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Thursday, March 19, 2015

Australian angles arising from Hillary Clinton's private email escapade

Hillary Clinton may or may not have succeeded in hosing down the kerfuffle following revelations she used only a personal email account and never a government account while she served as secretary of state, now admitting this was a mistake.  She also ran a private mail server in her home during this period hosting her email at domain

Clinton and the US don't have troubles in the newish technology space to themselves. Other government  and political figures there are caught up in issues concerning crossover points between information communicated through official and unofficial devices.  It's an issue that has cropped up elsewhere including the UK and Canada.

Beyond a few straws in the wind we know precious little about what goes on in Australia and existing laws aren't much help in working through the issues.

Questions are still out there about Ms Clinton's system: whether federal guidelines were violated, state secrets left vulnerable and an offence committed under public records law. Then there's the adequacy of State Department responses over the years to congressional calls for documents and compliance with subpoenas and freedom of information requests. Not to mention the impact on Clinton's likely bid for the presidency in 2016.

The legal and political to one side, it is hard to defend the use of private email exclusively for messaging during your time as head of of a government agency, to then walk out the door with the lot and subsequently deciding in house with your lawyers that 55,000 pages of emails should be handed over to the government, and 30,000 ditched because they are personal.

As US FOI expert Daniel Metcalfe said if he had heard of a Cabinet member setting up a personal email system and deciding what gets deleted and what gets kept as government record, “I would’ve said, ‘You’ve gotta be kidding me.’”

Nine sitting US Cabinet Secretaries and the Attorney General were quick to confirm to Time magazine that they use a government email account for official business.

Not just Clinton
While not quite emulating Clinton's system other public figures in the US have run into private email problems including currently Republican presidential hopefuls Jeb Bush and Scott Walker. 

The George W Bush White House had an issue in 2007 when it was revealed some White House officials had conducted government business over private email accounts set up on a server through the Republican National Committee. 

Not just the US
See FOIMAN's account of the use of private email in the UK in 2012 when Education Secretary Michael Gove and some in his office used private email accounts to conduct business apparently to avoid potential disclosure through FOI. Both the Information Commissioner and the Cabinet office issued guidance on the subject in 2013.

The Vancouver Sun refers to a number of  instances where the issue has arisen in Canada but concludes Canadian laws are intended to avoid situations like the Clinton controversy. 

What about here?
The short answer is we don't know much about what goes on, the law isn't clear in some respects and oversight is thin on the ground.

For example in the wake of the Clinton fuss, IDM asked Australian and New Zealand government ministers about their email arrangements and then published two Australian responses, presumably the only responses received:
A Senior Media Adviser in the office of Australian Defence Minister Kevin Andrews confirmed “Minister Andrews uses a government email account to transact parliamentary and government business. “ A spokesperson for Finance Minister Senator Mathias Cormann said, “The Minister does not use a private email account for official government business.”
 On law and policy IDM asked other questions, but answers weren't entirely forthcoming:
In Australia, the Department of the Prime Minister and Cabinet is responsible for Commonwealth whole-of-government coordination and leadership for cyber policy issues. Nothing about the Ministerial Standards of Oath of Office requires adherence to any particular computing standards. IDM asked the Department whether it issued firm guidelines on the use of personal versus official government email accounts for official business, but is still waiting on response.The National Archives of Australia responded that “Federal government ministers’ documents are subject to the Archives Act if they are records of their work as a government minister. It isn’t against the Archives Act to use personal email for Commonwealth business, as long as there is a mechanism for records to be retained in accordance with the relevant records authority.“ Unauthorised destruction of a Commonwealth record is a potential breach of the Archives Act.
Sally Whyte in Crikey also looked for Australian angles following the Clinton expose. She refers to reports Communications Minister Malcolm Turnbull and his colleagues were using messaging apps such as Wickr -- a platform that allows users to send encrypted, self-destructing messages -- to discuss the leadership tensions recently. "While Turnbull hasn't confirmed what was said in the messages, he did tell reporters that he uses both Wickr and WhatsApp to send messages, as text messaging is not a secure form of communication."
When Crikey asked the Australian Information Commissioner John McMillan if federal MPs had been advised against using encrypted apps to communicate, he said he hadn't done so -- although that kind of advice would usually come from government archivists, he said. McMillan told Crikey that the commission hadn't looked closely at apps like Wickr, but most likely would if it continued to exist. McMillan's role and office was defunded by the government in last year's budget, and he was supposed to finish up last year. The bill to abolish the role has passed the House of Representatives but has not been introduced to the Senate.
From my notebook a few earlier Australian 'private email' episodes
Pretty thin pickings, perhaps just the tip of a a large, growing iceberg.

In Queensland in 2013 the Minister for Housing resigned after a series of integrity failings  including that the minister, his son and the minister's chief of staff were communicating on official matters using private email addresses; the minister's register of contact with lobbyists released during a Budget estimates committee hearing that he declared"very accurate" did not list extensive contact with his lobbyist son on a range of issues; and according to the opposition the minister's ministerial and electorate diary released under Right to Information laws had been doctored to hide the fact he was continuing as a GP to see patients. 

The then Queensland Attorney General "denied the use of private emails was a tactic to avoid having them released under the RTI Act, but said he used private email at home because he didn't have access to his work email. "I wouldn't envisage that's a systemic problem, no," he said. "Everyone should be careful what they put in writing no matter what communication you use."  

