose information only where, on balance, there is an overriding public interest against disclosure. Where considerations on balance favour disclosure, or are evenly balanced, the presumption in favour of disclosure stands, and information should be published or released.
As the Fact Sheet explains,there are 12 categories of information where there is always an overriding public interest against disclosure, but the guidance on the balancing test, where relevant, is positive stuff.

There isn't much in these materials that suggests the ongoing attention that is necessary to promote the cultural shift from the excessive secrecy the Ombudsman and former Premier Rees declared was at the root of the problem. No quotes from the Premier or the Attorney General, rallying ministers and the troops in readiness for a new era of open government, or urging citizens to take a closer interest in what government is up to. And the Fact Sheet The role of Right to Information Officers makes the job sound distinctly clerical, with no hint of involvement in, leadership of, or support for a concerted effort to champion the cause and win those hearts and minds of crusty types in the system who might be wedded to old ways. These are essential if the legislation is to achieve its purpose.

With the new legislation to commence "in the near future" and an Information Commissioner to take up duties "soon", another matter on which silence prevails is what the NSW Law Reform Commission has told the Government about a reference last June to examine how the new oversight regime should work. As the Acting Commissioner's  Right to information in NSW guide last September recounted [2.4]:
 In April 2006, the Government asked the NSW Law Reform Commission to review the State’s privacy laws, including whether a statutory cause of action should be introduced for invasion of privacy. In June 2009, the Attorney General expanded this reference to specifically include the relationship of right to information and privacy laws. The Commission will also report on how these laws should be administered, with specific attention to the relationship between the Privacy and Information Commissioners. Report on these issues is expected in late 2009.
The Law Reform Commission's Annual Report 2008-2009 [page 9] similarly states that this and another report on the reference were to be completed by the end of 2009. 
At one minute to midnight (or so) no sign of  the reports, at least in the public domain.

Sunday, February 14, 2010

Federal Information Commissioner lurking?

The Courier Mail was running ahead of itself with a reference to the federal Information Commissioner in this article at the end of January about violent incidents at public venues in Queensland. There isn't such a position, let alone an occupant at present, and Karen Curtis is the Federal Privacy Commissioner. Does the CM know something the rest of us don't?( a mistype more likely as implied by the commenter.)

Friday, February 12, 2010

Any connection between your bank data and US authorities?

Way back in 2006 questions were being raised here and elsewhere about access by US agencies to details of bank transactions outside the US, and the privacy implications, said to be a necessary element in the war on terror. So interesting to see the European Parliament has rejected an agreement for sharing bank data that allow US authorities to monitor Europeans' financial transaction data from SWIFT, the international banking transfer system.It's been going on for 9 months under interim arrangements. Lots of voices that the vote represents a major setback for international security, with a few such as the German Minister for Justice claiming it enhanced not only data-protection in Europe, but also democracy, and was therefore a victory for all EU citizens.

In October 2006 when the issue blew up here, the Federal Privacy Commissioner said she was considering having a closer look at Australian banks and access to data issues arising from their use of SWIFT, which all our banks use to facilitate international financial transactions. There is a reference to SWIFT in the Commissioner's Annual Report 2006-2007, but I couldn't quickly track it down. The Australian Privacy Foundation gave the Australian banks collectively their biggest danger to privacy award that year.

Will the European Parliament vote prompt inquiry about what comfort we should take from arrangements and agreements the Australian Government and the banks have with the US, and through SWIFT, about such things?

Focus on information not documents a NSW step in the right direction

One of the positive aspects of the NSW Government Information (Public Access ) Act (yet to commence) is that it moves into the modern world by providing a right of access to information. It's a significant move away from the Freedom of Information Act 1989 focus on "documents", evoking as that term does, images of piles of paper, manila folders, and large repositories to store them (not that all these aren't still important in the accountability context.) 

