Tasmania to introduce on line publication of 'public interest' RTI documents

Tasmanian Premier Hodgman's announcement of "a new policy to ensure that more Government information is shared with the public" is a welcome development that brings the state into line with the disclosure logs introduced some years back by Federal, Queensland, NSW and ACT governments.

The Premier has "directed all Government agencies to publish Right To Information requests online within 48 hours of them being sent to the applicant," explaining

"(q)uite often it is only journalists or Members of Parliament that ask for, and have access to, Right To Information documents.  Under our changes, every Tasmanian will be able to access that information for themselves. While this is one of the biggest reforms since Right To Information laws were introduced, it brings Tasmania into line with Queensland and the Federal Government. This will only apply to public interest Right To Information requests, not requests for personal information. This policy has the support of the Ombudsman and the Solicitor-General."

It probably won't have the support of journalists.

Media organisations in their joint submission to the Hawke review argued not for the first time for a five days exclusive use period when documents are released to a journalist in response to a Federal government FOI application. At present information is required to be posted within 10 days. Some agencies are said to publish promptly so as to remove the prospect of an exclusive and make the FOI exercise something of a waste of the journalist applicant's time. Others don't publish the documents released instead simply indicating they are available on request.

It seems reasonable to allow some exclusive time with released information in Tasmania and anywhere else. Perhaps any applicant - not just a journalist - should be able to ask for a few days exclusive use at the time of making the request, with that elective to bind the agency?

More broadly six years after the introduction of the RTI act the Tasmanian government shouldn't leave reform at this. 

I'm sure that things aren't as good as suggested in the Annual report 2013-14 (pdf) from Department of Justice on the administration of the act, that a drop of 100 in RTI formal requests for the second year in a row can be attributed to how well the proactive release of information is working.

As to what goes on that front, no decisions by the Ombudsman since 2012 have been published on the website

The Ombudsman Annual report  (pdf) (pages 22-26) draws attention to underfunding and the impact on the RTI review function, a point picked up by The Greens Nick McKim. His colleague Cassy O'Connor argues the Premier's interest in the subject is empty rhetoric given agency responses to RTI applications.

sounds like empty rhetoric when you actually look at the Right to Information decisions coming back from Departments. - See more at: http://tasmaniantimes.com/index.php?/pr-article/right-to-information-highly-politicised-despite-liberal-rhetoric/#sthash.

Queensland shooting for No 1 on the open, transparent ratings, but...

He has said it before, but in opening the Open Government Policy Forum in Brisbane on Tuesday Premier Campbell Newman reiterated his intention that the Queensland Government rate as "the most open transparent and accountable government in Australia." 

On the open data front, Queensland is well on the way. But in light of one of the Premier's comments the No 1 spot for transparency and accountability could prove elusive.

Queensland leads the open data journey with praise for what has been done to date and plans for the future. These include requiring all agencies to inventory their data sets by the end of the year with decisions on release then to be taken on a more systematic basis than the random selection and release to date.

However in a related comment and in answering a question from Alison Sandy of the Courier Mail the Premier indicated rethinking about the extent of transparency regarding public service analysis and advice.

The Premier said information should be released unless it was truly commercial in confidence, was private, ie personal information about an individual, and added or 'disclosed the deliberative processes of government, feeding into the cabinet process.'

Sandy asked the Premier for clarification regarding the associated question raised in the RTI review issues paper, whether there is a need beyond current protections "for information in communications between Ministers and Departments." 

The Premier explained more generally that he was against trial by the media that arose from disclosures about investigations, which in his own case prior to the election came to nothing, and to the disclosure of policy ideas of officials that have never gone to ministers becoming front page news, which often had the effect of shutting the issue down.

The scope of what the Premier has in mind, or what is contemplated in the issues paper isn't clear. In a session after the Premier left, Michael McKinnon of the Seven Network suggested it was pointing towards a government preference for a deliberative process exemption without a public interest test.

Alison Sandy reports on the issue today in The Courier Mail and quotes me accurately that something like this would be a significant step backwards:

"I think what the Premier overlooked today is public servants in many of these areas are experts and their thinking can inform and shape public debate," Mr Timmins said. "Of course government might make lots of decisions for its own political interest … but at least the scrutiny that those decisions get now is a valuable guard against those things. "We need some evidence to persuade us that what we've got now doesn't work." Mr Timmins said after decisions had been made, there was "a pretty strong public interest that the issues and options that were identified as relevant leading up to the decision should be disclosed."

This isn't the only issue worth a comment-other aspects on the positive and not so positive side of transparency in Queensland in another post.

Queensland review of right to information and privacy laws

Queensland Attorney General Jarrod Bleijie has released issues papers in connection with the statutory review of the Right to Information Act and the Information Privacy Act.

Plenty of time until 15 November for comment and submissions. 

Some of the issues will get an airing at the invitation only Open Government Policy Forum in Brisbane next week - I scored one, thank you.

