A couple of days out of town and look what happens..

You go off to the National Information Law Conference in Canberra, an otherwise good and useful gathering that FOI reviewer Dr Hawke apparently was too busy to attend, and where it was hard to escape the chill wind of FOI blow-back, in the corridors at least. And, mostly "worst fears" type news emerges while you're pre-occupied:

• integrity failings that came to light in Queensland and led to the resignation of the Minister for Housing include 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. "A series of Wednesday afternoons at his Morayfield clinic seeing patients was allegedly erased and replaced with 'electorate office' work...the section on electorate office work was redacted because it was outside the scope of the application."
• at the end of the week the Courier Mail reported the Attorney General spoke of a hitherto unpublicised review of the RTI act underway as necessary "because too much public scrutiny is scaring people away from becoming politicians." Hold your sides as you read that it is highly unlikely they'll abolish the RTI act, but most of any information anyone will want will be available on the open government website. The extracts from the article are repeated here in case the archive becomes hard to find in future: "Mr Bleijie 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." Mr Bleijie said abolishing the Right to Information Act, which was introduced in 2009 by former premier Anna Bligh, was "highly unlikely" but changes would be introduced as part of his review. Mr Bleijie said Premier Campbell Newman's plan for an open government website posting all non-confidential documents would greatly reduce the need for RTI. He said he also was investigating the cost and scope of the RTI Act, and extending it to capture information within the Office of the Opposition. A discussion paper will be publicly released for comment. "We'll certainly be canvassing the options of whether the current Act in its form can actually be broadened with the open government and, rather than using an RTI for basis, people can go straight on to government website and get the information themselves," he said. "We're intending that most of the information will be available on the government website. "Some of the information, if it's not statistics per se, there might have to be the mechanism remaining that people can still access that information."
• Bill de Maria formerly of the University of Queensland and a long time sceptic about commitments to transparency took off from there to say FOI laws are useless unless political leaders are fully committed to them. "The best laws aren't worth a row of beans unless..." And there's something in that.
• with the 30th anniversary of the commencement of the Commonwealth Freedom of Information Act on 1 December days away, Jack Waterford of The Canberra Times received a response to a Freedom of Information application 29 years, 11 months and about two weeks after it had first been submitted on 2 December 1982. The application had been deferred, but never heard of again and Waterford subsequently applied in August 2011.  This time PM&C took 18 months to release in full the appendix of a 1981 Royal Commission into a beef substitution racket. "How they fed us donkey burgers"is one thing; how they fed Jack something else in dealing with his FOI application is another. The Canberra Times editorial  draws on what amounts to thirty years in the deep freeze to comment generally on the FOI runaround, delay and impact on citizens and the media of either under-resourcing the function or opposition in most government agencies to releasing information in response to legitimate requests.
• and in the Sunday Age Farrah Tomazin with an almost audible sigh, welcomes the inaugural, confident and optimistic Victorian Freedom of Information Commissioner who has been given just a couple of weeks to get organised from 1 December to conduct reviews of decisions in place of the agency internal review function, investigate complaints and lead ministers and the public service into a new era of open and transparent government. Tomazin (and Open and Shut) wish her well. From everything credible we see, turning this ship around will be a monumental task. Experience elsewhere suggests it will be resource intensive, and require clout and a combination of carrot and stick that she doesn't appear to have in the tool kit. Ministers in Victoria show no sign of public recognition that in this area they and Ms Bertolini are administering a thirty year old act that is no longer fit for purpose, against a backdrop of the nation's most conservative jurisprudence in some respects, with a well developed capacity at middle and senior public service ranks to distinguish what ministers say and what they really mean. The former Victorian Premier John Cain added "monumental" political interference to the mix.

Looking for high notes in low key FOI annual report

Markus Mannheim in the Canberra Times seems to have been the only media mainstreamer to pick up on the release of the 2009-2010 Annual Report on the operation of the Commonwealth Freedom of Information Act, signed off by the Minister Brendan O'Connor on 31 October but released with the usual impeccable timing in Christmas week.

