Warning that doing government business through personal emails could amount to misconduct, or worse.

The South Australian Independent Commissioner Against Corruption (Annual Report pdf P57) is concerned that some public officers, mainly ministerial staffers, use personal rather than government email accounts to conduct official business and sounds a 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."

Just a South Australian issue? 

I haven't seen it raised by the various watchdogs in other Australian jurisdictions, but it would be naive to think it doesn't or couldn't happen elsewhere.

And just ministerial staffers?

In an article in July this year based on documents released under FOI about an advertising campaign by the Rudd government to deter boat arrivals, Tom  Swann uncovered references to an email described as from “the Minister’s 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”. The email ordered “Full-page ads in all metro tabloids the day after the announcement and the next 3 days”, “Ads in all major ethnic papers”, “radio spots” and “social media”, with a budget of $30 million. It also provides the campaign slogan.

"Personal emails" cropped up in the UK in 2011 as an access issue prompting the Information Commissioner there to issue guidance that emails of this kind could, depending on content, come within the terms of the FOI act there. On that score in most jurisdictions here, the test would be whether the email is held by the agency or in the possession of an officer carrying out duties. 

SA Ombudsman's FOI wisdom should travel beyond state borders

ABC

The report (pdf) by South Australian Ombudsman Richard Bingham tabled in Parliament last week after a comprehensive review of how 12 government agencies manage their responsibilities under the Freedom of information Act identifies a whole raft of problems and issues that should attract the attention of the SA government. More on that in a moment.

The Ombudsman also raises issues relevant elsewhere. 

For example just as the Federal Government proposes to abolish the Office of Australian Information Commissioner which among other negative impacts on transparency and open government, will remove the independent oversight body, the 'champion' of open government, and wipe from the Federal Government statute book non litiguous merits review of FOI decisions, the Ombudsman recommends for SA: 

an independent oversight body with investigation, audit and recommendatory powers to issue FOI guidelines, ensure public awareness, provide advice and conduct training, deal with complaints, monitor and audit agency performance, conduct merit reviews with determinative powers, recommend reforms and report to Parliament.

"This body should also be responsible for the oversight of state privacy policies and legislation..", an aspect of the model the Federal Government plans to dismantle.

The Ombudsman concludes (along with just about every other review of FOI that has taken place around the country) that the absence of a dedicated independent ‘champion’ is a significant shortcoming in the FOI framework. 

The Federal Government is yet to explain its counter intuitive decision to abolish the function to deliver the transparent and accountable government to which it claims to be committed.

 South Australia and FOI shortcomings

 The Ombudsman highlights:

• the "disconnect between stated government policy regarding proactive disclosure in the digital age and agency approaches to  information disclosure";

• "the Act is outdated and its processes belong to pre electronic times";

• "agencies’ implementation of the Act is wanting, and demonstrates a lack of understanding or commitment to the democratic principles which underpin the Act.";

• "evidence provided to the audit strongly suggests that ministerial or political interference" is brought to bear in decision making and "FOI officers may have been pressured to change their determinations in particular instances"; (See these observations last year about this issue on a broader scale.)

• agency chief executives are not providing appropriate leadership on FOI and open government.

The Ombudsman recommends many changes to the act including a clear objects section weighted in favour of disclosure, reducing the number of exemption provisions, removing the 'Howard factors' from the public interest calculus, and the introduction of offence provisions. 

Richard Bingham is long on experience  with the way agencies go about their FOI business, in Tasmania before SA since 2009. His counsel should be welcomed and provide the impetus for change in SA which, along with Victoria and WA sat out the FOI reform period in 2008-2010. Those serious about transparency and accountability in Canberra in particular (there have to be some?) but also in the other states and territories should heed his wisdom. as well.

Transparency, accountability and integrity commitments hard to spot in Tasmanian and SA elections

I haven't dug deep in either state but these issues don't appear to have been anywhere near the forefront in the campaigns leading to the elections this Saturday. 

Maybe it goes without saying like 'truth, justice and Oi, Oi, Oi!'

