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Wednesday, August 31, 2011

DFAT Red book released just ahead of first anniversary

As new WikiLeaks cables concerning Australia or Australians make the news, interesting to see that a redacted version of the red books prepared by the Department of Foreign Affairs and Trade in September 2010 for the incoming government have bobbed up in the department's disclosure log. It's a welcome if remarkably long time coming addition to public knowledge, and a shift from last January when the department was holding firm to the need for secrecy for a brief classified SECRET AUSTEO.

Tuesday, August 30, 2011

The public interest in knowing what happens in the kitchen

Transparency and food safety and hygiene standards are in the news in Queensland and the ACT.

Wikimedia Commons-Takeaway
Queensland Right to Information Commissioner Mead decided it would not be contrary to the public interest to release a 2007 Improvement Notice and an accompanying assessment report with photographs relating to a food  business that had failed an audit under the Food Act, despite objections by the business concerned. In the ACT consultations are underway about a ‘scores on doors' system, and a proposal (that doesn't sound such a big deal) to list names of food businesses convicted of an offence against the Food Act on a publicly available register.

Confirmation: fifty cents a mere trifle

 "The law does not concern itself with trifling matters" certainly doesn't appear at the bottom of those lawyers' invoices detailing chargeable hours, much as the client might hope, but the notion surfaces in the courts from time to time- as "de minimis non curat lex" of course. Tribunal Member Norton in a Freedom of Information case in the Victorian Civil and Administrative Tribunal had resort to this maxim, and the principles of statutory interpretation, in ruling that an application in which the applicant had underpaid the FOI  fee by fifty cents was nevertheless a valid application.

In Keating and La Trobe University [2011] VCAT 164) Mr Keating had sent a cheque with an application to the university for $23.40, instead of $23.90, the amount specified in the act and regulations.Ten days after the application was received, the University wrote confirming receipt of the request and that it had "chosen to waive the balance of the fee in this case." The applicant subsequently sought review by the tribunal on the basis of a deemed refusal of the request, 45 days having passed since the application was received by the University. The University argued the tribunal had no jurisdiction because no valid request was received until the full fee was paid, waived or reduced.

Monday, August 29, 2011

NSW Privacy Commissioner

Attorney General Greg Smith last week announced the appointment of former long time state public servant Dr Elizabeth Coombs as (part time) NSW Privacy Commissioner for a period of five years from November. Acting Commissioner John McAteer will stay on as full-time Deputy Privacy Commissioner. Dr Coombs will be the eighth appointment as head or acting head of the commission since 1999. Despite the efforts of McAteer and some of his predecessors privacy in NSW badly needs increased policy heft, stronger leadership and closer attention to government agency privacy practices. Best wishes and good luck.

Sunday, August 28, 2011

Tasmanian FOI academic shorn of prize

Photo:Morgan Barnsley
You could win money asking FOI types who this is-but Rick Snell pictured with his daughter after his first shave on Saturday in 16 years wants any proceeds, or what you can spare to go to the Sandy Duncanson Social Justice Fund.  Rick raised close to $25000 on the proviso he meet up with the razor. As to what he will look like next time you see him...

Friday, August 26, 2011

Freedom of information and corporate Australia

WikiMedia Commons-OSX
The last two posts show tobacco interests use freedom of information legislation, and fight a knock back in these instances at least, but little is known about use of access to information laws by business generally. The top end of town, for over 30 years, has  seemed to be more concerned about the possibility that information about corporate affairs, in government hands, might be released to others, than in broader issues concerning rights of access. It has generally been missing in action from public discussion and debate about good government issues, openness and transparency standards included. As to use of FOI, Ian McIlwraith in today's Sydney Morning Herald (second item) offers this advice:
A tip to corporate Australia: If you are not already doing it, send in a freedom of information request after meeting with a government minister, so you can look at the briefing notes handed them before your meeting. You are unlikely to learn anything spectacular, but at least you will learn the formulas used in the corridors of power.
That's just the start of it if business is interested.

I'm not aware of research on corporate Australia as an FOI applicant or much in the way of public comment on the issue but recall seeing somewhere that in the US, business is among the biggest users. In Australia from what is known, it seems quite a contrast. Here is what we know from the little information available.