In a break with the past the Minister (who doesn't have a separate web presence in his Privacy and Freedom of Information capacity) doesn't appear to have bothered with a media release to accompany the report. His introduction to the report itself is very upbeat about the legislative changes that commenced on 1 November.

Wikimedia Commons- Korall

Mannheim notes the report shows the number of applications are down and costs are up. The report also confirms that citizen interest in use of the FOI act to see what government is up to is very low with applications for non-personal documents way down on the previous year (for reasons unstated and unknown). The fact that overall 93% of requests for documents are granted in full or in part tends to hide the reality that only 37% of applications for documents other than those containing the applicant's personal information were granted in full, with another 46% granted in part. And challenging decisions that don't seem to make sense is worthwhile: the applicant who seeks internal or external review of a decision to refuse access succeeds in many instances in having the decision varied, calling into question the quality of original decisions.

State of Service report opaque about culture of transparency

The annual State of the Service report issued by the Australian Public Service Commission and the accompanying State of the Service Employee Survey  2009-2010 provide useful insights into attitudes and approaches of our public servants. Overall the Commission concludes "that APS performance compares well with that of its peers. Yet there is always room for improvement .." The Commission is to be commended for publishing these details. Some relevant issues addressed include:

Penchant for darting and weaving over secrecy

The issue of parliament's powers and the resolution of disputes over production of documents remains for another day, but the release of this summary of the NBN business case overcame the immediate hurdle to progressing relevant legislation through the Senate.  Michelle Grattan in The Age wonders whether the failure to do this days ago was government's natural penchant for secrecy or just plain arrogance.

ABC News

Minister Conroy on Lateline reiterated cabinet confidentiality, commercial in confidence and decisions still to be taken by the ACCC as the reasons. And as to any penchant for secrecy:

"TONY JONES: But who dreamt up the idea that minority MPs and senator would have to sign a seven-year confidentiality agreement to just get a briefing on this? This was like a comedy of errors. I mean, it started as seven years, it went down to three years, eventually it went down to two weeks. I mean, who was running this?

STEPHEN CONROY: I think there was some very eager officials in one of the departments that were very keen to ensure we had maximum confidentiality and once - and this was all happening over the weekend - once we were able to see what was being put forward, we agreed with the proposition that they were a little over-eager in terms of the time that they were seeking when the majority of this information would be available within a few weeks' time in December, as Julia Gillard made clear over a week ago: That we would be releasing as much as was not commercially sensitive and we've said this consistently: we would release this document, but the Cabinet has to consider it. But we've always said that we would release as much information as we could."

"New disclosure czar hits ground running"

You can hear Peter Mares (with some FOI experiences of his own) in discussion with Australian Information Commissioner Professor John McMilllan on this week's ABC Radio National  National Interest. Here's my summary of points of interest.

Professor McMillan is upbeat about the prospects for lasting and effective open government reform, and says he's struck by the positive response from his hundreds of meetings with senior agency executives. Three factors make for real change this time- independent oversight through his office, strong government support, and the extent and force of the FOI reform wave in this country and elsewhere.

In response to a question about public servants still facing criminal prosecution for any unauthorised disclosure, Professor McMillan said a proper open government package needed more than FOI changes, and referrred to the "excellent" report on the review of secrecy laws from the Australian Law Reform Commission still waiting a government response.

Stronger adoption of electronic records management was essential to making the law work effectively.

Professor McMillan acknowledged that in the past agencies had been prepared to refuse access often on shaky grounds, putting the applicant to the test to take the matter further through a costly Tribunal process. This will be less likely now with review available free of charge from the Commissioner's Office. The Commissioner said the office discourages legal representation- that's a good thing as in the Tribunal agencies are usually well represented and aggrieved applicants often on their own.

Australia missing from survey of budget transparency

I had not heard of the International Budget Partnership until I came across references online to the Open Budget Survey 2010. IBP works with civil society and other groups "to make budget systems more transparent and accountable to the public." They believe that "the public has a right to comprehensive, timely, and useful information on how the government manages public funds." Their experience shows "that when ordinary people have information, skills, and opportunities to participate, broader public engagement in government budget processes can promote substantive improvements in governance and poverty.

