Senator Patrick chalks up important FOI win

He''s a vigilant determined defender of the spirit and intent of freedom of information.

May the wind be at his back!

In the Senate on Tuesday Senator Rex Patrick recounted a drawn out and eventually unsuccessful attempt by the Department of Prime Minister to deny access to the complete performance audit report into the handling of a $1.3 billion dollar Defence contract for the procurement of the Hawkei light protected mobility vehicle from Thales Australia Ltd. 

The government had refused to table the complete report in response to a Senate Order; Attorney General Porter issued a (rare?unprecedented?) certificate under the Auditor General's Act preventing disclosure of parts of the report on public interest grounds; and various FOI exemption claims, some dropped on the way, were advanced on this journey to the Administrative Appeals Tribunal.

Deputy President Britten-Jones concluded no additional harm to national security or Thales commercial interests would result from disclosure, given information already in the public domain in a redacted version of the report, and information made available by Thales when it commenced Federal Court proceedings in January 2018. 

The Deputy President[ 70-78] was dismissive of another claim that the Auditor General's analysis and conclusions involved deliberative processes: "Rather than disclosing a deliberative process, the Redacted Report discloses a final conclusion based on an analysis of factual findings.....Section 47C does not operate to disallow access to a report of this nature generated by an independent officer of the Parliament exercising his statutory functions. The Disputed Material is not conditionally exempt under s 47C(1) of the FOI Act."

Senator Patrick posted the report and relevant documentation following notification the decision will not be appealed, observing

"In this matter the Attorney-General’s judgement was clearly unsound. He was  incapable of properly assessing national security claims This raises a most serious question - what else has the Attorney-General got wrong in the national security space?”

Indeed.

Senator Patrick in the Senate 2 February

Cabinet secrecy for the National Cabinet-maybe, maybe not

Seven months after its formation, the National Cabinet has made its way into the just published new edition of the Cabinet Handbook. (Pages 30-31) but is still to get a mention in the Government Directory

Anyone looking for an explanation about what makes the NC and a range of committees and groups that come within its scope (The Council on Federal Financial Relations, any other committees "as required" that the NC establishes, and any National Cabinet Reform Committees) part of the Federal Government Cabinet will be disappointed by the entry in the Handbook.

There is nothing in the National Cabinet section that adds anything to the Prime Minister's explanation that it's part of the Cabinet because he, presumably supported in this by the Premiers and First Ministers of the states and territories, decided it is, and say so.

According to the entry the "National Cabinet operates according to the longstanding Westminster principles of collective responsibility and solidarity." 

Those principles as explained elsewhere in the Handbook (Page 9) are hard to reconcile with what has been on public display in the operation of the National Cabinet. For example:

• "(O)nce decisions are arrived at and announced they are supported by all ministers."

• "(A) decision of the Cabinet is binding on all members of the Government regardless of whether they were present when the decision was taken."

• "The aim is to reach some form of consensus so that the Prime Minister, as chair of the Cabinet, can summarise what the collective decision is for recording in the Cabinet minute.

• "Members of the Cabinet must publicly support all Government decisions made in the Cabinet, even if they do not agree with them."
  

• "Cabinet ministers cannot dissociate themselves from, or repudiate the decisions of their Cabinet colleagues unless they resign from the Cabinet."
  

• "It is the Prime Minister’s role as Chair of the Cabinet, where necessary, to enforce Cabinet solidarity."
  

• Observance of the two principles is "entirely dependent on a commitment to three important operational values: consultation; confidentiality; and respect forthe primacy of Cabinet decisions." 

Officials from Department of Prime Minister and Cabinet, Australian Government Solicitor and Attorney General's Department were not able to explain more fully in Senate Estimates this week.

PMC 

Senator Siewert .. Has.. the claim that national cabinet has the same provisions as cabinet, been raised by the states and agreed to by the states and territories?

Ms Foster  (Deputy Secretary) : National cabinet was established by agreement of all first ministers, and they agreed that they wished national cabinet to be established as a subcommittee of the federal cabinet with all of the same provisions applying to it.

Senator SIEWERT: Under what legal basis is that? Just them agreeing to it doesn't make it so.

Ms Foster : Senator, as you know, cabinet operates by longstanding convention, and this committee was formed by the agreement of all the members under those provisions.

