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Thursday, August 29, 2013

South Pacific calling?

 Know your FOI, background in policy and implementation, experience in developing countries? The UNDP could be looking for you for a three month stint based in Fiji, providing input and guidance to give freedom of information a kick along in Kiribati,  Solomon Islands, Tonga and Vanuatu. Applications close 9 September, with an incredibly ambitious start date of 16th.  My chapter on (Australasia and) Oceania in the Global Right to Information Update published in July may provide some context if you need it. (If only I had three months to spare-dreaming again!) Thanks to Toby McIntosh for the heads up and the link to this report that Vanuatu has adopted a Right to Information policy with a law to follow. The Cook Islands is the one Pacific country with an FOI act. Tonga has a government wide policy for information access.

Wednesday, August 28, 2013

Attorney General debate leaves integrity on the sidelines, prompts The Oz to pursue privacy 'zealots.'

The notes prepared by Anne Wardell Deputy Editor-In-Chief for Law and Business at CCH seem to be the most comprehensive record available of the debate last week between Attorney General Dreyfus and Shadow, Senator Brandis. No mention, according to this summary, of the transparency/accountability/integrity/open government issues of primary interest here.

The Attorney General listed privacy as one of the next term priorities and separately elaborated in an interview with Chris Merritt in The Australian- Privacy law 'no attack on media'. The bill to require mandatory serious breach notification that failed to get up in the last parliament will be reintroduced if the ALP wins - Merritt queries the cost to business. (As to Opposition policy, who knows?)

And as the headline suggests, Merritt gives prominence to the privacy cause of action issue, managing to extract acknowledgement of uncertainty about what might result from the Attorney's reference to the Australian Law Reform Commission:
 Despite the fact that the ALRC had been asked to design a privacy tort, Mr Dreyfus said it was possible the commission could recommend that such a tort was not needed. "They might," he said. The inquiry's terms of reference did not amount to a commitment to the creation of a privacy tort. "But they do ask for a detailed design of what a statutory cause of action for serious invasions of privacy might look like, for good reason."You cannot have a proper discussion about this until you have got down the detail."
In a related opinion piece Mark Dreyfus not afraid to stand up for free speech Merritt suggests the Attorney shouldn't be held responsible for "Labor's disgraceful record on freedom of speech" because he was new to the job and
"used his first interview as Attorney-General to express personal concern about the risk to freedom of speech from legislation that encourages people to sue each other over invasions of privacy. Until those remarks appeared on the front page of this newspaper, nobody in the Gillard government had expressed the slightest disquiet in public about the deeply flawed plan for a privacy tort that was then in development. It was a plan that seemed designed to remedy a mischief on the other side of the planet."
Of course, there are many who see growing mischief in interferences with privacy in all sorts of local nooks and crannies. However Merritt thinks these 'zealots' may have had their day:
In 2009, when the commission last recommended in favour of a privacy tort, much of the debate had been captured by zealots who seemed to have no understanding of the fundamental rule that privacy - like all other human rights - is not absolute. It needs to be balanced in a way that addresses the intended mischief without inflicting unnecessary damage to other rights such as freedom of speech.
I can't recall anyone who argues the right to privacy is absolute. But it is a universally recognised right.

Three law reform commissions, and most others who have looked conclude there is a gap in the law. Many think it would be best filled by a carefully crafted statutory cause of action that does exactly what Merritt suggests, balancing privacy and other rights.

The only absolutists in this are those who advocate such an exalted position for freedom of speech/freedom of the press. Some reminders from testimony to the Committee examining the Government's media reform legislation in March:

Tuesday, August 27, 2013

MP avoids entitlement spotlight until after the election

On the subject of trust, as we were..

The name of the current member of parliament 'AK' who features in this Freedom of Information decision by Australian Information Commissioner Professor McMillan - 'AK' v Department of Finance and Deregulation [2013] AICmr 64 - isn't mentioned but plenty will venture a guess. 

The member has been battling since October 2012 to prevent disclosure of information by Finance and Deregulation about use of entitlements, and lost out in this latest round.

However as AK has a further right of review to the AAT, information that might identify AK or reveal the substance of the documents in contention is not included in the decision. The Applicant, Hedley Thomas of The Australian who obviously knows who AK is, can't get the documents the commissioner ruled should be disclosed until AK's review rights are exhausted or extinguished by lapse of time, conveniently sometime after the election on 7 September.

The strong public interest case for disclosure as outlined in Professor McMillan's decision would apply equally to disclosure of information about use of entitlements and support services provided to members of parliament by the parliamentary departments.

Parliamentarians voted three months ago to exempt these agencies entirely from the FOI act. If the incoming government or parliamentary leaders can be inspired or shamed into restitution along the lines of Dr Hawke's recommendation for partial FOI coverage, scope for argument about what is covered and for delay of the kind seen in 'AK' must be avoided through precise legislation.