The RTI Issues Paper (pdf) canvasses big picture issues including:

• the 'push' model, how it is working generally, and how to give effect to the Premier's  "determination, through the open data revolution, to change the culture of the Queensland Government to be more open by allowing more public access to Government information collected in all regions, in all kinds of formats, for all kinds of reasons"

• the scope of the act including possible extension to those Government Owned Corporations not currently fully covered, to corporations established by the Queensland Government under the Corporations Act, and to contracted service providers where they are performing functions on behalf of government. (In 2011 Mr Bleijie in Opposition introduced but didn't get far with the Right to Information (Government-Related Entities) Amendment Bill 2011 which would have extended the act to cover any corporation supported directly or indirectly by government funds or other assistance, or over which the state, a minister or a department is in a position to exercise control.)

• excluded documents and grounds for refusal of access including the adequacy of the current public interest considerations and a possible new factor favouring disclosure in the interests of consumer protection. No detailed discussion of the absolute exemptions and whether a public interest test should apply, or specific mention of several unique Queensland exemptions: the equivalent of a cabinet exemption for the Brisbane City Council Establishment and Coordination Committee, championed by the Premier when Lord Mayor; the ten year exemption for information about local government's budgetary processes, and the eight year exemption for Investment incentive scheme information. Ominously perhaps, the question is asked whether there is a need beyond current protections "for information in communications between Ministers and Departments." With regard to the current 10 year exemption for incoming minister briefs, the paper notes "no other jurisdiction has a specific exemption to protect this information, and it could be argued that these documents make a significant contribution to public debate." Interesting, coming just as the Hawke report released last Friday recommends a similar exemption should be included in the Commonwealth FOI act! As is this floating balloon: "Are the current provisions in the RTI Act sufficient to deal with access applications for information about successful applicants for public service positions?"

(Addendum: while there is discussion of issues arising from the current provision concerning limited circumstances where an agency may neither confirm nor deny existence of documents, and not give reasons, no mention of the Callinan report recommendation that an agency should not be required to give reasons for a refusal of access decision for any application for nine months. The Government announced recently that the recommendation was accepted in principle, noting it raised important and complex implementation problems.)
 
There are lots of other matters raised, primarily of interest and relevance to government insiders and aficionados on the outside. I see that the review is being conducted by the Department of Justice and Attorney-General "with oversight by a steering committee of senior representatives from relevant departments." Have to wonder what sort of issues might emerge from a process overseen by a steering committee of senior public servants and community representatives with or without experience in the area? Just wondering....

The big questions in the Information Privacy Discussion Paper (pdf) concern national uniformity in particular the advantages and disadvantages of aligning the current information privacy principles with the Commonwealth's Australian Privacy Principles to come into effect next year, or adopting those principles in Queensland. As the paper notes there is

significant confusion and complexity about how privacy law operates for governments and the private and community sector. In addition, it may create an unjustified compliance burden, particularly where organisations operate in more than one jurisdiction, and are required to comply with multiple layers of privacy regulation. Consumers who have complaints about privacy are often confused or unsure about who the appropriate privacy regulator is.

Ah, the search for national uniformity. Good luck to us all.

Queensland facing a "no reasons" for RTI refusal future?

Just a couple of weeks before Premier Newman announced he was taking further steps to advance the government's claim to be the most open and transparent government in the nation, the Queensland Government (pdf) accepted in principle this recommendation from the Callinan Review of the Crime and Misconduct Commission:

that an agency not be required for nine months (unless ordered by a court to do so) to provide reasons for any decision to refuse access to a document sought under the Right to Information Act. 

There was just a hint in the statement of a pause for serious consideration of the ramifications:

The proposed amendment raises a number of important and complex matters requiring further and ongoing discussion with departments and agencies including the Office of the Information Commissioner. The Implementation Panel will provide advice about how the intention of the recommendation can best be achieved.

The recommendation accepted in principle extends to the Ombudsman as well. 

It seems a ridiculously wide and broad remedy to what Callinan saw as a fundamental problem to be overcome at all costs, the risk of disclosure of anything that might reveal information about the existence, content or subject of a current misconduct complaint or investigation.

However abolishing reasons for decision for all RTI decisions takes simplification of the system referred to by the Premier last week, way too far.
 
As I said when the Callinan report was released:

For mine, the case for the recommendation that no reasons should be given in any RTI case isn't well argued; the report doesn't consider less radical alternatives; and the recommendation if accepted would turn on its head the general well established principle that an administrative decision-maker has an obligation to give reasons. It would mean that public servants have to be taken at their word that there are good reasons for refusal of access which can't be scrutinised or effectively challenged for nine months, unless through Supreme Court proceedings. The blunderbuss should be put back on the shelf, replaced by something more suited to polishing rather than blasting the existing RTI framework, where this is necessary. Quite apart from reasons being more than an RTI issue through a general requirement in the Queensland Judiciary Act, the Queensland Ombudsman's Good Decisions Guide (pdf) (page 10) advocates "giving reasons is good administrative practice in that it promotes fairness, transparency and accountability in decision-making."

