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.

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

FOI charges remain a barrier to access and a cost to the taxpayer

The Australian reports today on the refusal by the Department of Prime Minister and Cabinet to waive charges for the release under the Freedom of information Act of 80 pages to Senator Abetz concerning appointments to the Levenson media inquiry, on grounds that  the documents would not be of interest to anyone other than "a limited section of the community, namely the media."  A reminder that the complex, resource intensive and time consuming charge regime remains a flaw in the Commonwealth system, even though  application fees have been abolished.

The Australian information Commissioner reported just that in his review released in March: "The charging framework is not easy to administer, the cost of assessing or collecting a charge can be higher than the charge itself, and the scale of charges is outdated and unrealistic," Professor McMillan said.

This report concludes that further change to FOI legislation is needed. A new charges framework could enable the FOI Act to work better in providing public access to government information without impairing the other responsibilities of agencies and ministers....The prevailing theme in all consultation for this report was that the FOI Act is a vital statute that must be supported by government and made to work in an optimal manner. My recommendations for reform are framed in that spirit. I commend them to the Australian Government for close consideration.

Six months on that's the last heard of the reform proposals, in public at least. Professor McMillan did say he was interested in hearing from others, was considering further consultation and possibly a supplementary report to the Attorney General. But in the meantime, apart from a line of applicants frustrated by the charge hurdle in an age where speedy access is the go...

Who knows how much time and cost to the taxpayer continues to be involved in agencies  calculating estimates,keeping track of time, seeking deposits, considering applications for reduction or waiver on financial hardship or public interest grounds, calculating charges and chasing up requests for payment etc, etc? All that before further time and cost absorbing complex guidance on the subject and arguing the toss on matters where the applicant seeks review on grounds a charge has been wrongly assessed or should be reduced or not imposed.

To date, the Office of Australian Information Commissioner has published 20 review decisions in 2012. Ten relate to charges. In three cases-33%- the commissioner set aside the agency decision. 

Many matters don't go to a formal decision so it's not known how large charge issues loom in the overall review workload of the office. But it is clear that time and cost spent on this is too much at every level.

On the "whatever happened" theme:
In NSW, to Premier O'Farrell's commitment while in opposition to abolish application fees? And to the review of fees and charges by the NSW Information Commissioner that kicked off with a consultation paper and a survey in October last year and seems to have dropped off the radar since?

And in Tasmania has anyone had a look at the consequential effects on applicants, and savings in administrative costs as a result of the decision in 2009 to retain a small application fee and abolish other charges?

If access to information law has the worthy public purpose of increasing public participation in government activity, the fees and charges regime, managed at significant cost to the taxpayer, shouldn't block the way.

NBN Co FOI performance review won't examine broader exclusion issues

Attorney-General Nicola Roxon announced this week that what has ensued since June 2011 when NBN Co commenced operating under the Commonwealth Freedom of Information Act (albeit with coverage limited to documents that don't concern commercial activities) will be reviewed by a yet to be named eminent person. 

The review stems from an agreement between the government and The Greens reached at the time the amendment was passed to bring NBN Co under FOI law a year ago. The Greens were wary that the government formulation of the NBN Co exemption, along the lines of long standing exemptions enjoyed by other GBEs and similar bodies, left too much room for avoiding disclosure, hence the agreed review of performance in return for their votes. At the time Malcolm Turnbull of the Opposition was convinced The Greens had been conned, and that the legislated formula provided too much hiding room for NBN Co. We'll see what has happened when the review report is tabled in parliament in June. I'm assuming, knowing all along that the review was to happen, that NBN Co has been reasonably well behaved.

  

Broader issues

The review notwithstanding, the justification for special exemptions afforded to a range of organisations and the inelegant form of words used in s7 and schedule 2 to achieve this will remain matters for another day. Along with the justification for exclusion of an unknown number of government owned corporations similar to NBN Co in structure, such as the National Electronic Health Transition Authority, that carry out important public functions with large allocations of public money.

Similar issues, rarely explored in most instances, also exist at state level.(Tasmania may be an exception because of the broad definition of public authority in s 5.)

Queensland Attorney General showed interest in scope issues in opposition

In Queensland last year  the Supreme Court ruled Special Purpose Vehicles were not subject to the Right to information Act. Then Opposition Member for Kawana, Jarrod Bleijie introduced the Right to Information (Government-related Entities) Amendment Bill into Parliament in September, partly in response to the court decision. Mr Bleijie is now Attorney General, minister responsible for the RTI act.