Glad to hear from you if I've missed something important (and credible).

Tasmania
Tasmanians for Transparency received little encouragement from the major parties in putting forward a 12 point plan (see below) for honest government-see Honest Government not on the election agenda for the Major Parties and Liberals score zero on honest government plan. At least they had a go.

Among the many sprinklings of fairy dust ALP Policy states 

Labor believes in open government and will make every effort to eliminate “commercial-in-confidence” and similar clauses from government contracts and will only retain these where there is a compelling reason to do so. Government contracts will normally be published, where they can be readily scrutinised by the community. 

Perhaps Liberal Party Policy contains something relevant but it doesn't leap out at you. I'll leave The Greens and Palmer United to a deeper digger.

South Australia
Nothing obvious on these issues in the election spread in The Advertiser.

No headline in ALP Policy.

 Liberal Party Policy includes a Justice Action Agenda that contains a commitment to Strengthen the ICAC(pdf) and Strengthen Open Society through Shield Laws (pdf), and at least this mention:

Our commitment to shield laws is part of our Justice Action Agenda to ensure a fair, accountable government and transparent society. Shield laws support the media’s legitimate role in uncovering often difficult evidence and then using that to hold the powerful to account.

In contrast and good for them, transparent and honest government is clearly front and center for The Greens. 

 Palmer has endorsed a team of independents for the upper house.

12 POINT PLAN FOR HONEST GOVERNMENT IN TASMANIA

Decade old SA cabinet documents published, in an unexciting first

The South Australian Government has pro-actively published selected 10 year old Cabinet documents. It's a positive policy step on from that taken by former premier and current High Commissioner in London Mike Rann in 2009 to limit application of the cabinet exemption to ten years. 

No-one seems to have got around in the meantime to amending the act. Policy is one thing but the SA FOI act (Schedule 1 Clause 1) in 2013 still stipulates the cabinet exemption is in force for 20 years after a document comes into existence.

As the Premier and Deputy Premier said the publication of the submissions is a first for SA.  It could of course go even further by publishing more relevant information, such as cabinet outcomes as in the ACT, and recent cabinet documents as in Queensland. (As could the Commonwealth, and the other states. And dare I ask, has anyone in Victoria brushed the cobwebs from the cabinet register required to be published by s 10 of the act?)

Also good to see the SA Government flag "further announcements in relation to the proactive disclosure of Government information after establishing a cross agency Govrnment accountability project" to be headed by the Deputy Premier. 

SA is years behind in this area with the FOI act requirement simply to publish information about structure and functions, the types of documents held, and policy documents as defined. The Commonwealth, Queensland, NSW and Tasmanian governments significantly expanded the publishing requirement in 2009-2010.

I'll leave it to the locals to discover any gems in the documents themselves.

This submission by then Minister for Administrative Services now Premier Jay Weatherill in 2002, noting the intention to draft a Freedom of Information Amendment Bill is, well, unexciting. It's the backdrop to this Bill if you are trying to connect the dots to changes at that time.

As Premier Mr Weatherill has the chance to deliver much more in a state well behind in the FOI reform stakes.

FOI in South Australia needs a makeover

And it's not just the act that needs an update after 21 years. Recent reports by the Ombudsman suggest agency culture is a  bigger worry.
 
Planning
Ombudsman Richard Bingham's Growth Investigation Areas Report and the failings identified in the engagement of consultants without rigorous and accountable procurement processes to ensure probity and identify and deal with conflicts of interest, attracted plenty of attention in South Australia last week.

Less so the Freedom of Information aspects.

The GIA saga started in 2009 and involved a dogged FOI battle by The Greens MLC Mark Parnell to attempt to access key documents, with the planning agency running interference at every step of the way. Parnell took four knockbacks to the Ombudsman, one after another. Bingham ruled in his favour, that the documents were not exempt, each time. Planning took one case a further step to the District Court, which upheld Bingham's decision. The court did the same in another case, upholding Bingham's decision on review  in an application by Opposition MLC Vickie Chapman for relevant planning documents. 