So to the Report on the 2010 survey of 94 countries, 74 of which fail to meet basic standards of transparency and accountability in their national budgets: not a word about us. While developing countries are the main focus, and South Africa received the highest score, developed countries we would compare with such as New Zealand (2nd), United Kingdom (3rd), France (4th), Norway (5th) Sweden (6th), the United States (7th), Germany(12th) all feature in the top two categories.

There is no link to any Australian group, think tank or academic centre that looks at these issues. Surely not a true indication of interest and expertise? A volunteer before 2012? (In NZ it's Transparency International.)

I'm sure we would come out of such an assessment fairly well, but it's a reminder that the Federal Government's budget initiative Operation Sunlight may still have a way to go and that some who look closely at these things find major flaws in transparency claims for example concerning the Defence budget.

Those in Canberra who manage Australia's aid should find plenty of material of interest in the report and its recommendations.Countries in our region that receive significant Australian aid and are in the third of five categories (Some information but fail to meet the basic standard) include Papua New Guinea, Philippines, Indonesia and Thailand. Malaysia, Pakistan, Timor-Leste and Afghanistan ( a significant improver since 2008) are in category four, Minimal. Cambodia, Vietnam, China are in Scant. Fiji (not on our books these days) is in the small No information group.

Here is just one aspect of transparency covered in the Report:

In 68 of the 94 countries surveyed, legislatures do not organize any public hearings at which the public is given an opportunity to testify on the budgets of individual ministries.(Come to think of it, neither do we.) Further, in 35 countries included in the Survey, all legislative budget discussions involving the executive are closed meetings; the public is excluded altogether from observing these meetings, even if they are committee hearings, and no public record of the meetings is provided. In 36 countries, only a few such discussions are open to the public.

Summary of FOI reforms

At the request of Toby McIntosh I provided this summary of the 1 November changes to the Commonwealth Freedom of Information Act and related Australian developments for freedominfo.org, the global network of freedom of information advocates. The new page on the sidebar lists and links to Australia's information access laws as they stand at present,  something put together for the purpose of that article.

Australian Information Commissioner prepared for action

More from Australian Information Commissioner Designate Professor John McMillan in this report today by Sean Parnell in The Australian- a surge of Freedom of Information access applications are expected when the Commonwealth reforms commence on 1 November ( abolition of the application fee will no doubt be a contributing factor for those that know about it, but still no sign of the regulation with details of the new charge regime); the level of preparedness among agencies is mixed, with the larger agencies in particular well prepared; and his office expects to be hit with numerous review applications from the middle of next month.

Parnell reports that journalists at the Commissioner's briefing took a special interest in the disclosure logs, part of broader publication requirements that will operate from 1 May, concerned that publication within 10 days of documents released under FOI would " devalue (individual journalists') ideas, efforts and financial investments in FOI."

While the 1 November issues no doubt preoccupy thinking at the moment, there are aspects of this publication requirement that remain to be clarified in the next six months. One, the new Section 8 states ((2)(g)) the obligation extends to documents to which an agency "routinely gives access in response to requests" subject to the exclusion of certain categories of information of a business or private nature and ((3)) information that the Information Commissioner determines "would be unreasonable to publish." No determination has been issued to date.( I won't go on about this but the Commissioner has no powers to require publication of anything that goes beyond what is stipulated in the act, and a raft of other things including contracts and grants- at least subject to parliamentary and administrative directions-could and should have been included.)

Two, the significance if any of differences in the wording of the two relevant sections of the act. Section 11C headed "Publication of information in accessed documents" doesn't refer, as section 8 does, to publication of information in documents "routinely given", but to information (presumably any) where an agency or Minister has given a person access in response to an access application. The former seems narrower than the latter, which goes beyond the similar schemes introduced and operating in the reform states. Those disclosure log requirements are limited to publication of information released that is or may be of interest to the community generally. They don't appear to have given rise to the problem raised in Parnell's article although it's early days for the NSW and Tasmanian schemes, and Hobart and Brisbane are one paper cities. Presumably a larger pool will be keen to pick up any morsels released to someone else when this becomes a requirement under Commonwealth law.