Prompting Senator Wong to comment

They're out there smashing each other publicly. Ministers generally don't do that. And it's not bound by consensus. Sorry, but I just think you shouldn't give evidence that's not correct. It might be the Prime Minister's line, but you should not give that evidence. 

Later questioning saw officials explain the Australian Health Protection Principal Committee and
the COVID committee in preparing material for national cabinet consideration, are subject to the cabinet confidentiality provisions.

Attorney General's Portfolio 

Answers to questions by the Australian Government Solicitor Mr Kingston bear a close relationship to a Yes Minister script. Those from the Secretary of the Department Mr Moraitis more closely resemble Sergeant Schultz- "I know nothing". Defies summarising. Full text below. 

Next-the Tribunal

Senator Patrick is in the Administrative Appeals Tribunal challenging an FOI refusal of access to documents on the basis that national cabinet is covered by the cabinet document exemption. 

In this post in June I suggested the National Cabinet lacked the essential characteristics of a cabinet that an earlier Tribunal decision described as relevant in deciding whether the exemption applies. 

Senator Carr in estimates cited Constitutional law professor Cheryl Saunders saying, 'It's impossible for a meeting of the first ministers to operate according to the longstanding Westminster principles of collective responsibility as is claimed in the new Cabinet Handbook."

Time will tell. 

The state of FOI is no joke

We are far better off with freedom of information legislation than we were without it (37 years ago).  FOI delivers often ( recent examples: Defence Industry Minister Melissa Price charged taxpayers $77,254 for a recent week-long visit to Europe; serious complaints about mistreatment and abuse of children with a disability) but often not and often then only after pettifogging, long delays and battles that are costly all round.

What's wrong?

The Federal law is out of date and out of line with emerging best practice, the culture issue of excessive secrecy has never been properly addressed, champions, defenders, advocates within government have been few and far between, the information access function of responding to requests for information in many agencies is under resourced but the spin factories cope well, thank you very much, and independent oversight is underweight with three (Correction one) commissioner when parliament legislated three struggling to manage the workload and just now in 2019 on its third own motion investigation of what's going on (at Home Affairs) since 2010.

Frequent users know all this-below just some of the observations in recent months about the state of affairs as media organisations join the fray with their Right to Know Press Freedom campaign -after a long hiatus.

Government silence

But the minister responsible overall, Attorney General Christian Porter is silent and has been sitting on recommendations (never sighted publicly) from his department since March 2018 on next steps beyond a bit of a chat with interested parties two years ago about implementation of a commitment in December 2016 to ensure information laws, policies and practices are fit for the twenty first century. Progress on implementation is officially 'Delayed'-a relief at least to those of us thinking 'Ditched' might be more apt.

Reform delayed or ditched?

Meanwhile Attorney General's tells us (Milestone 5) work is underway "on improving guidance material to raise awareness of existing online information about archives and FOI and explore options to better assist users to navigate FOI and archives processes. This work has been delayed but both agencies are working to develop a new information access and education resource by May 2020 in time for 'Information Awareness Month.’

Is that all there is?

The right to know what government knows unless not knowing is in the best interests of all of us is a cornerstone of democracy.

What those outside government who take a close interest say about this state of affairs.
A sample.

Your Right to Know resumes after a spell

Great to see media organisations today putting Your Right to Know up in lights with the front page wrap in publications across the country

together with articles and editorials that explain (or attempt to) why excessive secrecy is everybody's business.

'Mad as hell...' has been the theme for four months following police raids on the ABC and the home of journalist Annika Smethurst. A tepid response from the government has prompted action to roll out their biggest gun-front page news with a website and strong social media presence.


The six point agenda for reform has undergone slight changes since rolled out but amounts to:

• safeguards and checks around warrants allowing interception of journalistic communications and metadata; 

• real teeth for whistleblower protection to make the Public Interest Disclosure Act worthy of its name, and making sure the proposed Commonwealth Integrity Commission aligns with public interest reporting and confidentiality of sources; 

• an end to cavalier classification of many documents as secret when they should be open to public scrutiny; 

• a revamp of freedom of information laws so government cannot so easily stonewall perfectly reasonable requests for access; 

• exemption for journalists from a thicket of counter-terror laws that would put them in prison for doing their job; and

•  a vigorous effort to ensure the review of the uniform defamation law resets the legal balance so that painstaking investigative journalism can go about its work of exposing corruption, crime and abuse of power"

The 'this is everybody's business' line is welcome but slow in coming. 