The information access battles are recounted in FOI Background to the GIA Report.

Someone will surely ask what all this darting and weaving cost the SA taxpayer?  

The prevailing culture speaks for itself.

As to the GIA report produced by the consultants, it has not been publicly released. The Ombudsman (p 66) in an FOI review in 2010 found the report was exempt as a cabinet document. However the 30 Year Plan that it fed into was similarly a cabinet document that the government had released. Bingham intimated at the time that cabinet confidentiality would not be undermined if the GIA report was released, noting the objects and principles of administration of the FOI act. This time it's sharper: given his concerns about the consultants and Planning SA's failure to adequately address the conflict of interest,

 "I consider it would be in the public interest for the government to revisit its views and consider releasing the report."

Other recent reports by the Ombudsman show culture at Treasury and Finance is similarly tight. And the South Australian Tourism Authority was unable to produce persuasive evidence to justify refusal of access to contract information now five years old. It also didn't have a handle on the pro-disclosure public interests that favour release of this type of information in any event.

Same old, same old in South Australia

In preparation for an interview this morning with Radio Adelaide about the Hawke Freedom of Information review, and anticipating a couple of questions that didn't eventuate about South Australia, I had a quick look for an update on the local scene, and found-not much at all. 

SA stood to one side, along with the west, from the FOI reform movement of 2007-2010 that saw significant change at the national level and in Queensland, NSW and Tasmania. The SA FOI act of 1991 remains as it has always been since commencement 21 years ago and way short of a modern information access law that reflects 21st century expectations and norms.

In a recent reshuffle Premier Jay Weatherill assumed responsibility for the Public Sector and has announced political donation reform but is yet to mention transparency or open government as far as I can see. Tom Kenyon who had the job among others a year ago didn't seem well disposed to FOI but said something at the time about more pro-active publication. That may have been it.

The Ombudsman continues to haul some agencies back to toe the line when asked.

But it's the same old, same old in SA - an out of date law, limited publication requirements, the exclusions include parliament, no online publication of parliamentarians entitlements, no legislated requirement for publication of contracts (note in passing: no disclosure of payments to Lance Armstrong), no transparency regarding grants to industry, lobbying rules limited to registration for some but that's it, lack of leadership on openness and transparency, closed government culture, delay, high cost, limited resources, etc, etc. 

SA alone has an accredited FOI decision maker system, but I've not seen any evaluation of how that has worked.

With a year to go to the next state election, perhaps time for some pressure on the major parties to join The Greens Mark Parnell and Family First Robert Brokenshire in at least talking about transparency and open government?

If only Radio Adelaide had asked....

FOI in South Australia not healthy

South Australia, one of our non-reform FOI states, gets a drubbing in this Sunday Mail editorial detailing a two and a half year battle to access documents on crimes reported on public hospital grounds in the preceding five years:

THE culture of secrecy, evasion, obfuscation and cover-up demonstrated by the Health Department, as reported today, is anathema to South Australia's proud tradition of being a free and open society whose democratic ideals include the public's right to know what is going on in our public hospitals. 

And more detail of the time and cost involved here.

Not sure when the assist from the Ombudsman occurred-no Health determination listed for quite a while. (Update-since posted. It's quite a saga, with the Ombudsman concluding that  much of the delay arose because the applicant could have done more to describe in less open-ended terms what was being sought (73), and that the Department had fallen short of what is expected under the FOI Act in relation to engaging with the applicant to clarify the scope of the application (74)).

SA needs a freedom of information act fitting for the 21st century. And the attitude to go with it.