If it's any solace to Parnell and other journalists, publication will be required within 10 working days.

The text of sections 8 and 11C:

The retiring Mr Mathews speaks up for speaking up

On the other hand in his valedictory speech last week, long time Commonwealth public servant Ken Mathews expressed pride in the Australian model of public administration, suggesting Ozminster rather than Westminster as the more apt description, and in the Australian Public Service "as a great, continuing national institution."

 Presentation (PDF - external website)

Mathews canvassed four issues that deserve thought by ministers and public service leaders and raised a more fundamental question: whether the public service is becoming a “docile and unassertive service” that  needs a better point of balance between accountability to ministers, and responsibility more broadly to speak truth to power in putting big picture national strategic views to ministers, by not throwing in the towel when advice once given is rejected, in dealings with Ministerial staffers, in showing a bit of spine under questioning in Senate Estimates hearings, in speaking up for the public service itself. And in participating in media and academic debate:

When we hear garbage or inaccuracies on current affairs radio over breakfast shouldn’t we be getting the facts out there? I also think we have a responsibility to be more active on the conference circuit, including alongside academics. Yes, we need to be mindful of the public profiles of our ministers, and yes we need to avoid partisan issues, but there is a lot our great APS institution can say that can be constructive and will advance the public debate. We do have a choice: we can sit back and complain about the standard of public policy debate or we can do something ourselves to improve it. To clarify what’s legitimate in public comment perhaps we need a ‘new deal’ with our ministerial executive, parliamentary committees and accountability bodies such as the ANAO... Our top executives have a special role in the public debate.

Spot on there, just like the important contribution made to public debate through release of Red Book and other pieces of policy analysis.

Oh and all public servants are welcome anytime to express a view about open government issues canvassed here. From memory I can't recall a comment from any prepared to provide a name, although I expect Anonymous, our No.1 contributor, has many incarnations, including more than a few as otherwise proud and confident public servants.

"Unnecessary debate" still running, fast trains aren't

Michael McKinnon of the 7 Network told the Right to Know Day Conference in Brisbane on Tuesday that he had applied immediately under the Freedom of Information Act to the Department of Transport for documents concerning the proposal for a high speed train when it was raised during the election campaign, only to be told then, as reported this week in Fairfax papers, that disclosure was contrary to the public interest because it was an ''incomplete picture unlikely to make a valuable contribution to public debate. ''Indeed, its nature is such that release would likely lead to confusion and unnecessary debate about issues that are not settled within government."

McKinnon said following the knockback Reporter Mark Riley had "monstered" Minister Albanese over the refusal, with the result that the minister decided to release to 7 a briefing note on the subject. The Department's view that fast trains are unviable of course is not the only or definitive assessment, but who other than the Department, obviously edgy about  Labor's commitment of $20 million for a limited study, would argue that release wouldn't make a valuable contribution during the campaign to public debate?

The good news is that the minister showed leadership, after the election, in the shuffle towards more open and transparent government. A big advance on Wayne Swan's "don't blame me, I'm only the Treasurer" response when his department ran this argument to protect documents from disclosure in May 2008.

The bad news is that we are still apparently a long way from routine disclosure of information of this kind, that a minister who should be flat out on other things had to get involved, that knocking on a minister's door to get attention is a course unlikely to be available to John and Mary Citizen in similar circumstances, and that some are still clinging to hoary old chesnuts like this, when come 1 November "unnecessary debate" is finished as a consideration relevant to a decision about the public interest in disclosure of documents.

Publication of Treasury's Red Book contributes to public understanding

There should be more of it.

The release in response to Freedom of Information applications and the initiative taken to publish on the internet Treasury's "Red Book" brief prepared for a returned Labor Government is a commendable start on delivering more open government as promised by Prime Minister Gillard. While parts have been redacted- including everything, even the title of Attachment G- most of the briefs have been published. Economic and other policy commentators have already found much of interest, prompting The Australian's Michael Stutchbury to observe

Many Australians would have wanted to know about all this before, rather than after, they voted. Surely that would encourage a more informed election campaign than the one we've just endured.