Reasons are particularly important when refusal of access to government information is concerned.
  

The Chair of the Parliamentary Crime and Misconduct Committee in a letter  (pdf) to the Attorney General weighed in on this and other matters just prior to the government response, stating the Committee did not support the recommendation:

Firstly, the Panel put forward no empirical basis for selecting the nine month timeframe. Secondly, the recommendation will result in a disproportionate negative effect upon applicants who apply for information under the

Right to Information Act 2009 or make a complaint under the Ombudsman Act 2009 regardless of whether their application or complaint relates to a complaint before the CMC.There needs to be a balance between the public interest in protecting the privacy of those persons subject to a complaint to the CMC and the public interest of complainants to the Ombudsman or applicants under the Right to Information Act receiving reasons for the decisions of those agencies

This recommendation may impact upon the rights of those individuals to appeal against such decisions, or may negatively impact upon other matters relating to that individual in relation to the information they seek. This recommendation will also likely increase the workload of the Office of the Information Commissioner and the Ombudsman’s Office in dealing with complaints about refusal to provide reasons for their decisions. The Committee respectfully suggests that the Legal Affairs and Community Safety Committee may be able to provide more information on this issue given its oversight responsibilities for the Ombudsman and the Information Commissioner.

Callinan CMC report uses blunderbuss on RTI act when spit and polish might do

The Executive Summary of the Callinan Report on the review of the Queensland Crime and Misconduct  Commission, when released a few weeks ago, included what seemed to be an extraordinary, broad recommendation that the Right to Information Act be amended to restrict agencies and the Information Commissioner from being required to give reasons for refusal to release documents for a period of nine months after an application was received.

It is far from the most important issue raised in the report, which takes the stick to what it calls "the integrity industry." I'll leave those to others. 

But the lack of clarity in the RTI act recommendation, and the absence of information about other options considered, and the lack of an explanation for it in the Summary meant the publication of the report itself was awaited with interest.

The (redacted) full report has now appeared in Parliament tabled papers 2448-2452. (Hats off to the Queensland Parliament, I think the only Australian jurisdiction where tabled papers are published promptly on-line.) It is also here (Redacted) Full report (in a very large pdf).

Rather than a full, deep analysis, the review's examination of the RTI issue is limited to one page (113) in 248.

The given as far as Callinan is concerned is that the need for confidentiality regarding any fact of, or identity of a person who is subject of a complaint or of an investigation, or interest in a matter before the CMC is absolute.

The report proceeds from there seemingly, conflating two issues. One, how information of this kind might be safeguarded by an exemption. Two, the dangers posed to confidentiality if a decision to refuse access requires reasons to be given.

The report summarises the RTI problem thus:

At present the relevant agency, and on review the information Commissioner must give reasons for its decision whether to give access to documents which may in effect disclose that a matter is under investigation by the CMC and which would probably enable identification of the subject matter and the person who is the subject of investigation.

No examples are given to support the contention that the act isn't working in practice and there is no reference to the matter being raised in submissions.

As to what to do about the problem, the report says it would be possible to add to the categories of exempt information in the RTI act, information that would tend to identify the existence, nature or subject of a complaint to or investigation by the CMC. But

"we think it would be still possible for resourceful organisations to ascertain by process of elimination that a document has not been disclosed because it is related to a CMC  complaint or investigation.

From there it makes the jump to this radical solution (no emphasis added, the report underlines "any"):

"In order to prevent this possibility most effectively it would be better that agencies and the commissioner simply not be required to give any reasons in any case for a period of nine months of the application unless the Supreme Court for compelling reasons of public interest orders otherwise. Unless the discretion of the Information Commissioner not to give reasons is a general one and not in respect of the CMC alone the objective of confidentiality would be defeated..."

No new exemption is proposed. Simply(!) that the requirement for reasons for refusal of access by an agency or the Information Commissioner in "any case" be dispensed with for nine months.

There is no mention in this discussion of the existing section 55 of the Right to Information Act which provides that nothing in the act "requires an agency or Minister to give information as to the existence or non-existence of a document containing prescribed information."  Or reference to the possibility, that if this isn't capable of doing the job, of tweaking, with modifications drawn from other jurisdictions which apparently aren't struggling unsuccessfully to protect information of the kind Callinan wants protected.

The report recommends the same "give no reasons" provision should be included in the Ombudsman Act so that the Ombudsman would not have to explain a decision to refuse to intervene in a matter because it was the subject of a CMC complaint or investigation.

This part of the report concludes 

Without these (protections), as appears from this and other chapters of this Report, the requirement of secrecy is a hollow protection easily evaded.

Really?

For mine, the case for the recommendation that no reasons should be given in any RTI case isn't well argued; the report doesn't consider less radical alternatives; and the recommendation if accepted would turn on its head the general well established principle that an administrative decision-maker has an obligation to give reasons. It would mean that public servants have to be taken at their word that there are good reasons for refusal of access which can't be scrutinised or effectively challenged for nine months, unless through Supreme Court proceedings.

