FOI applicant marooned by comings and goings in Treasurer's Office

Smoke may still be coming out the ears of those at Phillip Morris Ltd as they reflect on recent experience of close to three years spent pursuing Freedom of Information access to documents from the Treasurer. 

More than two of those years involved waiting in the queue for review by the Information Commissioner of a determination by the office of then treasurer Swan in June 2011 to refuse access to documents claimed to be exempt. By the time the decision came up for IC consideration in 2013 the treasurer was a different treasurer and the current incumbent said he didn't have the documents or access to them. Freedom of Information Commissioner Popple decided in December that the FOI act no longer applied to the documents. 

The Commissioner noted that the Treasury department now acknowledged that it held the documents. 

PML is unlikely to be be overjoyed at the prospect of making a fresh FOI request to start the process all over again.

I don't know how many other FOI applicants seeking documents from a minister or in the line for IC review of a determination by a minister found themselves marooned as a result of a ministerial reshuffle or the wholesale replacement of the ministry following the election in September. But with three administrations in 2013, ministerial comings and goings reached record levels.

In the PML case the FOI act applied to the documents (not described in the decision) when PML made the FOI application in March 2011.The Treasurer's office (Wayne Swan at the time) claimed eight of 13 relevant documents held were exempt. In August 2011 PML sought Information Commissioner review of the knock-back. 

Nothing much seems to have happened by the time almost two years later in July 2013 when a new treasurer Chris Bowen was appointed. Bowen was replaced by Joe Hockey following the September 2013 election. 

In October 2013 in response to a query from the OAIC the Treasurer's Office advised that the ‘documents relating to the review are not in the possession of the Treasurer and cannot be accessed by the Treasurer.’ 

On this basis in December Commissioner Popple decided [14-16]  that the IC review cannot continue to be undertaken as the documents were not in the possession of the current treasurer and as a result were not at this time ‘official documents of a Minister.’ The FOI Act no longer applied.

18. Furthermore, I cannot make a decision on this IC review that PML be given access to the documents it has requested. Section 55K of the FOI Act provides that, in making a decision on an IC review, I may ‘perform the functions, and exercise the powers, of the person who made the IC reviewable decision’ (s 55K(2)) and my decision ‘has the same effect as a decision of the agency or Minister who made the IC reviewable decision’ (s 55K(3)). In this case, a previous Treasurer was the person who made the IC reviewable decision, but (because of s 20 of the Acts Interpretation Act) the current Treasurer is that person for the purposes of s 55K. This means that I can only make a decision on this IC review that could be made by the current Treasurer. The requested documents are not in his possession, so I cannot decide that he give PML access to those documents. (This would be the case even if I had possession of the documents myself.) 

Treasury may have had copies of the documents all along and PML might have had a decision on the merits of any exemption claim by now if the original application was made to the agency not the minister, but that didn't happen. A decision by the IC before July 2013 would have determined the merits of the refusal determination but that didn't happen either.

The decision makes no reference to what did happen to the documents when the baton changed hands first in July 2013 and then again in September. Or to the only published guidance on handling documents when a minister leaves office, published by the Department of Finance in the Ministerial Handbook on Entitlements:

"It is normal practice that a Minister will, on ceasing office:

• return departmental records (both electronic and hardcopy) to his or her portfolio department;
• destroy Cabinet papers issued to him or her, keeping a record of documents destroyed (including copy numbers) and advising the Cabinet Secretariat (as outlined in the Cabinet Handbook). The Cabinet Secretariat will provide detailed guidance on disposal procedures when the Minister’s departure is imminent; and
• deposit other official records, including those that originated in the Minister’s office, with the National Archives of Australia. The National Archives seeks to acquire the personal papers of Prime Ministers, Ministers and Parliamentary Secretaries, to ensure the retention of valuable official records and related private material."

(As an aside 'normal practice' seems a loose standard for ministerial conduct in the handling of records-apparently unsupported by legislation or oversight.)

PML and its interests mightn't attract widespread public support but they like anyone else are entitled to a fair go.Two years waiting for IC review isn't just or fair. 

 And if normal practice was followed and the unfinished FOI file and relevant documents were passed back to the Treasury in July as seems likely you would hope someone there might have let the applicant know and discuss where to from there but that level of civility, service and willingness to help appears to have been lacking in this case as well.

High Court hearing scheduled in FOI test for Governor General's Office

The just published latest edition of Anne Summers Reports includes (page 6) my brief summary of the arguments advanced in the successful leave application to the High Court in Kline v Official Secretary to the Governor General, the long running battle over access to information about administration of the Honours system. 

The issue is the scope of the Freedom of information Act and the meaning of the words "relate to matter of an administrative nature" in the context of the powers and functions of  the Governor General in administering the Order of Australia. 

The appeal will be heard in Canberra on 30 October. 

The written submission on behalf of the Appellant by Ron Merkel QC was not available when I wrote the ASR piece about a month ago.

By the by, I understand that the government's costs in fighting this case through its long journey to the steps of the High Court are well north of $130000, not $30000 as mentioned in the article.

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?

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.

CCTV cameras off limits in Nowra-for the moment at least

Rarely has a NSW Administrative Decisions Tribunal decision had the Prime Minister's attention!

However the decision that CCTV cameras in the street installed and operated by a local council breached privacy legislation had the Premier, the Prime Minister and the Federal Opposition all rushing to defend the practice and promising a legislative fix if needed to solve any legal problem.

Judicial Member Montgomery in SF v Shoalhaven City Council [2013] NSWADT 94
found the Council contravened the obligation imposed on it by sections 10, 11(a) and 12(c) of the NSW Privacy and Personal Information Act. 

There is a lot in the decision on the full range of information privacy principles. Judicial Member Montgomery found in favour of the Council on a number. 

The following extracts relate to the findings concerning breach of three principles. They turned on the evidence rather than anything else. Nothing has been said about an appeal so far. Other councils are putting on the thinking hat and the politicians seem ready to roll in any event.

Notice
Section 10 requires that the subject of an information collection is made aware of the implications for their privacy of the collection process, and of any protections that apply prior to or at the time of collection.

149. Section 10 is explicit in regard to the details of which the individual to whom the information relates are to be made aware. In the circumstances of this matter, the Council has collected the Applicant's personal information, and that of other individuals, and provided some signage in an effort to make people aware that images were being collected. I accept that the signage is sufficient to inform a majority of individuals that the cameras are in operation and, by implication, that personal information is being collected. It is not sufficient to inform individuals of the purposes for which the information is being collected.

150. Not all cameras have a sign near them. Increased signage would increase the likelihood that more individuals become aware that the cameras are in operation and that personal information is being collected.

151. I am not satisfied that the signage is sufficient to ensure that individuals are made aware of all of the information addressed by section 10.

An exemption to Section 10 where information is collected for law enforcement purposes did not apply. Police Officers are able to view a live feed of the images collected from the cameras and an arrangement is in place between the Police and the Council whereby an authorised Police Officer may apply for access to particular information.  

Judicial Member Montgomery said [156] a "small proportion of the information is used for law enforcement purposes however that is not the purpose for which it is collected. The information is collected for 'crime prevention' purposes" adding: " In the circumstances it is also doubtful that the Applicant's personal information was collected for 'crime prevention' purposes given that the Applicant was a private citizen going about his private business in a lawful manner." [157]
(Comment: the interpretation of these terms may involve legal argument if the matter goes further.)

Relevant not excessive information
Section 11(a) requires an agency to take such steps as are reasonable in the circumstances (having regard to the purposes for which the information is collected) to ensure that the information collected is relevant to that purpose, is not excessive, and is accurate, up to date and complete.

162. In my opinion, the vast majority of the information collected under the Council's CCTV program is 'collateral information' and is not relevant to the 'crime prevention' purpose. All of the Applicant's personal information is 'collateral information' and is not relevant to the 'crime prevention' purpose. Further, there is no suggestion that Police made any use of the collected information for law enforcement purposes.

163. In my view, the evidence is clear that the images and footage collected in relation to the Applicant are of such poor quality that, in any event, the information would be of little assistance for law enforcement purposes. Because of the poor quality of the footage it cannot be said that the information collected is complete. A high proportion of the frames were omitted giving the false impression that the Applicant was skipping rather than walking.

164. The expert evidence suggests that CCTV does little to prevent crime. The data available for the Nowra CBD suggests supports the Applicant's argument that the Council has not demonstrated that filming people in the Nowra CBD is reasonably necessary to prevent crime. In fact, available data suggests that since the Council's CCTV program was implemented crime has increased in the Nowra CBD in the categories of assaults, break and enters and malicious damage.

165. It seems to me that, at least at the time the Applicant's personal information was collected, the equipment used in the Council's CCTV program was unable to provide any meaningful data that would be able to assist in a general 'law enforcement' context.

166. In my view, the Applicant's personal information that has been collected is not relevant to the purpose of crime prevention, and is excessive, inaccurate and incomplete. In the circumstances, I agree with the Applicant that the Council has not complied with the obligation imposed on it by section 11 of the PPIP Act.

Reasonable security safeguards

Section 12(c) of the PPIP Act provides that an agency holding personal information must ensure that the information is protected by taking reasonable security safeguards against loss, unauthorised access and misuse.

169.... It is common ground that the collected data is only available to Council staff and Police Officers. In my view, the Council has developed sufficient safeguards, as are reasonable in the circumstances, to protect the personal information collected and are therefore sufficient to meet the requirements of section 12(c). The system as designed requires that the (Police) duty officer enter a user name and password at the commencement of their shift, to log into the 'live feed' monitor. However, the evidence suggests that this process has not been followed.

170. I agree with the Applicant that the use of a generic password rather than an individual user name and password for each authorised user means that there is no way of checking who is and isn't using the live monitor at the Nowra Police Station. There is no way of knowing whether those who are accessing the monitor have been appropriately trained. Section 12(c) provides that the agency 'must ensure' adequate protection of the collected information. While the system design would achieve this objective, the Council has not monitored compliance with the safeguards that are in place. As a consequence, the Council's CCTV program is open to unauthorised access and misuse and therefore fails to comply with section 12(c) of the PPIP Act. At a minimum, compliance would require appropriate training and monitoring of the use of individual user names and passwords to provide an audit trail of users of the system.

The orders are:

1. The Council is to refrain from any conduct or action in contravention of an information protection principle or a privacy code of practice;

2. The Council is to render a written apology to the Applicant for the breaches, and advise him of the steps to be taken by the Council to remove the possibility of similar breaches in the future.

Centrelink not subject to NSW privacy laws

Deputy President Magistrate Hennessy in AGU v Commonwealth of Australia [2013] NSWADTAP 3 reached the unsurprising conclusion that Centrelink, part of the Commonwealth Department of Human Services is not a public sector agency for the purposes of the NSW Privacy and Personal Information Protection Act, and as a result is not subject to the NSW Health Records and Information Privacy Act. 

While it clearly did not come within the statutory definition of a (NSW) agency, the appellant's unsuccessful arguments revolved around provisions in the legislation that seek to bind the Crown in all capacities. The Appeal Panel said these provisions were for the purpose of overriding the common law presumption that the Crown is immune from civil suits, not to extend the act's privacy principles to Commonwealth agencies.

Not mentioned in the decision is that the Department and Centrelink are subject to the Commonwealth Privacy Act.

Privacy law, Commonwealth or state is confusing and messy, and the combination even more so. It is not surprising that citizens such as AGU can get off on the wrong foot. Surry Hills Legal Centre representing AGU perhaps should have picked up that arguing obscure points while pursuing remedy through NSW law to an ADT review and an appeal was always something of a lost cause.