The same goes for what other agencies had to say on issues within their domain so interesting to see whether who if any have or will follow the Treasury lead.

Public debate could and should be informed, not so much through daily access to what public servants are telling ministers about policy plans or problems but through publication of what amounts to expert opinion and assessment of issues that are or should be seen as of great public importance. Treasury and public servants generally are up there with the best we have in many fields, although they don't have a monopoly on wisdom, and aren't always right. They have a contribution to make to public understanding of issues, best made not months later when someone might ask under FOI and will usually have to battle through, or years later when the documents are available from Archives, but at the time when the  community and public discussion would benefit most from this input.

This comment in June 2008 argued the merits of such an approach following publication of embarrassing leaks that showed differences between agencies about the merits of the ill fated FuelWatch. Maybe Treasury's disclosures indicate we are moving in this direction and away from the excessive secrecy of previous times.

  

Perhaps indicative of the traditional Treasury risk centric mindset, the Administration brief includes a section on FOI, advising (emphasis added):

The Policy Coordination and Governance Unit provides advice and management of risks associated with Freedom of Information (FOI) and privacy issues in accordance with legislative requirements.

Treasury did not publish the Blue Book, the briefing prepared in the event of a change of government, but processed FOI applications for a draft that was never finalised. According to media reports Shadow Treasurer Joe Hockey passed it around after redacted copies were released to journalists in response to FOI applications.

Queensland where I am at the moment is unique in including an absolute exemption in the Right to Information Act (Schedule 3 Clause 3) that protects for 10 years information prepared for the purpose of briefing an incoming minister about the department.

Still too much confidentiality in Commonwealth contracts

The annual Australian National Audit Office performance audit to assess the appropriateness of the use and reporting of confidentiality provisions in Australian Government contracts, in accordance with a 2001 Senate Order, highlights some improvements - around 10% of the 42,000 contracts entered into in 2009 contained confidentiality provisions, consistent with experience over the previous three years, and a significant decline from 24 per cent in 2001–02 -but also ongoing problems.

An examination of a sample of 150 contracts, managed by 33 agencies, that were reported to Parliament containing confidentiality provisions, identified 52 (35 per cent) correctly, and 21 (14 per cent) incorrectly asserting confidentiality provisions contrary to the standard in Finance guidelines.  However the remaining 77 (51 per cent) did not contain confidentiality provisions but had been listed in documents tabled in Parliament as containing such provisions, potentially precluding or restricting the Parliament and the public from accessing information about them.

The audit concluded:

"Overall, while the use of confidentiality provisions has decreased since the Order was introduced, the benefit of the Order, as an accountability and transparency mechanism for Australian Government contracting activity, is not being fully realised due to incorrect use of confidentiality provisions and inaccuracies in contract reporting.."

The report attributes this partly to multiple and differing requirements for reporting on contracts. In addition to the Senate Order agencies are required to comply with Department of Finance instructions to report procurement activity in AusTender, an internet based system, including whether there is confidential information within any contract or agreement with another agency, for example, profit margins, or confidential information obtained or generated during the term of the contract.

But the report also draws attention to the fact that contract preparation practices in some agencies do not "support adequate consideration of the use of confidentiality provisions in contracts." Polite auditor language, pointing to the fact that confidentiality provisions end up in too many contracts without hard headed consideration of the need, or the merits.

Finance is urged to explore consolidation of reporting obligations and to promulgate consistent and more readily understood guidance. Agencies are implored to lift their game.

Culture (memo Information Commissioner Designate) almost certainly has something to do with what appears to be excessive caution, or willingness to comply with contractors wishes on the part of some public servants. (As an example price lists frequently crop up in confidentiality provisions.)

And consolidation of requirements and the cause of rigour would have been advanced if the opportunity had been taken in the Freedom of Information reforms to legislate for publication of contracts, and to define in law "commercial in confidence." Contract disclosures (or other categories of information required by administrative instructions to be published such as  grants) don't get a mention in legislated proactive publication obligations that will commence next May.