South Australian FOI reform stirrings

The Advertiser reports a glimmer of interest in change in South Australia, one of the laggards on Freedom of information reform where the 1991 act is Mark1.10, just a notch ahead of the 1980s Commonwealth/Victorian Mark 1.0 versions. Not just from long-time critics such as The Greens Mark Parnell and Family First's Robert Brokenshire who add to the list of failings identified by the Ombudsman Richard Bingham, but also in a first in a long time, from a minister:

Public Sector Minister Michael O'Brien said the increasing number of FOI requests, mostly made by journalists and MPs, was putting pressure on agencies, both in terms of cost and time. He said the Government was looking at ways to alleviate this, including publishing information routinely the subject of FOI requests on the internet. Another idea being considered by the Government was to assign documents a classification at the time of creation, with low-level classified documents made readily available. He conceded the Ombudsman's comments indicated some agencies weren't being as transparent as they should. "The more open the system the better and if the Ombudsman is saying some agencies are far too cautious then that is an issue we are going to have to look at," he said.

FOI amendment rights extend to accuracy not necessarily truth

A rare South Australian District Court action (Jotanovic v Housing SA [2011] SADC 138) was brought by a tenant of Housing SA, aggrieved by a decision made by the Ombudsman refusing her application for amendment of  records concerning her personal affairs. She claimed that the information contained in the records was “incomplete, incorrect, out-of-date or misleading” (Freedom of Information Act s 30) because what she said were untrue allegations had been made in a petition that was circulated amongst fellow tenants. The Ombudsman had concluded that the opinions of signatories had not been discredited, despite Ms Jotanovic’s strong denial. He had not been persuaded that the opinions were formed on the basis of incorrect factual evidence or that there was no basis for them at all. Judge Davey upheld the Ombudsman's decision:

11. I respectfully agree with the determination of the Ombudsman that the records are not incomplete, incorrect, out of date or misleading because they are not records of Mrs Jotanovic’s behaviour, they are only records of what certain people have asserted has been Mrs Jotanovic’s behaviour.

12. The interpretation of the FOIA made by the Ombudsman is supported by the existence of s 37 of the FOIA which provides for “Notations” to be added to records when a person claims that matters contained in the records are incomplete, incorrect, out-of-date or misleading. The intention of s 37 of FOIA is to provide a means for the record to show that, for example, an allegation is disputed. I note that in this case Housing SA has offered to further confer with Mrs Jotanovic as to the nature and scope of notations on the records that she thinks will indicate that there is a dispute as to the matters recorded therein.

I think the outcome would be the same in a similar situation in other jurisdictions.

Gender differences and use of Freedom of Information laws?

Has anyone ever seen research on this topic? Are women applicants under-represented?

Prompted by this announcement by South Australian Status for Women Minister Gail Gago that the state's Women's Information Service would have a new facility to enable women to make complaints to the Commonwealth and SA ombudsmen. And: 

“It will also help women to instigate freedom-of-information requests with state and federal governments."

A worthy new service, I'm sure, but as South Australia is an FOI reform black hole there's plenty of room there for government initiative.

Some SA standards best left behind

The new director general of the NSW Department of Premier and Cabinet Chris Eccles has a big job on his hands as he starts today. We wish him well. Fresh from South Australia where he headed the Premier's Department for the last two years, Mr Eccles will find many things different in NSW. One of the few on the plus side is a more modern legal framework regarding government transparency. The new government he is to serve also says its into better governance, with promises that include more open and accountable government. As previously noted here, on the freedom of information front, SA seems firmly stuck in pre-reform mode.

In February, South Australian Ombudsman Richard Bingham in Lucas and Department of Premier and Cabinet overturned a Freedom of Information decision by Mr Eccles on internal review, that parts of documents held by the Premier's Department containing names of persons and organisations they represented who attended functions hosted by SA Progressive Business (SAPB), the fund-raising arm of the South Australian branch of the Australian Labor Party (ALP), were exempt.  The Ombudsman was critical of the six months it took the Department to make the original determination, commenting

"(i)t is incumbent on the agency to ensure that it is adequately resourced to deal with applications in accordance with the FOI Act."

In his decision, Mr Eccles relied on Section 7(1)(c) to claim the exemptions- information of commercial value that if disclosed would have an adverse effect on business affairs or prejudice future supply of information, and disclosure would on balance be contrary to the public interest. During the Ombudsman's review, some of the third parties supported this argument and raised other exemption issues including separate aspects of  business affairs, and confidentiality. The Ombudsman rejected the submissions and ordered disclosure.