Tom Swann in July last year in the Saturday Paper wrote  about documents concerning the Federal Rudd government's 2013 asylum seeker advertising campaign to deter boat arrivals. It involved $6.5 million in public funds spent in the run up to the election. Documents released under FOI in 2014 revealed the controversial advertising campaign was developed and approved in less than a day and someone was calling the shots on Gmail:
The first email was sent at 8pm on Thursday, July 18, by the department’s head of communications, Sandi Logan. It contained the guidelines’ criteria for exempting a campaign from normal scrutiny, with the words “extreme urgency” underlined. Close to midnight someone in the prime minister’s office sent a media plan – “canvassed and locked-in” – to Burke’s media advisers and senior immigration bureaucrats. The sender’s name is redacted, but the email is described elsewhere as coming from “the Minister’s Gmail”.

 In November 2014 the South Australian Independent Commissioner Against Corruption (Annual Report pdf P57) expressed concern that some public officers, mainly ministerial staffers, use personal rather than government email accounts to conduct official business and sounded this warning:
"It has been suggested that the reason for doing so is to avoid the requirement to disclose those emails where an application is made under the Freedom of Information Act 1991(‘FOI Act’). If it is the case that public officers are engaging in this kind of conduct to avoid the consequences of the FOI Act, that conduct should cease immediately. It is a matter of concern that public officers would seek to circumvent a legislative scheme designed to enhance transparency in government decision making. Such conduct might, at the least, amount to misconduct in public administration and be the subject of investigation and potential disciplinary action. I am told that the FOI Act is often abused. If that is so that is a reason to address that Act. It is not a reason to frustrate the FOI Act. While it remains the law the spirit of the Act should be observed by all public officers. Presumably those emails are not maintained in accordance with the State Records Act 1997 (‘SR Act’) (where that Act applies). The conduct therefore might also amount to an offence against section 17 of the SR Act. An offence against that section by a public officer while acting in his or her capacity as a public officer would amount to corruption in public administration under the ICAC Act."
It is highly unlikely that a minister or senior public servant would use a private email for government business exclusively as Clinton did. But it would be the height of naivety to think there isn't something going on that brings into question the adequacy of records, archives and information access laws. And the questions aren't all to do with new-fangled gadgetry.

Doubts everything that should be recorded is recorded
Of course doubts have been raised for years about what gets recorded and what doesn't in the course of conducting government business. This despite guidance from the Auditor General, the Public Service Commission and Archives Australia about the importance of recording important stages in "the deliberations, decisions and actions of the Commonwealth and Commonwealth institutions relating to key functions and programs and significant issues faced in governing Australia."

"Don't write it down, let's talk"
A long line of senior public servants over the years have said they won't commit to a written record in future if information in dispute usually advice and claimed to be sensitive was released in response to an FOI request. The extent to which this permeates communication across government, up the line and between ministers is known only to insiders.
No general obligation to create records  
Six years ago, former agency head and Public Service Commisioner Andrew Podger gave a glimpse of what happened behind the scenes when he was present as colleagues discussed ways to thwart FOI applicants. The discussion was informed by advice from the then head of AGD that the law contains only an implied not explicit general obligation to create records of key business activities and decisions. (Some specific requirements are addressed in relation to specific matters such as financial records in the FMA act.) 

Record management systems aren't great, and officials might be hard working and hard pressed but some are less than punctilious when it comes to record keeping.
Systemic deficiencies and/or or failure to adhere to the guidelines mean there have been many reports such as this Auditor General report tabled this week into Health's management of an agreement with pharmacists:  
(T)he report documented "persistent shortcomings in departmental record-keeping," including a failure of the department to keep a formal record of its meetings with the guild during the negotiations and its discussions about contracts.
Post it Notes still handy
While paper records and files are on the way out Noel Towell in The Canberra Times reminded recently that the post it note had never gone out of fashion "as a powerful weapon used by the Australian Public Service to avoid Parliamentary scrutiny and Freedom of Information laws.

Public records law and private communication
The Archives Act applies to Commonwealth records defined as records that are "the property of the Commonwealth." As far as public servants are concerned this covers records created or received in the course of APS employment.

Ministers and ministers' records are not singled out for special mention but as Archives told IDM, the act applies to records of work as a government minister.

In both cases information handling responsibilities under the act would seem to apply to relevant records held in government systems and to records of the requisite nature held in other systems for example personal email accounts, or in or on personal as distinct from government devices.

I don't know if Archives Australia has ever had cause to look into this.

Ministers' and the agencies they are responsible for are separate entities for FOI purposes.

In the case of an agency the Commonwealth Freedom of Information act confers a right of access to a document that is in the possession of the agency, whether created in the agency or received in the agency.

In the case of a minister only "Official documents" are subject to the Act. Official documents are documents in the possession of a Minister in his or her capacity as a Minister that relate to the affairs of an agency or department. A document in the possession of a minister’s office but not held personally by the minister seem to be covered. Ministers' documents concerning political party business, the minister's activities as a member of parliament, or personal documents are not subject to the FOI act. 

"Document" is broadly defined. In addition to paper the definition includes
(iv) any article or material from which sounds, images or writings are capable of being reproduced with or without the aid of any other article or device;
 (v) any article on which information has been stored or recorded, either mechanically or electronically;
 (vi)  any other record of information.
As with the Archives Act official documents of a minister would seem to cover relevant documents held in government systems and 'documents' of the requisite nature held in personal email accounts, or in or on personal as distinct from government devices of the kind referred to in (iv) and (v).

I have no idea whether any FOI applicants have explored this territory, or if these sort of issues have bobbed up on the Information Commissioner's desk. 

Interested to hear from anyone with a tale to tell.

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