Many organisations and individuals have been slogging away on advocacy on these issues consistently for years.While journalists have had plenty to write about, media moguls put little shoulder to the wheel. 

For the record:

Twelve years ago media organisations were prompted by developments to shout from the rooftops they were not going to take infringements on the public's right to know silently anymore.

Australia's Right to Know was launched in May 2007 with News Limited Chairman and CEO John Hartigan in the lead, supported by Fairfax Media, FreeTV Australia, commercial radio, ABC, SBS, Sky News, ASTRA, West Australian Newspapers, the Media, Entertainment and Arts Alliance (MEAA), AAP and APN News and Media.

News Limited chairman and chief executive John Hartigan said Australia had become a "lightweight democracy" with a tangle of clumsy laws impinging on the public's right to know..... Mr Hartigan said it was time for the media to strike back."It's a matter of drawing a line in the sand and saying 'this is enough'," he said.

The coalition commissioned the Independent Audit into the State of Free Speech in Australia which delivered a 316 page report in October that year- I was the Deputy Chair.

The coalition made some headway on a couple of the issues raised in the report during the Rudd/Gillard years, and stuck around for a year or so.

Then disappeared as David Salter and Richard Ackland both commented in 2010, Ackland as follows:

I wondered why Australia's Right to Know Campaign had gone a bit quiet. This is the outfit driven by the main newspaper groups (including Fairfax) and broadcasters to lobby for fewer legal impediments that get in the way of reporters' access to information. A quick check of the Right to Know's website shows the last big thing to happen was a big free speech jamboree in Sydney a year ago. There have been no papers, reports or analysis since 2008. Maybe it's because The Australian newspaper has decided to change sides and go into the suppression business.

I wrote this at the time:

In early 2008 months after my involvement with ARTK as Deputy Chair of the Independent Audit of Free Speech finished I went to see John Hartigan, then head of News Ltd and ARTK, to make a pitch for the establishment of a permanent, professional and appropriately funded body to research, advocate, educate and lobby on freedom of speech, and the public’s right to be informed. I suggested that the media needed to seek out others who shared these interests, and that it cede some power to them so that the coalition could seek to deliver what its name conveyed-Australia's Right to Know. Voices on these issues were weak, sporadic, divided and underfunded and the coalition was well placed to change this. Hartigan listened politely, nodded at the appropriate time but that was it-and my last contact with ARTK.

A vigorous campaign would have involved enlisting allies to the cause, seeking to better inform the public about the importance of this issue, and  mounting a collective professional effort to go for gold on the reform front. The few voices that spoke up were all over the place, leading the Senate Committee to observe recently that there were many suggestions for changes to the reform bills, but no agreement on what should be changed, therefore there was no point in or time to consider them seriously, including most of those put forward by ARTK.  And of course many didn't speak up at all. ARTK three years after it formed has no web presence, no publicly available collection of submissions, no scorecard of performance, no coalition partners.

ARTK seemed to never hear about the government initiative in joining the Open Government Partnership let alone hop in to support the reform agenda that the likes of Transparency International Australia, Accountability Roundtable and others have pushed since 2013.

The case for that vigorous ongoing campaign and a collective professional effort is more important than ever.

Is this the senate to sort out public interest immunity claims?

The Senate from here on will likely be an even livelier front for argy bargy over access to government documents.

 But whether there is appetite and numbers among Labor, The Greens, the PUPs and assorted others - maybe even among staunch parliamentarians on the government benches - to push for a mechanism to resolve a disputed public interest immunity claim remains to be seen. Refusal to produce has been treated as a 'political problem' to date. If the matter can't be sorted by negotiation it dies in the ditch at that point.

In February there were indications it was game on. At one point the non-compliance rate with orders of the 44th Parliament to produce stood at 100%. The Senate Procedural Information Bulletin at the time labelled it "an unprecedented situation." The record has improved since.

The Legal and Constitutional Affairs References Committee then huffed and puffed about the refusal to comply with an order to produce documents relating to 'Operation Sovereign Borders' with secrecy about the boats an ongoing issue, given new impetus this week.

The report also recommended the Senate refer to the Procedure Committee "as a matter of urgency" inquiry into the independent arbitration process followed by the NSW Legislative Council regarding responses to orders to produce and any modifications necessary if such a scheme was to be adopted by the Senate. The Clerk of the Senate Dr Laing told the References Committee the NSW system is the best around for adjudicating these matters.