Wednesday, August 24, 2011

Bad week for big tobacco's quest for legal advice

Coincidentally the Federal Court of Australia this week handed down its decision on British Tobacco's appeal against an AAT decision in April this year, upholding the finding that legal advice received on plain packaging in 1995 was exempt under the Freedom of information Act, and that privilege had not been waived. The published decision in British American Tobacco Australia Limited v Secretary,Department of Health and Ageing [2011] FCAFC 107 includes a summary of the main points in issue and the result. The key findings were confirmation that the tabling of the Government Response to a committee report in the Senate that referred to the advice was protected by parliamentary privilege under s 16(3) of the Parliamentary Privileges Act and could not be relied upon as evidence that went to the question of waiver [48-49]; and while this did not extend to the publication of the Government response on a departmental website, such publication did not constitute waiver because it was not inconsistent with maintaining confidentiality in the advice itself as the  government was not "seeking to deploy a partial disclosure of the AGD legal advice for forensic or any other advantage"[50-58].
    In what might best be interpreted as a judicial frown, the Court made these observations about the lengthy decision of Deputy President Forgie in the Tribunal [31]:
    Forgie DP essayed the authorities on the legal issues before the Tribunal at considerable length. The resolution of the issues that fall for determination in this Court does not depend on close attention to nuances in the reasoning of the many cases referred to by the Tribunal: on the question of waiver, the principles have been authoritatively stated in recent decisions of the High Court. This case is not at the margin of the operation of the principles laid down by the High Court. The history of the development of those principles, while no doubt a matter of interest, is not necessary to an understanding of the statements by the High Court. And as this case demonstrates, an undue focus upon the historical development of legal principles can be a distraction from the issues which are tendered by the parties for determination by the Tribunal.
    My observation at the time was
    In her decision Deputy President Forgie as usual leaves no word or phrase in the law or any relevant precedent unexamined. This decision includes a summary of steps since 1994 to examine the policy option of generic packaging [22-39], the law on legal privilege [40-68] and issues arising from the Parliamentary Privileges Act [79-178], matters to be resolved in deciding whether privilege has been waived [179-193] and the limitations on the relevance of material in the Government Response [194-196], before her conclusion that privilege had not been waived through circulation of summaries of the advice in other contexts [197-202]. Senior Member O'Loughlin was the model of brevity in agreeing to all that and giving his own reasons in a sparse 16 paragraphs [204-220.]
    If this week's Tribunal decision goes to the court on appeal, judges will have another weighty DP Forgie tome to consider.

      Tuesday, August 23, 2011

      Advice on tobacco plain packaging legally privileged

      In a matter separate from the British Tobacco case recently heard in the Federal Court where privilege was also an issue, Phillip Morris Limited failed in a bid to access documents held by the Prime Minister containing legal advice concerning the plain cigarette packaging legislative initiative. In Phillip Morris Limited and Prime Minister [2011] AATA 565 the issue before Administrative Appeals Tribunal Deputy President Forgie was the decision by a delegate of the Prime Minister to refuse access to five emails and attachments that contained legal advice requested by the Department of Health and Ageing and prepared by Australian Government Solicitors' in 2010 that included advice from Department of Foreign Affairs officers on aspects of international and trade law. The matter was decided on the basis of the law as it stood prior to November 2010.

      In a whopping 261 paragraphs (357 footnotes) Deputy President Forgie left no word not parsed or relevant precedent unexamined as she analysed and applied the law regarding legal professional privilege (s 42). One interesting aspect was confirmation that the absence of a practicing certificate was not an impediment to a privilege claim-one of those responsible for part of the DFAT advice held an LLB from the University of Sydney but had not been admitted to practise in any capacity as a legal practitioner[86-100].

      Deputy President Forgie concluded:
      the DFAT advice and AGS advice are subject to legal professional privilege, I am satisfied that their disclosure under the FOI Act would be contrary to the public interest. As the privilege has not been waived, the doctrine of legal professional privilege has already determined that disclosure is contrary to the public interest. The public interest is that in the administration of justice that comes from the encouragement of full and frank disclosure by clients to their lawyers [252].
      Counsel for the Prime Minister had argued in the alternative that the documents were exempt as deliberative process documents under s 36. Deputy President Forgie proceeded to examine this claim on the assumption that they were not protected by legal privilege. While finding that the documents contained advice and opinion developed in the course of decision making functions, thus satisfying s 36(1)(a), she was not satisfied that disclosure would be contrary to the public interest. For the second time in a week the Tribunal rejected this type of claim because of the absence of evidence-in this case that disclosure would tend to inhibit confidential communications in future, or inhibit their being recorded:

      Monday, August 22, 2011

      Orica incident raises right to know

      Two polllution incidents at Orica's plant near Newcastle NSW have Premier O'Farrell hopping mad, Erin Brockovich on the way, and a debate about disclosure laws that have been shown to be clearly inadequate.