Queensland "world beater" on whistleblower protection

Dr A.J Brown's summary and analysis of the new Queensland Public Interest Disclosure Act in The Australian describes the protections for taking a public interest disclosure to a journalist as "the simplest, clearest and most liberal provision for public servants to be able to go public with serious concerns about wrongdoing, if official authorities fail to act -- not just in Australia, but anywhere in the world." As Chris Merritt comments this ups the ante in Canberra where independent Andrew Wilkie has a particular interest in the subject and newfound clout. Dr Brown's comparisons of the Queensland scheme with NSW and the Federal Government's March proposal follow:

Ministers for privacy, FOI and integrity.

The full details of the Gillard Ministry and the Administrative Arrangements Order reveal we have an historic first with Brendan O'Connor appointed Minister for Privacy and Freedom of Information. These  functions remain in the Prime Minister's portfolio. (O'Connor is also Minister for Justice and Minister for Home Affairs, with those functions in Attorney General's.)

Gary Gray is Special Minister of State for the Public Service and Integrity, also the first time we have seen integrity included in a ministerial title. The functions are also part of the Prime Minister's portfolio.

This is the right place for these functions, and appointing people with these titles in close proximity to the PM is a good thing. Comments yesterday about the ministers' standing at 22 and 29 in the hierarchy and other matters still stand.It's the first time FOI has been allocated to a minister in the outer ministry since the act was introduced in 1982. Offset to a degree by putting the subjects up in lights. No mention in the AAO of Gov 2.0 or the Australian Government Information Office but presumably Penny Wong as Finance Minister has these responsibilities.

Dr Haneef strikes out on FOI access

Two freedom of information decisions, one in the Federal Court, the other by the Queensland Information Commissioner went against Dr Mohamed Haneef recently, adding to the mixed FOI record of attempts to access documents concerning his detention and cancellation of visa in 2007. The fact that he has commenced legal action for defamation against former federal immigration minister Kevin Andrews and an unlawful arrest claim against the Federal Government may give rise through discovery to other access rights.

Both decisions concern issues relating to communication of information by a foreign government ( one the UK, the other India), and disclosure expected to cause damage to international relations. While the Federal Court decision is unremarkable in terms of interpretation and application of the law, it reminds that the blanket exemption under the Commonwealth act for information communicated in confidence by a foreign government has no element that requires balancing with any other consideration.

The Queensland Information Commissioner's decision on the other hand is a remarkable outcome. The similar Right to Information Act provision there, positively, requires consideration of the public interest in disclosure. But the exemption turned out to be broad enough to block Dr Haneef from obtaining the transcript of his conversation with the Indian Consul General while in detention in 2007, a document only in the hands of the Queensland Police because the conversation was taped without the knowledge of either party. And a ruling that disclosure of the transcript to Dr Haneef, who obviously knows what he and the Consul General said to each other, could be expected to cause damage to Australia's relations with India.

Black letter law approach at Victoria's Planning Department

You would expect notes taken by an officer during a meeting between a planning minister and the proponent of a development would not record anything other than what was said during the meeting, certainly nothing of a personal nature about the note taker, and that there would be no question notes would be covered by the freedom of information act. If not there's a big hole in the legislative scheme.

So it appears, in Victoria, from a decision by the Victorian Department of Planning on a Freedom of Information decision reported by The Age (Meeting notes on Hotel Windsor redevelopment withheld) this week. It involved a black letter but questionable approach by the Department in dealing with an application for notes of a meeting between Minister Madden and the developer behind a controversial proposal: "No file notes were recorded. A personal note was made by one of the officers. However, this note only had personal meaning to that officer and was not used in any decision-making process. These kinds of personal notes do not meet the definition of a document of an agency under the FOI Act.''