The 'matter of urgency' didn't count for much. The report was tabled on 6 March but there has been no debate and no referral to date.

Meanwhile stand offs continue. 

The Procedural Bulletin reported on the May-June Senate Estimates hearings:

There were numerous occasions when officers or ministers declined to provide information and senators pressed for articulation of the grounds on which the information was being declined. In most cases, the questions were then taken on notice. Some examples include:

• monthly reports of agency figures on involuntary redundancies (Australian Public Service Commissioner) – said to be advice to ministers (FPA, 26/5)
• whether the Prime Minister’s Chief of Staff attends Cabinet meetings (FPA, 27/5)
• appointment and role of the new Cabinet Secretary (FPA, 27/5)
• the timing of advice on cessation of the Nursing and Allied Health Scholarships Support Scheme in Tasmania (CA, 3/6)
• further questions about funding for mental health programs (CA, 3/6)
• the number of Cabinet decisions in relation to free trade agreement negotiations with China (FADT, 5/6).

In other cases, while only skeletal public interest immunity claims were articulated – such as national security concerns in relation to information about drone strikes in Yemen and the death of Australians (LCA, 28/5) – senators did not press for further information....

There are always cases of officers or ministers declining to provide answers on the basis of “longstanding” practice, only to be embarrassed by the discovery of the information from a public source moments later. In this round, the ministerial order of precedence – astonishingly – was claimed to be a secret, but was found shortly thereafter on Wikipedia (FPA, 27/5). It is also reflected in the published ministry list and in the order of occupation of seats on the front benches in each House. Membership of the Government Staffing Committee was also discovered to be public information (FPA, 29/5)...

Despite the recent enhancement of opening statements with the agreement of the Chairs’ Committee, “advice to Government” is still the most common bleat by officers and continues to remain unpursued on most occasions. Apparently, it is also “not the practice” to make legal advice public in estimates hearings, a statement made in the context of discussion of the tabling of departmental legal advice on the legality of settlements in the Palestinian Territories at a previous round of hearings (FADT, 4/6).

In another development Senator Wong has a number of motions before the Senate including 298,

noting "the frequency with which freedom of information legislation is invoked to withhold information from senators and the Senate, not only by reference to grounds of exemption in the legislation but also apparently on the basis that an answer will not be provided if a Freedom of Information (FOI) request has been lodged for the same information;

(b) recalls the observations of the Procedure Committee in its Third Report of 1992 that:

(i) there is no basis in law for the application of the FOI Act to the production of documents to a House;

(ii) if a minister were to regard all of the exemption provisions in the FOI Act as grounds on which to claim a privilege against disclosure of information to a House, this would considerably expand the grounds of executive privilege hitherto claimed;

(iii) the use of the provisions of the FOI Act as a checklist of grounds for non-disclosure does not relieve a minister of the responsibility of carefully considering whether the minister should seek to withhold documents from a House, or from considering the question in the context of the importance of the matters under examination by the House;

(c) resolves That the same principles apply to the provision of information to committees in response to questions asked by senators, which require the same careful consideration by ministers;

(d) declares that declining to provide documents or answer questions on the basis that an FOI request has been made for the same information is an unacceptable response, is not supported by the FOI Act and shows a profound lack of respect for the Senate and its committees.

Secrecy surrounding what is up for grabs in the negotiation of the Trans-Pacific Partnership Agreement continues to attract attention in the Senate.

Meanwhile The Greens Senator Rhiannon is seeking to up the ante in that 'vexatious applicant' matter and the associated refusal of an an FOI application for the Senate vote count software, with this motion that may or may not get a run today:

*330 Senator Rhiannon : To move—That there be laid on the table by the Special Minister of State, no later than 15 July 2014:

 (a) all correspondence and documents, whether written or in email form, from the Special Minister of State’s office and/or the Australian Electoral Commission (AEC) relevant to:

 (i) the decision of the AEC to have Mr Michael Cordover declared a vexatious applicant, and

 (ii) the assertion that Mr Matthew Landauer colluded with Mr Cordover to harass the AEC; and

 (b) the source code of the software by which Senate vote counts are conducted.