Thomas sought access to documents relating to the use of Parliamentary entitlements by AK in 2006 and 2007.  When consulted as a third party, AK argued against disclosure of some documents based on the personal information conditional exemption. Four documents remained in contention, described in the commissioner's decision as a letter written to the Department by a member of AK’s staff in 2007; records of two telephone conversations in 2007 between a member of AK’s staff and a Departmental officer, and another Departmental record arising from the earlier communication. 
"The content of the documents concerned AK’s use of Parliamentary entitlements, and in particular whether AK complied with relevant government guidelines, and steps taken by AK to ensure compliance."[12]. "The central facts disclosed in the documents are that there may have been an incident of non-compliance with government guidelines on Parliamentary entitlements; that AK’s office identified this non-compliance; and that AK took steps to remedy the possible non-compliance." [21].
 Professor McMillan concluded the information was personal information, but disclosure was not unreasonable, and on balance in the public interest.

Not unreasonable:
22. I do not think that disclosure of that personal information about AK would be unreasonable. Members of Parliament would be aware that their enjoyment of Parliamentary entitlements must comply with relevant rules or guidelines, and that this will be independently scrutinised. Members would, I am satisfied, have an expectation that this scrutiny may extend to public scrutiny, either in response to a request made under the FOI Act or through the proactive release of information by a government agency. In that event, it could reasonably be expected that information would be released as to whether the enjoyment of Parliamentary entitlements complied with government guidelines, including whether the enjoyment of those entitlements by a family member complied with the guidelines. 
23. I am further satisfied that disclosure of this information in response to an FOI Act request would serve a public purpose. Disclosure supports the effective oversight of public expenditure, and may shed light on the workings of government in administering entitlements and repayments.
As to public interest considerations, relevant if he was wrong on the unreasonable point, Professor McMillan outlines those that favour disclosure and gives little or no weight to those submitted on behalf of AK against disclosure [26 -37], concluding:
38. As earlier noted, Parliamentary entitlements are publicly funded, administered and scrutinised. There are strong public interest considerations that support transparency concerning these matters, and in particular, transparency concerning whether there has been compliance with government guidelines. Members of Parliament would reasonably expect public scrutiny of their use of Parliamentary entitlements occurring at any time during their Parliamentary career.
 Hear, hear.

Now who was that talking about trust?

Monday, August 26, 2013

It's all about trust..

The Prime Minister in announcing the election and Mr Abbott speaking more expansively on a number of occasions including at the campaign launch yesterday, are both talking 'trust'.

The Leader of the Opposition puts it at the top of the list: the trust deficit is even more serious than the budget deficit.

The Fairfax Poll published on Saturday had Mr Abbott as the more trusted leader, with a rating of 43 per cent to Mr Rudd's career-low 36 per cent. 

But in May Federal members of parliament were 25 in the list of 30 professions rated for ethics and honesty in the Roy Morgan Survey (pdf). That 14% score was a 4 point improvement! 

Mr Abbott offered 'say what you mean and do what you say' as his shorthand solution to the problem. 

Sounds like a welcome commitment to honest, open communication. But a long way short of a plan to restore and maintain trust. 

More will be needed from whoever wins for example improvements on the open, transparent, accountable government front, a code of conduct for parliamentarians, an integrity commissioner and other anti-corruption measures, lobbying and political donation reform, and addressing shortcomings in whistleblower protections. For a start get rid of that blanket FOI exclusion for the parliamentary departments that both sides of politics rushed through a few months ago. (As an aside remember 'I'll end secrecy in 2007? There is a long list of that sort that might have something to do with the trust deficit.)

The Accountability Roundtable and Transparency International Australia have separately called on the main parties to outline their plans on a range of these issues. No published responses to date.

Throughout the two years saga of will we or won't we join the Open Government Partnership, I'm not aware the Opposition said anything on the subject. I've written to Shadow Attorney General Brandis and Shadow Foreign Minister Bishop (and to my local member Malcolm Turnbull) inquiring where they stand, but no response there either.

The Liberal Party's Plan for Real Action in the chapter 'Delivering strong, stable and accountable government' contains, well, no plan for real action:
The Coalition will do the right thing for Australia and deliver a strong, stable, accountable government that puts the national interest first and delivers a better future for all Australians. We will restore accountability and improve transparency measures to be more accountable to you. We will govern for all Australians, not favour any particular group. We’re all in this together and we’ll encourage all Australians to work together. We will end the class war and the bad blood between Labor and business that is damaging investment and employment.
As usual we live in hope. 

Trust in government-that's another matter.

Thursday, August 22, 2013

Queensland Integrity-where to from the Open Government Policy Forum?

The transcript of the Open Government Policy Forum in Brisbane on 13 August is now available. 

