Attorney General Brandis unhappy with the Tribunal over his diary and still intent on wiping out the Office of Information Commissioner

The Attorney General is to appeal the Tribunal decision against his office handed down by Justice Jagot in December and the subject of three posts here earlier in the week. 

No surprise, the appeal to the Federal Court is "in the public interest" according to a spokeswoman for Senator Brandis, quoted in Fairfax:

"the tribunal's findings had "wide-ranging implications for the FOI system. Accordingly, it is in the public interest that there be judicial clarification of how the FOI system operates," she said. Senator Brandis' lawyers will argue that Justice Jagot "erred" by not deciding that FOI decision makers needed to consult all third parties named in diary entries, where "there was some prospect that such an entry might be exempt [from disclosure]," court documents say.

Not sure how the appeal advances the Attorney General's concern expressed before Christmas that "as a general rule minister's diaries ought not to be the subject of FOI Legislation."
 
Fairfax Media also reports that former Australian Information Commissioner Professor John McMillan said the almost two-year battle between the Coalition and Labor over the diaries could have been avoided with better disclosure rules.

"There is something to be gained by having more predictable standard practises about disclosure rather than tying up enormous resources in disputes of this kind," he said. (McMillan) is renewing calls for Federal Cabinet ministers to regularly publish their diaries on the internet, after they have been edited to remove sensitive information such as private phone numbers.Doing so, he said, would remove the need to ask for diaries under FOI laws and put the information into the public space without a political battle.

Meanwhile the Attorney General apparently was happy to leave it to the Office of Australian Information Commissioner, picked up by ItNews and others that Acting Commissioner Timothy Pilgrim had his term extended for three months until April 2016, the third short term extension since Professor McMillan left.

It's 20 months since the AG announced the intention to ask parliament to abolish the Office which the numbers in the Senate are against with good reason. In the meantime the government has used control over funding to limit OAIC funds for FOI- not a bean for such things as own motion investigations for example- and provide none for information policy functions.

 The top level Organisation Chart from the OAIC website sadly summarises

The contrast between then Senator Brandis in Opposition and as the minister responsible in 2016 couldn't be more stark:
Senate Hansard13 August 2009

Senator Brandis.....The coalition’s commitment to open, responsible government is well known. It was the Liberal Party which pioneered freedom of information legislation in Australia. The Freedom of Information Act.. is the act of a Liberal government—the Fraser government. It is a vital measure to ensure that government remains open, responsible and accountable for its decisions.....The true measure of the openness and transparency of a government is found in its attitudes and actions when it comes to freedom of information. Legislative amendments, when there is need for them, are fine, but governments with their control over the information in their possession can always find ways to work the legislation to slow or control disclosure. That is the practice we are seeing now under the Rudd government, whose heroic proclamations of commitment to freedom of information are falsified by the objective evidence of their practice.

Crikey today has later grand rhetoric:

Contrary to the Attorney General's view, who ministers meet and why should be no state secret

The third of three related posts.

Justice Jagot in Dreyfus and Attorney General (Commonwealth of Australia) [2015] AATA 995 found the the Office of the Attorney General got it wrong in refusing to process a Freedom of Information application for the AG's appointments diary.
 
 Of course the office involved isn't just any ministerial office. 

It's the office of the minister with overall responsibility for administration of the Freedom of Information Act. And the Attorney General has plans before Parliament that if passed would see him play a bigger role in guiding other ministers, agencies and the tribunal on interpretation and application of the act.

The Attorney General's initial and so far as I have seen only response to the decision is that he opposes release of ministerial diaries as a matter of principle:

"Let's be clear that the principle that I was upholding is the same principle Mr Dreyfus when he was a minister in the previous labor government himself upheld. That is as a general rule minister's diaries ought not to be the subject of FOI Legislation. That was a principle that was invoked by Mr Rudd when he was Prime Minister and by Ms Gillard when she was Prime Minister."

That principle wasn't argued in the Dreyfus case. 

Or argued in the two cases in previous governments the Attorney General may have had in mind, Fletcher and Davies. 