(Update: Paul Farrell in The Guardian reports the motion passed on 10 July and quotes Senator Rhiannon:

“There is no justification for the AEC refusing to release information on how the Senate vote is counted,” Rhiannon said. “It is widely known that it is very complex so surely the methodology used should be publicly available. “Why would you stop the public knowing how the Senate vote is counted?..The AEC are not only doing the wrong thing in refusing a legitimate FOI request – in the wake of the WA federal election debacle they are further damaging their own reputation,” Rhiannon said. “The AEC hardline position in trying to discredit Mr Cordover as a vexatious litigant is an abuse of the law under which the AEC operates and raises the very relevant question what do they have to hide."

I'd expect resistance to the software demand which in the FOI context the AEC claims contains 'trade secrets' and information of a commercial value. Whether the Senate or the AAT becomes the forum for battling this out remains to be seen.

Oh dear...

There are plenty of potential targets on the transparency and accountability front at the moment but Alan Moir in the Sydney Morning Herald gives the puppet theme, the NSW Premier and excessive secrecy another run today.  Come 1 July cartoonists will struggle with "GIPA" which just won't have the same ring...

FOI awareness and alphabet soup

Twenty eight years on since our first law arrived, and even among the 400 interested enough to show up on a wet Saturday in Sydney to a discussion on Press Freedom and the Public Right to Know, its still a puzzle.


Before the session started at the Sydney Writers' Festival on Saturday I was amused to hear two people sitting behind me puzzling over the meaning of the program description of Michael McKinnon as "FOI Editor, Seven Network." One suggested it was probably a misprint of Folio Editor, whatever that meant. Mike Carlton in introducing the panel cleared that mystery up. More lie ahead with new acronyms RTI, GIPA and who knows what might still come in jurisdictions beyond NSW and Queensland.

Rider in FOI determination doesn't give rise to review or amendment rights

Throwing in a few words in a notice of determination that have little to do with the decision to release or not release the requested documents did not render the decision void, voidable or otherwise invalid, and was not a matter within Tribunal jurisdiction ruled Judicial Member Malony of the NSW Administrative Decisions Tribunal in GA v University of Sydney [2010] NSWADT 76, a matter that clearly has plenty of history.

The issue argued by the FOI applicant was the inclusion of the words "The University does not admit any assumption made or implied in your FOI application" in the original decision and internal review determination. Senior Member Malony said:

"The issue for the Tribunal on external review is whether or not GA should have access to the documents requested, not whether or not the rider is or is not authorised by the Act."[38]

Another aspect of the matter concerned a decision by the Tribunal Registrar to refuse to amend the record by redacting the same words from documents lodged in proceedings. Judicial Member Malony said the decision was correct  because the sentence in a document containing the applicant' name was not information about GA’s personal affairs for the purpose of the amendment provisions of the FOI act [58].

Finally the Tribunal had no jurisdiction to consider a claim for review under the Privacy and Personal Information Protection Act concerning the inclusion of these words in documents held by the University because the sentence did not contain personal information about GA - that is, information or opinion about him [71].

FOI Editor's investigative journalism rewarded

Congratulations to Matthew Moore FOI Editor of the Sydney Morning Herald and Malcolm Knox who were awarded the 2007 Human Rights Print Media Award for the series of articles Dead Men Working.

The series exposed exploitation of workers who were too afraid of being sacked or sent home to speak about abuses to which they were being subjected.

"The judges felt that the ....Award should go to this series because it exemplified the contribution the print media can make to better awareness and protection of human rights in Australia. In writing these articles the journalists contributed to government action and increase in public demand for, the introduction of reforms to the temporary visa system that would better protect the rights of al people coming to Australia".

The full list of winners is here.

Not enough light on safety issues and government reports

This report in The Australian that Chinese-made tyres recalled in the US after a double fatality, are still being sold in Australia, didn't refer to a related access to government information issue.

Public Citizen has the details: a 2000 Act requiring the creation of an early warning database that would alert consumers of potential defects in automobiles has not resulted in information being made available to members of the public. In fact until July 2006 the US National Highway Traffic Safety Administration finally lost a two year Freedom of Information battle to keep this information secret, when a court ordered information in the database to be released in response to a Freedom of Information application.

In Australia we also don't see routine publication of information of this kind concerning public health and safety issues. It's another area that shouldn't require Freedom of Information processes.

Matthew Moore in his column this week in the SMH raised a similar issue concerning access to other government held information, in this case reports about animal welfare and the live sheep export trade, only released after a long and expensive FOI battle.

More contenders for the "sunshine solution".

NSW election campaign: FOI word passes Premier's lips

Hold the presses. Can we finally take down this sign?