Of interest to all who follow such things are the Premier's opening remarks (1-6) which include references to open data and Right to Information issues and his views about the need to protect deliberative process documents.

Session 2 on Creating an Open and Accessible Government (20-34) includes comments from Professor Bill Lane and me on transparency generally and RTI, and from the floor by Michael McKinnon of the Seven Network who raised issues concerning charges, proposed a public interest test for confidentiality and legal privilege claims, responded to the Premier on deliberative process, and reminded that public servants have a duty that should not be shirked by not recording elements of the decision making process.

There are other points of interest of course. The Forum provided an opportunity for an airing of a range of issues about the integrity system. 

The importance of culture change was ever present.

Always in the background, rather than up in lights, perhaps because the Government has already accepted the majority of recommendations, was that things are moving in the direction suggested in the Callinan Report on the Crime and Misconduct Commission: the whole integrity system needs rationalisation and simplification because in post Fitzgerald Queensland, it has grown into an industry, has too many elements, is too complex with dispersed responsibilities and overlapping functions, and is confusing to both insiders and those who seek to utilise it. 

Support for the proposition was not tested at the Forum and some influential figures clearly question this. Ombudsman Phil Clarke for one responded (29) to suggestions the complaints system is broken, commenting that he is yet to see the evidence.

A question mark that hung over proceedings was the purpose of the Forum and where things go from here. Professor AJ Brown raised this directly with the Premier in the first question of the day, and it came up again in the final session with Jon Grayson, Director General of the Premier's Department.

In the earlier exchange the Premier indicated the Government 'had views' about where it wanted to head but would take on board 'recommendations from the Forum.'  However the Forum didn't operate in a way that could have produced anything of the kind, and this role hadn't been suggested beforehand. 

I was glad of the invitation to be involved to a degree in reasonably informed discussion covering a broad range of issues. But discussion was wide ranging rather than focused, and none of the issues were covered in sufficient depth to lead to any conclusions.
Prof. BROWN: Thank you, Premier. My name is AJ Brown from Griffith University. My question to you and the Attorney would be what is the process from here? There has been the parliamentary committee review of some aspects of the recent management of matters by the CMC. There has been the Callinan/Aroney review. There are conflicting interpretations, I think, about what that review started out to do versus what it may have done. There are processes underway for finessing the implementation of the recommendations of those reviews. What is the outcome of today's forum going to feed into that process and how are those questions going to be resolved relative to the ones that we are doing today? What is our process for feeding into your thinking on this?
Mr NEWMAN: In relation to the two bits of work on the CMC, being the inquiry led by the chairman over here and the Callinan/Aroney review, the government has been considering that. I suppose it is fair to say that, if nothing else happened, we would have a way forward.We have views .We would be implementing what the member for Gladstone’s committee said and what Aroney and Callinan have said. We will be seeking to fuse those things together, particularly mindful of the very important role of the member for Gladstone in coming up with a way forward for the CMC . I guess the idea was to bring people together to consider more than just that. As I outlined, for example just on the complaints system, there is an opportunity— I suppose a bigger opportunity and a more strategic way we could go—which is to not just go and undertake the implementation of some of those CMC recommendations but, as a result of your deliberations, to take what you good people say today, take that on board and have a more comprehensive set of reforms that we could bring into the parliament. I guess that is the opportunity today.We are here, we are listening and the people in this room really are the key thinkers in the space. That is our view. If you have some strong recommendations out of today, I can assure people that that is going to be something that the government is going to take extremely seriously. Did you want to comment, Jarrod?
Mr BLEIJIE: Professor, in terms of the timeline, we have a few things on the plate at the moment with respect to the implementation panel for t he CMC review, working with the PCMC committee.We would probably expect by the end of the year to have it all wrapped up.The right to information/privacy legislation discussion paper that we have out at the moment is due to finish in November .It would be the comments from today and the feedback from today, with the implementation panel on the CMC and then the RTI, and hopefully bundle it all up at the end of the year so we can say, ‘This is the integrity framework in Queensland.'
Director General Grayson said next steps, well, remain to be seen:
The next steps: let me in the spirit of this forum be open and say that there is not a prescribed path forward. This was the first step and I will certainly be talking with the Premier about the next step. But the first step was to encourage an expression of views, which then the government and indeed the parliament can decide how we go forward
So watch that space.

Queenslanders and others with direct experience in dealing with complaints bodies and with other aspects of the integrity system there might want to complete  the Open Government online survey.

Tuesday, August 20, 2013

Statutory interpretation at the nub of High Court FOI challenge on Honours documents.

The meaning of the words 'in relation to matters of an administrative nature" are not only relevant in the Freedom of Information context to documents held by the Office of the Secretary to the Governor General. They appear in other sections of the act concerning courts and tribunals, seem to be what Dr Hawke in his review report is suggesting for the Federal parliamentary departments, and are also in state and territory FOI legislation.