On the s 7(1)(c) claim the Department submitted [43]:

The attendance of persons from private sector organisations at SA Progressive Business functions is commercial information attaching to those organisations, is not made public, and is often information those organisations would not wish competitors in their industries to know. I therefore consider that the disclosure of this material could be reasonably expected to have an adverse effect on those person’s business affairs.

The Ombudsman said [42]:

On the facts of this case however, I am not satisfied that the identities of the third parties, or the organisations they are associated with, constitute information concerning the business affairs of the individuals or the organisations in the context of the relevant documents. Much of the information concerns, in essence, individuals scheduled to attend a function, and reveals the organisations they were associated with at the relevant time.

In respect of related arguments put on behalf of some third parties, the Ombudsman said [45]:

I am not persuaded that it could reasonably be expected to follow that the third parties, or organisations they represented, would be adversely affected by release of the relevant documents. In saying this I note that it is commonly understood that organisations lobby the government and the opposition alike, and that this does not necessarily mean an affiliation exists with a particular political party. Such an approach is thought to demonstrate common business practice. Furthermore, as I have previously indicated, a significant amount of information demonstrating links between SAPB or the ALP and named individuals and/or organisations is publicly available, or has previously been released to the applicant.

While it had nothing to do with the Department or Eccles, a submission put to the Ombudsman on behalf of one of the objecting third parties [47] is, well, quaint to say the least:

Third party 10 claims that the relevant documents contain ‘commercially sensitive trade secrets which are of commercial value’ to the company they are associated with and another company (the other company), and information concerning the commercial affairs of those companies. Third party 10 considers the fact of their attendance at an SAPB function, among other things, to be exempt, because it may inform competitors of their ‘confidential marketing activities, business strategy and business dealings’, which may in turn adversely affect the company and the future supply of the information to the agency.

The Ombudsman rejected the arguments against and ordered all documents in dispute to be released in their entirety.

South Australia stuck in pre-reform FOI era

If anyone can get beyond this page to the South Australian Hansard they might give me the link to debate in the state parliament on 10 March on an unsuccessful Opposition move to allow five hours free processing for journalist Freedom of Information applications. The Advertiser (no link available) reported next day:

State of SA bridges out in the open

A year ago the South Australian Ombudsman described a decision by the Transport Services Department to refuse access to safety reports about bridges on grounds disclosure would aid terrorists, as absurd, irrational and ridiculous.The reports of 22 bridges rated "fair", "poor" or "unsafe" have now been released, presumably as a result of the Ombudsman's report. As the Freedom of Information applicant, Opposition shadow industry spokesman, Martin Hamilton-Smith says:

"Some of these bridges were rated by engineers as `poor' because they have specific faults, including construction joint concerns, cracking, missing bolts, pavement bleeding, chipping, girders with shear cracks, faulty piers, corroded pedestrian barriers and corroded bearings. "It's a disgrace. It is in the public interest for this information to be out in the open. "There is no credible excuse for the Government to cover up and to keep the truth secret."

 South Australians have been assured by the Department: "There are no bridges in South Australia that are unsafe." But I'm sure they'll now be keeping an eye out for the arrival of the bridge maintenance team.

SA travel costs-$77,000 first, please

South Australia not only seems to be stuck with Victoria as our Freedom of Information reform laggards, it also seems to be stuck in the pre-computer age when the travel costs of public servants can only be found after a search of mounds of paper records. This by Brad Crouch in The Sunday Mail:

The travel cost of rural health bureaucrats will remain a state secret after the Opposition baulked at a $77,000 bill to seek the information under Freedom of Information laws.  The Opposition's health spokesman, Duncan McFetridge, sought the information from Country Health SA for the past 12 months of travel, but was told it was contained in some 14,000 documents. The cost for processing the first 5000 documents was put at $27,624, indicating the total bill would be $77,000. Mr McFetridge's failed FoI bill now stands at $246,700, after he also unsuccessfully sought information about the business case for the new Royal Adelaide Hospital as well as the cost of the expensive medical contract dispute on Kangaroo Island. "This is all information that should be readily available to the public," Mr McFetridge said. He claimed his FoI requests were being denied on the basis of "censorship by semantics and pedantics". Health Minister John Hill did not answer inquiries on the issue.