According to Matthew Moore's "What they won't tell you" column in today's Sydney Morning Herald ("Election brings out the hollow best") NSW Premier Morris Iemma yesterday said:

"We support FOI".

As the headline indicates, the rest of the article outlines how hollow this claim is when compared to the Government's record, and yes, the quote from me taken from a previous post on this subject is accurate.

The Premier has announced a new "Social Policy - People First: Better Access to Government". The idea of new and improved web access to government information sounds great, but there's not a word here about content, in particular any intention to require greater pro active disclosure of information by government agencies.


In contrast The Greens picked up on the stories this week about government secrecy by detailing their policy for e-government that would extend web publication obligations.

There is no sign yet on the Liberal Party website of the Opposition policy "Raising the standards on open government" referred to in the Herald article.

NSW political leaders outshine Kings of Comedy

The NSW election campaign is off and running with the leaders debate on ABC's Lateline on Friday and the launch of the Australian Labor Party campaign today by Premier Morris Iemma (be warned - the short video seems impossible to avoid).

Someone at Channel 9 has a sense of humour - the Channel ran The Kings of Comedy with the late Peter Cook and Dudley Moore in competition to Lateline but it couldn't match the "funny men" in the debate. All up Better Homes and Gardens on Channel 7 won the timeslot.

Not a squeak so far from the leaders about transparency and accountability, freedom of information or privacy protection.

We'll keep an eye on what emerges in the run up to the election on 24 March.

FOI delivers - how Federal MPs spent $40million on stuff for your mail box

If you have been on receiving end of leaflets and letters from your Federal Member of Parliament, you are not alone.

This report "How MPs rack up the bills to turn over a new leaflet" in today's The Age provides information about who has spent what from the communications allowance - $125,000 per year. Some MPs spent it almost to the penny, while others clearly know the annual allowance is cumulative and have been saving their dollars and cents for this election year.

The report is based on information released to Channel 7 following an FOI application.

But can anyone explain why an FOI application is necessary and why this sort of information isn't posted on a government or parliamentary website as a matter of routine?

Amazing scenes: UK minister says government legal advice should be publicly available

There is nothing as dear to a government lawyer's heart (some do have one) as legal professional privilege.

Its been one of the most common exemption issues that have cropped up in external review of Freedom of Information applications in all Australian jurisdictions.

Once the criteria for privilege has been established, that's the end of the section for any attempt to gain access, as FOI legislation usually requires no other test.

In an interesting development in the UK, The Guardian reports that the constitutional affairs minister has broken ranks with other ministers by questioning why legal advice from the first law officer should not be publicly available:

"It is a contradiction in terms to have an accountable office-holder who is not able to publish to those whom he is accountable the advice he has given. It is not enough for government ministers to say we are advised that it is lawful. Backbenchers, let alone the wider public, want to see for themselves what the arguments are".

There has been much controversy in the UK about legal advice the government received about the war in Iraq, and recently about the Attorney General's role in stopping the Serious Fraud Office investigation into alleged slush fund payments by a UK firm to Saudi officials. Minister Harman's comments suggest one option for improving public trust in an office in the UK that has statutory independence, as the Government's principal legal advisor, but also has a seat at the Cabinet table.

We mentioned here some weeks ago that NSW Deputy Ombudsman Chris Wheeler in an article in the Australian Institute of Administrative Law Forum (still not available on line) has questioned why legal advice in government should be treated any differently than other advice when issues about public access arise.

The Australian Law Reform Commission is currently reviewing the whole concept of legal professional privilege as a result of issues arising from the AWB Royal Commission. The terms of reference however don't expressly cover the fundamental issue now raised in the UK.

That UK development however will be grist for the mill here in a number of areas, including in the NSW Administrative Decisions Tribunal, where it is about to look at a couple of cases concerning why documents that attract the privilege exemption in the NSW FOI Act should not be disclosed.

And what will NSW Crown Solicitor Ian Knight make of this shock horror development!

FOI x DNA = justice squared

Now here's an FOI story to use anytime you run into any remaining sceptic about the importance of the law.

Roy Brown was in jail in New York for 15 years for a murder he didn't commit. He was released last Thursday, the latest of 192 prisoners released as result of DNA evidence that showed that someone else committed the crime.