In the course of the successful special leave application to appeal to the High Court in Kline v Official Secretary to the Governor General last week, Ron Merkel QC, for Kline, advanced the proposition that the exemption from the FOI act conferred on the Office of the Governor General by section 6A, except for documents in relation to matters of an administrative nature, reflected competing public interest considerations. 

On the one hand the public interests of openness, accountability and responsibility, as expressed in section 3; on the other a public interest in Section 6A in not intruding on the independence of the exercise of the Governor General's functions and powers and of those assisting her in a particular context or in a particular matter.  

Merkel submitted that documents concerning administrative support processes that go to facilitate the exercise of powers - in this case about the operation of the Australian Honours system - are unrelated to the exercise of a power in a particular matter or context. Such documents relate to matters of an administrative nature, and as such, are subject to the FOI act:
So it is in the particular instance that we say is protected, but the overall objective of sections 5, 6 and 6A is to facilitate the public’s right to know how such bodies are administered other than in a particular instance, and we say that the construction we contend for gives effect to that competing objective. The Full Court’s construction, with respect, effectively renders nugatory access to the FOI Act.
Peter Hanks QC for the respondent agreed section 6A strikes a balance between competing public interests. However, the public interest reflected in the section is "in maintaining the confidentiality of the functions and the councils of the Crown." The general rule of interpretation to approach the construction of a provision in a way that would promote the object of the Act is displaced in this instance:
MR HANKS:We need to construe – we need to understand what is the purpose of this particular provision without reading it in light of the articulated purposes of the Act. The purpose of this provision is to create an immunity from the Act and to do so to serve a particular public interest...
FRENCH CJ: Extending to the procedures which they adopt?

MR HANKS: Yes, your Honour, indeed. Now, there are entirely sensible reasons why you would extend it that far; if those procedures which they adopt are designed to ensure the integrity of decisions that are made within the Office of the Governor-General, and their confidentiality is valued in order to avoid manipulation – one can speculate about matters of that sort, but there is a value in maintaining that confidentiality, and extending the confidentiality that far...

Now, in our submission, there is no inherent difficulty in adopting a construction of section 6A that would have that effect. The purpose of section 6A is to provide that only a limited class of documents are to be amenable to requests for access under the Act, and given the nature of the public interest, which we say is reflected in the exclusion, one would expect that the number of documents protected from access would be substantial.
On a related issue concerning the obligation to publish operational information about the Honours system, Hanks submitted the FOI act to the extent s 6A applies, applies to the Office of the Official Secretary - the Council of the Order of Australia and the Governor-General are not prescribed authorities:
Although the Official Secretary is a prescribed authority, the Official Secretary has no involvement in making decisions or recommendations of the kind with which the council and the Governor-General deal. The council has a closely defined membership which does not include the Official Secretary.

So insofar as the reasoning of the Full Court would exclude from access under the Act documents that might be loosely described as operational information if section 8A and section 8 were applicable, it is irrelevant because neither the council nor the Governor-General nor the Official Secretary in relation to the relevant documents is subject to the obligation imposed by section 8 to publish operational information.
The Official Secretary is ex officio Secretary to the Council of the Order of Australia- which may or may not make a difference on a point not central in this case. 

But just why the criteria and related information about the Honours system isn't published is difficult to understand.

The High Court hearing is expected before the end of the year.

Monday, August 19, 2013

A vexed issue: vexatious declarations

Two recent decisions by Australian Information Commissioner Professor John McMillan involving the same applicant, and changes to the Freedom of Information Act proposed in the Hawke review report put the spotlight on the issue of 'vexatious applicants'.

In Australian Securities and Investments Commission and Sweeney [2013 ] AICmr 62 (9 August  2013) and Australian Prudential Regulation Authority and Sweeney [2013] AICmr 63 (9 August 2013) Professor McMillan declared Mr Sweeney a vexatious applicant under s 89K in both cases on the basis he had repeatedly engaged in access actions that unreasonably interfere with the operations of the agency, and involve an abuse of process (s 89L). Mr Sweeney may have a just cause, but he sure pushed the envelope.

The order in each case is the agency is not required to deal with any request for documents or for internal review by Mr Sweeney for a period of 12 months unless he first has applied in writing and has permission from the Information Commissioner to make the request.

The Hawke report (90-92) recommends no change to OAIC powers in this area but an amendment to permit an agency to decline to handle a repeat or vexatious request or requests that are an abuse of process, without impacting on the applicant’s ability to make other requests or remake the request that was not accepted. The applicant could appeal against such a decision to the OAIC.

Dr Hawke points to precedents along these lines in the UK and Tasmania.