The blunderbuss should be put back on the shelf, replaced by something more suited to polishing rather than blasting the existing RTI framework, where this is necessary.

Quite apart from reasons being more than an RTI issue through a general requirement in the Queensland Judiciary Act, the Queensland Ombudsman's Good Decisions Guide (pdf) (page 10) advocates

giving reasons is good administrative practice in that it promotes fairness, transparency and accountability in decision-making.

Recommendation 10 in the review report reads:

Queensland CMC report floats drastic RTI change

The Australian

The Executive Summary of the report by former High Court judge Ian Callinan on his review of the Queensland Crime and Misconduct  Commission released yesterday is peppered with ascebic observations about  CMC performance and seems mostly about winding the organisation in or taking it down quite a few notches.

But the general nature of Recommendation 10 as framed in the summary and without further explanation is remarkable. It seems to suggest an about face on 30 years or so of administrative law principle that government agencies should give reasons for a decision, including for a refusal of access to information.

Mr Callinan recommends that the Right to Information Act be amended to restrict agencies and the Information Commissioner "from being required to give reasons for refusal to produce documents" and such a restriction should apply for a period of nine months. Perhaps this is meant to be in limited circumstances, for example in responding to requests for documents concerning complaints that may end up with the CMC but the summary doesn't say so. It elaborates on the above in these terms:

"The excuse from the requirement to give reasons must be general because if it is confined to reasons in respect of a CMC investigation, then not giving reasons would immediately identify that the matter was under investigation by the CMC and defeat the purpose of the provision. We recognise this is a far-reaching provision but cannot see any other solution that would prevent leakage of information."

 Reasons could be forced out by a contrary order by the Supreme Court "in situations of compelling public interest."

If there are detailed reasons for the recommendation they are yet to be released. The Executive Summary makes only a passing reference to the underlying issue, "the problem of public release of the fact that the CMC is investigating a matter or a person."  

There is no mention of section 55 of the Right to Information Act which provides that nothing in the act "requires an agency or Minister to give information as to the existence or non-existence of a document containing prescribed information." That sounds as if it might suit Mr Callinan's purpose, although there is room for debate about the public interest in disclosure of well founded allegations of corruption.  

However a quick look at the RTI regs indicates s 55 is yet to be activated four years after the commencement of the act because no information has been prescribed. 
(Correction: I looked in the wrong place. "Prescribed information" is defined in the dictionary of terms in Schedule 6 of the RTI act  as (a) exempt information mentioned in schedule 3, section 1, 2, 3, 4, 5, 9 or 10; or (b) personal information the disclosure of which would, on balance, be contrary to the public interest under section 47(3)(b)." While in its current form it doesn't necessarily address Mr Callinan's concerns, some tweaking by amendment might.)
 

A lot more context and elaboration is needed to justify the recommendation in its present form.

Recommendation 10 reads:

Queensland RTI charts unprompted new territory

Right to Information changes including new Disclosure log requirements came into effect in Queensland on 22 February with the commencement of the Right to Information and Integrity (Openness and Transparency (Amendment) Act 2012.

Two aspects are unique in Australia. Where they came from and why is unknown. They  bobbed up in a bill introduced in a hurry in the Queensland parliament late last year.


An RTI applicant must now reveal whether access is being sought "for the benefit of, or use of the document, by the applicant or another entity". Where access is sought for the benefit or use of another entity, the access applicant is required to name that other entity.

And after a valid application has been received and before any decision on disclosure is made, details of the information being sought and the date of the application must be included on the Disclosure Log. 

Neither gets a mention in all the various ideas put to the Hawke review in Canberra on how to improve the operation of the Federal government's freedom of information act.

In addition to those innovations the amendment scraps the previously available 24 hour minimum exclusive use period for information released to an applicant before it is posted on the disclosure log. The new formulation requires released documents to be posted on the disclosure log "as soon as practicable" after release to the applicant. 

If an applicant fails to access a released document within 40 business days, details identifying the document, information about the way in which it may be accessed and any applicable charge must now be included in a disclosure log as soon as practicable after the access period ends.

Exclusive use
The removal of the exclusive use period in Queensland came as media organisations in their joint submission to the Hawke review argue again for a five days exclusive use period when documents are released to a journalist in response to a Federal government FOI application. At present infomation is required to be posted within 10 days. Journalists contrast some agencies such as Treasury that have a same day release policy and Defence and Customs that in the absence of a legislative requirement give journalists an exclusive use period.

I’ve not heard any fuss from journalists about this issue in NSW where there is no statutory time provision for posting released information on the Disclosure log. Maybe the bigger pool of potential competitors on the national scene makes the difference. It has always been open to a minister/agency to release information publicly after an RTI/FOI application for that information has been received and that has certainly happened. In NSW, sensibly no GIPA charge applies in these circumstances.  