Trust me with your details, I'm a politician

www.musiczoo.com

Liberals' battle plan to win key marginal seats in The Advertiser last week reported that Liberal South Australian Senator Alan Ferguson had sought "personal profiling information" from up to seven local councils in Adelaide's north. One council helpfully passed news of the application to the former mayor who happens to be the Labor Federal Member for the area, who appears to have passed it on to the paper. Senator Ferguson is said to have used freedom of information laws to request details of all businesses in the area, including names, postal and physical addresses; lists of all citizens naturalised since January 2006; copies of all petitions lodged with council; names of all registered volunteers; data on all council buildings used for community activities and the people or groups who use them; and all committees connected to the council.

I agree with many of the comments that much of this is or should be in the public domain, available to anyone interested in knowing about local happenings.

But politicians "trawling" the record raises a broader issue - and no one is holding breath expecting action on this before the Federal election later this year, or ever - concerning the large hole in privacy laws for political parties and those engaged in politics. The gap permits collection of personal information not just from the public domain but from wherever they can find it, subject to little scrutiny, with no citizen rights to know or correct what is held, or limitations on subsequent use and disclosure.

Freedom of Information and two state elections

With elections in both states on 20 March, transparency in government is receiving different treatment in the campaigns in Tasmania and South Australia.

In Tasmania the incumbent Labor Government can point to significant action on reform with a good (subject to quibbles as you might expect) Right to Know Act scheduled to commence on 1 July that includes a couple of "lead the nation" elements such as the Parliament being covered in respect of administrative functions, and the abolition of all charges for processing applications. While Labor doesn't appear to be making much of this, Matthew Denholm in The Australian acknowledged the Premier's improvements to freedom-of-information laws, whistleblower protection, and the creation of the state's first anti-corruption watchdog as positives in an otherwise ordinary report card. Government action makes this Opposition policy commitment to a complete overhaul of the FOI Act sound just a little out of date. And while this is an area The Greens take seriously its a bit unfortunate that in a long list of policies all they have to say in the only one that appears relevant, Democracy and Participation is "Coming soon."(Update:since, substance has been added to include an impressive list of general commitments.)

In South Australia the Labor Government has shown no interest in broad reform, but Opposition Leader Redmond and the Liberals are running with a policy commitment based on "transparency as the key to restoring confidence in government." The Policy includes commitments on corruption prevention, whistleblower protection, open justice, conduct of members of parliament and Freedom of Information. The specifics in the FOI pitch are well, modest, but at least the issue has been given more than a nod:

"The flow of information from Government during the Rann Government has been appalling. Freedom of Information applications have increased but the level of information released has not. Last year 10% of applications made to the State Government were refused. That is up from 6% in 2000/01. For Freedom of Information to work properly, interference cannot be permitted. Under a Liberal Government advice will be provided to Minister’s Offices but those offices will not be permitted to interfere with timelines for the release of information.

In his 2008/09 Annual Report, the South Australian Ombudsman Richard Bingham, referred to an over-application of the Cabinet exemption rule for FOI applications.

A State Liberal Government will:
• Work with the Ombudsman to enhance this exemption clause to provide greater access to documents which should not necessarily be exempt.
• Remove fees for FOI applications made by journalists if they can be dealt with in less than five hours to provide greater scrutiny of government decisions."

SA applies old rules about election comment to new media

Amendments to the  South Australian Electoral Act that create an offence for publishing commentary on election issues on the internet as well as in a newspaper or magazine, or in a radio or television broadcast, without the name and address of a person who takes responsibility for the publication of the material, came into force on 6 January. The  Advertiser sees it as "Censoring free speech in the secret state", and with the state election next month, a move aimed at its own website, with bloggers, tweeters, other social networks, and even talk-back radio all probably affected.It suggests the legislation will require all contributors to give their real name and address.

In the broader context:

The legislation also further enforces South Australia's reputation as a place where secrecy flourishes. It is instructive that similar laws were also enacted in China last year, a country which has yet to embrace free speech. It is also instructive that the Federal Government examined the same issue after the 2007 election and decided to exclude blogs and online comment from any requirement to provide names and addresses. South Australia is a state that grants more suppression orders than any other, it is a state where it is acceptable to leave hundreds, if not thousands, of parliamentary questions unanswered for years at a time, where pursuing Freedom of Information requests is nothing short of a battle.

Rann: whatever it cost, it's worth it.

Dean Jaensch in The Advertiser today comments on Lance Armstrong's ringing endorsement for Premier Mike Rann in a press conference, when he said he would very much like to see "Ranny" win the South Australian election, due soon, and be returned to office. Armstrong is being paid an appearance fee by the Government, rumoured to be $2 million, but the Government says it can't reveal the amount  because  this would put the Tour Down Under at risk of being stolen. Jaensch makes a number of good points about the endorsement, and comments:

"For a government that says it is in favour of freedom of information and open government, it is hard to see the justification for refusing to tell the public what appearance fee was paid...Certainly there is competition between the states for anything worth having. But when taxpayers' money is concerned, there seems to be a more important principle at stake than "we got it first".

There is of course.  From a distance in any event, serious SA interest in freedom of information and open government is hard to discern

SA District Court finds Ombudsman erred on privilege law

One of the issues mentioned in the recent post about Freedom of Information issues in the South Australian Ombudsman's Annual Report has been the subject of a decision by Judge Herriman of the District Court in Legal Practitioners Conduct Board v Wharff [2009] SADC 126, an appeal against findings arising from an investigation by the Acting Ombudsman of a complaint about refusal of access to documents. After years of contention and rejection of the idea, the Conduct Board appears to have accepted [19-20] that it is an agency for the purposes of the SA FOI Act as the issue was not argued in the proceedings. (I notice the status of similar bodies under FOI is a current hot issue in far away Scotland.)

The important issues in the decision concern legal privilege. Judge Herriman was not satisfied [55] the Acting Ombudsman correctly applied the law in reaching his determination and made orders remitting the matter for redetermination in accordance with guidance provided [60] on the proper application of the law concerning privilege. Included in the judgment are these observations :

No severability in common law privilege

"It is not, therefore, appropriate to look at challenged factual material from the standpoints that (a) some part of it is not legal advice or (b) it has been ascertained by the author or by others in circumstances which did not themselves attract privilege or (c) it contains material put there for a separate purpose. If a court is satisfied that the dominant purpose of a communication otherwise meets the required test then, ordinarily, the entire document will enjoy privilege and no question of severability should arise."

The SA FOI Act enshrines a different notion

Judge Herriman [60(2)] was

"not satisfied that the exemption test applicable under clause 10(1) of the FOI Act is equivalent to or co-extensive with (common law privilege.) Had the legislators intended such a result, they might simply have said so. Indeed, the Commonwealth Freedom of Information Act 1993 expressly provides (s 42(1)):

A document is an exempt document if it is of such a nature that it would be privileged from production in legal proceedings on the ground of legal professional privilege.

But here, clause 10 provides that a document is exempt if ‘it contains matter that would be privileged’ on the ground of legal professional privilege. That phrase appears to me to introduce a concept that common law authorities have not squarely dealt with. They focus upon the question of whether a whole document is privileged, not on whether ‘matter’ contained within it might be....

It appears to me that the legislature has here (in clause 10) embraced a form of exemption that is considerably wider than that which would apply at common law. It looks not at the dominant purpose of the document itself but, rather, whether there is matter contained within it that would be privileged.

Under the FOI Act where part of a document contains privileged matter, the entire document is exempt

"..if a discrete part of a document can be so characterised, then the whole document can be said to ‘contain’ privileged material and a clause 10 exemption ought be available, notwithstanding that the dominant purpose of its creation as a whole document may not otherwise satisfy the common law test."

(Comment:I can't recall this issue arising elsewhere in jurisdictions that use the same formulation in FOI legislation, but would be interested in any comments.)

Judge Herriman found that the Acting Ombudsman had erred in law in addressing issues about whether privilege properly applied to agenda papers prepared for Board consideration in disciplinary proceedings:

"Once he found certain parts of an agenda did contain legal advice, the basis for a clause 10(1) exemption necessarily emerged and he erred in then proceeding to determine the matter by considering the dominant purpose of the whole document. Further, he did not properly direct his mind as to whether such material amounted to ‘evidence gathered for the purpose of litigation’

Judge Herriman added that if the FOI privilege and common law were co-extensive, the Ombudsman had "wrongly failed to consider the appellant’s argument that some factual matters in the agenda were necessarily intertwined with legal advice and should therefore also be part of any privilege claim"; had "misapplied the law and applied too narrow a test in approaching litigation privilege on the footing that ‘the dominant purpose test aside’, it could not be said that the documents in question could be ‘used in or aid the conduct of litigation’;and had "failed to turn his mind to the distinction between documents prepared by solicitors employed by the Board in the exercise of investigatory and legal advisory functions."

There were also errors in the way the Acting Ombudsman had addressed the public interest test in connection with a claim for exemption of internal working documents.

FOI and two Ombudsman

Annual reports released recently by the Commonwealth and South Australian Ombudsman both include information about Freedom of Information matters. Review of FOI complaints is part of a broad range of Ombudsman responsibilities. However as the reports reveal, FOI looms larger in the workload in SA.

The Office of the Commonwealth Ombudsman Professor John McMillan received over 45000 approaches and complaints in total during the year, just over 200 or less than 0.5%, concerning FOI matters. 50% of the FOI work involved three agencies- Centrelink, Immigration and the Child Support Agency. Most complaints were about delay, fees and charges and poorly explained decisions.The report comments about failures to assist applicants and too literal reading of applications, both giving rise to avoidable user dissatisfaction. FOI rates one page (116) in the report. Unlike coverage of most other investigatory functions there are no case studies.

South Australian Ombudsman Richard Bingham reports his office considered 2543 cases in total, including 221 or about 8%, and more than his Commonwealth counterpart, concerning FOI. (The total number of approaches to the Office are estimated at around 12000). The FOI chapter of the report runs to 24 pages, consisting mainly of case studies and comments about matters investigated. These include an ongoing issue whether the Legal Practitioners Conduct Board is subject to the Act and whether Board documents attract legal professional privilege (an issue before the District Court); the status of information about contractual arrangements and work performance of a former chief executive of a rural health service; commercial in confidence information held by the Department of Health (also before the District Court); and several cases involving the Cabinet documents exemption including the Ombudsman's observation that Clause 1(1)(e) which exempts information concerning any deliberation or decision of Cabinet is too widely drawn. On this the Ombudsman says:

As a final comment, I note that interstate and Commonwealth FOI legislation apart from NSW, does not have such a broad exemption as clause 1(1)(e). I consider that an exemption worded to exempt access to documents revealing rather than concerning a decision or deliberation of Cabinet would be more appropriate, and would protect Cabinet confidentiality and also conform to the objectives of the FOI.

The NSW Government Information (Public Access) Act to commence early in 2010 contains a presumption of an overriding public interest against disclosure of a document prepared after a Cabinet deliberation or decision that would "reveal or tend to reveal information concerning any of those deliberations or decisions" (Clause 1 Schedule1). This is an improvement on Clause 1(1)(e) in Schedule 1 of the FOI Act. The exemption for disclosure of information concerning any deliberation or decision of Cabinet was interpreted by the NSW Administrative Decisions Tribunal as broad enough to cover a document that predated cabinet consideration of a matter, something the new formulation would rule out.