If a class of documents such as 'ministers' diaries' are to be excluded from FOI, that's a matter for parliament not the courts or tribunal.

Justice Jagot in her decision noted a quite different principle: the "significant public interest in knowing the outline of the daily activities of elected representatives, particularly a senior Minister in charge of such an important portfolio as the Attorney-General."[77].

In Davies, then Australian Information Commissioner Professor McMillan in the course of finding that there was a 'practical refusal reason' to refuse to process the application, referred to the public interest in disclosure and the practice in other jurisdictions of pro-active release of information about ministerial meetings [45-50]. The up to date list of jurisdictions where information about appointments is published includes Queensland, NSW, (in both cases as a matter of policy not a legislative requirement), United Kingdom (example) and United States.  

The commissioner in deciding in Fletcher that parts of a minister's diary should be disclosed noted various court and tribunal decisions in the UK, Western Australia and Canada where access to appointments diaries had been granted because exemption claims fell flat and/or the public interest in disclosure was strong:The Cabinet Office v Information Commissioner EA/2008/0049 (UK Tribunals Service, 5 January 2009); Re Ravlich and Attorney-General; Minister for Corrective Services [2009] WAICmr 17 (Information Commissioner (WA), 14 August 2009); and Canada (Information Commissioner) v Canada (Minister of National Defence [2011] 2 SCR 306 (Canadian Supreme Court).

The Attorney General's opposite view is of particular interest given the bill in his name before the Senate since October 2014 that would abolish the independent Australian Information Commissioner position and among other arrangements, transfer to the Attorney General himself authority to issue guidelines on the interpretation of the FOI act. Decision makers must have regard to the guidelines in exercising functions under the act. 

From the Explanatory Memorandum: 

Items 12, 13, 16, 17 and 20 omit references to the Information Commissioner in connection with guidelines issued under section 93A of the FOI Act consequential to item 53, which amends section 93A to provide that the Attorney-General, rather than the Information Commissioner, may issue guidelines.

Items 18 and 19 amend section 11C of the FOI Act to replace references to the Information Commissioner with the Attorney-General, as the Attorney-General will have the power to make a determination about matters that would be unreasonable for an agency to publish on the disclosure log.


Item 50 inserts new section 92A of the FOI Act which provides for the Attorney‑General to prepare a report on the operation of the Act each financial year and sets out the matters that must be reported. This ensures that the annual reporting requirements in section 30 of the AIC Act in relation to FOI matters will continue. The Attorney-General will be responsible for reporting on the FOI Act instead of the Information Commissioner. 

Item 53 replaces references to the Information Commissioner being responsible for issuing guidelines under the FOI Act with references to the Attorney-General.

Fortunately the bill seems well blocked in the Senate, so we might be spared the AG's version of guidelines on ministerial diaries and other matters where the public right to know  as set out in the FOI act must be weighed against valid government needs for secrecy and confidentiality.

Ah but the Attorney did say before Christmas he hadn't read the AAT decision and when he had done so would decide if it should be appealed.

It ain't over till its over.

Two posts on related matters here and here.

Labor makes a 10 minute hit on culture of secrecy, government speakers stay mum

In the House of Representatives yesterday Alannah Mactiernan (Perth, ALP) moved:

That this House:
(1) expresses concern at the culture of secrecy prevalent in the Government and the serious undermining of the core principles enshrined in the freedom of information legislation;
(2) notes the Government has:
(a) defunded the Office of the Australian Information Commissioner (OAIC) despite failing to pass its legislation to abolish the office; and
(b) failed to advance Australia's application for the Open Government Partnership (OGP); and
(3) calls on the Government to abandon its attack on the OAIC and provide it with proper funding, and recommit to joining the OGP.

The motion didn't get far in the 10 minutes allocated before debate was adjourned with Mactiernan and Labor Party colleague Graham Perrett the only speakers.

Could the lack of interest or appetite on government benches to contest the argument suggest a decision not to waste time defending the indefensible while rethinking is underway or completed on both the OAIC and the OGP fronts? Ah, we live in hope.