The Victorian (and Commonwealth) FOI acts, Australia's first, going back to the early 80's, apply to a document held by an agency and both define the term in the same way, to mean a document in the possession of an agency whether created or received in the agency. Official guidance provided to Victorian government agencies makes no mention of circumstances when a document held by an individual officer may be a document of an agency, even where not incorporated in those systems. Regardless, asking the officer to hand it over would be a reasonable direction, thus giving rise to "constructive possession" or an immediate right of access to the notes by the department in any event.

The Commonwealth FOI Guidelines (Fundamental Principles 3.19) in addressing the issue of interpretation and application of the same words, clearly state that documents are to be taken to be documents of an agency if created by officers as a part of their duties.

Later FOI laws, for example those enacted in Queensland and NSW cleared up any doubt by providing explicitly that a document held by an agency encompasses a document in the possession or under the control of an officer in the officer's official capacity.The recent reform laws in both jurisdictions contain the same wording.

The Department of Planning approach wouldn't wash in these states, and would go against official guidance in the Commonwealth arena.

I'm not sure whether the issue has cropped up previously in the Victorian Civil and Administrative Tribunal, but there are some good grounds for challenge, and for legislative action if this proves necessary.

Last gasp for "confusion and unneccessary debate" argument?

Well there may be others still to come, but the clock is ticking down to 1 November when changes to the Freedom of Information Act should see this claim as a public interest against disclosure under the Commonwealth act despatched to the bin. In the meantime as reported by Ben Grubb in the Sydney Morning Herald it gets a prominent run arising from an application to the Attorney General's Department for documents distributed to representatives of the internet industry during consultations in March on a proposal that would require ISPs to store certain internet activities of all Australians - regardless of whether they have been suspected of wrongdoing - for law-enforcement agencies to access. The application resulted in lots of black ink but not much else. All parties to the consultations have been sworn to secrecy. The SMH link provides access to what was released and the notice of decision.

Simple as ABC/BBC: Middle East reporting out of FOI bounds

Previous posts here about the exclusion from the Commonwealth Freedom of Information Act of documents held by Australia's public broadcaster the ABC (and SBS) "in relation to program materials" have mentioned what appeared to be a contrast with the situation in the UK, where the BBC enjoys an exemption for documents concerning journalism. ABC Managing Director Mark Scott last year indicated the ABC was prepared to talk to the Government about tightening the exemption to something more in line with the UK provision, although nothing seems to have come of that.

Out-Law.com reports a UK Court of Appeal decision to refuse access on the basis of the journalism exemption to a study into how the BBC covered the Middle East in 2003 and 2004. In an earlier decision the Information Tribunal ruled the report should be disclosed. The Tribunal's interpretation was the exemption required the BBC to show that journalism was the main reason for the study, when it appeared to have been undertaken for strategic and resourcing reasons as well. The High Court and the Court of Appeal disagreed: as long as one of the reasons for the report was journalism then it was covered by the FOI Act exemption.

The Australian Federal Court decision that gave the ABC exclusion from the FOI act a generous interpretation, even by Mark Scott's reckoning, also resulted in a decision to refuse access to an ABC report on complaints it received about coverage of the Middle East in 2000-2002.

Rudd's modest at best legacy on open government

There are plenty of post mortems out there on the demise of the Rudd government, so I won't add much beyond these brief reminders of the big talk and slow and mostly modest delivery on openness and transparency over the last two and a half years. Getting Gov 2.0 to the stage of a warm endorsement and a touch beyond deserves a tick.

Days before the election in November 2007

Rudd tells the National Press Club the days of secrecy are over.

7.30 Report days after being elected

Prime Minister Rudd volunteers to Kerry O'Brien on the ABC 7.30 Report, that he plans to make a difference with Freedom of Information reform: "...I'm determined that we can actually do better with some decency in the standards of government. I also know, it's very easy to say those things before an election, then you become a government and you think well it's all a bit difficult now. But let me just give you one core example. I'm determined to do something about freedom of information. This is notoriously seen as something that executive governments don't like because it causes information to go out which might be embarrassing. I'd like to, by contrast, encourage a culture of disclosure within government departments."

April 2008-2020 Thinking Big

Governance gets a guernsey at the 2020 Summit, but interest in governing differently didn't last long."The response to the Governance chapter of the (2020 Summit) report includes a lot of the waffle Steketee refers to, not surprising, given the fact that much of the chapter lacked coherence, was repetitive, and included a lot of ideas that were trite and bordered on laughable as 2020 objectives."

November 2008

One year into government: "The Weekend Australian included a scorecard for many ministers ranging from 9/10 for Julia Gillard and Lindsay Tanner to 5/10 for Steve Conroy but didn't even bother to assess John Faulkner the minister responsible for integrity issues.We've said it before Faulkner has some runs on the board, but no there is no excuse for the pathetically slow pace of Freedom of Information reform which is still to get to first base. Even if we accept the proposed two stage reform process, just what is the hard part associated with abolishing conclusive certificates that means 12 months on, no legislation to achieve this has found its way into Parliament? As to the "changing the culture" intentions, don't start me....My assessment for Faulkner overall would be 7/10 but on the FOI front nothing to justify a pass and "needs to do much better."

  

A few weeks after that

"The Rudd Government has started to deliver on one element of its Freedom of Information reform commitments with the introduction into Parliament today of legislation to abolish entirely conclusive ministerial certificates.It's a welcome move, and goes further than recommended 13 years ago by the Australian Law Reform Commission, but took a year to eventuate and is nowhere near the top of most lists of urgently needed changes. On that front we are now told the Government "will release exposure draft legislation for public comment addressing broader reform measures aimed at promoting a pro-disclosure culture, as early as practicable in 2009." 

November 2009

The Exposure Draft appeared in March 2009.On the last day of scheduled sittings for the year, the Government introduced FOI Reform legislation into Parliament where it was sent off to a Senate committee for report in March 2010. it was good and welcome but a long way short of comprehensive reform, with many missed opportunities to go for gold.

Mid 2010

The Reform legislation passed and received assent in June 2010. Professor John McMillan had earlier been appointed Information Commissioner Designate. The legislation will  generally come into effect in November - three years after that Press Club speech - with new publication requirements to commence in May 2011. As to how a government obsessed with micro management of information flows addressed the challenge to "end secrecy" and "promote a pro-disclosure culture" Professor McMillan said a few weeks before Mr Rudd's departure "it is underway."

Prime Minister Gillard, fresh from the battle to force more transparency in the education system, needs to play a part to get this on track, through personal commitment backed up by example, as well as addressing her many other pressing priorities.

1 November extra special this year

From PM&C :
"The Governor-General has proclaimed 1 November 2010 as the day the Australian Information Commissioner Act 2010 commences. The new Office of the Australian Information Commissioner will be established from that date and the majority of measures in the Freedom of Information Amendment (Reform) Act 2010 will also commence on 1 November 2010.  Different commencement times apply for:

·        the Information Publication Scheme (new Part II of the FOI Act) which will commence on 1 May 2011,

·        a requirement for agencies to publish information where access has been given under Part III of the FOI Act (new section 11C FOI Act) which will commence on 1 May 2011;

·        changes to bring forward the ‘open access period’ in the Archives Act 1983 for most records from 30 years to 20 years which will begin on 1 January 2011 (records created in 1980 or 1981) and will be phased in over a ten year period so that a record created in 2000 will be in the open access period on 1 January 2021; and

·        changes to bring forward the ‘open access period’ in the Archives Act for Cabinet notebooks from 50 years to 30 years which will begin on 1 January 2011 and will be phased in over a ten year period so that a Cabinet notebook created in 1990 will be in the open access period on 1 January 2021.

Professor John McMillan AO, who is the Information Commissioner Designate, will start as the first Australian Information Commissioner on 1 November 2010."

That's a lot of lead up time for the proactive publication requirements to kick in- agencies have been on notice something like this was coming since March 2009, and commencement is still 11 months away. Not sure of the practical effect and he is sure to be persuasive in the lead up in any event, but Information Commissioner Designate, Professor McMillan will have no statutory powers until 1 November.(Update: The Minister's announcement has Professor McMillan happy with arrangements, and indicating "Cultural change is under way.")