It seems reasonable to allow some exclusive time with released information. Perhaps any applicant - not just a journalist - should be able to ask for a few days exclusive use at the time of making the request, with that elective to bind the agency?

Those of us using Righttoknow aren't concerned that others know what we are seeking.  And sharing the spoils from the moment we succeed.

As soon as practicable after a valid access application^[3] is made to a department or Minister, the department or Minister must include the following information in its disclosure log:

• details of the information being sought by the applicant, as stated in the application; and
• the date the application was made.^[4]

Departments and Ministers publishing details of information being sought by the applicant must first review the information and delete information where required under section 78B.
- See more at: http://www.oic.qld.gov.au/information-and-resources/guidelines/guidelines-access-and-amendment/disclosure-logs-departments-and-ministers#sthash.sEqyw7Vg.dpuf

As soon as practicable after a valid access application^[3] is made to a department or Minister, the department or Minister must include the following information in its disclosure log:

• details of the information being sought by the applicant, as stated in the application; and
• the date the application was made.^[4]

Departments and Ministers publishing details of information being sought by the applicant must first review the information and delete information where required under section 78B.
- See more at: http://www.oic.qld.gov.au/information-and-resources/guidelines/guidelines-access-and-amendment/disclosure-logs-departments-and-ministers#sthash.sEqyw7Vg.dpuf

As soon as practicable after a valid access application^[3] is made to a department or Minister, the department or Minister must include the following information in its disclosure log:

• details of the information being sought by the applicant, as stated in the application; and
• the date the application was made.^[4]

Departments and Ministers publishing details of information being sought by the applicant must first review the information and delete information where required under section 78B.
- See more at: http://www.oic.qld.gov.au/information-and-resources/guidelines/guidelines-access-and-amendment/disclosure-logs-departments-and-ministers#sthash.sEqyw7Vg.dpuf

As soon as practicable after a valid access application^[3] is made to a department or Minister, the department or Minister must include the following information in its disclosure log:

• details of the information being sought by the applicant, as stated in the application; and
• the date the application was made.^[4]

Departments and Ministers publishing details of information being sought by the applicant must first review the information and delete information where required under section 78B.
- See more at: http://www.oic.qld.gov.au/information-and-resources/guidelines/guidelines-access-and-amendment/disclosure-logs-departments-and-ministers#sthash.sEqyw7Vg.dpuf

"From next year, Queenslanders will have the most open, accountable and transparent government ever seen across this nation"

So sayeth Attorney General Bleijie in Parliament on 27 November in introducing the Right to Information and Integrity (Openness and Transparency) Amendment Bill 2012. The bill passed on an urgency motion (debate on the bill itself is in the Hansard 29 November at 3012), received assent yesterday 11 December (Act 45/12) and will commence on a date to be proclaimed.

The changes relate to the RTI act disclosure logs and the the Integrity Act - the latter regarding lobbying, with an Australian first in extending the scope to parliamentary opposition leaders, and requiring lobbyists to keep records of contacts and provide information to the Integrity Commissioner.

The legislation was so urgent apparently that as the Explanatory Note ( see under Right to information.....) states:

 "The community has not been consulted on the Bill. The Acting Information Commissioner was provided with a draft of the amendments to the Right to Information Act 2009 . The Integrity Commissioner was consulted, and provided input into, the proposed amendments to the Integrity Act 2009." 

(I can see a difference in wording here that may be significant.)

Leaving the "best ever" claim to one side - and Opposition leader Palaszczuk claimed the bill weakens the existing integrity laws - journalists and media organisations will be disappointed. I've heard some are pushing the Hawke review in Canberra arguing for five days for exclusive use of documents released in response to a Commonwealth Freedom of Information request. Queensland where they have had up to now at least 24 hours before released information is posted on the disclosure log is cited as a less than perfect precedent.

I guess there have been "I'm mad as hell" shouts in light of the fact that the Queensland 24 hour exclusive period has been scotched as a result of the amendments. This provision in the repealed s 78 "However, nothing about the document (including a copy of the document) may be put on a disclosure log until at least 24 hours after the applicant accesses the document" isn't in the substituted section 78, 78A and 78B The new formulation is to post released documents on the log "as soon as practicable" after release to the applicant.

Rumbling in media circles won't be limited to the lack of opportunity to defend the 24 hours period or argue for longer. Another aspect of the new system likely to give rise to media angst is that details of what information is sought are to be posted on the log as soon as practicable after a valid application has been received by an agency and before any decision on release has been made. 

Here are the relevant extracts from the Explanatory Note (emphasis added)

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.

Queensland, bring on the information revolution, hold the rhetoric

Queensland is the latest to hop on the open data bus with Premier Campbell Newman announcing the appointment of a new Assistant Minister to the Premier on e-government, to drive the government's  ‘open data revolution’, "all part of meeting the LNP’s commitment to restoring accountability in Government.” In addition to the appointment of Mr Stevens as Assistant Minister, an Open Data Reform Group will be formed that will include the Director-Generals of all Queensland Government Departments to lead the culture change across government".