The reality is that these days just about everything created or held by a government agency is rendered into a digital format with the bits and bytes stored electronically. Those within the system have sophisticated technology available to identify, retrieve and consolidate that information, as and when the need arises, for agency purposes. The new act will require an agency to use these resources to locate and provide requested information for applicants. And it limits charges to time necessarily spent in efficiently dealing with the request, so paper hunting or shuffling won't be necessary in many instances.

It also means the end of puzzling about what Section 23 of the Freedom of Information Act means. The section headed "Information stored in computer systems etc" requires a search of computer systems only when an agency doesn't hold a written document containing information of the kind requested. 

In a recent decision different interpretations of the provision by Administrative Decisions Tribunal members surfaced. The new act contains no equivalent, simply requiring a reasonable search for information using equipment available for retrieving information stored electronically, limited only by an out where a request would involve substantial and unreasonable diversion of resources. The agency can put all that it finds into a new record where this seems sensible. All a very good step forward in my opinion.

Further Senate Committee hearing on FOI Reform Monday

The Senate Finance and Public Administration Committee is back to the Freedom of Information Reform Bills on Monday with a hearing in Melbourne, and a broad range of witnesses speaking to their submissions including academics Johan Lidberg and Moira Patterson, yours truly, the Australian Law Reform Commission, Australian Press Council, Victorian Privacy Commissioner, Public Interest Advocacy Centre and Liberty Victoria. Details here  but no broadcast by the look of it. All submissions suggest the reforms are good, but scope to do better.

Thursday, February 11, 2010

Yes Minister: political interference in Freedom of Information decisions

"Last summer, Sebastien Togneri (a top political aide to the Minister) issued a terse email to officials in the Public Works Department telling them to "unrelease" a report on the government's real-estate portfolio when he learned it was being sent uncensored to The Canadian Press. The news agency had asked for the 137-page document under the Access to Information Act, and had paid all photocopy fees. Togneri insisted that only 30 pages be released. The file contained sensitive information about the performance of the government's real estate portfolio, such as missed targets and high maintenance costs. A bureaucrat had to dash down to the Public Works mailroom to retrieve the sealed package. And for the next three months, public servants, Justice Department lawyers and consultants all agreed there was no legal basis to withhold any of the document. Despite that consensus, Togneri's view prevailed and the heavily pruned report was sent to The Canadian Press 82 days later than required by the law."

When this was revealed, according to The Canadian Press, the Minister didn't even thrash Togneri with a feather, commending him as "an employee who has exceptional parliamentary skills." Then, I expect to Togneri's delight, announcing "he won't be in charge of access-to-information files anymore." There has been plenty more in the news in Canada about this since, with claims it was an isolated incident and the Prime Minister's Office restating ministers staff should not interfere in such things.

The point in drawing attention to this Canadian story is that in three Australian state jurisdictions this sort of conduct could see the Tognieris of this world in serious hot water. New FOI laws in  Queensland (commenced)  NSW and Tasmania (yet to commence) include offence provisions for the first time. They're laws you hope never need to be used but their presence on the statute book would have to have a salutary effect. Togneris in Canberra however needn't be alarmed-there is nothing of this sort in the Commonwealth Freedom of Information Act,  and no glimmer of interest in going down this path, as evidenced by the Government's FOI Reform Bill, now before Parliament.The states' move is an example of an emerging Australian standard ignored by the Commonwealth Government in its reforms.

Glad to hear here, anytime

The Age

"The government wants to blog" is the headline to Finance Minister Lindsay Tanner's piece in the Sydney Morning Herald, today, something a bit different from other headlines of barbs  exchanged with Barnaby Joyce et al. The Minister tells readers about the thrust of the Gov 2.0 Task Force Report received in December and some of what it advocates for greater government engagement with the community. There are acknowledgements of present failings:
"Dialogue with citizens tends to be one-to-one, not general. We broadcast a lot to passive audiences, but when it comes to more active engagement, we're still in the dark ages."
And the magnitude of the task ahead:
"More freely available information and deeper engagement between government and citizens will improve the quality of government regulation and services. It will also challenge public servants and politicians to move beyond traditional mindsets of secrecy, hierarchy and control. While that's great in theory, it won't be easy in practice."
Open invitation anytime here folks to participate in discussion of - open government etc. A Google search shows the Minister had a brief go at blogging himself two years ago.(Correction - thanks to a reader - Tanner writes a weekly blog, Razor's Edge on the National Times, where the Herald piece probably started.)