According to the Innocence Project, Brown "armed only with a notebook, stamps and a copy of the state's Freedom of Information Law" identified the true perpetrator from a prison cell in Elmira New York. In 2003 he obtained under FOI laws details of all statements made to the Police in connection with the case, some of which had never been seen previously by him or his lawyer. Four of the newly discovered documents caused Brown to suspect the brother of a former boyfriend of the victim, and from there a chain of events led to DNA testing that proved Brown's innocence.

Several Australian universities are part of an Australian Innocence Network - do they or any others out there have Australian stories to match Brown's?

Thanks to the US FOI Advocate blog for the lead

Two local council ADT decisions of interest

Two ADT decisions involving local councils were handed down in January, one concerning FOI and the other relating to privacy.

In Hattch v Dubbo City Council (2007) NSWADT 4 the Tribunal found that statements provided by Council employees to Council officer in connection with a complaint by the FOI applicant against them concerning bullying and harassment, were exempt on grounds that disclosure would have a substantial adverse effect on the management of personnel (Clause 16(a)(iii) of Schedule 1 of the Act) - employees would no longer have confidence in the confidentiality of the grievance process if documents of this kind were disclosed. One interesting aspect of this case was that the Council was prepared to permit the applicant to view the file including these statements, but was not prepared to provide copies. The FOIA doesn't make a distinction between the exempt status of copies of documents, and the viewing of originals. The Tribunal didn't seem fussed - presumably it took the view that the Council had a discretion to make access available to the originals while denying access to copies.

WL v Randwick City Council NSWADT (2007) NSWADT 12 involved an application for review under the Privacy and Personal Information Protection Act. WL claimed that the taking of photographs of work being undertaken at his property by a Council inspector, and the forwarding of these photos together with a notice that included his name and address, to proprietors of the strata plan and the strata managers, was a breach of privacy principles.

The Tribunal found that the photographs of the premises did not include personal information as defined in the Act - they did not contain information or opinion about an individual.

The disclosure of the name and address of the owner was not a breach of privacy principles - the information was in the rates record of the Council which the Tribunal found to be a "publicly available publication" and thus not caught by the definition of personal information. In any event the Council had not breached the privacy disclosure principle as Section 12(6) of the Local Government Act justified disclosure in these circumstances, as did the Privacy Commissioner's Direction on the use of information for investigation purposes.

Although I don't disagree with the end result, the reasoning and evidence in this case is thin when compared to the detailed examination of the relationship between the Local Government Act and privacy legislation in NV v Randwick City Council (2005) NSWADT 45.

FOI pioneer recognised in Australia Day Honours

Congratulations to Jack Waterford for the award of Member of the Order of Australia in the Australia Day Honours announced on Friday. Waterford, Editor and Editor in Chief of the Canberra Times since 1995, was honoured "for service to journalism, particularly as a commentator on national politics, the law, to raising debate on ethical issues and public sector accountability, and to the community in the area of indigenous affairs".

Waterford was a pioneering journalist in the 80's and 90's in using the Federal Freedom of Information Act to obtain previously unavailable information, and has continued to write and speak on FOI and government transparency issues.

NSW ADT to consider release of exempt documents

Three FOI decisions handed down by the NSW ADT during January are not conclusive. In all three cases, the Tribunal has called for submissions and set dates for consideration in the next few weeks concerning whether it should require disclosure of documents found to be exempt under the provisions of the FOI Act.

The NSW Supreme Court late last year (University of NSW v Gerard Michael McGuirk (2006) NSWSC 1362) found that the ADT had a discretion to order the release of an exempt document, reversing previous Tribunal decisions that it had no such powers.

These three cases - one before the Tribunal Appeal Panel - will be the first occasion where consideration of the relevant criteria for such an order is considered. It will be interesting to see how the Tribunal addresses the issue. In a major decision discussing these issues four years ago, Tribunal President Judge O'Connor took a very narrow view of the powers and the circumstances in which they should be exercised (Neary v The Treasurer NSW (2002) NSWADT 261).

It's likely that much will turn on the nature of the documents, and the exemptions claimed. The issue isn't whether the documents satisfy exemptions - its whether there are good reasons why the documents shouldn't be disclosed.

McGuirk v University of NSW (2007) NSWADTAP 1 concerns a memorandum of advice to the Vice Chancellor from an employed solicitor concerning legal proceedings for alleged breaches of the Protected Disclosures Act, and the legal professional privilege exemption.

Cianfrano v Attorney General's Department (2007) NSWADT 8 concerns documents relating to the preparation for, and participation in, two earlier FOI applications seeking access to documents from the Premier's Department, found to be exempt on legal professional privilege and business and personal affairs grounds. One important finding in this case was that NSW ADT proceedings were "adversarial" and documents prepared for use in FOI matters before the ADT could attract a privilege claim. This is contrary to a recent decision of the NSW Supreme Court (Ingot Capital Investmanets v Macquarie Equity Markets (2006) NSWSC 530) where it found that proceedings in the Federal Administrative Appeals Tribunal were not adversarial and documents prepared for use in that body were not subject to privilege.

McGuirk v The Cabinet Office (2007) NSWADT 9 concerns documents found to be exempt as Cabinet documents. This case will provide an interesting insight into government thinking about access to information. The documents concern a 1999 Government decision to introduce legislation that would amend other acts to permit the same person to occupy the positions of Ombudsman and Independent Commissioner Against Corruption.

This apparently was at the suggestion of Irene Moss, the then Ombudsman who was appointed ICAC Commissioner. The Government introduced legislation in the Legislative Assembly on 18 November 1999 but it was subsequently withdrawn apparently in the light of opposition in the Legislative Council. The Cabinet Office has satisfied the ADT that the documents attract the Cabinet document exemption but in the upcoming hearing that's not the issue. The question is whether these documents should be disclosed. Will the Cabinet Office be able to demonstrate harm to Government interests from disclosure of documents, now seven years old and concerning a matter that never proceeded? The documents in question include draft versions of the Bill, and communication between public servants about how to give effect to the government's wishes.

January hot FOI month in NSW ADT

Belying January's reputation for little action in the legal fraternity, the NSW ADT has so far this month handed down 7 FOI decisions and one privacy decision. Tribunal members were obviously keen to clean up some long standing matters - one decision (McGuirk v The Cabinet Office (2007) NSWADT 9) related to a matter heard 7 months ago.

Another decision is a clear illustration that the FOI and review processes available in NSW do not provide speedy resolution of requests for documents. There are plenty of examples on the record, but in Kiernan v NSW Police (2007) NSWADT 18, the process "worked" as follows:

• 10 January 2006 - FOI application lodged
• no determination made within required timeframe
• 2 February 2006 - application for internal review lodged
• no determination made within required timeframe
• 27 February 2006 - applicant lodges review application with ADT
• 12 April 2006 - ADT planning meeting - matter remitted to agency for determination
• 6 July 2006 - agency makes internal review determination
• 29 September 2006 - hearing on aspects of the request
• 16 January 2007 - ADT upholds the agency decision.

Judicial Member Pearson made no comment about the handling of the matter or any criticism of the agency.

Yet it is clear that the applicant took action to bring the matter to the Tribunal because of the agency's failure to comply with the legislated time frame for making a determination. The agency still took almost 2 months to make a determination after the Tribunal directed it to do so. This was 7 months after the application was lodged - the statutory timeframe is 21 days.

When provisions in an act that impose a statutory duty are ignored in this way, speedy complaint mechanisms need to be available.

And reviewers need to use whatever muscle they can to ensure agencies get the message and toe the statutory line. No comment in these circumstances doesn't assist the cause.

Search for gold in 10 year old Cabinet documents

I'm back and resuming normal coverage after our series of summer blogs, mostly written from Washington DC.

Rick Snell's column in last Thursday's Sydney Morning Herald "Open-and-shut case of Tasmanian devilry", recounted his experience in seeking access to Tasmanian Cabinet documents that are now 10 years old. We mentioned this important break through in an earlier blog at the time Rick overcame attempts to claim the documents were exempt.

It doesn't appear to be widely known that the NSW FOI Act includes a similar provision to that contained in the Tasmanian Act - in NSW a document created after 1 July 1990, cannot 10 years later attract the Cabinet document exemption, although such a document could still be claimed exempt on other grounds.

There has been nothing on the public record to indicate that anyone has sought access to documents that would reveal NSW Cabinet processes for the period 1 July 1990 to January 1997, none of which can now be claimed to be exempt under the Cabinet document exemption in Clause 1 Schedule 1 of the Act - see Acts In Force - Freedom of Information.

As Rick Snell points out, these types of documents should be of interest at least to those involved in the study of government decision making. And of course the 1995-1996 documents would cover the first couple of years of the Carr Labor Government's term, making them of some potential contemporary relevance.