Mactiernan recounted to the House an FOI experience unlikely to stand the pub test: 
an application to a minister (in this case an assistant minister) that was not processed before the reshuffle, for documents concerning a decision to support a $1.7 billion project in WA couldn't be processed afterwards

"since the portfolio of the assistant minister no longer exists and.. the documents have not been transferred to the new minister.... 'These documents are specific to the minister and to the staff.'

Iran 1970: Public Domain via Wikimedia Commons

Crikey's Josh Taylor ran into the same problem with FOI requests to the office of Prime Minister Tony Abbott that had gone unanswered for seven months before Malcolm Turnbull’s arrival in the office. They couldn't be processed thereafter because the documents weren't held by the office of the current PM. Taylor speculates "the FOI request was lost in one of the dozens of bags of shredded documents seen leaving the prime minister’s office the morning after the leadership change."

The rules about retention, transfer or disposal of documents when the minister leaves or transfers office are hard to find. In theory at least documents held by a minister's office concerning the discharge of functions as a minister are records for the purposes of the Archives Act. 

 Archives Australia provides guidance on what happens to records held by an agency when administrative changes occur, but nothing that I can see when ministers leave the chair.

The FOI situation is that a minister's office is a separate entity from the department for which the minister is responsible. Documents subject to FOI in the hands of the incumbent at any time are those documents "held by the minister" that relate to the affairs of an agency or department. 

If the documents went out the door or found their own way to the shredder as the previous minister and staff headed out, the documents won't be held by the newcomer, end of section.

Too much work involved in deciding whether you should see AG's appoinments diary and you can't see any of it, so there!

The Sydney Morning Herald and other media are enjoying the Freedom of Information battle in the Administrative Appeals Tribunal between the former Attorney General Mark Dreyfus and his successor Senator George Brandis over access to the current attorney's appointments diary for an eight month period in 2013-14.  

Me too when I sat through the three hour hearing in Sydney this morning.

But none of us enjoyed it more than Dreyfus.

Dreyfus QC who represented himself and giving the lie to that old maxim, a lawyer who does so has a fool for a client, had an enjoyable morning drawing on years of knowledge of  FOI law gained at the bar in his pre-parliament years and experience since in ministerial positions. Dreyfus was masterly in making submissions and putting Brandis Chief of Staff Paul O'Sullivan through the hoops. 

O'Sullivan by the way didn't seem to enjoy it at all. 

Paul Farrell in The Guardian provides a detailed report of proceedings.

The Tribunal is required to make the correct and preferable decision in light of O'Sullivan's determination to refuse to deal with the application because doing so would "substantially and unreasonably interfere with the performance of the Minister's functions."

Dreyfus argued that the Attorney General (well O'Sullivan in his name) had misconceived
what was required, exaggerating the time and resources involved by citing exemption considerations that were ill informed, and consultation requirements that went beyond what was required in order to justify a claim that hundreds of hours would be involved in dealing with the request in accordance with provisions of the FOI act. 

Dreyfus argued the approach was wrong and the estimated time involved way beyond what was realistic.

On a point that could if successful give new prominence to the importance of the objects of the act Dreyfus submitted that contrary to the approach taken by O'Sullivan in identifying every conceivable problem that stood in the way of granting access, the objects in Section 3 set out rights of access and agency obligations that overall dictated a different approach:

• the act conferred a right to access documents,

• Parliament's stated intention "was to promote Australia's representative democracy by contributing towards increasing scrutiny, discussion, comment and review of the Government's activities", and 

• of particular relevance in this case, Parliament "also intends that functions and powers given by this Act are to be performed and exercised, as far as possible, to facilitate and promote public access to information, promptly and at the lowest reasonable cost."

Another issue of interest in the case is the contention on behalf of the Attorney General that each of the almost two thousand entries in the diary are separate document.  Dreyfus argues on the basis of authority particularly a Victorian Court of Appeal decision that they consist of one document. 

Both parties acknowledge some entries in the diary are outside the scope of the FOI act because they do not relate to the affairs of an agency and are thus not 'Minister's documents' for the purpose of the FOI act.