Last week IT Wire reported the Victorian Government is on the move in this area, embracing Creative Commons publishing, starting on a government wide information management framework and putting some money on the table for a competition to encourage developers to start using the state's available data sets.

Wednesday, February 10, 2010

FOI law protects confidential complainants

December and January saw quite a few Freedom of Information decisions around the country, and I'm behind in mentioning some of interest.

Two NSW Administrative Decisions Tribunal cases illustrate that the identity of complainants or those who provide similar confidential information about an individual is well protected by exemptions in the NSW Freedom of Information Act. While the personal affairs ( Clause 6, Schedule 1) and confidential information (Clause 13(b)) exemptions are the usual provisions relied upon, there are others that are rolled out from time to time.

In Head v Commissioner of NSW Police [2010] NSWADT 27 Judicial Member Montgomery acknowledged the interest the applicant in seeking access to information in relation to complaints that were made against him as a serving NSW Police officer, and his concern about aspects of a resulting investigation. The applicant contended that the information, if disclosed, would enable him to defend himself from what he believed were false allegations. Judicial Member Montgomery said any discrepancies in the investigation were matters to be pursued through appropriate channels. The Tribunal should not attempt to cure defects that might exist in those processes. The Tribunal’s role was to determine the correct and preferable decision in regard to the status of documents under the Freedom of Information Act. He found the withheld parts of documents concerning complaints- names, addresses and personal information -was information concerning personal affairs, and that disclosure in the circumstances would be unreasonable (Clause 6) ; and that statements or names and addresses of third parties were provided in confidence in a personal capacity (including some from internal sources); disclosure might undermine the provision of such information in the future; and as it was unlikely that disclosing the contents of the statements and letters would enhance the Applicant's understanding of the investigation in any significant way , the public interest in maintaining the exemption outweighed the public interest in disclosing the contents of the documents. (Clause 13(b)).

In Starr v Sydney Water Corporation[2010] NSWADT 28 Judicial Member Montgomery found details of the Corporation's employees and contractors who complained about the applicant, a person in a longrunning dispute with the Corporation, alleging bullying and harassment, were exempt under the confidential information exemption (Clause 13(b)). . Somewhat surprisingly Judicial Member Montgomery [71-77] also found that the disputed documents were exempt under the business, commercial and financial affairs exemption (Clause 7(1)(c)) as they contained information about the Corporation's treatment of employees and contractors in the performance of their duties and its response to the matters raised by them about dealing with the applicant. It was unnecessary to consider other exemption claims for the documents (legal privilege (Clause 10) and operations of agencies (Clause 16)). 

Not all complaints are made on the basis of confidentiality but those that are, or deserve such treatment are well protected.

Kirby set for privacy champion award

Speaking of honours, nice to see that former Australian High Court judge Michael Kirby AC is to receive the 2010 International Privacy Champion award from the Electronic Privacy Information Center (EPIC).
The award recognises his work, at the time President of the Australian Law Reform Commission, to develop the OECD international privacy guidelines that have provided the basis for laws, agreements and frameworks around the world since 1980.

Orders of Australia beyond question?

During  Estimates hearings of the Senate Finance and Public Administration Committee  on Monday (08/02/2010), The Greens Senator Bob Brown raised with the Governor General's Official Secretary (F&PA 44-46), the issue of unsuccessful nominations for honours (446 of 738 nominees or 60% were successful this year) that led to discussion about the Council for the Order of Australia, how it operates, the fact that there is no review of decisions process, and no access to information about how decisions are made.

In passing Senator Brown commented he  "was aware that the council is exempt from freedom of information. That is another matter of concern."  On a related matter, the Official Secretary said advice received was that as the Council is not an agency it is not accountable to the parliament, but took this question on notice. 