In this appearance before the Parliamentary Estimates Committee the same day transcript - FAC Proof the Premier upped the revolution to rhetoric (emphasis added):

"What we propose to do is really throw out everything that the government has onto a new website to ensure that Queenslanders can scrutinise this government, can look into every nook and cranny of what is going on, to ensure that they are totally informed. We are modelling this on some of the groundbreaking things that are going on overseas. I particularly draw the committee’s attention to the New York City open government initiative, where there is a wealth of information that has now been made available to the citizens of that city.
Why are we doing this? I have talked about the fact that we need to be open with Queenslanders, but there is a whole range of benefits that we believe will apply. Once upon a time—over 100 years ago—governments often granted land as a way of stimulating the economic development of this state. Today in the information age by releasing information we believe that will actually stimulate the economy and stimulate improvements in productivity.
So what is this all about, to get into the nitty-gritty? Well, imagine in a few months time when this has really started to get a head of steam. We propose that you will be able to find out where the speed cameras are located. You will be able to find out the hospital emergency statistics and general statistics on the performance of our hospitals. You will know the electricity consumption of the various state schools and government departments. You will have access to the traffic counts done by the Department of Transport and Main Roads. There will be a wealth of information out there.
How does that help the community? If you are a transport logistics company, having the traffic counts and the most recent information available free of charge on the government website will mean that you will be able to re-plan the way your business operates ensuring that your trucks avoid roads during congested periods and the like. This is going to be a very exciting thing.
Perhaps before I close I can talk about what has happened overseas. We are seeing very significant savings in the United States. For example, in Texas they reported $8.7 million in savings directly attributable to their transparency website in just the first year of operation. I quote from the Sydney Morning Herald and this is what we will be doing with financial information—
Opening the government books to an army of online citizen investigators has uncovered waste and duplication and made junkets or pork-barrelling spending near impossible. Corruption and rorting cannot occur when the records are freely available. Sunlight truly is the best disinfectant.
I am really delighted that Ray Stevens has taken up this challenge, and I know that this is going to be a quiet revolution in the state of Queensland. "

Clayton Utz suggests a few things that need to be sorted before this becomes reality.

No mention in the Premier's remarks of the Information Commissioner's role in any of this.The position previously filled by the highly regarded Julie Kinross who had plenty of experience plugging away at the culture change, is apparently still vacant.

I'm sure the Premier isn't into fads or as some are suggesting the "faux transparency" of open data, and can connect the dots between initiatives to ensure "Queenslanders can scrutinise this government, can look into every nook and cranny of what is going on, to ensure that they are totally informed" and the Right to Information Act. As Kinross noted in her annual report this year just before finishing up, when it comes to implementation:

The culture of the public sector remains a key challenge. A compliance approach where open government performance measures are included in chief executive officer and senior executive staff contracts is necessary if the culture is to be changed over time.

The RTI act itself includes some provisions that unduly constrain Queenslanders looking into every nook and cranny to ensure that they are totally informed- absolute exemptions for incoming government briefs, and for information concerning incentives granted to business for investment in the state (for seven years thereafter), and exclusion from the RTI act entirely for the parliamentary departments which pay entitlements to parliamentarians, to mention just three.

In opposition at least Mr Newman's Attorney General was hot to trot to ensure other nooks and crannies were open to scrutiny, introducing legislation that went nowhere at that time:

The Right to information (Government-Related Entities) Amendment Bill 2011 will restore transparency and accountability by extending the meaning of a public authority to include any corporation supported directly or indirectly by government funds or other assistance or over which the state, a minister or a department is in a position to exercise control.

As Brisbane lord mayor Mr Newman also had some form on open government. In that role in 2010 he was successful in persuading the Government to legislate to give Brisbane City Council's Establishment and Coordination Committee the same status for RTI purposes as the state cabinet. The legislation also gave all local government authorities in Queensland an exemption from the RTI act for "information brought into existence in the course of a local government’s budgetary processes" for 10 years, a wonderfully wide and generous provision.
 

Up the revolution!

Queensland 2011-2012 cases of note

The Queensland Information Commissioner's annual report notes that at 30 June there were five appeals before QCAT by external review applicants in relation to decisions of the Information Commissioner. Under the RTI and IP acts an external review participant can appeal to the Queensland Civil and Administrative Tribunal (QCAT) against a decision of the Information Commissioner on a question of law. ( Around the country, it is basically the same system in WA; at the federal level, further merits review is available in the AAT where the applicant or the agency contends the decision of the Information Commissioner is wrong; there is no limitation in NSW on an applicant seeking further merits review in the ADT either bypassing the Information Commissioner or following an IC review-  this is the only jurisdiction where a decision by the Information Commissioner is recommendatory not determinative.)