But leaving it open to an agency to find abuse of process, as it could under the current law on the basis that a request or requests unreasonably interfere with the operations of an agency, would not strike many on this side of the fence as a good idea, given examples of gaming the system that have come to light, most recently at DIAC.

As to the OAIC decisions:

Friday, August 16, 2013

FOI coverage of Governor General's Office off to High Court

I hear that the High Court granted leave to appeal today Friday in the Kline case concerning Freedom of Information coverage of documents about the operation of the Australian Honours system. More when the transcript appears- now here.

 A long line of decisions in the case to date have all gone the Governor General's way, the most recent a unanimous decision of the Federal Court that gave broad interpretation to the exemption from the act for documents held by the Office of the Governor General that relate to matters of an administrative nature.

(See :Jane Lee's report in The Age.)

The recently released Hawke Report rejected submissions that the FOI act should be amended to broaden the scope as it applies to the Office of the Governor General, but gave no reasons (p 64), recommended that the parliamentary departments should be subject to the act to the same extent, and while citing the Federal Court decision by name gave no attention to the Court's interpretation of the relevant words "relates to matters of an administrative nature" (p 62) and its narrowing effect.

Queensland transparency-ticks and crosses

Time was tight, given speakers on the panel at the Queensland Premier's Open Government Policy Forum in Brisbane this week had five minutes apiece before the Q&A.

I tried to get through as many points as I could with observations drawn from the following rather cryptic notes. There are some issues that I didn't mention on the day, but meant to and was beaten by the clock. 

My central point was a government committed to the fine principles of openness, transparency and accountability should be consistent.

While Queensland leads in some respects, there are gaps and weaknesses in the transparency framework.

One issue rarely discussed in the context of open, transparent and accountable government concerns the measures or indicators of performance-what and how? 

Particularly pertinent if, as most discussion on the day suggested, culture change within the governmental system is essential. Making and measuring change in this respect remains a major challenge.

(Update-transcript and comments here)

My notes..


Open data- nation leading in publication of data sets and plans for continuation of this journey, according to what I hear.

Transparency reform- national leading performance 2007-2009 with the Solomon review report and the push model, most of which made it through to the RTI act.

Continuing nation leading performance through publication on line of some cabinet information, publication on line of Premier and minister diaries, and recording, reporting and publication of lobbying contacts-the last mentioned as a result of changes by Integrity Commissioner David Solomon to the Code of conduct.

In the publication of gift registers such as this  Queensland is ahead of most.

And the Parliament as far as I can see, is the only jurisdiction to publish tabled papers on line. It also publishes the Member's Interest register


In my humble, plenty of scope for improvement...

Starting with Parliament, the Clerk's rejection of a request from Open Australia Foundation to allow republication of Hansard online which would enable OA to add the search capabilities that have made their Federal effort a real winner.


No disclosure or publication of payments to parliamentarians. The Department of Parliamentary Services is specifically excluded from the RTI act.The Department is responsible for payment of salaries and allowances to Members of Parliament, electorate offices and staffing and support services provided to Members at Parliament House. The accounts include expenditure of over $40 million on "Members Salaries, Entitlements and Electorate Office Services." No details of payments to individual members, including travel allowance are officially published or accessible.

The Callinan Report on review of the Crime and Misconduct Commission recommended legislative changes to the RTI act that would remove the requirement for reasons to be given for any RTI refusal of access decision until nine months later. The Government has accepted the recommendation in principle. This is a seriously bad move involving use of a blunderbuss to seek to protect privacy when a complaint has been received or an investigation is under way. A polishing cloth would do.

Unique and unprompted changes to the RTI act earlier this year that involve public disclosure of application details, and the scrapping of the exclusive use period which journalists argue is designed to discourage their use of the act.

The Premier's remarks at the Forum and the reference in the RTI issues paper suggesting the need for more protection for deliberative processes within government.

The review of the RTI and IP acts by the Department of Justice and Attorney-General is being conducted "with oversight by a steering committee of senior representatives from relevant departments." Submissions are invited. But a more citizen -centric approach would have been oversight of the review by a steering committee of senior public servants and community representatives with or without experience in the area.

The scope of RTI act- the issues paper released by Attorney General Bleijie raises the possible extension of the act to Government Owned Corporations not now fully covered, to corporations established by the Queensland Government under the Corporations Act, and to contracted service providers where they are performing functions on behalf of government. It stops short of suggesting extension proposed in 2011 by Mr Bleijie in Opposition to extend the act to cover any corporation supported directly or indirectly by government funds or other assistance, or over which the state, a minister or a department is in a position to exercise control. The privatisation agenda suggested in the Costello audit report might raise further issues about the public right to know and private sector entities.

No discussion in the paper of the absolute exemptions and whether a public interest test should apply. (Michael McKinnon of the Seven Network subsequently pointed to situations where the absolute protections for commercial in confidence and legal privilege had worked against community interests by contributing to a cover up of fraud and maladministration.)