In a telling admission of the 'horse and buggy' approach to dealing with FOI matters in the office of the minister responsible for the FOI act, O' Sullivan said redacting information from a requested document was complex and time consuming for the one officer trained in the task using the one computer that had the necessary software. Each redaction involved about 13 keyboard commands and took 5-10 minutes.That's after the very time consuming process O'Sullivan recounted in deciding if a name of someone in the appointments diary could reasonably be expected to give rise to a consultation or exemption requirement.

Software suppliers who have ready made answers should be knocking on O'Sullivan's door as we speak.

Justice Jago who reserved her decision expressed a degree of scepticism about whether the mere mention of the name of a person scheduled to meet the Attorney General touched off either consideration.

The bills before the Parliament to abolish the Office of Australian Information Commissioner and make other changes to FOI arrangements would see the Attorney General and his department responsible for government wide guidance on the interpretation of the FOI act and presumably for good practice standards in the stead of an independent statutory officer.

Surely the PM sees folly in this.

 

What's the story on Australian ministers using non government messaging services?

The post below was published in March and is now republished in light of reports today that Prime Minister Turnbull continues to use non government messaging services.

And isn't alone, as a spokesman explained:

"Many MPs and Ministers use private messaging systems — including SMS, WhatsApp, Wickr, etc and private emails etc — for non-sensitive material for reasons of convenience and superior functionality," the spokesman said."All communications or records of a minister which relate to his or her duties are [subject to many exemptions] potentially subject to Freedom of Information whether it is on SMS, a private email server or a Government email server. "The majority of Government correspondence is routine and of a non-sensitive nature and is therefore not subject to sensitive security markings."

...............................................................................................................
Australian angles arising from Hillary Clinton's private email escapade 
19 March 2015
Hillary Clinton may or may not have succeeded in hosing down the kerfuffle following revelations she used only a personal email account and never a government account while she served as secretary of state, now admitting this was a mistake.  She also ran a private mail server in her home during this period hosting her email at domain Clintonemail.com.

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

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

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

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

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

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

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

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

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

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

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

For example in the wake of the Clinton fuss, IDM asked Australian and New Zealand government ministers about their email arrangements and then published two Australian responses, presumably the only responses received:

A Senior Media Adviser in the office of Australian Defence Minister Kevin Andrews confirmed “Minister Andrews uses a government email account to transact parliamentary and government business. “ A spokesperson for Finance Minister Senator Mathias Cormann said, “The Minister does not use a private email account for official government business.”

 On law and policy IDM asked other questions, but answers weren't entirely forthcoming:

In Australia, the Department of the Prime Minister and Cabinet is responsible for Commonwealth whole-of-government coordination and leadership for cyber policy issues. Nothing about the Ministerial Standards of Oath of Office requires adherence to any particular computing standards. IDM asked the Department whether it issued firm guidelines on the use of personal versus official government email accounts for official business, but is still waiting on response.The National Archives of Australia responded that “Federal government ministers’ documents are subject to the Archives Act if they are records of their work as a government minister. It isn’t against the Archives Act to use personal email for Commonwealth business, as long as there is a mechanism for records to be retained in accordance with the relevant records authority.“ Unauthorised destruction of a Commonwealth record is a potential breach of the Archives Act.

Sally Whyte in Crikey also looked for Australian angles following the Clinton expose. She refers to reports Communications Minister Malcolm Turnbull and his colleagues were using messaging apps such as Wickr -- a platform that allows users to send encrypted, self-destructing messages -- to discuss the leadership tensions recently. "While Turnbull hasn't confirmed what was said in the messages, he did tell reporters that he uses both Wickr and WhatsApp to send messages, as text messaging is not a secure form of communication."

When Crikey asked the Australian Information Commissioner John McMillan if federal MPs had been advised against using encrypted apps to communicate, he said he hadn't done so -- although that kind of advice would usually come from government archivists, he said. McMillan told Crikey that the commission hadn't looked closely at apps like Wickr, but most likely would if it continued to exist. McMillan's role and office was defunded by the government in last year's budget, and he was supposed to finish up last year. The bill to abolish the role has passed the House of Representatives but has not been introduced to the Senate.

From my notebook a few earlier Australian 'private email' episodes
Pretty thin pickings, perhaps just the tip of a a large, growing iceberg.