      After the first incident and a controversy about the government's handling of public notification of the matter, the Premier appointed former Director General of the Department of Premier and Cabinet Brendan O’Reilly to conduct what amounts to a short, sharp inquiry to report by 30 September 2011. Much of the focus will be on reporting and disclosure obligations. 

      The Premier said
      “I am determined that, in the event of any future similar incident, information should be made public as soon as possible.... I’m determined to improve the procedures surrounding spills to ensure timely and accurate notification.”
      A second incident has the locals and others suggesting systemic problems.

      Catherine Cusack the Liberal Shadow Minister for Climate Change and Environmental Sustainability for two years prior to the election of the O'Farrell government in March, wrote in the Sunday Telegraph yesterday that Orica's release of a toxic plume "is just the tip of a bigger iceberg of problems in our antiquated pollution laws" and that the Environmental Protection Agency's independence is such that it is "left to a politician to sound the alarm when a pollution event occurs. A credible EPA would have an independent commissioner who would take that decision and immediately alert the public himself." The Greens have foreshadowed an amendment to require companies to notify authorities immediately they become aware of a dangerous incident.

      The emphasis in the relevant law at present is on notification to the authorities "as soon as practicable." The public doesn't get much of a look in. While authorities were quick to assure there were no health dangers this time, we should be examining positive disclosure obligations for public or private organisations that hold information of this kind. In the first week of this blog in February 2006, the Sydney Morning Herald reported the government sat on information for years about a serious and urgent public health issue, that dioxin levels in fish in Sydney Harbour were likely to exceed international safety standards and that fishing should be banned”. I said at the time:
      In many countries that Australia would compare itself with, governments by law are required to disclose information when there is reason to believe that a danger to public health exists. Have a look at the link on this article to access some of the US, Canadian and UK legal requirements often referred to as “Right to Know laws”. How come we don’t have a right to know of dangers to our health!

      Part 5.7 Protection of the Environment Operations Act 1997, Duty to notify pollution incidents, requires reporting to the appropriate regulatory authority of an incident and all relevant information about it as soon as practicable after the person becomes aware of the incident, where material harm to the environment is caused or threatened. Harm to the environment is defined as material if:
      (i)  it involves actual or potential harm to the health or safety of human beings or to ecosystems that is not trivial, or
      (ii)  it results in actual or potential loss or property damage of an amount, or amounts in aggregate, exceeding $10,000 (or such other amount as is prescribed by the regulations), and
      (b)  loss includes the reasonable costs and expenses that would be incurred in taking all reasonable and practicable measures to prevent, mitigate or make good harm to the environment.
       I can't see in the act any positive duty imposed on officials or the minister to bring such a matter promptly to public attention. Not surprisingly there are plenty of strictures regarding non disclosure, including of "working processes"-just the sort of thing that may have gone awry on this occasion. And disclosure with "the prior permission of the minister" no doubt contributed to the delay before Stockton residents got to hear the news 54 hours after the incident.

      Friday, August 19, 2011

      Kessing whistleblower pardon demands attention

      Allan Kessing's letter in response to an invitation from the Attorney General's Department to provide further information in connection with an application for pardon for his conviction for breaching section 70 of the Commonwealth Crimes Act gets good coverage in The Australian today. On this campaign at least, I'm with Legal Affairs Editor Chris Merritt.

      Issues raised in the letter-the failure by the AFP to disclose a key document in the brief of evidence that would have alerted the defence to the existence of witnesses that were not called to testify, and the somewhat related failure by the prosecution to call witnesses- bring into question whether the Model Litigant Rules and the NSW Bar Rules were followed. Among other points, Kessing also questions the decision by the DPP to prosecute him, but on public interest grounds not to prosecute Godwin Gretch, despite the fact that in his case there was a clear public interest in airport security failings, while in the Gretch case partisan political motives led to apparent instances of forgery, fraud and collusion.

      While Home Affairs Minister O'Connor mulls this over, and injustice continues to hang heavily on Kessing, perhaps the minister, someone in his office, or in AG's will inquire about the Australian Law Reform Commission Report Secrecy Laws and Open Government in Australia that the government has had, with no comment or response forthcoming, since December 2009?  Professor Croucher, President of the commission gave a run down on the inquiry in this paper delivered to the 7th Annual Public Sector In-House Counsel Conference in Canberra recently. 