No applications for judicial review were made to the Supreme Court during 2011–12 under the Judicial Review Act 1991 (Qld).

The report draws attention to three OIC decisions during the year. Two related decisions dealt with applications by the Seven Network for information about failed food safety audits and related compliance action for specified but unnamed food businesses: Food Business and Gold Coast City Council; Seven Network Operations (Third Party) (310352, 15 September 2011); and Seven Network Operations Limited and Safe Food Production Queensland; Food business (Third Party) (310277, 10 February 2012).

Both decisions found that releasing the information, would not, on balance, be

contrary to the public interest and identified the following public interest factors which

significantly favoured disclosure:

• promoting open discussion of public affairs and enhancing government accountability—disclosure of the information was considered to contribute to agreater understanding of the way in which the local council/regulatory agency performs the significant regulatory functions conferred on it; and

• contributing to safe, informed and competitive markets—competitive marketsrequire multiple participants and informed consumers and for this reason, there is a public interest in disclosing the information to consumers.

The third highlighted decision, Applicant-University of Queensland was the first resulting in a vexatious applicant declaration. Under s.114 of the RTI Act and s.127 of the IP Act, the Information Commissioner may declare that a person is a vexatious applicant if satisfied that the person has repeatedly engaged in access actions and the repeated engagement involves an abuse of process for an access action. A declaration can only be made if the respondent is given an opportunity to make written or oral submissions.

 The University applied for an individual to be declared a vexatious applicant. The Commissioner granted the declaration with the condition that the individual is prohibited from making any further access applications to the University concerning any document about him  brought into existence prior to the date of the declaration.  

The Commissioner considered that the making of 65 access applications to the University including ten in a 12 month period, constituted the applicant repeatedly engaged in access actions, and that the following features of the repeated engagement in access actions amounted to an abuse of process:

• multiple and continuing applications over a long period of time, sometimes for the same documents,

• unsubstantiated allegations against, and vilification of, the applicant’s staff abuse of access rights—using documents obtained under the IP Act to purportedly substantiate baseless allegations posted on the respondent’s website and to continue long standing and ongoing harassment of the applicant’s staff,

• unreasonable interference with the applicant’s operations; and waste of public resources.

No bar to disclosure of public servant's routine work information

Public access to information about work related matters concerning a public servant and the extent to which this raises exemption or grounds for refusal issues concerning disclosure of  personal information is always a freedom of information matter of interest-well, mainly to public servants of course.

These issues arose in a recent Queensland Right to Information Act review by Assistant Information Commissioner Henry (The Amanda Flynn Charity Ltd and the Crime and Misconduct Commission). The precise nature of the information in dispute is unclear other than it concerned a person's employment in the public sector. 

Assistant Information Commissioner Henry decided the information was not exempt  and disclosure would not be contrary to the public interest, drawing a distinction between routine and non routine personal work information:

Information Commissioner tells Queensland Police to get in line

The performance review report by Information Commissioner Julie Kinross on Queensland Police Service compliance with the Right to Information and Information Privacy acts is making news, particularly her recommendation that QPS better utilise a wealth of information assets for community as well as more traditional purposes.The report singles out the current dearth of published crime statistics recommending  on-line publication rather than an annual statistical review, to inform local communities and promote engagement with the police. QPS failure to attach priority to strategic information management was indicative of a general lack of appreciation of the objects of the RTI act.

The review report provides a valuable template for assessing agency performance in any jurisdiction, focussing on:

• agency governance (leadership, governance mechanisms, information management including pro-active identification and release of information holdings, policies,procedures, delegations and roles and responsibilities of key personnel and training)

• agency community consultation and engagement strategies (this included contact with a group of stakeholders identified by the Information Commissioner not QPS, and must have come as something of a surprise to those involved)

• the adoption of push model strategies, for example, publication schemes, disclosure logs and administrative access schemes

•  compliance with legislative based requirements of the RTI and IP Acts for handling access and amendment applications; and

•  accountability and performance measurement systems.

The report notes QPS has ticked many compliance boxes such as having an information champion and an information steering committee, and has made progress on implementation in a number of respects. But the strong message is that the sleeves need to be rolled up regarding practical steps to lift the game to publish more information and improve processing of applications. The report doesn't give a rating but it's a "C" at best, noting many significant weaknesses and non-compliance in the way things are done. Some of the 28 recommendations gave QPS two weeks to get things sorted.  All recommendations are supported by QPS with those for immediate attention already actioned (Appendix 6). 

The polite but firm and steely tone is a contrast in some respects with the NSW Information Commissioner's report in July on compliance with the corresponding law by the NSW Police Force. While that report reached a similar conclusion-that the police could and should do much better- urgency was missing and police responses to some recommendations amounted to telling the Commissioner to go jump.