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

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

Tom Swann in July last year in the Saturday Paper wrote  about documents concerning the Federal Rudd government's 2013 asylum seeker advertising campaign to deter boat arrivals. It involved $6.5 million in public funds spent in the run up to the election. Documents released under FOI in 2014 revealed the controversial advertising campaign was developed and approved in less than a day and someone was calling the shots on Gmail:

The first email was sent at 8pm on Thursday, July 18, by the department’s head of communications, Sandi Logan. It contained the guidelines’ criteria for exempting a campaign from normal scrutiny, with the words “extreme urgency” underlined. Close to midnight someone in the prime minister’s office sent a media plan – “canvassed and locked-in” – to Burke’s media advisers and senior immigration bureaucrats. The sender’s name is redacted, but the email is described elsewhere as coming from “the Minister’s Gmail”.

 In November 2014 the South Australian Independent Commissioner Against Corruption (Annual Report pdf P57) expressed concern that some public officers, mainly ministerial staffers, use personal rather than government email accounts to conduct official business and sounded this warning:

"It has been suggested that the reason for doing so is to avoid the requirement to disclose those emails where an application is made under the Freedom of Information Act 1991(‘FOI Act’). If it is the case that public officers are engaging in this kind of conduct to avoid the consequences of the FOI Act, that conduct should cease immediately. It is a matter of concern that public officers would seek to circumvent a legislative scheme designed to enhance transparency in government decision making. Such conduct might, at the least, amount to misconduct in public administration and be the subject of investigation and potential disciplinary action. I am told that the FOI Act is often abused. If that is so that is a reason to address that Act. It is not a reason to frustrate the FOI Act. While it remains the law the spirit of the Act should be observed by all public officers. Presumably those emails are not maintained in accordance with the State Records Act 1997 (‘SR Act’) (where that Act applies). The conduct therefore might also amount to an offence against section 17 of the SR Act. An offence against that section by a public officer while acting in his or her capacity as a public officer would amount to corruption in public administration under the ICAC Act."

Comment 
It is highly unlikely that a minister or senior public servant would use a private email for government business exclusively as Clinton did. But it would be the height of naivety to think there isn't something going on that brings into question the adequacy of records, archives and information access laws. And the questions aren't all to do with new-fangled gadgetry.

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

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

Record management systems aren't great, and officials might be hard working and hard pressed but some are less than punctilious when it comes to record keeping.
Systemic deficiencies and/or or failure to adhere to the guidelines mean there have been many reports such as this Auditor General report tabled this week into Health's management of an agreement with pharmacists:  

(T)he report documented "persistent shortcomings in departmental record-keeping," including a failure of the department to keep a formal record of its meetings with the guild during the negotiations and its discussions about contracts.

Post it Notes still handy
While paper records and files are on the way out Noel Towell in The Canberra Times reminded recently that the post it note had never gone out of fashion "as a powerful weapon used by the Australian Public Service to avoid Parliamentary scrutiny and Freedom of Information laws.

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

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

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

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

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

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

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

"Document" is broadly defined. In addition to paper the definition includes

(iv) any article or material from which sounds, images or writings are capable of being reproduced with or without the aid of any other article or device;

 (v) any article on which information has been stored or recorded, either mechanically or electronically;

 (vi)  any other record of information.

As with the Archives Act official documents of a minister would seem to cover relevant documents held in government systems and 'documents' of the requisite nature held in personal email accounts, or in or on personal as distinct from government devices of the kind referred to in (iv) and (v).

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

Interested to hear from anyone with a tale to tell.

Australian angles arising from Hillary Clinton's private email escapade

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

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

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

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

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

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

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

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

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

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

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

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

For example in the wake of the Clinton fuss, IDM asked Australian and New Zealand government ministers about their email arrangements and then published two Australian responses, presumably the only responses received:

A Senior Media Adviser in the office of Australian Defence Minister Kevin Andrews confirmed “Minister Andrews uses a government email account to transact parliamentary and government business. “ A spokesperson for Finance Minister Senator Mathias Cormann said, “The Minister does not use a private email account for official government business.”