No specific mention or querying the necessity for several unique Queensland absolute exemptions: the equivalent of a cabinet exemption for the Brisbane City Council Establishment and Coordination Committee, championed by the Premier when Lord Mayor; the ten year exemption for information relating to state and local government budgetary processes; and the eight year exemption for Investment incentive scheme information, to use one example that surfaced this week, the cost to the taxpayer of the deal for Virgin headquarters to relocate to Brisbane. 

The question raised in the issues paper about whether further protection is necessary "for information about successful applicants for public service positions."

The position of Information Commissioner has been filled on an acting basis for over a year.

The lobbyist registration and disclosure regime only applies to third party lobbyists.

According to media reports changes to electoral laws proposed by the Attorney General

will mean the political donation process would become "more transparent" with all donations of  $12,400 or more subject to monthly disclosures. Monthly disclosures will be an improvement on the current system where donations become publicly available 6 months after polling day. But as donations of less than $12400 would not be covered this is a retrogade step given the current cut off for declared donations is $2300. Labor in the federal arena has been pushing for $1000 but was blocked by the Opposition.The NSW Liberal Government has banned corporate donations.


The website listing Government Contracts, to this outsider at least, has limited search capabilities that make it difficult to use for accountability purposes

Thursday, August 15, 2013

Queensland shooting for No 1 on the open, transparent ratings, but...

He has said it before, but in opening the Open Government Policy Forum in Brisbane on Tuesday Premier Campbell Newman reiterated his intention that the Queensland Government rate as "the most open transparent and accountable government in Australia." 

On the open data front, Queensland is well on the way. But in light of one of the Premier's comments the No 1 spot for transparency and accountability could prove elusive.

Queensland leads the open data journey with praise for what has been done to date and plans for the future. These include requiring all agencies to inventory their data sets by the end of the year with decisions on release then to be taken on a more systematic basis than the random selection and release to date.

However in a related comment and in answering a question from Alison Sandy of the Courier Mail the Premier indicated rethinking about the extent of transparency regarding public service analysis and advice.

The Premier said information should be released unless it was truly commercial in confidence, was private, ie personal information about an individual, and added or 'disclosed the deliberative processes of government, feeding into the cabinet process.'

Sandy asked the Premier for clarification regarding the associated question raised in the RTI review issues paper, whether there is a need beyond current protections "for information in communications between Ministers and Departments." 

The Premier explained more generally that he was against trial by the media that arose from disclosures about investigations, which in his own case prior to the election came to nothing, and to the disclosure of policy ideas of officials that have never gone to ministers becoming front page news, which often had the effect of shutting the issue down.

The scope of what the Premier has in mind, or what is contemplated in the issues paper isn't clear. In a session after the Premier left, Michael McKinnon of the Seven Network suggested it was pointing towards a government preference for a deliberative process exemption without a public interest test.

Alison Sandy reports on the issue today in The Courier Mail and quotes me accurately that something like this would be a significant step backwards:
"I think what the Premier overlooked today is public servants in many of these areas are experts and their thinking can inform and shape public debate," Mr Timmins said. "Of course government might make lots of decisions for its own political interest … but at least the scrutiny that those decisions get now is a valuable guard against those things. "We need some evidence to persuade us that what we've got now doesn't work." Mr Timmins said after decisions had been made, there was "a pretty strong public interest that the issues and options that were identified as relevant leading up to the decision should be disclosed."
This isn't the only issue worth a comment-other aspects on the positive and not so positive side of transparency in Queensland in another post.

Wednesday, August 14, 2013

OGP looking for Bright Spots

The Open Government Partnership is running a Bright Spots Competition to identify and showcase open government initiatives at the Annual Summit in London in October. 

I'm sure there will be lots of compelling case studies of steps large and small that have moved things along in member countries towards OGP goals-to make government better, more transparent, effective, accountable -- with institutions that empower citizens and are responsive to their aspirations..

Not sure if the fact you are from an intending member is enough to qualify, but prompted by the suggestion that a campaign to get your country to sign up to the OGP might be a Bright Spot, I thought (my version) of the Australian story was worth the requisite 350 words. And a possible gig in London in October. Just dreaming again, sigh.. 

This went off to Washington today:

On 21 September 2011, the day after the OGP was launched in New York, I wrote my first blog post on the subject, querying why 46 countries were represented there but Australia was not.  

After all we had a 100% score on eligibility, espouse the values reflected in the Open Government Declaration and that underpin the partnership, have a long uninterrupted record as a proud democracy with good practices including as an early adopter of Freedom of Information legislation, and promote good, open, transparent government in the Asia Pacific region and elsewhere through our official aid program and in other ways. 