      The ALRC’s key recommendation was that the draconian s 70 should be replaced, as Professor Croucher explained, by a provision that limits the sanctions of the criminal law—in publicly punishing, deterring, and denouncing offending behaviour—to "behaviour that harms, is reasonably likely to harm or intended to harm essential public interests. Therefore the new general secrecy offence is limited to unauthorised disclosures that are likely to:
      • damage the security, defence or international relations of the Commonwealth;
      • prejudice the prevention, detection, investigation, prosecution or punishment of criminal offences;
      • endanger the life or physical safety of any person; or
      • prejudice the protection of public safety."
      Kessing has maintained his innocence of the offence as charged -that he released information without authorisation to two journalists at The Australian ( who were not called to testify)- and a change in the law will not change his situation one whit. However as Professor Croucher commented
      Secrecy laws that impose ‘extreme’ obligations of confidentiality on individuals handling government information—and the prosecution of public servants for the unauthorised disclosure of such information—can sit uneasily with the Australian Government’s commitment to open and accountable government. Secrecy laws have also drawn sustained criticism on the basis that they unreasonably interfere with the right to freedom of expression.
      The ALRC identified 506 secrecy provisions in 176 pieces of legislation, including 358 distinct criminal offences. Professor Croucher summarised the commission's recommendations as presenting
      "a new and principled framework for secrecy provisions, striking a fair balance between the public interest in open and accountable government and adequate protection for Commonwealth information that should legitimately be kept confidential."
      An indication of interest from the government in addressing the 19th century aspects of s 70, and the incoherence and anomalies in existing laws concerning secrecy and openness is well overdue.

      Hits and misses

      The latest results of a Google news search show plenty of recent FOI type hits and some misses. On this basis, and generalising, disclosure is improving. Some successes and failures of note, not otherwise mentioned here recently, include:

      Thursday, August 18, 2011

      Distinguishing vice regal functions from administrative matters

      Freedom of Information Commissioner Popple in 'B' and Office of the Official Secretary to the Governor General [2011] AICmr 6 upheld a decision to refuse access to documents concerning appointments to the Order of Australia. The Commissioner confirmed the Office is subject to the Freedom of Information Act as a body established for a public purpose by an enactment and, therefore, a ‘prescribed authority' as defined in s 4. However, s 6A of the act excludes a right of access unless the document sought relates to " matters of an administrative nature." Commissioner Popple decided the documents in question related to the Governor-General's discharge of a core function, namely the vice-regal honours function. In the absence of precedent, he drew on Australian Information Commissioner Guidelines in finding documents of this kind were not documents relating to matters of an administrative nature.

      It's an interesting issue, one that I looked at in March last year. The precedents that do exist involve consideration of the words in the context of the operation of courts and tribunals. One take is "it is necessary not to take too strict a view of what is necessary to be kept confidential in the interests of preserving the independence of the judicial and administrative decision-making functions." With this in mind the exclusion might apply more readily to documents relating to the processing of individual nominations than to other documents sought in this case, such as manuals and guidelines relating to the administration of the Australian honours system, and documents relating to review processes. 

      Vice regal offices in Australia are outside the scope of FOI type legislation except for the Commonwealth, as above, and in similar terms, Tasmania.

      Wednesday, August 17, 2011

      ACT FOI reform

      Since last visited in June, summaries of ACT cabinet outcomes (brief and to the point, but hey, better than nothing and a lot better than most jurisdictions that don't do anything like this) are being posted here. And Greens Leader Meredith Hunter gets media attention for plans to "move a motion in the Legislative Assembly calling for a review and change of the laws around public interest disclosure, freedom of information and complaints handling."

      An Assembly committee started looking at the Territory Freedom of Information Act, now 22 years old and basically untouched since, in 2008, and a report was tabled in March 2011, but the report hasn't rated a mention let alone a government response since.
      (Update: The Canberra Times reports a government commitment to whistleblower protection reform-and on FOI a  government response to that committee report.)

      Tuesday, August 16, 2011

      Scope for FOI disclosures to better inform public debate

      The Department of Climate Change and Energy Efficiency is under the freedom of information hammer  so resources are no doubt stretched. But the department could better inform debate and do itself a favour by making documents released more readily and widely available.

      The Australian today picks up the Institute of Public Affairs analysis of a report released in response to one of those hundreds of FOI applications. The analysis may or may not be accurate. It's not clear whether the report is yet listed but none of those currently on the Disclosure Log are accessible online. This statement  therefore is cold comfort:
      A link is provided if the information can be downloaded from this website or another website.

      You could of course follow up by contacting the department:
      Information that is not available on a website may be obtained by writing to: FOI Coordinator Department of Climate Change and Energy Efficiency GPO Box 854 Canberra ACT 2601 Email:

      In the meantime what the Institute says about the report stands, without others having the opportunity to make of it what they will.(Update: one day on one of those involved with the research writes that the Institute misrepresents the report and that "Australians have a right to rigorous, evidence-based research and accurate reporting on this crucial issue.." Amen to that.)

      And a good point in an article in Delimiter this week picking up on a report in The Age on NBN Co that commenced:
      “PREVIOUSLY secret documents show the federal government was warned that the national broadband network would expose taxpayers to ”considerable financial risks”, only weeks after the ambitious high-speed internet plan was unveiled.”

      Delimiter commented:
      Wow. Heady stuff, and a ripping news yarn. Many of the issues raised — especially the need to protect the NBN from market competition and the reversal of successive governments’ long-held policy on bolstering infrastructure-based competition in the telco sector — are valid concerns which I and many other commentators share. But there’s just one problem. The documents in question which are being reported in this article were handed by Treasury to the Federal Government more than two years ago — in mid-2009, months after the current NBN policy was announced....

      In short, gentle reader, do not be fooled. The fact that a “journalist” files a “freedom of information request” and obtains “previously secret documents”, does not make those documents newsworthy or an important injection of fresh information into the current national debate. ....
      Plenty of other examples come to mind when the dates on FOI documents that lead to a media splash don't rate a mention, suggesting quite a few missed that part of Journalism 101.

      RSI in the name of FOI?

       The Age reports the Institute of Public Affairs has received a "warning from the Department of Climate Change" after it submitted more than 750 freedom-of-information requests in four months, more than 95 per cent of FOI requests lodged with the department since April.
      The department last week wrote to the institute's director of climate change policy, Tim Wilson, and asked that he stop submitting requests so it could deal with the backlog..... If the volume of applications continued the department would consider whether dealing with Mr Wilson's requests was an unreasonable diversion of resources - a step that could lead to him being considered a vexatious applicant. It is believed Mr Wilson submitted about 440 information requests on one day in late July and more than 140 on one day last week.
      The FOI reforms of last year saw two new provisions relevant to this situation.

      The first, regarding diversion of resources is a variation of the longstanding ground for refusing to deal with a request (section 24) because it would involve "substantial and unreasonable diversion of resources." A new section 24AA spells out the detail of what is involved, as explained in the Australian Information Commissioner's Guidelines.

      The other is the power conferred on the Information Commissioner to make a vexatious applicant declaration  Section 89L sets out the grounds which relevantly include where an applicant makes requests that are manifestly unreasonable. This Guideline explains.

      The Queensland RTI act (s114) contains a similar provision.
      (Update: On a related issue the Queensland Commissioner recently published a research paper on repeat applicants for external review, defined as applicants who make a relatively large number of applications, submit them in short bursts of activity and engage in ‘unreasonable conduct’. The research examined external reviews finalised under the Freedom of Information Act 1992, the Right to Information Act 2009 or the Information Privacy Act 2009 between 1 July 2006 and 21 February 2011. Excluding journalists and parliamentarians, nine who made 10 or more applications included one with 87 involving 15 government agencies/ministers and others with 54 and 45 applications. "Overall, the result is that repeat applicants have a detrimental impact on the equitable access of other persons to external review of access and amendment decisions in Queensland.")

      The NSW GIPA act (s 110 ) confers power on the Administrative Decisions Tribunal  to make an order restraining a person making unmeritorious applications.

      The Tasmanian RTI act (s20) goes further simply authorising an agency or minister to refuse an application on the basis it is a vexatious application.

      I'm yet to hear of an application for an order or declaration or of reliance on the relevant section in Tasmania. 750 applications in four months might be nudging things along.

      Universiteit Utrecht
      With 440 applications in one day I hope Wilson is full bottle on RSI.
      (Further Update: The Australian editorialises "there can never be anything vexatious about exercising the public's right to know. No ifs, no buts." Others might suggest that high minded principle needs to be considered in context, in light of what is requested-and that size does matter.

      Monday, August 15, 2011

      PM&C publishes red flag compendium

      The Department of Prime Minister and Cabinet has published a Guidance Note "intended to assist agencies when considering the application of the Cabinet and deliberative documents exemptions under the Freedom of Information Act 1982 .."

      Wikimedia Commons-Share Alike
       The note says all the right things about the need to read it in conjunction with the Australian Information Commissioner’s Guidelines "to which regard must be had for the purposes of performing a function, or exercising a power, under the FOI Act" and that it was developed in conjunction with the commissioner and the Freedom of Information Commissioner (and the Australian Government Solicitor). But it strikes me as a red flag compendium, full of cautionary messages about considerations that could justify non-disclosure, and little else. In the case of the deliberative documents exemption there are plenty of straws to alert a decision maker to the full range of possibilities when dealing with what insiders could regard as potentially sensitive information. I'm unaware of the precise timing but its appearance in July coincided roughly with the AAT decision in McKinnon and Department of Finance and Deregulation, a pre FOI reform case, where arguments for both these exemptions failed. Some of the "tips" in the Guidance Note are likely to be handy for those keen to head off similar challenges to decisions to refuse access to such documents in future, although others may need a little adjustment in the light of that decision.

      The cabinet document exemption is absolute and not subject to a public interest test. But the deliberative document exemption only applies where disclosure of advice, opinion etc, on balance, would be contrary to the public interest. Of course agency decision makers who read and absorb the AIC guidelines will be exposed to the full picture including that the objects of the act, not spelled out in the PM&C note, require weight to be given to the public interest in disclosure "to promote Australia’s representative democracy by increasing public participation in government processes, with a view to promoting better-informed decision making, and..  by increasing scrutiny, discussion, comment and review of government activities" etc. But they won't from reading only what the lead government agency has to say on the subject.

      After the barest of introductions, paragraph 3 quotes then minister Senator Faulkner in 2009 that "..there will always be some documents, the disclosure of which is not in the public interest, and which should properly be exempt under the FOI Act," continuing:
      "It is essential that agencies consider carefully the application of exemptions to ensure the legitimate protection of government documents consistent with the application of the FOI Act."
      This sombre message- in effect "don't let anything slip through"- sets the tone for what follows. As for the Declaration of Open Government, and similar commitments to a new era of openness and transparency, nary a mention.

      AAT subjects "cabinet confidentiality" to rare scrutiny

      In McKinnon and Department of Finance and Deregulation [2011] AATA 469 the Administrative Appeals Tribunal (Deputy President Hack SC and Dr Hughson) overturned the department's decision on a Freedom of Information Act application to refuse access to the final reports on three strategic reviews of Commonwealth government programmes–  on indigenous expenditure, the job capacity assessments programme and future directions for government service delivery. 

      The Cabinet Strategic Priorities and Budget Committee (SPBC) had decided to commission the reviews at meetings in June and July 2009. They were then undertaken each by a different consultant, leading to the final reports in 2010 that were the subject of the FOI application. The executive summaries (and in one case an additional attachment) not the full reports were attached to subsequent cabinet submissions. The Department contended that the reports were exempt from access by virtue of either or both ss 34 (Cabinet documents) and 36 (deliberative documents) as the sections stood prior to November 2010. The Tribunal rejected the cabinet document claim on the basis that the evidence did not show the reports had been prepared for submission to cabinet. The deliberative document claim failed because the only public interest consideration argued against disclosure was a breach of Cabinet confidentiality, which the Tribunal found would not occur if the reports were released. While precedent was cited in support of the decision on this latter point, the Tribunal gave "cabinet confidentiality" rare, close examination, distinguishing the disclosure of part of the subject matter for Cabinet consideration from a disclosure that would reveal recommendations, deliberations, the views of any member of Cabinet, and conclusions reached.

      McKinnon wins another one

      Michael McKinnon of the Seven Network has chalked up another good Freedom of Information win, providing the basis for widespread media reports over the last week following disclosure of a consultant's report completed for the Rudd government early in 2010 that concluded spending on indigenous programs of about $3.5 billion annually, maintained over many years ''has yielded dismally poor returns to date. '' The document was released following an Administrative Appeals Tribunal ruling against the Department of Finance and Deregulation, overturning the department's decision that the report (and two others that have received little publicity to date, the Strategic Review of Job Capacity Assessments Program and the Strategic Review of Future Directions for Australian Government Service Delivery) were  exempt as cabinet documents and or deliberative documents. Some media reports describe the decision as a landmark, opening the way for greater access to information considered in cabinet. Its a good and welcome decision but it remains to be seen if the gates open at least a smidgen as a result.The cabinet document exemption claim failed because the Tribunal decided there was insufficient evidence that the documents had been prepared for submission to cabinet, something sure to be corrected from now on. (More about the decision in a separate post.)

      The reports released to McKinnon have been published on the Department of Finance Disclosure Log

      After the 18 month battle, McKinnon may not have been amused that the minister responsible for indigenous affairs Jenny Macklin says she wasn't part of all this, but is pleased the report is now in the public arena. A brave face after the event maybe. The taxpayer might be even less amused at the cost to date, with the Tribunal still to consider an application by McKinnon for costs, although the criteria for an ex gratia payment from the Attorney General in these circumstances puts the degree of difficulty in the eye of the needle class.

      From ABC AM:

      Monday, August 08, 2011

      Queenslanders know about FOI, but that's about it

      In a welcome first in Australia as far as I'm aware the Queensland Information Commissioner Julie Kinross has published reports on surveys conducted last year on public awareness of rights to information, and public sector attitudes, as foreshadowed in her report last month on two years of experience with the Right to Information and Information Privacy acts. The survey results establish a benchmark against which change can be measured. Other jurisdictions should be doing something similar. Public awareness in a general sense is there in Queensland, but use of the act is terribly low. Public servants however mostly think changes have had a positive impact on their agency- and that's a good thing, even if there is a long way to go with the general public.

      FOI commissioner distinguishes personal and work information concerning public servants

      The decision by Freedom of Information Commissioner Popple in Carver and Fair Work Ombudsman [2011] AICmr 5 concerning information about the handling of a complaint against two inspectors involved three conditional exemption sections of the Commonwealth Freedom of Information Act, as amended from 1 November 2010-all subject to a public interest test: deliberative process (s 47C), certain operations of an agency, where disclosure would (c) have a substantial adverse effect on the management or assessment of personnel by the Commonwealth, by Norfolk Island or by an agency(47E), and personal information (47F). The decision varied the agency determination, rejecting aspects of the claimed exemptions concerning information about the inspectors. The commissioner's analysis of issues provides an insight into interpretation and application of the amended act, particularly the distinction between personal information and work related information concerning public servants [31-37], the public interest test [39-44] and why different considerations may be involved in granting access to some information about a public servant to an applicant and publishing the same material in a disclosure log [47-49].

      Friday, August 05, 2011

      New Zealand law acknowledges privacy right in publication of private information

      And they live to tell the tale, believe it or not.

      The issue of a right to sue for beach of privacy wasn't mentioned in the Stage 4 report of the New Zealand Law Commission released this week. The subject was addressed in the Stage 3 report last year (Chapter 7). To summarise, New Zealand law recognises a tort for invasion of privacy, it applies to unjustified publication of private information, and rarely arises in court ( four times in recent years). NZ law doesn't so far recognise a cause of action for a more broadly defined invasion of privacy. The commission decided that because of their interconnected nature, the two should be left to development or further development, through the common law. (The Australian Law Reform Commission has recommended legislation to cover both. The government proposes three years later to encourage talk about it, sometime soon.) 

      New Zealand privacy law review

      The New Zealand Law Commission this week completed its review of privacy law with the publication of 'Review of the Privacy Act 1993: Review of the Law of Privacy Stage 4' , the fourth and final report on the reference.  Significant recommendations for government action on matters we have been dithering about include augmentation of the Privacy Commissioner’s powers, improvements in the complaints process and mandatory notification when personal information is lost or otherwise compromised (for example, through computer hacking), where the breach is sufficiently serious.

      On other topical issues on this side of the ditch, I take it from the absence of any reference that political parties are not exempt from the NZ Privacy Act. The commission also recommended continuation of the media exemption. (As did the Australian Law Reform Commission in a little discussed recommendation in its 2008 report, while calling for action to ensure privacy protections are adequate and that media organisations do more than give lip service to principles designed to achieve this.) The NZ commission reported:

      World FOI title up for grabs?

      UK Cabinet Office minister Francis Maude speaks about a discussion paper on improving Freedom of Information legislation
       "The UK government is determined to have the most ambitious open data agenda of any government in the world. But we want to embed this approach throughout the public service and we want to hear from people about how they think we should do this." "It is an incredibly brave step for any government to become this open, but this is the approach we want to take in order to create public accountability and efficiency in our services and to drive economic and social growth."
      While a couple of the changes for consideration sound somewhat old hat from an Australian perspective, there's always room for reflection:

      Thursday, August 04, 2011

      Big tobacco tries to get behind plain packaging in Federal Court.