 On law and policy IDM asked other questions, but answers weren't entirely forthcoming:

In Australia, the Department of the Prime Minister and Cabinet is responsible for Commonwealth whole-of-government coordination and leadership for cyber policy issues. Nothing about the Ministerial Standards of Oath of Office requires adherence to any particular computing standards. IDM asked the Department whether it issued firm guidelines on the use of personal versus official government email accounts for official business, but is still waiting on response.The National Archives of Australia responded that “Federal government ministers’ documents are subject to the Archives Act if they are records of their work as a government minister. It isn’t against the Archives Act to use personal email for Commonwealth business, as long as there is a mechanism for records to be retained in accordance with the relevant records authority.“ Unauthorised destruction of a Commonwealth record is a potential breach of the Archives Act.

Sally Whyte in Crikey also looked for Australian angles following the Clinton expose. She refers to reports Communications Minister Malcolm Turnbull and his colleagues were using messaging apps such as Wickr -- a platform that allows users to send encrypted, self-destructing messages -- to discuss the leadership tensions recently. "While Turnbull hasn't confirmed what was said in the messages, he did tell reporters that he uses both Wickr and WhatsApp to send messages, as text messaging is not a secure form of communication."

When Crikey asked the Australian Information Commissioner John McMillan if federal MPs had been advised against using encrypted apps to communicate, he said he hadn't done so -- although that kind of advice would usually come from government archivists, he said. McMillan told Crikey that the commission hadn't looked closely at apps like Wickr, but most likely would if it continued to exist. McMillan's role and office was defunded by the government in last year's budget, and he was supposed to finish up last year. The bill to abolish the role has passed the House of Representatives but has not been introduced to the Senate.

From my notebook a few earlier Australian 'private email' episodes
Pretty thin pickings, perhaps just the tip of a a large, growing iceberg.

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

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

Tom Swann in July last year in the Saturday Paper wrote  about documents concerning the Federal Rudd government's 2013 asylum seeker advertising campaign to deter boat arrivals. It involved $6.5 million in public funds spent in the run up to the election. Documents released under FOI in 2014 revealed the controversial advertising campaign was developed and approved in less than a day and someone was calling the shots on Gmail:

The first email was sent at 8pm on Thursday, July 18, by the department’s head of communications, Sandi Logan. It contained the guidelines’ criteria for exempting a campaign from normal scrutiny, with the words “extreme urgency” underlined. Close to midnight someone in the prime minister’s office sent a media plan – “canvassed and locked-in” – to Burke’s media advisers and senior immigration bureaucrats. The sender’s name is redacted, but the email is described elsewhere as coming from “the Minister’s Gmail”.

 In November 2014 the South Australian Independent Commissioner Against Corruption (Annual Report pdf P57) expressed concern that some public officers, mainly ministerial staffers, use personal rather than government email accounts to conduct official business and sounded this warning:

"It has been suggested that the reason for doing so is to avoid the requirement to disclose those emails where an application is made under the Freedom of Information Act 1991(‘FOI Act’). If it is the case that public officers are engaging in this kind of conduct to avoid the consequences of the FOI Act, that conduct should cease immediately. It is a matter of concern that public officers would seek to circumvent a legislative scheme designed to enhance transparency in government decision making. Such conduct might, at the least, amount to misconduct in public administration and be the subject of investigation and potential disciplinary action. I am told that the FOI Act is often abused. If that is so that is a reason to address that Act. It is not a reason to frustrate the FOI Act. While it remains the law the spirit of the Act should be observed by all public officers. Presumably those emails are not maintained in accordance with the State Records Act 1997 (‘SR Act’) (where that Act applies). The conduct therefore might also amount to an offence against section 17 of the SR Act. An offence against that section by a public officer while acting in his or her capacity as a public officer would amount to corruption in public administration under the ICAC Act."

Comment 
It is highly unlikely that a minister or senior public servant would use a private email for government business exclusively as Clinton did. But it would be the height of naivety to think there isn't something going on that brings into question the adequacy of records, archives and information access laws. And the questions aren't all to do with new-fangled gadgetry.