I was flabbergasted when on a visit to Washington in March 2012, Toby McIntosh of Freedom told me the word there was Australia had decided not to join. Passing interest morphed into passionate advocacy.

By May 2013 when the Attorney General announced Australia’s intention to join, I had written 40 blog posts on the subject; lobbied ministers and parliamentarians; utilised the Freedom of Information Act to access documents concerning thinking within government or establish there had been none or not enough; encouraged questions to be asked about the state of play in Senate Committee hearings; and sparked interest among civil society organisations and prominent activists involved with openness and transparency issues.

Good support emerged from within and without government and parliament particularly from former minister and current government senator John Faulkner, a widely respected voice for integrity who spoke up publicly for membership as a high priority.

The Government has said little in the months since the announcement about the process to develop the National Action Plan. In readiness a discussion group has been established that includes interested citizens, academics and leaders of bodies such as Transparency International Australia, the Accountability Roundtable, and Publish What You Pay Australia. A dialogue is underway about how the government-CSO partnership might work best.

Australia is now in pre-election mode with national elections to be held on 7 September. The coalition of the two main opposition parties seems likely to win at this stage. Those parties have not commented publicly on Australia and the OGP but efforts are underway seeking to ensure bipartisan and ongoing support. 

The current intention is that Australia formally present its membership application at the Ministerial meeting in Jakarta in 2014.

It took almost two years for Australia to come to its senses and stand firm and alongside like-minded countries in the OGP. If any lesson is to be learned, it’s the importance of persistence and patience.

Australia has a lot to learn from, and a lot to give others in the partnership.
No idea what, if any Australian government and non-government presence we might have in London in October. September 7 is a determining factor for the government side, funding, principally, for the other.

Maybe (living in hope as usual) some thought is being given in the corridors in Canberra to ensuring both sides of the prospective Australian partnership put on a reasonable first showing at the OGP?

Monday, August 12, 2013

The searcher for government information:easy to get lost

Real easy, as the following exercise illustrates.

In taking a closer look at Queensland in preparation for tomorrow's Open Government Policy Forum, and prompted by the opportunity recently to read a yet to be published research paper (Correction: as a result of a referral through) Scotland's FOI champion David Goldberg, I googled "Queensland How to access government information."

Top of the results list is the Right to Information-formerly Freedom of Information page with helpful information about next steps for the general inquirer, including a central portal for the publication schemes and disclosure logs for 20 government departments, and a link to a central site where RTI applications can be lodged to any of the same agencies online.

Impressive. Even though no mention there of published Queensland data sets available here.

I'm not aware of any other Australian jurisdiction that has such a website. For all the talk about transparency, open government, and citizen centric approaches, John Mary or Nguyen Citizen would soon find digging around with a simple query like this is not for the faint hearted.

Below is what you get with a "How to access government information"search elsewhere. 

It's Queensland by a country mile on the basis of this comparison.

One other point of interest that may have some effect on the even more important results and outcomes: the Queensland list of RTI contacts for the 20 departments variously describes the designation of the relevant unit responsible as Right to Information Services, Information Rights Unit etc. Only one, the Information Release, Legal and Administrative Law Branch of the Department of Education Training and Employment includes any reference to a connection with the legal area of the agency. I don't know about where they fit in the broader structure. But it's a contrast with most of the scene elsewhere where the applicant will find Legal close to whoever they are dealing with in the FOI/RTI process. 

Does it - should it - make a difference? I have a gut feel it does, but it's a suitable research topic for someone out there.

The results of my searches using the name highlighted and the words "how to access government information":

Queensland integrity framework

The Open Government Policy Forum convened by Queensland Premier Campbell Newman will be held in Brisbane tomorrow, Tuesday, 13 August . 

The forum is part of a process of review of legislation, policies and institutions that make up Queensland’s integrity framework. 

I am on a panel on Creating an Open and Accessible Government, chaired by Professor Peter Coaldrake, with Jonathon Horton, Barrister, Elizabeth Jameson of Board Matters and Professor Bill Lane of Clayton Utz and QUT. 

Look forward to catching up with any of you who will be there.

The forum will be streamed online through the Parliament of Queensland broadcast facilities, and will be accessible at   

Four information papers provide background information:
There are also papers released earlier in connection with the review of the Right to Information and information Privacy acts.


Saturday, August 10, 2013

The Opposition and open, transparent and accountable government

My local member is the Hon Malcolm Turnbull. I sent this email today:

'Craig Thomler wrote to you in May with a number of questions concerning the Opposition's position on Gov 2.0, and open, transparent and accountable government generally.

He posted his message to you publicly in June on eGov AU but I understand is yet to receive a response.

Readers of Open and Shut would be interested in your response as well.

One of the issues raised in Craig's message was the Opposition's position on the Open Government Partnership. Since that time Attorney General Dreyfus has announced the Government's intention to join.