The Official Secretary is the Secretary to the Council so there is an interesting question  whether documents held relating to the Council's work are covered by the Freedom of Information Act, even if the Council itself is a separate body outside the scope of the Act. Section 6A  provides:

Official Secretary to the Governor-General
             (1)  This Act does not apply to any request for access to a document of the Official Secretary to the Governor‑General unless the document relates to matters of an administrative nature.
             (2)  For the purposes of this Act, a document in the possession of a person employed under section 13 of the Governor‑General Act 1974 that is in his or her possession by reason of his or her employment under that section shall be taken to be in the possession of the Official Secretary to the Governor‑General. 

I'm unaware whether this has been tested, but coincidentally Karen Kline (who I don't know) raised the issue in a submission (PDF 86KB) to the Committee in connection with its reference on the Freedom of Information Reform Bill. That may have been based on unsuccessful experience.The rub, as the law stands at present, is whether Council documents are in the Official Secretary's possession by reason of his employment as Official Secretary, and whether they relate to matters of an administrative nature.

Tuesday, February 09, 2010

FOI review rights and who carries the can

The issue in the Federal Government's  Freedom of Information Reform Bill that Australia's Right to Know ran strongly with last week and was picked up elsewhere by the media and in the Senate committee hearing on Friday, revolves around the right to seek merits review from the Administrative Appeals Tribunal, and who should carry the onus if the matter gets that far.

 While it is an important issue, it is hardly the most important, and suggestions in Crikey it would "fatally undermine the move to more open government" seem way over the top. In the year to 30 June 2009 there were 27560 applications under the FOI Act but only 139 applications for review by the Tribunal. With the new system providing, as the Explanatory Memorandum states, "a simple expedient and cost efficient system for external merits review" by the Information Commissioner, everyone will be hoping even fewer cases warrant AAT review, once the Bill becomes law. And there are plenty of issues apart from this one in the Bill that call out for another look.

I'm concerned also about a related matter- the  potential delay tactics if an agency or Minister has a right to further merits review of an Information Commissioner decision.This post looks at whether there should be any such right of review, and at the onus issues.The best approach in my view would be for an agency only to have a right to seek review of a Commissioner decision on the basis of an error in law; and as preserving an applicant right would be a means of ensuring the Commissioner stays on the right path, and the cost of an AAT application ($682) will always sort the serious applicant with a genuine issue from the frivolous, in the event of such an application, the agency or Minister should, as now, carry the onus.

For brave hearts an explanation follows.

Privacy, the media and Terry's own goal

Michael Pelly in The Australian Legal Affairs on Friday took some comfort from England soccer (now former) captain John Terry's failure in court to stop publication of an affair with a team mate's ex, suggesting the decision of High Court Justice Tugendhat would have Australian media lawyers smiling. Pelly also predicted with confidence that Attorney General Mc Clelland won't be hurrying in this election year to do anything on the ALRC recommendation of a cause of action for breach of privacy, or for that matter act on a raft of other controversial  issues on his desk - "Too many people to upset for too little gain."

Pelly's probably right on that but a couple of comments about the article and the decision.

Pelly said the "...mere thought of (a move in the direction of a privacy cause of action) gave the media apoplexy" when it emerged from the ALRC.

More accurately the suggestion gave News Limited executives and outlets, particularly The Australian Legal Affairs Editor Chris Merritt, who at the time used the words "outrageous" and "alarming," apoplexy. From memory experienced and respected commentators Mark Day, writing in The Australian Media Affairs, Jack Waterford in the Canberra Times, Matthew Ricketson then with The Age, and Richard Ackland in the Sydney Morning Herald were  some who showed no such sign, suggesting the media needed to look closely at the proposal. And Mark Scott Managing Director of the ABC suggested the media get its house in order on privacy and negotiate something sensible rather than leave the issue for development in the courts over time.

Monday, February 08, 2010

New FOI era in NSW still coming "in the near future"

You might say that publicly at least, all that reforming zeal about ending secrecy in NSW associated with former Premier Nathan Rees, may have gone out the door with him, as there has been no mention of this aspect of public administration from new Premier Keneally, other than an early comment she was keen to restore trust in government. Or from Attorney General Hatzistergos to whom Rees had assigned responsibility for the yet to commence Government Information (Public Access) Act.

Rees had proclaimed the legislation would turn the freedom of information regime on its head; constituted a fundamental freedom of information revolution; that the public's right to know must come first, and that "the public sector must embrace openness and transparency and governments must forever relinquish their habitual instinct to control information." "This is generational change and reform that is long overdue" he said.

Well yes, but virtual silence from those in charge in the Keneally Government is quite a contrast, as are the limited visible signs of progress towards the new era in the seven months since Parliament passed the legislation last June. The Rees Government took only four months to consider, consult, act upon and push legislation through parliament on an Ombudsman's report put on the table in February 2009.

If you read tea leaves, there are a couple of suggestions that things are moving at the Office of Information Commissioner. According to its website the inaugural Information Commissioner will now take up duties "soon" (previously November 2009) and the Office advised government agencies recently that the new Act is to commence "in the near future"(previously early in 2010).

All in the interests of informed public discussion and debate

 Federal Minister Penny Wong had no problem last week releasing a copy of New Department of Climate Change analysis of the Opposition climate change policy, in a succinct two pages, and drawing attention in a media release to the fact the policy would increase emissions by 13%. Its probably not what he is after, but I wonder whether Dr Denniss of The Australia Institute mentioned here  earlier in the week facing a bill for $256,000 for documents the Department prepared to help inform the Minister  and her advisers of the details, merits, limitations and criticisms of the Emissions Trading System, is tempted to simply ask for the most recent similar assessment of the Government's  plans?

SA backflip on online political discussion

After posting here in defence of anonymity and pseudonimity, used reasonably, in online political discussion, I missed the ensuing fuss last week over the South Australian law to try to haul this in during the pre-election period, only to read in the Weekend Australian of the complete government backflip, under pressure, and some other colourful aspects of the public life of the minister responsible, Attorney General Michael Atkinson. David Penberthy on The Punch, while welcoming the move, makes the point that "the tone and quality of many (online)) comments is abysmal, and it’s a problem which stems in large part from anonymity." I can believe it, although Anonymous -apparently in many incarnations - is  our best and best informed commenter here.

Sunday, February 07, 2010

Senate Committee to inquire further into FOI Reform

The Senate Finance and Public Administration Committee has another hearing on the Freedom of Information Reform Bills scheduled for Melbourne on 15 February, according to the list of upcoming hearings.

Media coverage of the hearings last Friday included Markus Mannheim in the Canberra Times "Media says FOI overhaul falls short", and ABC News "Media urge FOI reform", both highlighting points made by Michael McKinnon about narrowing the Cabinet exemption, and Nicola Berkovic in the Weekend Australian, "Action urged on FOI flaws", on exemptions and the issue of onus in the Administrative Appeals Tribunal. More on that from me in another post.

(Update: The Canberra Times in another piece on Saturday "Shame may beat public servants 'secretive ways' "( no link available-c'mon guys) also  reported the Ombudsman Professor John McMillan:
"..hoped changes to FoI law would encourage public servants to be more open with the public, but warned that overcoming the bureaucracy's secretive culture would be difficult. "The main enforcement mechanism that works is the public naming and shaming [of public servants who suppress documents]," he said. "My experience as Ombudsman shows me that this is a far more effective tool than any other determinative functions."
(Further update: The transcript of the hearing is now available.)

Friday, February 05, 2010

Senate Committee does FOI Reform before lunch

Following right along the Senate Finance and Public Administration Committee wrapped things up at 12.25 pm, but the widely experienced administrative lawyer Sydney barrister Mark Robinson, appearing for the Law Council of Australia, managed to raise additional issues for Committee attention including reformulation of exemptions so that a modified public interest test would apply to trade secrets and commercially valuable information, and to information claimed to be received on a confidential basis. The point he made that generated most interest ( a series of questions from Senator Brandis who was back for this session) was that the Bill should provide the Administrative Appeals Tribunal with the same powers in respect of FOI as it enjoys in all other areas of jurisdiction- to have the same authority as the original decision-maker, and in the case of FOI, to decide to grant access to an otherwise exempt document.

Then, in response to questions, Robinson gave his views on the reversal of onus issue that had dominated the earlier session: that such a provision would place an applicant who takes a matter to the AAT in an impossible position, and would undermine the objects of the act.

While welcoming the legislative reforms, and in similar terms to Michael McKinnon in the previous session, urging prompt action on the bills, Robinson spoke for many of us when he said the amendments grafted slightly less turgid language on to an already turgid piece of legislation that was difficult even for lawyers to come to grips with, and a complete rewrite was required. His metaphor that we've kept the whole body and grafted half a transplant wasn't bad. He also made the point that the Government had not responded or explained why it had rejected points raised in the Council's submissions on the Exposure Draft last May. Welcome to the club on that one.

Committee Chair Senator Polley was sticking to time and started to finish the strictly 45 minutes reserved for the Law Council just as The Greens Senator Ludlam arrived with a batch of questions which might have been interesting. The only new issue he managed to raise during the 10 minute extension was the vexatious applicant provisions (the Information Commissioner can rule in limited circumstances) which Robinson thought necessary and reasonable.

So that's game set and match until we see the Committee's report due 16 March.(Update: not quite- another hearing apparently was always the intention although not mentioned to date on the Committee website and is now scheduled for Melbourne on 15 February.) With the exception of the onus issue the Government got off very lightly without having to explain, defend or justify anything much at all, and with issues that surfaced just the tip of those raised in submissions.

It shoudn't go unremarked that not one question was raised, or the slightest interest shown when Michael McKinnon mentioned it, about the recommendation made 15 years ago by the Australian Law Reform Commission that the parliamentary departments that administer the Parliament, and spend over $300 million of public funds, including some payments to and on behalf of members and senators, should be brought within the scope of the act.
Lunch-no sausages.

Senate Committee speeding through FOI Reform Bills

I'm having one of those moments they say you experience when you see sausages or legislation in the making.

Things moved along so smartly at the Senate Finance and Public Administration Committee hearing on the Freedom of Information Reform Bills, this morning that proceedings  adjourned for an hour at 10:30. They went way ahead of schedule when questioning of the first witness, Ombudsman Professor McMillan ran out of steam after 15 of the scheduled 45 minutes. Then the few members of the Committee who made it at 10:15 for a session with officers of the Department of Prime Minister and Cabinet only managed to keep things going for 8 minutes before questions dried up.

In between the point made by Michael McKinnon appearing for Australia's Right to Know  about the reversal of the onus of proof in Administrative Appeals Tribunal processes (so the party seeking review would carry the onus, not always the agency that made the decision) dominated discussion in his 45 minutes, with Opposition Senator Brandis (not present otherwise) taking great delight in contrasting the Government's rhetoric about the magnitude of the proposed changes with what he described as a bizarre obstacle to disclosure that applicants who take a matter to the AAT might face.

This despite the fact that McKinnon had kicked off saying that after a meeting yesterday with Minister Ludwig the situation might not be as clear as he had argued in a submission,and in the light of the complexities explained, now needed to seek legal advice before making another submission on the subject. PM&C later explained the agency will continue to carry the onus in any Information Commissioner review, but based on precedent with other bodies such as the Human Rights and Equal Opportunity Commission it would not be appropriate for the Commissioner to defend the decision in the AAT, therefore if the matter went further the party who took it should carry the onus.

While there was some interest in the various sessions in the culture question and how change in that area was expected to come about, and in issues concerning overlap in functions of the Information Commissioner and the Ombudsman, there wasn't  questioning at all on other points of weakness in the legislation mentioned in McKinnon's opening remarks- things like bringing the parliamentary departments and intelligence agencies within the scope of the act,  applying a public interest  test in all exemptions, proscribing frankness and candour as an argument to be used in arguing public interest considerations against disclosure. And certainly nothing to indicate that any of the many other points made in the 26 submissions had registered with Committee members, although Senator Ryan asked three witnesses what they thought about optional right of internal review.

There was some discussion with McKinnon about the Cabinet document exemption, with Senator Brandis seeking to label Kevin Rudd as the architect of the old Queensland practice of wheeling documents into the Cabinet room on a trolley, and wondering  whether this was prohibited by the Commonwealth Bill.  McKinnon thought there was nothing relevant to prevent it, although  in fact, a document qualifies only if prepared for the dominant purpose of submission to Cabinet, so that sort of high jinks isn't on, we hope, and has never been suggested in Canberra under the current act.  McKinnon said his scepticism about change in Queensland had been misplaced, as there had been a real turnaround ("I keep pinching myself wondering whether it will last), which he attributed primarily to the leadership of Premier Anna Bligh.

The Law Council of Australia is the next and last to appear. Early lunch anyone?

Thursday, February 04, 2010

Senate Committee digs deep

The  Senate Scrutiny of Bills Committee found a couple of micro details in the Freedom of Information Reform Bills worthy of Government reconsideration- may the Finance and Public Administration Committee that meets tomorrow show similar diligence. If you have the time and interest you will be able to pick up a live broadcast here from 9 am.
The line up is as follows. 
9.00�9.45 am Commonwealth Ombudsman
Professor John McMillan AO
9.45�10.30 am The Right to Know Coalition
Mr Michael McKinnon
10.30�10.45 am Break
10.45�12.00 am Department of Prime Minister and Cabinet
Ms Joan Sheedy, Assistant Secretary, Privacy & FOI Policy Branch
Ms Maia Ablett, Senior Advisor, Privacy & FOI Policy Branch
12.00�12.45 pm Law Council of Australia
Mr Mark Robinson, Committee Member
Ms Téa Paris, Policy Lawyer

FOI: Cat on ladder with a key

It will take a long time for the Opposition to live down its record on the transparency front while in government, but it doesn't mean criticisms aren't worth noting. And some metaphors aren't bad either. Here's the Liberal Member for Paterson, and Shadow Minister for Defence Science and Personnel Bob Baldwin in the House yesterday during debate on Appropriations Bills:
"It is now beyond any doubt that this Labor government has no ability to deliver on any of its intentions, promises or policies. For example, the intent of Operation Sunlight was to increase transparency of budgetary estimates and improve the readability of budget papers, yet this latest appropriation bill still smacks of Labor’s light touch in regard to transparency. An increase in transparency could be described in layman’s terms as being like installing a large glass window in a brick wall, thereby allowing the outside world to peer through and see what is on the other side. However, transparency according to the gospel of Prime Minister Rudd and his Labor disciples would be more akin to installing a small cat flap in the highest corner of the wall which can only be as accessed with a ladder and opened with a key. Now, the only key that regularly opens this cat flap is wielded by the freedom of information laws, and even then the Rudd Labor government does its level best to hinder those attempting to gain access to what should be classified as public information. That is hardly what I would describe as transparency in government."
The contentious issue is how big that glass window really needs to be. Baldwin went on to point out that the Bill included an additional $690 million worth of extra funding for the Department of Defence but no actual breakdown.
"In fact, this bill states that there is $528 million earmarked for ‘the protection and advancement of Australia’s national interests through the provision of military capability and the promotion of security and stability’. A further $108 million is to be used for ‘the advancement of Australia’s strategic interests through the conduct of military operations and other tasks directed by government’. It is plain to see that the level and amount of information substantiating the appropriation of over half a billion dollars of taxpayers’ money is, I am afraid to say, more than just a little light-on; it is downright shameful and a deliberate act of obfuscation."
Back in May last year I wondered if anyone with the skills and experience in such things had done an assessment of the Government's delivery of the promise of Operation Sunlight. Didn't see or hear a word, so still wondering?

Thanks to Open Australia for the Hansard link