WA Information Commissioner frowns on 'heads up' for ministers in advance of FOI decisions

Maybe there are many instances of agencies around the country that as a matter of routine report to their minister about freedom of information applications received and on hand, and give the minister's office a 'heads up' or more, an opportunity to 'comment', on decisions regarding access to particular documents.

On the last mentioned the Western Australian Information Commissioner in his 2013-2014 annual report said the law is pretty clear there: decisions on access to agency documents are for the agency, the agency alone and not the minister.  

While ministerial responsibility under the Westminster system means it is understandable that an agency would want to ensure that its minister is informed on agency operations, the implications of the legislated FOI differentiation between an agency and the minister are also clear:

"To avoid perceptions of inappropriate influence, it may be prudent not to brief a Minister on any individual matters until the agency has made a decision on access. Where the applicant is an individual, respect for that individual’s privacy would best be served by briefing the Minister in a way which does not disclose the identity of the access applicant. In any event, knowing the identity of the access applicant in a particular mattter is unlikely to assist the Minister discharge his or her executive responsibilities." (Full text below.)

This is along the lines of, but goes further than a protocol issued last year by the Queensland Information Commissioner. The protocol accepts that a reporting system may be established but the circumstances where briefing is required should be limited to where "this is relevant to the minister's responsibilities," and generally, where the giving of access to information requested" will require the minister or Department to prepare for public debate." According to the protocol, systems for reporting to the minister and the director general, where they exist, should be documented in a written policy, the policy must be made available for inspection under s 20 of the RTI act, and in the interests of transparency should be published on the Department’s website. (Anyone up north checked that out?)

The Queensland (and NSW) right to information legislation includes offence provisions for improper interference in decision making by any person. That might serve to limit the persuasiveness of any offered suggestions from on high and keep agency decisions at least in the general direction of the right track.

 Section 23 of the Federal FOI act which at least theoretically means the minister has the option to process any application received by the agency may change things a bit at the national level. (I can't recall it ever being publicly cited. Victoria has a similarly anachronistic provision.) 

But the Department of Prime Minister and Cabinet FOI Processing Milestones (pdf) (as they existed in 2013) leave you wondering why the PMO needs to be informed at every step of the way. My summary of the internal communication instructions:

1.  Every FOI request received is to be notified by email to: the Secretary of the Department; The Prime Minister's Office (Adviser on FOI); the First Assistant Secretary (relevant line area); the identified decision maker; and relevant contacts as identified by A&AR (eg FAS, Cabinet Division.) The email notification provides, among other things "an opportunity for the Secretary and PMO to indicate their interest in being engaged in consultations."
 2. As the process rolls on, "all internal parties (the Secretary, PM&C line areas, PMO, other ministerial offices in the portfolio) are consulted as appropriate.The Deputy Secretary and FAS of the line area should be kept consistently informed of all sensitivities."
3. As documents are gathered for decision "the decision maker must consider whether a brief on documents being considered for potential release should be provided to the Secretary to allow him an opportunity to provide comments or insights, prior to a decision being finalised." 
4. As the decision maker forms a clear view on information to be released, a number of further consultation steps are required including with the Secretary "if appropriate," and with the PMO which "should be given three days to provide final comment." 
5. "Three days before release, the decision maker should send a copy of the decision letter and documents for release to the Secretary with a noting brief advising of consultations and any sensitivities and email copies to the relevant Deputy Secretary, First Assistant secretary and PMO contact/s. If the Secretary hasn't been consulted previously and needs more time to review the documents it may be necessary to negotiate a brief extension of time with the applicant."

Some of those 'comments' if they are recorded might make interesting reading.

Then there is what we know about Immigration. The Cornall Report on FOI processing revealed that similar to the situation in Victoria, five days notice of decisions on access to non-personal documents is given to the minister's office. The Australian Information Commissioner noted in his report of an own motion investigation that the department advised that the process is so  the Minister's office "can understand the nature of the documents intended to be released and comment can be given" (emphasis added.)

As to other agencies,who knows?

In WA in any event agencies can see the Information Commissioner frowns on this.

The text of the WA annual report item follows