I am not aware of any public statement from the Opposition on the OGP and wrote to Senator Brandis and Julie Bishop last week in the following terms:

"I write to seek an indication of the Opposition's position regarding Australian membership of the OGP.

You will be familiar with the initiative launched by President Obama in September 2011.

Australia was invited to join at that time. In June 2013 Attorney General Dreyfus announced the Government's intention to do so. Since, nothing has been said publicly about the process for the development of the National Action Plan, required as part of the application and which must be developed in partnership with civil society organisations.

Australian membership provides an opportunity to improve transparency, accountability and open government here, and to advance our interests more broadly through engagement with the 58 other member countries and in the region in conjunction with the current co-chair, Indonesia.

I would welcome any comment you wish to make about the Opposition's intentions regarding the OGP and would bring your response to the attention of those who take a close interest in these issues.

Because of the international dimension, I have sent a similar email to Shadow Foreign Minister Bishop.

Thank you in anticipation."

Any comments you or your colleagues can make on these important issues will be widely distributed to the many individuals and organisations that take a close interest in good government.'

Peter Timmins.
Open and Shut

(Addendum: on the broader integrity front, Transparency International Australia has sent these questions(pdf) to the parties.) 

Wednesday, August 07, 2013

Queensland review of right to information and privacy laws

Queensland Attorney General Jarrod Bleijie has released issues papers in connection with the statutory review of the Right to Information Act and the Information Privacy Act.

Plenty of time until 15 November for comment and submissions. 

Some of the issues will get an airing at the invitation only Open Government Policy Forum in Brisbane next week - I scored one, thank you.

The RTI Issues Paper (pdf) canvasses big picture issues including:
  • the 'push' model, how it is working generally, and how to give effect to the Premier's  "determination, through the open data revolution, to change the culture of the Queensland Government to be more open by allowing more public access to Government information collected in all regions, in all kinds of formats, for all kinds of reasons"
  • the scope of the act including possible extension to those Government Owned Corporations not currently fully covered, to corporations established by the Queensland Government under the Corporations Act, and to contracted service providers where they are performing functions on behalf of government. (In 2011 Mr Bleijie in Opposition introduced but didn't get far with the Right to Information (Government-Related Entities) Amendment Bill 2011 which would have extended the act to cover any corporation supported directly or indirectly by government funds or other assistance, or over which the state, a minister or a department is in a position to exercise control.)
  • excluded documents and grounds for refusal of access including the adequacy of the current public interest considerations and a possible new factor favouring disclosure in the interests of consumer protection. No detailed discussion of the absolute exemptions and whether a public interest test should apply, or specific mention of several unique Queensland exemptions: the equivalent of a cabinet exemption for the Brisbane City Council Establishment and Coordination Committee, championed by the Premier when Lord Mayor; the ten year exemption for information about local government's budgetary processes, and the eight year exemption for Investment incentive scheme information. Ominously perhaps, the question is asked whether there is a need beyond current protections "for information in communications between Ministers and Departments." With regard to the current 10 year exemption for incoming minister briefs, the paper notes "no other jurisdiction has a specific exemption to protect this information, and it could be argued that these documents make a significant contribution to public debate." Interesting, coming just as the Hawke report released last Friday recommends a similar exemption should be included in the Commonwealth FOI act! As is this floating balloon: "Are the current provisions in the RTI Act sufficient to deal with access applications for information about successful applicants for public service positions?"
(Addendum: while there is discussion of issues arising from the current provision concerning limited circumstances where an agency may neither confirm nor deny existence of documents, and not give reasons, no mention of the Callinan report recommendation that an agency should not be required to give reasons for a refusal of access decision for any application for nine months. The Government announced recently that the recommendation was accepted in principle, noting it raised important and complex implementation problems.)
There are lots of other matters raised, primarily of interest and relevance to government insiders and aficionados on the outside. I see that the review is being conducted by the Department of Justice and Attorney-General "with oversight by a steering committee of senior representatives from relevant departments." Have to wonder what sort of issues might emerge from a process overseen by a steering committee of senior public servants and community representatives with or without experience in the area? Just wondering....

The big questions in the Information Privacy Discussion Paper (pdf) concern national uniformity in particular the advantages and disadvantages of aligning the current information privacy principles with the Commonwealth's Australian Privacy Principles to come into effect next year, or adopting those principles in Queensland. As the paper notes there is
significant confusion and complexity about how privacy law operates for governments and the private and community sector. In addition, it may create an unjustified compliance burden, particularly where organisations operate in more than one jurisdiction, and are required to comply with multiple layers of privacy regulation. Consumers who have complaints about privacy are often confused or unsure about who the appropriate privacy regulator is.
Ah, the search for national uniformity. Good luck to us all.