      The challenge by British American Tobacco Australia in the Federal Court this week to a Freedom of Information decision by the Administrative Appeals Tribunal refusing access to legal advice regarding plain packaging is receiving plenty of publicity, for example Big Tobacco fights for govt legal advice. Here was my take on the AAT decision in April-the case raises interesting issues regarding the Parliamentary Privileges Act, and waiver of legal professional privilege.

      Wednesday, August 03, 2011

      Professor nails the privacy case

      A series of ticks for points made by Professor of Law at the University of NSW George Williams in an opinion piece in today's Sydney Morning Herald. To summarise, in his words:
      • Australian law is in a poor state when it comes to protecting our privacy.
      • Unfortunately, the federal government has gone about this reform in the wrong way.....
      • The current debate needs a reality check.
      • .. a right to privacy could have a chilling effect on freedom of speech. 
      • But the problem can be overcome, and has been in other nations such as the US and Canada. Following the same path, Australian law should limit compensation to serious violations. Privacy must also be balanced against the need to publish material in the public interest and freedom of expression and of the press.
      • Despite the focus on the media, a right to privacy will have a greater impact elsewhere. The real problem lies with serious breaches of privacy by large corporations, and as a result of new technologies. 
      • .. the.. debate has concerned how a right to privacy might go too far, without also recognising its limits. .. the right may only be invoked in a few extreme cases...
      •  When it comes to one of the largest problems of privacy in Australia today - people posting their own intimate and potentially damaging information online - the solution will lie in education and not new laws.

      Tuesday, August 02, 2011

      UK Information Commissioner says tweet is sweet

      The recent post about citizen centric processes for the exercise of rights under access to information laws (and the absence thereof in some jurisdictions) didn't contemplate an application by tweet, but in the UK (where an application under the Freedom of Information Act can be made for information and without mentioning the act) the Information Commissioner has issued guidance that if an applicant can provide the essentials in 140 characters this can constitute a valid request and authorities that have Twitter accounts should plan for the possibility of receiving them. Might be a struggle here where after mentioning formalities required by legislation you don't have a lot of characters to play with. Meanwhile NSW, South Australian and Western Australian agencies that still require a written application sent in an envelope affixed with a postage stamp no doubt insist that process is a big advance on the carrier pigeon.
      (Update: the Queensland Information Commissioner thinks a tweet is unlikely to be a valid means of making an application in Queensland.)

      The Australian on points, verging on a knockout, on this one so far

      Peter van Onselen who raised this issue first in 2003, continued in the Weekend Australian to make the case for removal of the exemption from the Privacy Act for political parties as recommended by the Australian Law Reform Commission in 2008, rejecting defence of the status quo by Minister for Communications Senator Conroy, and the attempt to downplay it all by Opposition frontbencher Malcolm Turnbull. (Audible sigh, for obvious reasons), no hyperbole here.

      The Australian on privacy-" we'll all be rooned"

      You may have been thinking things couldn't get any worse in the event that a statutory cause of action for an unwarranted serious breach of privacy eventuates, after headlines like this in The Australian over the last week:
      Privacy plan:journos facing jail  
      Privacy move threatens to muzzle critics
      Privacy tort will 'shield rich and powerful
      Tort a hate-filled strike on liberal democracy.

      Wrong.Hanrahan's alive and well and moved into Holt St.

      The Australian's Legal Editor Chris Merritt, at last acknowledging the government led consultation we are yet to have will be about broader issues than the media, yesterday predicted further catastrophe. In "Tort lawsuits could hit productivity" (in the print edition the more serious "could damage productivity") Merritt linked the issue to the future economic outlook, predicting a "wave of class actions against business police and hospitals," quoting peak industry bodies not convinced there is a problem and warning of increased costs, frivolous lawsuits and losses of large amounts of taxpayers money.

      Who knows,"Carbon tax linked to privacy plan" might not be far away.

      (Memo The Australian and business leaders who haven't thought about this until the phone rings with a request for comment: time for a deep breath. Check out the Australian Law Reform Commission Report bearing in mind it's three years old, and other available literature on the nature of the problem- a significant rise in instances of invasion of privacy, the uncertain state of the law in Australia, and whether any gap should be addressed or left to the courts without further statutory guidance. Oh, and what was proposed by the ALRC sets a high bar with the express purpose of heading off frivolous lawsuits.)