Queensland RTI gaps under scrutiny

My scepticism about any action regarding Opposition bills introduced into the Queensland Parliament was misplaced-too much exposure to NSW and Federal practices where such bills struggle for oxygen. The Legal Affairs, Police, Corrective Services and Emergency Services Committee is undertaking an inquiry into the Right to Information (Government-Related Entities) Amendment Bill 2011 introduced by shadow attorney general Jarrod Bleijie. Submissions close 4 November with a report in March 2012. Queensland Special Purpose Vehicles and other gaps in the Right to Information Act will be under examination.

Supreme Court confirms a hole in Queensland RTI act, ramifications unknown

Queensland Supreme Court Justice Applegarth in Davis v City North Infrastructure [2011] QSC 285 found the respondent, a company incorporated under the (Commonwealth) Corporations Act and wholly-owned by the state government, established to manage the Airport Link and Northern Busway Projects and associated works, was not a "public authority" and therefore not an "agency" subject to the Right to Information Act. City North Infrastructure Pty Ltd is a Special Purpose Vehicle in charge of one of the largest public infrastructure projects in the country. Its latest annual report (not easy to find) lists four of the six directors as senior public servants, one director who is the CEO of a similar body in Victoria and one external director, a lawyer.

Two points of particular interest.

The Court's interpretation of the definition of an entity "established by a Queensland act for a public purpose," an issue of some relevance not only in Queensland but elsewhere as similar provisions are contained in other FOI laws. 

And the government's response or reaction to facts noted by Justice Applegarth: that the Solomon Review recommended bodies established for a public purpose under an enactment of Queensland or the Commonwealth (or another State or Territory) should be covered by the law, that the government accepted this along with other recommendations in responding to the report, but the law as passed by Parliament didn't extend this far.

Shadow Attorney-General Jarrod Bleijie has a bill before parliament, introduced before the Supreme Court decision was handed down, to amend the RTI act to extend the definition of a public authority to any corporation supported directly or indirectly by government funds or other assistance or over which the state, a minister or a department is in a position to exercise control. I don't know if Opposition bills ever come on for debate in Queensland. Or how big a hole exists in the transparency and accountability framework in Queensland because Special Purpose Vehicles for one, are outside the scope of the RTI act. On these points it's over to the locals.

A previous post "Queensland Special Purpose Vehicles outside RTI act" reported the Civil and Administrative Tribunal decision upheld in this appeal. An additional argument why City North was covered by the act was pleaded unsuccessfully in the Supreme Court.

Queenslanders know about FOI, but that's about it

In a welcome first in Australia as far as I'm aware the Queensland Information Commissioner Julie Kinross has published reports on surveys conducted last year on public awareness of rights to information, and public sector attitudes, as foreshadowed in her report last month on two years of experience with the Right to Information and Information Privacy acts. The survey results establish a benchmark against which change can be measured. Other jurisdictions should be doing something similar. Public awareness in a general sense is there in Queensland, but use of the act is terribly low. Public servants however mostly think changes have had a positive impact on their agency- and that's a good thing, even if there is a long way to go with the general public.

Review of deaths in emergency departments raise public interest issues

  Drop off rate of interest

An editorial  in The Courier Mail on 30 March (no link but extracts below) gives the paper's point of view about a decision by Right to Information Commissioner Smith against Queensland Health (QH) that the agency has now taken to QCAT, a review right available on error of law grounds. The decision, that documents that detail reviews of in-unit deaths in emergency departments at specified hospitals during a defined period (excluding identifying particulars of patients and medical staff), are not exempt from disclosure, will be of interest to those in the health sector in Queensland and beyond.

RTI Commissioner Smith found that QH's Death Review Process was a system or procedure for the protection of persons [26], but that "there is no reasonable basis to expect that disclosure of the Information in Issue could prejudice" that system or procedure, the grounds necessary for an exemption claim under Schedule 3 section10(1)(i) [ 42]; and disclosure on balance would not be contrary to the public interest [43-63]. On this point the Commissioner said disclosure could be expected to promote open discussion of public affairs and enhance the Government’s accountability:

• "to the extent that information reviewing the quality and safety of emergency care in Queensland public hospitals contributes to open discussion about QH’s service delivery, in accordance with proper professional standards and its timeliness, access to such information is important "[46]

• "disclosing the details of the reviews of specific emergency department incidents where a death occurred will enhance the accountability of QH. Disclosure will reveal actions taken and factors relevant when delivering emergency public health care, and the precise steps taken when evaluating those actions and factors following a death in an emergency department. Such disclosure enhances QH’s accountability because it demonstrates the practical operation of the Death Review Process and sheds light on critical issues arising in emergency departments and how those critical issues are managed"[47]

• "Disclosure of the Information in Issue will provide details of the type and scope of review of specific emergency department incidents. It will better inform the public about review practices when deaths occur in public hospitals and contribute to debate on the performance of QH emergency departments. In this regard I note that the word ‘positive’ is construed broadly in the context of access to information legislation and encompasses various effects that disclosure might have including enlivening public debate, generating criticism or leading to legal process" [48]

The Courier Mail made these observations about the long drawn out process: