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Tuesday, November 30, 2010

Wikileaks likely set back to open government cause

Regardless of whether you agree with US Secretary of State Hillary Clinton that the latest Wikileaks document dump is "an attack on the international community," Foreign Minister Rudd's expression of extreme concern" or Attorney General McClelland calling in the police to investigate whether Julian Assange has committed a crime, the release of cables sent by US missions abroad won't help advance the cause of more openness in the foreign policy field. Random transparency of this kind will likely boost the "told you so" arguments of those who advocate more not less secrecy, making a sensible debate about the legitimate issue of the balance between those needs and openness and accountability more difficult. To date secrecy has too often trumped those other values.(Update:This AFP article canvasses these issues. Martin Dart - an "IM manager working in government in Perth"-also sees lots on the downside.)

Coincidentially (?) The Australian today reports that the Attorney General has written to media organisations proposing a national security protocol for reporting sensitive information.

Other views on the Wikileaks disclosures include Praveen Swami in The (UK) Telegraph who sees some potential for embarrassment but concludes there's "a lot more to be learned about the world around us from nothing more secret than old newspapers than from the treasures Julian Assange has brought up from the beast’s lair." And James Mann in The New Republic who observes "Wikileaks has taken us well beyond the types of disclosures that the Freedom of Information Act, for the past several decades, has provided to journalists and historians" but nevertheless confidently predicts the survival of secret diplomacy.

Information gathering in legitimate ways is a large part of what diplomats do, not evidence of spying, although you have to wonder about the instruction to US embassy officers to collect among other things credit card account numbers as part of the biographical information gathered on notables around the world.

Monday, November 29, 2010

Experienced FOI hand set to be Vic Minister for FOI

With the Coalition to take office after Saturday's election in Victoria, The Age reports on the likely cabinet line up. In Andrew McIntosh Victoria will have a Minister for Corrections, Crime Prevention, Freedom of Information, and Integrity, if he retains the same responsibilities he carried in opposition.

Victorian public servants might want to brush up on Mr McIntosh's letter of 17 November to the Accountability Round Table Vic election 2010 Liberal Coalition response.pdf that sets out integrity commitments including:
Overhauling Freedom of Information legislation. The first step will be the establishment of a FOI Commissioner. This will have the effect of preventing Government from suppressing information for political reasons. The FOI Commissioner will take the final decision-making about FOI requests away from government departments and agencies and will set enforceable standards for departmental FOI officers to meet. The FOI Commissioner will be independent of government. The second step will be a review by the FOI Commissioner of the working of the legislation in the light of Queensland's FOI legislation. The Coalition is determined to change the culture of secrecy in government in Victoria by ensuring that the onus is put on Government to provide information about government decision-making in the public interest rather than on those seeking information to wrest it from the grip of government departments and agencies, motivated to conceal the workings of government."
A quick refresher on the 10 reported VCAT and Supreme Court FOI decisions on review applications by Mr McIntosh might also be warranted. The first  was way back in 2000, the latest for police rosters (still before the Tribunal) involved Supreme Court consideration of "substantial and unreasonable diversion of resources."

Friday, November 26, 2010

Disclosure of payments to pollies- improving, could do even better

Reports on entitlements paid by the Department of Finance and Deregulation during the period January-June 2010 for and of behalf of Federal parliamentarians and former parliamentarians, and overseas travel reports by parliamentarians were tabled yesterday and are available here. In the case of each individual, supporting data underpinning payments for all categories of expenditure except for office facilities are provided for the first time, extending even to the newspapers and magazines they're reading and supplies of photocopy paper. The Government is moving in the right direction on this, although it's been a slow journey and still has a way to go

Payments made by the parliament to and for parliamentarians, for example are outside the loop.

There is no mention of whether each parliamentarian signed off that expenditure was properly incurred. The last time the issue surfaced the monthly sign off rate was between 60-90 per cent and there were murmurings that recalcitrants would (sometime) be named. Not so far.

The Belcher report on entitlements and administration of the system that the Government has had since April has just gone off to a cabinet subcommittee- watch those press gallery boxes on Christmas eve.

We still are a long way short of a single site monthly online publication system for details of all payments and expenditure. Perhaps such a thing is only for Scotland the Brave- see the Scottish Parliament system.

As for public disclosure of payments to NSW state parliamentarians, and perhaps others, don't even ask...

From a quick browse of the overseas travel reports, a moment please for Barry Haase, the Member for Kalgoorlie as he headed for Singapore, China, Korea and Japan in April:
My original visit included a visit to Hanoi.The visit was cancelled on departure from Perth due to not having a visa to enter Vietnam.I had received advice that a prearranged visa was not required. Unfortunately I learnt on departing Perth from Singapore Airlines that a visa was required for North Vietnam (sic). The Vietnamese Embassy in Australia had proved impossible to contact, exacerbating the problem. I changed the hotel in Tokyo that had been booked after one night. This change was made due to the accommodation booked by the travel agent being grossly inadequate. The question of whether a refund will be available is yet to be answered. 
Things did get better after that...

Ponemon in Sydney next week

From the organisers:
The third annual iappANZ Australiasian Privacy Conference, to be held 30 November in Sydney, will focus on a key topic for privacy and IT professionals, "Silver Lining: The Privacy Umbrella of Cloud Computing." This one-day event will feature opportunities for debate, information sharing and discussion among professionals dealing with or exploring the "cloud" with keynote speakers, including Larry Ponemon, CIPP, and expert-led forums. Registration details here.

Accountability Roundtable digs out some answers in Victoria

Things moved during the week from one side talking in the Victorian election about accountability and transparency to all the parties being prepared to say something-when asked. Tim Smith QC chairman of the Accountability Roundtable, writing in The Age today said there is cause for hope about improvement regardless of who wins the election on Saturday, in the light of answers to questions posed to the parties. Hmm, on Freedom of Information reform the ALP is "open to further legislative reform and .. more than ready to examine the models adopted in Queensland and Tasmania." The other parties are more specific about changes that would bring Victoria closer to the emerging national standard. Other aspects are addressed in the responses including the Parliamentary Integrity Commissioner already proposed by the Government and ministerial codes of conduct.

Update: for an FOI-election story, or just due process, see Louise Milligan "FOI stonewall smells like political cover up."

Thursday, November 25, 2010

Foreign affairs and the challenge of open government

The Lowy Institute Policy brief on E-diplomacy by Fergus Hanson points out how the Department of Foreign Affairs and Trade could and should embrace internet technology in pursuing diplomatic objectives by improving internal debate, communication with stakeholders and public diplomacy through web presence, social media, blogs and wikis. Here's Hanson's three minute summary.

However this isn't simply a matter of getting with the digital revolution. The possibilities flagged raise issues that challenge culture and practice in an area where secrecy or at least caution about disclosure is close to the default position, and concern for foreign government sensibilities sometimes prevails over any public interest in our right to know.

The brief doesn't mention this cultural problem. Or the chilling effect on disclosure of Australia's hundreds of secrecy laws including s 70 of the Crimes Act which creates an offence to release information without authorisation.(There has been no government response to the ALRC report on this subject released in March.) It repeats a recommendation made in Lowy's ‘Australia’s Diplomatic Deficit’ last year that DFAT review "restrictive media guidelines with a view to making it much easier for staff to engage online." The necessary culture change will need more than that.

While it uses international peer comparisons with the US, UK and Canada to make the case that Australia needs to act or be left behind in this area, the brief also omits mention of the Australian context, which includes developments that promote the ideas it advances. For example the Government's Open Government Declaration, the embrace of Gov 2.0 generally, the Prime Minister's "let the sun shine in" promise, and changes to the Freedom of Information Act that require a more open attitude, government information to be managed as a national resource, and from May next year, more proactive publication.

Another factor that will challenge traditional attitudes is the more lively interest in Parliament in transparency generally. The Government has agreed to establish a mechanism for independent assessment of claims of public interest immunity. The Greens, Andrew Wilkie and Senator Trood for starters are all very familiar with bald, and usually uncontested claims that disclosure of information could be expected to harm international relations or national security.

The release of the Lowy brief followed on the heels of a speech by Minister for Foreign Affairs Kevin Rudd last week to diplomats past and present about the centrality of foreign policy to the pursuit of our national interests and the role and challenges for the foreign service in responding to changing times. E-diplomacy wasn't mentioned, although public engagement made it into the Minister's calls to arms: for DFAT to be:
"even better at looking beyond the horizon to identify new threats and new opportunities"...; to be able "increasingly to think outside the traditional foreign policy square"..; to cultivate "an institutional culture that embraces new ideas, that engages with the nation’s and the world’s best think tanks, with our leading universities and with both the business and NGO community"...; to be good at "sucking in the best ideas from around the world"..; and finally "both at home and abroad (engaging) in the great policy debates at home where the global dimension to these debates is both clear and critical."
Managing foreign policy and the conduct of international relations against the backdrop of changing attitudes to openness and transparency here and in the world around us (well not including North Korea, Burma and the like), will require a significant shift for DFAT, not to mention Defence, intelligence agencies and others with a stake in this.

Tone at the top, leadership, example, the ability to get the balance right between the need for secrecy, the maintenance of our relations with others and the demands for openness,  principlined consistency, and the capacity to explain actions satisfactorily all need to go hand in hand with the embrace of technology.

Hanson has given DFAT an insight into what might be. Creating the right environment is an essential first step.

Views expressed on this topic owe something to 14 years experience with the then Department of External Affairs, an ongoing interest in international affairs, and in open government.

Privacy issues when the police come calling

The report by Queensland Privacy Commissioner Linda Mathews following an own-motion investigation into police access to go-card data in the electronic ticketing system used in South East Queensland by Translink discovered no evidence of wrongdoing. Under the Information Privacy Act Translink had a discretion to respond by disclosing personal information to a law enforcement authority.  However when a request was made Translink had simply taken the police at their word. Although the Commissioner found all police requests were for legitimate purposes, Translink failed to satisfy itself on reasonable grounds as required by the act, that the disclosure was necessary:
• for the prevention, detection, investigation, prosecution or punishment of criminal offences or other breaches of the law, or
• to lessen or prevent a serious threat to the life, health, safety or welfare of an individual or to public health, safety or welfare.

Translink and Queensland Police have already made changes to procedures. The Commissioner makes a number of recommendations (Chapter 10) for further improving Police and Translink privacy practices.

I have a sneaking suspicion Translink is not unique in Queensland or elsewhere where similar laws apply for that matter. There may be a tendency in some agencies to be overly responsive to requests for information by the police that don't involve the use of their coercive powers, without adequate internal processes overseen by someone familiar with privacy law requirements.

Penchant for darting and weaving over secrecy

The issue of parliament's powers and the resolution of disputes over production of documents remains for another day, but the release of this summary of the NBN business case overcame the immediate hurdle to progressing relevant legislation through the Senate.  Michelle Grattan in The Age wonders whether the failure to do this days ago was government's natural penchant for secrecy or just plain arrogance.

ABC News
Minister Conroy on Lateline reiterated cabinet confidentiality, commercial in confidence and decisions still to be taken by the ACCC as the reasons. And as to any penchant for secrecy:

"TONY JONES: But who dreamt up the idea that minority MPs and senator would have to sign a seven-year confidentiality agreement to just get a briefing on this? This was like a comedy of errors. I mean, it started as seven years, it went down to three years, eventually it went down to two weeks. I mean, who was running this?

STEPHEN CONROY: I think there was some very eager officials in one of the departments that were very keen to ensure we had maximum confidentiality and once - and this was all happening over the weekend - once we were able to see what was being put forward, we agreed with the proposition that they were a little over-eager in terms of the time that they were seeking when the majority of this information would be available within a few weeks' time in December, as Julia Gillard made clear over a week ago: That we would be releasing as much as was not commercially sensitive and we've said this consistently: we would release this document, but the Cabinet has to consider it. But we've always said that we would release as much information as we could."

Wednesday, November 24, 2010

No worries, no hurry, on privacy reform

The Age has had a scoop over the last two days with reports about voter profiles held by the ALP in its Victorian campaign data base, which once revealed came as a surprise to those affected, although information about the systems and processes has been around for years

These systems to collect and use personal information in campaigns and other activities continue because the Privacy Act does not apply to registered political parties or to political representatives engaged in certain activities "in the political process."

The Australian Law Reform Commission 2008 privacy report recommended the exemption be removed:
41.54 In the interests of promoting public confidence in the political process, those who exercise or seek power in government should adhere to the principles and practices that are required of the wider community.
But don't hold your breath about a government response to this, or to other recommendations for the removal of the exemption enjoyed by businesses with turnover of less than $3 million ( relevant to this week's report about workplace spying), the changes to the conditions for continuation of the media exemption from the act, for a data breach notification requirement (relevant to this report of Telstra's woes), or a raft of other important issues that the government has had for over two years. All these are for a second or third phase response to the report somewhere down the track. We're only up to phase one, the referral of a set of uniform privacy principles to a parliamentary committee in June this year, after some tweaking of those proposed by the ALRC. The Committee is to report on this aspect by the end of the second sitting week in 2011.

The Minister for Privacy and Freedom of Information Brendan O'Connor was quoted by The Australian on the workplace spying issue as saying due to the complexity and sensitivity" of relevant ALRC recommendations, the government wanted to "consult extensively." 

Last month the Minister said privacy reform won't be rushed, outlining a timetable for finalising legislative action on privacy by the middle of 2012- six and a half years after the ALRC was asked to review the law.

One of these days....

Tuesday, November 23, 2010

One side talking about transparency in Victorian election

From this distance at least transparency and accountability and related issues don't appear to have been at the centre of things in the Victorian state election campaign, to finish with elections this Saturday. The ALP after 11 years in office seems content to say nothing about governance-the record to speak for itself, so to speak. Draw what you will from that.

The Opposition attracted attention this week with plans for an independent commission against corruption, but has been on about this since 2007.(Baillieu calls for anti-corruption commission.)

The party's policies include other integrity commitments for example regarding lobbying and plans to strengthen FOI with an independent commissioner. The commissioner's role would include all first stage reviews, to replace agency internal review, a step further than other jurisdictions such as the Commonwealth and NSW that have this optional prior to an application to the Information Commissioner. The policy announcement made a year ago doesn't refer to a long overdue comprehensive review of the act but hopefully if the Opposition gets there on Saturday the good sense in looking again at a 1983 act based on the now much amended Commonwealth act and labelled 'horse and buggy' will be obvious.

And while the Greens have these sort of issues nailed prominently to the mast in campaigns elsewhere, not a word on the subject in their published policy collection.


Monday, November 22, 2010

The Senate pursues the PM's "let the sun shine in" promise

 Thadius856 & Parutakupiu via Wikimedia Commons
We can expect more on public interest immunity as the week progresses, but there are three issues in play in disputes over the production of documents in response to senate orders:

. the Australian Information Commissioner's opinion that without legislative amendment he has no powers to investigate or report on a government refusal to produce documents in parliament. His letter in response to a senate resolution requiring action by him was tabled on 15 November- but is not online. The legislation  certainly doesn't envision such a role. Senator Cormann in debate on 15 November, and perhaps the Clerk of the Senate have another view;

. the government failure to date to produce the NBN Co business plan- see last Thursday's debate; 

. and going back a little, the Government's failure to produce documents concerning the mining tax. Senator Cormann last week summarised the outstanding matters:
"The Senate passed three orders of the Senate on two occasions. They were broadly around three issues. They were around the issue of assumptions that were used by the government to estimate the revenue from the original mining tax, the RSPT, and from the revised mining tax, the minerals resource rent tax. In a separate order we sought details on the secret negotiations and deal entered into between the government and BHP, Rio and Xstrata. In a third motion we sought information about how much of the mining tax revenue would come from individual states and territories and how much would come from respective commodities. It is important to note here that Treasury took questions in relation to this on notice on 5 July at a hearing of the Senate Select Committee on Fuel and Energy and to this day these questions remain unanswered."

There are also references to failure to disclose documents concerning the Building the Education Revolution program, although it's unclear whether this was the subject of a senate resolution.

UpdateThe Senate on 22 November passed  a motion by Senator Cormann ordering the Australian Information Commissioner to reconsider his position to not report to the Senate on the Government's failure to produce documents relating to the mining tax.The Government opposed the motion. Senator Ludwig said the Prime Minister had asked her department
"to examine the issue and advise on possible options for implementing the agreements (with The Greens that the Commissioner be given such a role.) Once that advice is received, the government will progress this initiative. If the Australian Information Commissioner is to have this function, it is necessary and appropriate for the functions, powers and protections that would accompany it to be stipulated in legislation."
Thanks to Open Australia for the Hansard links.

Friday, November 19, 2010

Dispute over tabling NBN document a harbinger of things to come

The stand off between the Government and the Senate (and one narrowly avoided in the House of Representatives) over the tabling of the NBN business case isn't the first and won't be the last where claims of public interest immunity arise in this parliament. In this case the Opposition has had an easy run in making the refusal to date sound hollow, given the drip feed approach to disclosure of detail since the proposal was announced many moons ago, and disputes since. However a refusal to table a document prepared for submission to cabinet is a well established public interest ground for refusal, in contrast to broad, claims that lack specificity concerning the public interest involved. While the need for proper cabinet consideration has been thrown around as the reason for refusal this week, it remains to be seen whether the Government responds along that line or resorts to the much less precise "highly sensitive and commercial in confidence" claim by the NBN CEO.

If the Government claims public interest immunity, regardless of the grounds that's the end of it under existing arrangements unless the Senate itself takes action to deal with a contempt by a senator/minister.

The prospects of a scheme to deal with a refusal to table documents in response to an order of the Senate, or to deal with disputed claims, by reference to an independent arbiter were dashed in February when the Government and the Opposition voted against. Back in those pre "new paradigm" days Senators Xenophon and Ludlam were left to champion the cause in a dissenting report, to little effect.They have more clout these days, even more in the next Senate from 1 July next year.The issue didn't get a mention in the post election Government-Greens agreement or the agreement with the House independents.(Correction: clause 3(e) of the agreement with The Greens states:"Refer issues of public interest disclosure, where the Senate or House votes on the floor against the decision of a Minister, to the Information Commissioner who will arbitrate on the release of relevant documents and report to both Houses.) It was raised in the Senate this week where Senator Ludlam said: "We will be moving very, very shortly to make sure that that agreement is put into effect.."

Wednesday, November 17, 2010


There is now a subscribe by email option on the sidebar to add to the existing RSS feed choices. And talking of readers (well, looking for an excuse for a little skiting really) the National Library of Australia contacted me yesterday seeking permission to include Open and Shut in the PANDORA Archive that provides long-term access to online Australian publications.

Tuesday, November 16, 2010

Norfolk islanders still waiting

Plans to do wonders for the governance of Norfolk Island have been kicking around since May last year, when there were suggestions the territory was bordering on "failed state" status. Debate on the Territories Law Reform Bill to achieve change resumed in the House of Representatives yesterday. The Opposition points out that a local administration geared for a community of 1500 or so could get by with something a bit simpler than the full force of federal freedom of information and privacy laws. Wait for it-debate was adjourned. (Update: the House passed the bill without amendment.)

Shield law for quick Senate committee inquiry

The Senate yesterday referred the shield law bills to the Legal and Constitutional Affairs Committee for inquiry and report by 23 November. The hope is still to get this through before the parliament rises. Senator Brandis hopes it will facilitate passage of both bills in a harmonised form. On the definition issue, The Greens Senator Ludlam said "journalists who work on a voluntary basis—the citizen journalists, the bloggers, the independent media collectives and so on—also need the protections afforded by this bill." The privilege "should not rest on whether or not your work is paid... The test that we are looking for is whether or not it is in the public interest for the source to be protected.... My reading of the bill is that it would extend the protection in this way, but we are seeking to lay that ambiguity to rest." Senator Xenophon said "the reference in the definition to that person’s work does not seek to define a journalist as someone who is paid; rather it is to distinguish those who are making one passing comment, from someone who is engaged and active in the publication of news. I think there is a clear distinction between the two. (The Wilkie bill Explanatory Memorandum was the source of the problem as pointed out here.)

Apart from this, other issues raised in that bills digest weren't mentioned- but the Committee has a couple of days to reflect.

NSW ICAC proposes more transparency for lobbying activity

With the NSW Government in something approaching pre-election clean up mode the wide ranging changes proposed to lobbying regulation in this report from the Independent Commission Against Corruption may strike a chord. SBS reported the Premier as saying she will seek advice on the report, Opposition leader O'Farrell welcoming support for his plan to abolish success fees, the Greens in favour and-no surprise- one of the main business lobbies against.

The report stands in contrast to the weak proposals floated in June by then Federal Minister of State Ludwig for lobbyist reform that kicked off, after a round table with lobbyists, with the idea that lobbyists needed a professional association, proposals overtaken to some extent by the post-election agreement with the independents, but yet to crystallise. I imagine lobbyists are meeting as we speak to advance that idea, with arguing the toss about these ICAC proposals a high priority.

An unusual feature of the report that a lobbyist would be quick to point out is that it makes much of the potential for corruption and the need to manage risk, but its own inquiry did not seek to examine or in fact uncover any instances in NSW, and refers only to Western Australian, US and UK examples.

The Commission finds that "lobbying is not only an essential part of the democratic process but that it can positively enhance government decision-making." However a lack of transparency in the current lobbying regulatory system "is a major corruption risk, and contributes significantly to public distrust. Those who lobby may be entitled to private communications with the people that they lobby, but they are not entitled to secret communications," the report says. "The public is entitled to know that lobbying is occurring, to ascertain who is involved and, in the absence of any overriding public interest against disclosure, to know what occurred during the lobbying activity.

Other corruption risks cited are inadequate record keeping, involvement with political fund raising, gifts and benefits, difficulty of access, former public officials acting as lobbyists, exploitation of privileged access and payment of success fees.

The shake up recommended involves widening the registration requirement to cover all third party lobbyists (but not in house staff) and "Lobbying Entities" including industry associations, trade unions, employer groups, religious and charitable organisations, and corporations that employ staff or have board members who lobby on their behalf; making information about lobbying activity "open access information" under the GIPA act, and a new role for an independent government entity, such as the NSW Information Commissioner to monitor the scheme and impose sanctions where necessary. 

These principal features of the proposed scheme are from the Executive Summary:

Monday, November 15, 2010

Journalists run rings around the professions to protect confidential relationships

It will be interesting to see if debate in the Senate on a shield law for journalists picks up on the detailed analysis of the Wilkie and Brandis bills by Kirsty Magarey of the Parliamentary Library in this Bills Digest published last week. (PDF 338KB). The paper provides the background to these initiatives and notes:
"The Wilkie Bill continues successive governments' failures to attend to the needs of  professionals other than journalists. There would seem to be no justification given as to why doctors/ counsellors/social workers et cetera are not having their need for a protected confidential relationship recognised. There have now been four Bills attending to journalists' privilege but only one, the Brandis Bill, has given the general professionals' need for confidentiality any attention."
The Wilkie bill has passed the House of Representatives. The Brandis bill has not been debated (but there was a second reading speech on 29 September.)

The paper points out that the bills are identical in their effect with respect to a rebuttable presumption of journalists' privilege, but notes neither "offers a particularly rigorous definition of journalism" and would extend privilege to "all employed journalists working in all forms of news media, a definition that would encompass the efforts both of investigative journalists and gossip columnists."  While the bills provide for a person to seek an order that the identity of an informant be revealed in certain circumstances the paper says the heavy onus involved "will apply whether the piece is a less edifying article or whether it is an investigative piece making the weighty contributions to our democratic system which journalists can make."

It also notes
"The repeal of provisions recognising the significance of illegality/misconduct leaves the Courts  with less guidance in exercising their reserve discretion to prevent the presumptive exercise of the privilege."
The Brandis bill broadens privilege (at a lower level than that afforded to journalists) to   (undefined) professionals who are in a position to accept and keep their clients confidences, in line with recommendations in law reform commission reports in 1985 and 2006, and Federal-state agreement on uniformity in evidence acts. The paper says that taking the step to address this issue " would also provide evidence that despite the fact Parliamentarians and journalists necessarily have a close relationship, legislators interests are broader than simply addressing the need to protect journalists."

Update: later developments here

Many NSW disclosure logs yet to disclose anything at all

 Some journalists are concerned about losing the exclusive right, even for a brief period, to information obtained through the hard slog of a Freedom of Information application. The concerns arise as a result of the (coming in May 2011) Commonwealth requirement for an agency to post on the web within 10 working days documents released in response to a formal application under the Freedom of information Act-see here for an earlier comment. Australian Information Commissioner Professor John McMillan told Peter Mares on ABC National Interest this week that he understood the point that FOI works best when active journalists use the act. It was a difficult issue to resolve but the 10 day stipulation provided a way to work around the problem.

Experience in NSW, four months into the NSW GIPA act, has resulted in no apparent fuss about the way a similar but narrower requirement is working. The act states that an agency must publish on the web a disclosure log containing information about access applications where what is provided to the access applicant is "information that the agency considers may be of interest to other members of the public" (s 25).

As there is no reference to a time requirement in the NSW act perhaps information isn't being posted until well after it has been made available to the applicant, thus removing the potential  problem for journalists. Something of consolation to hard working scribes, or their employers at least, is that the applicant is entitled to full waiver of processing charges if information is made publicly available three working days before or after access is given to the applicant- s 67.

Other reasons may be that use of the act is low, or what has been requested and released isn't of interest to other members of the public, at least in the agency's judgment. Or heaven forbid, some agencies aren't compliant.

A quick survey of major state government agencies shows as at 12 November that it's very slim pickings out there, with the disclosure log in many key agencies containing no information at all.

"New disclosure czar hits ground running"

You can hear Peter Mares (with some FOI experiences of his own) in discussion with Australian Information Commissioner Professor John McMilllan on this week's ABC Radio National  National Interest. Here's my summary of points of interest.

Professor McMillan is upbeat about the prospects for lasting and effective open government reform, and says he's struck by the positive response from his hundreds of meetings with senior agency executives. Three factors make for real change this time- independent oversight through his office, strong government support, and the extent and force of the FOI reform wave in this country and elsewhere.

In response to a question about public servants still facing criminal prosecution for any unauthorised disclosure, Professor McMillan said a proper open government package needed more than FOI changes, and referrred to the "excellent" report on the review of secrecy laws from the Australian Law Reform Commission still waiting a government response.

Stronger adoption of electronic records management was essential to making the law work effectively.

Professor McMillan acknowledged that in the past agencies had been prepared to refuse access often on shaky grounds, putting the applicant to the test to take the matter further through a costly Tribunal process. This will be less likely now with review available free of charge from the Commissioner's Office. The Commissioner said the office discourages legal representation- that's a good thing as in the Tribunal agencies are usually well represented and aggrieved applicants often on their own.

Friday, November 12, 2010

Information warrior still turning up hidden gems

Photo:Steve Christo-Roden left.
Excuse the segue-but I expect quite a few readers will recall David Roden who did a terrific job as the first and only Director of the Freedom of Information Unit in the Premier's Department 1988-1991. Roden was responsible for getting FOI up, running, and off to a positive start in NSW, before the Unit was disbanded and a long leadership drought at the centre of government, only recently broken, ensued. He went on to occupy senior positions in the Department. Now retired, Roden is a volunteer war memorial spotter, aiming to catalogue Australia's many and varied memorials and the names that appear on them. He featured in "Tributes hidden but not forgotten" by John Huxley in the Sydney Morning Herald on Remembrance Day.

500 Freedom of Information applications behind top science journalism award

The only Australian angle on this is that the Walkley Award nominees who know their Freedom of Information law have a lot in common with Charles Duhigg of the New York Times. Duhigg is the winner of the  2010 American Association for the Advancement of Science Kavli Science Journalism large newspaper award for his "Toxic Waters" series, an investigation into the quality of American waters and the enforcement of environmental laws.This from First Science:
"As part of his reporting, Duhigg reviewed hundreds of scientific papers and spoke with dozens of researchers. He filed more than 500 Freedom of Information Act requests, built his own database, and ran thousands of queries to search for patterns in the data." 
That's worth some sort of FOI award as well!

Apart from this recognition, the Toxic Waters series has received The Scripps Howard National Journalism Award, the Investigative Reporters and Editors’ Medal, the National Academies’ reporting award, the investigative reporting award from the Society of Environmental Journalists, the 2009 Science in Society Journalism Award, as well as recognition from the Society of Professional Journalists, the Deadline Awards, the Society of American Business Editors and Writers, the Loeb Awards, and the John B. Oakes Awards at Columbia University.

I'd be interested in hearing from anyone who has had success or failure in seeking access to data held in databases under Australian freedom of information laws.

NSW makes a welcome start on political donations

Election campaign finance reform in NSW has moved forward with the passage of the Election Funding and Disclosures Amendment Bill yesterday. Much of the media attention has been on the ban on political donations, agreed at the last minute, placed on the alcohol, tobacco and gaming industries to go with the existing ban on donations from developers, and caps for donations and expenditure.There's more to it than that: for a summary see the Premier's Media Release: NSW – first in the country to reform election funding, or for all the detail, the 59 pages of amendment legislation, and the parliamentary debate.

While the changes are as Greens MLC John Kaye puts it a "solid step forward" and the caps on donations (maximum $5000, with identification of donors of more than $1000) reduce to a degree the importance of public disclosure, it's no step forward on that front. In fact it's a step backward. Reporting of donations to the electoral authority is currently required for the six month period to 30 June and 31 December each year (s 89). The Authority is required to publish on its website the disclosures of reportable donations and electoral expenditure "as soon as practicable after the due date for the making of the disclosure" (s 95). 

The amendment bill removes the six month reporting requirement and substitutes a 12 month reporting  period ending on 30 June. No change has been made to the requirement for publication of reportable donations on the web as soon as practicable after lodgement. So while the legislation removes some of the smoke (no pun intended) we're still a long long way from anything close to continuous disclosure of donations. Or knowing at the time NSW voters vote next March who has kicked the can for candidates and parties. All that will be revealed "as soon as practicable"- and well after 30 June.

Thursday, November 11, 2010

Different strokes..

In writing about access issues concerning performance review information earlier in the week, I was bissfully unaware that in Illinois this is a current bone of contention between the state legislature and Governor Pat Quinn. A  bill to exempt personnel evaluations of all government employees from public scrutiny under the Freedom of Information Act was passed earlier in the year. The Governor vetoed the bill, exempting municipal and state police evaluations, but leaving others open to FOI scrutiny. Moves are underway to attempt to override the veto to restore the blanket exemptions. Some in the media thunder:
To assert that members of the public have no right to any information pertaining to personnel evaluations is contrary to the principle of open government. Some unionized state employees, for example, were guaranteed they wouldn’t be laid off for at least two years. The notion that we shouldn’t be able to see how they’re performing their jobs to assess the wisdom of this agreement is outrageous.

Update: thundering didn't help- both houses voted to overturn the veto.

Ministerial advisers unaware of changing times

The Open Government Declaration, and the message about routine disclosure being pushed by Australian Information Commissioner Professor John McMillan may have gone unnoticed to date in ministerial offices. From Crikey today (emphasis added). Refusing to provide details of who works for who is old order nonsense.
This morning Business Spectator (subscription) launches a first for Australian political reporting: a guide to the government’s ministerial staff -- the faceless people behind those who run the country. It was surprisingly hard to get this information. The men and women who work behind the scenes advising ministers and devising their policies, dealing with journalists, lobbyists, business people and bureaucrats, writing their speeches and generally picking them up and dusting them off when they fall down, definitely prefer to remain behind the scenes. Their bosses prefer that too. As a result, all governments’ ministerial staff generally remain unknown to those outside Parliament House, even though they are, in many ways, the heart of the government, responsible for the policies and politics of the ministers who front them. Most of the ministerial offices refused to co-operate with us, so we had to work behind the scenes ourselves. It took a few months, but we have now come up with a full list of ministerial staff and advisers.

Timely external review a problem in the west

The Western Australian Information Commissioner's Annual Report 2009-2010 naturally enough has a lot more on the subject. As previously indicated in his review report   the Commissioner says complaints received in the office are unlikely to be resolved in less than six months, in contrast with the one month timeframe envisaged in the act. On current projections the Commissioner says "it is unlikely that this will have improved by next year, despite the various steps taken by my office to improve efficiency and output."

The Office received 125 complaints (and 19 other applications under the act) during the year. The break up suggests a rather different complainant profile than elsewhere: 60 from individual citizens, 21 from members of parliament, eight from non profits and just one from the media.

The number of access applications made to agencies under the act has steadily increased, from 3,323 at the end of the first full financial year of operation (1994/95) to 12,994 in 2009-2010. Western Australian Police topped the list with 2,198 - an increase of 19.0% from last year- with the next highest, two public hospitals (in total 2700), and another 4,060 received by various other health service providers (hospitals, health services and the Department of Health). (Western Australia doesn't have an information privacy act.)

The Commisioner's report includes the following performance indicators. From memory they have been standard for years. As the roles of our information commissioners vary to some extent, so too will performance measures to some degree, but the subject  and comparative performance warrants discussion and debate
Satisfaction of parties with review processes: 84% (down from 91% last year but consistent with earlier years), based on responses to a question in the Post Review Questionnaire sent to the parties in every matter. No results are published for two other questions mentioned in the report: "Do you consider that you were kept adequately informed regarding the progress of your case?" "Was the officer assigned to your case professional in his or her dealings with you?"

Satisfaction of agencies with advice and guidance provided. Score 98%, the same as previous years, also based on responses to a survey.

Extent to which complaints resolved by conciliation (this being one of the aims of the review scheme): 56%, down on previous years but explained by a decision by the Commissioner in 2009 to limit the time spent pursuing conciliation before moving to formal determination.
formal determination of complaints.

Average cost of reviews finalised: $7426.

Average cost of advisory services delivered per recipient: $176

Commonwealth Ombudsman brief on FOI.

The Commonwealth Ombudsman's Annual Report 2009-2010 has one page (83) on the 137 complaints received on Freedom of Information matters, a small number in comparison to the total number of 38000. "As with previous years, the majority of (FOI) complaints were about delay, the imposition and remission of fees and charges, and decisions that were not well explained." The baton-stick?- has largely changed hands from 1 November with the establishment of the Office of Australian Information Commissioner.

Wednesday, November 10, 2010

"We want to be the most open and transparent government in the world"

We've heard quite a few ambitious claims like this, but this time the message is from the UK Government as 10 Downing St launched its Transparency website yesterday. The site includes search facilities to access agency business plans that cover the next four years including data such as financial information, Structural Reform Plans and departmental priorities; find details of who ministers and ministerial advisers are meeting, and hospitality, gifts and overseas travel; who does what in Whitehall and what they're paid; and performance information on efficiency and effectiveness of policies and programs. More is promised. The PM, Deputy PM and head of the civil service all showed up for the launch.  Any Australian government in the running?

Tuesday, November 09, 2010

The case of the council manager's performance review-and sundry others.

A number of recent decisions on Freedom of Information issues of direct relevance to local councils, and perhaps of interest to a wider audience are noted in this post.  The NSW  Administrative Decisions Tribunal decisions concern the Freedom of Information Act, repealed and replaced by the Government Information (Public Access) Act from 1 July, but the "tail" of matters before the Tribunal is continuing.

The NSW decisions concern documents relating to the performance review of a council general manager, disclosure of documents relating to the engagement of recruitment consultants, disclosure of details of council staff education and qualifications, and credit card expenditure by councillors and staff. In Western Australia, the Information Commissioner considered issues concerning disclosure of a transcript of tape recording of a council meeting despite a councillor's submission that it contained personal information, and shouldn't be released, and the status of an elected person as "an officer" of the council. Decisions should be read against the particular facts, and bearing in mind access laws differ in the various jurisdictions.

Monday, November 08, 2010

If you're reading this you're interested in Gov 2.0 but you're not from Customs.

Last week's Cebit Australia Gov 2.0 Conference in Canberra was the subject of these reports of proceedings and related interviews. In addition to lots of positive comments about how things are going, the possibilities for the future, and the constant refrain of the need for culture change, were these tidbits of particular interest (emphasis added):

IT news- amid all the talk about new tools, Customs says even accessing a site that looks like a blog is out:

"Mia Garlick, assistant secretary for digital economy branch DBCDE shared some cautionary tales on the path to open government thus far. Stressing she was not speaking for her Department but in a "personal and professional capacity"........ she discussed the recent case of Customs prohibiting staff from accessing Open because it was classified as a blog and posed a threat to Customs' border and protection network. "Firstly Open Australia is not a blog," Garlick said. "It is actually an amazing example of Gov 2.0 in this country. It takes Hansard - which is very clunky and it repackages it into a searchable and easy to access form and it allows you to sign on for email alerts whenever your issue is mentioned in Hansard records. "That seems to me to be a useful and essential tool to those that work in Government." Garlick also questioned how a blog could be classified as a security risk. "Is anyone here from Customs Service in this room?" she asked. "You probably don't know that there are other blogs out there. Some of those blogs for example are the Whitehouse, another is the Department of Finance, my Department has a blog. There are lots of people are now using blogs."

ARN interview with Minister Gray, reveals he's a busy man, and:

"I mentioned Reinecke’s report (on progress on IT reform) and that was commissioned quite a few months ago. It needs to be made public and the deliberations around it need to be publicly ventilated. My personal view is that that’s a more valuable contribution than me talking to a whole range of people I also have a fundamental view that when the Government produces a substantial piece of work with insights into how we do what we do you can only get value out of making them available to the public. That’s why Ian’s report will be released."

Government News: a reminder from the UK that Gov 2.0 is not just techo territory:

"Andrew Stott director for transparency and digital engagement in the UK Government’s Cabinet Office delivered the international keynote address. The so-called “twittercrat” said it was more important for governments to focus on openness and releasing data sets, rather than Web 2.0 tools. “It’s not an IT project,” Mr Stott said. “This is not a technocrat activity. This is about increasing the transparency of government.” Mr Stott stressed the importance of political backing for Government 2.0. “Leadership is not just something you need from your CIO,” he said. “It’s political leadership and leadership from the top of the organisation. “You’ve got to have consistent policy principles and use those to make tough decisions.”

 Computerworld: just who is doing what and why:

"According to IBRS advisor, Guy Cranswick, while it was positive that governments were opening up and communicating with the public, the motivation was not greater transparency of government. “It is all very well government doing this, but to a large degree they are really satisfying their own internal constituencies and stakeholders — other people and agencies around the world,” Cranswick said. “ “I am not that convinced that the general public is that involved in [Gov 2.0] and that it has been executed that well.”

RBA disclosure to one, to all

As Sean Parnell reports in The Australian today, the Reserve Bank appears to be the first Commonwealth agency to introduce a "disclosure log" ahead of the Freedom of Act requirement that commences on 1 May, posting this notice on its website:
"In keeping with the intentions of the Act, and the Government's policy objective of enhancing a culture of disclosure across agencies, the Bank's policy generally is to release (via this website) documents provided to applicants in response to FOI applications. Such releases will be made publicly available at the same time as documents are released to the applicant. Facilities to inspect documents to which access has been granted are available."

Friday, November 05, 2010

Australia missing from survey of budget transparency

I had not heard of the International Budget Partnership until I came across references online to the Open Budget Survey 2010. IBP works with civil society and other groups "to make budget systems more transparent and accountable to the public." They believe that "the public has a right to comprehensive, timely, and useful information on how the government manages public funds." Their experience shows "that when ordinary people have information, skills, and opportunities to participate, broader public engagement in government budget processes can promote substantive improvements in governance and poverty.
So to the Report on the 2010 survey of 94 countries, 74 of which fail to meet basic standards of transparency and accountability in their national budgets: not a word about us. While developing countries are the main focus, and South Africa received the highest score, developed countries we would compare with such as New Zealand (2nd), United Kingdom (3rd), France (4th), Norway (5th) Sweden (6th), the United States (7th), Germany(12th) all feature in the top two categories.

There is no link to any Australian group, think tank or academic centre that looks at these issues. Surely not a true indication of interest and expertise? A volunteer before 2012? (In NZ it's Transparency International.)

I'm sure we would come out of such an assessment fairly well, but it's a reminder that the Federal Government's budget initiative Operation Sunlight may still have a way to go and that some who look closely at these things find major flaws in transparency claims for example concerning the Defence budget.

Those in Canberra who manage Australia's aid should find plenty of material of interest in the report and its recommendations.Countries in our region that receive significant Australian aid and are in the third of five categories (Some information but fail to meet the basic standard) include Papua New Guinea, Philippines, Indonesia and Thailand. Malaysia, Pakistan, Timor-Leste and Afghanistan ( a significant improver since 2008) are in category four, Minimal. Cambodia, Vietnam, China are in Scant. Fiji (not on our books these days) is in the small No information group.

Here is just one aspect of transparency covered in the Report:
In 68 of the 94 countries surveyed, legislatures do not organize any public hearings at which the public is given an opportunity to testify on the budgets of individual ministries.(Come to think of it, neither do we.) Further, in 35 countries included in the Survey, all legislative budget discussions involving the executive are closed meetings; the public is excluded altogether from observing these meetings, even if they are committee hearings, and no public record of the meetings is provided. In 36 countries, only a few such discussions are open to the public.

Chief Justice reflects: admin law has come a long way in 40 years

In his Garran Oration 2010, Public Law and the Executive, delivered at the Institute of Public Administration Australia National Conference in Adelaide recently, NSW Chief Justice James Spigelman examined the growth and development of the law in Australia concerning the exercise of executive power. The address includes observations about the interpretation of the Commonwealth constitution, and the constitutionalisation of administrative law. The Chief Justice points to some surprising possible flow on effects to amendment of state constitutions that with hindsight might have rendered the abolition of the Queensland upper house of parliament unconstitutional. Much of the speech is devoted to the jurisprudence of judicial review of executive action and the proper role of the courts.

The Chief Justice reflects also on his first public foray into the world of government secrecy in a paper delivered to a conference in January 1972, his first book Secrecy: Political Censorship in Australia, published later that year, and the prominence it gave to the case of the late Detective Sergeant Arantz.

Arantz had leaked a research report on the incidence of crime in NSW that conflicted with the Government's public version of events, to be hounded out of the Police Force as a result of his public spiritedness, and with a politically influenced psychiatric assessment hanging over him to boot. (This post  on Arantz, and the book, was written last year on the death of Basil Sweeney, the journalist who broke the story.) As the Chief Justice observes:
The treatment that Phillip Arantz received is inconceivable today. The institutional structure has been transformed. I refer, for example, to Freedom of Information legislation, Whistleblower legislation, the Ombudsman, ICAC, Corruption Commissions, Integrity Commissions, Statutory Inspectorates and the enhancement, especially through Committee processes, of the efficacy of the ultimate accountability institution, the Parliament. These new mechanisms for ensuring the integrity of executive decision-making, have been reinforced by statute and by development of the common law, in the form of the invigoration of administrative law. This has been, in my opinion, the most significant judicial development of the law in my legal lifetime. We now have a vigorous set of institutions, principles and practices much of which have been conferred or extended by legislation, to reinforce the integrity of governmental activity.
Thank goodness.

NSW Information Commissioner takes GIPA on the road

NSW Information Commissioner Deirdre O'Donnell and her staff are to be commended for efforts to improve awareness of information rights through a series of roadshow presentations, first in regional centres and more recently in suburban Sydney locations for government employees, NGOs, members of the public and the media. Sessions are still to be held at Campbelltown, Bankstown, Parramatta, Hornsby and Castle Hill-details here if you are interested (program). Nothing scheduled for the CBD, perhaps reflecting the fact the top end of town has never shown much enthusiasm for the topic beyond self interest.(Update: business should be interested even on that score because as pointed out here, the new NSW law includes some changes of direct relevance. And on page 2 of the program there are details of two sessions in the CBD scheduled for March 2011, along with others at Chatswood, Gosford and Katoomba.)

The Office-leading from the front in the pro-active disclosure stakes- has also published Review report: Right to Information Roadshow - regional, Oct 201 providing an overview, costs and lessons learned from the first 11 workshops held in regional locations outside Sydney. Total attendance was 696: about 600 from government agencies and what looks like a rather disappointing public turnout, none at one session and single figures at another six sessions. There is no breakdown of who showed up. Getting citizens interested in their rights, and participation in government processes is a tough gig, and requires a range of ongoing initiatives. I wonder if government agencies did anything to bring the briefings to the attention of locals? That might have helped spread the word. And whether scheduling sessions for business hours on weekdays necessarily excluded a segment of those who might be interested?

Good on the Commissioner for this first go (and for publishing the review report). From the feedback 91% of attendees were highly satisfied. An additional bonus was media exposure through interviews with local papers, television and radio. There's still time for Sydney folk to make it.

Thursday, November 04, 2010

Broadband, Communications and the Digital Economy releases Red book: No 5

This is obviously going to be a long haul. Following a Freedom of Information application The Australian has obtained the incoming government brief from the Department of Broadband, Communications and the Digital Economy. The Department is yet to publish the brief. (Update: redacted brief published around 16 November.)

NSW whistleblower protections welcome but short of "world beater" class

The Protected Disclosures Amendment (Public Interest Disclosures) Bill passed all stages in the NSW Parliament on 27 October. The legislation implements most recommendations arising from a review undertaken by a parliamentary committee in 2008 that found the whistleblower law, apart from its shortcomings had been orphaned to the extent it was difficult to ascertain how effective it had been, if at all. The Committee reported in November last year. Opposition speakers were right to lament the slow process. Some minor Government and Opposition amendments to the bill as introduced were agreed to during Assembly debate on 21 October. 

There are many good features in the legislation, including an Australian first in including a reference to a government information contravention as wrongdoing, but in some respects it doesn't match the "world beater" standard of recent Queensland legislation  according to Professor A.J Brown, one of Australia's leading experts in this field, particularly circumstances in which protection is extended to disclosure of wrongdoing to the media. The National Secretary of Whistleblowers Australia was reported as saying " they’ve fiddled around at the edges of the legislation and in the end have set up systems that have a lot of room to do nothing."