His 2011 bill, which lapsed when parliament was dissolved prior to the election in March, would extend the RTI 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."

The RTI act currently (s 16) provides for extension of the act by regulation to such entities, but Labor made no move in this direction. Mr Bleijie in opposition saw merit in legislating in a job lot for such bodies to be subject to the RTI act but it remains to be seen whether the view from behind a ministerial desk takes on a different hue-as so often is the case. 

Tasmania, the quietest reform state

The Australian Information Commissioner, Queensland Information Commissioner and NSW Information Commissioner are maintaining variable but reasonable flows of information about implementation of access to information reform activities, and their respective review functions. Communication after all is an essential part of the leadership required to promote the objects of legislation and the needed culture change within agencies. And some outside government are interested observers as well.

But things are quiet in the other reform state, Tasmania, at least from a distance.The Ombudsman has the same or similar functions there under the Right to Information Act. Perhaps there is a lot going on that doesn't rate a mention publicly, maybe it's a resource issue, maybe softly, really softly, is the way to go down there, but...

The Ombudsman’s website has no published review decisions, no information about complaints or review applications received, no other statistics, no audit or investigation reports, no performance measures that agencies will be held to or that apply to the Ombudsman's review functions, no speeches on RTI-or any other RTI-related information since the publication of guidelines and a manual last year, and the announcement of half day workshops once a month.

Comments from Tassie, or elsewhere, welcome.

Correction-thanks to the Queensland reader who tracked down these decisions on review. 
Update- decisions in January and February 2011 have also been posted

 

Tasmania's pro active publication falling short

As pointed out previously, the Tasmanian Right to Know Act provisions concerning proactive publication of information don't take things very far, and the powers conferred on the Ombudsman to require more seem unclear. Apart from information required to be made publicly available by another act or regulation (a required disclosure) whatever else is published essentially seems to be up to each agency. Agency performance three months after commencement of the scheme hardly suggests the brave new world that Attorney General Giddings spoke of in April 2009

“The key proposal is a new approach to accessing information which encourages departments to ‘push’ information into the public arena rather than waiting for a request to ‘pull’ the information from the agency.

Tasmanian Supreme Court delves into competitive disadvantage

It took almost 20 years to surface in the courts and is now somewhat moot as the Freedom of Information Act 1991 has been repealed and replaced by the Right to Information Act from 1 July, but the decision by Justice Porter of the Tasmanian Supreme Court in Forestry Tasmania v Ombudsman [2010] TASSC 39 highlights shortcomings in the FOI act business affairs exemptions. However the term "competitive disadvantage" is used in sections 37 and 38 of the replacement RTI act and this aspect of the judgment is of ongoing relevance in Tasmania and Victoria where similar terms are used.  Both provisions are now subject to the public interest test as they appear in Part 2 Division 3 of the RTI act, removing the FOI act uncertainty referred to below.

Justice Porter found errors of law in the Ombudsman's determination on review of a decision to refuse access in response to an application by a member of state parliament, Kim Booth for information about the cost involved in Forestry Tasmania's arrangements with a commercial television company for commissioning and production of the television program "Going Bush."(ABC News and The Mercury were premature in concluding FT achieved more than a win on legal points in this round, as the Ombudsman is now to reconsider the matter applying principles set out in the judgment.)

Tasmania's "push" model needs more push

Three weeks on, Tasmania's Right to Information Act is apparently yet to produce anything from the much vaunted shift to pro-active publication of information, according to this report by David Killick in The Mercury:

"The new laws took effect on July 1, replacing the old Freedom of Information Act. Among their key tenets is encouraging the active disclosures of information by public authorities without the need for a request from the public. Freedom of information expert Rick Snell said measuring progress was difficult but it was disappointing more information was apparently not being released. "I would have had the expectation that the Government and the departments would have been able to point to early initiatives," the University of Tasmanian senior lecturer said. "The Government went to the election and, through the process, on the basis of increasing trust, improving transparency et cetera, so there ought to be an obligation on agencies to make it readily apparent where they think there has been significant improvements in terms of accessibility of information." 

One reason would seem to be that the Tasmanian act prescribes nothing that must be published, as noted in this comment on the Exposure draft last October.The RTI act simply authorises agencies to release information by way of "required" (by an act or under an agreement),"routine" (where the public may be interested in the information), or "active" (in response to requests outside the Act) disclosure, leaving "assessed" disclosure- release in response to a formal application-as a last resort. The act contains no mandatory publication requirements. Section 12 states such disclosures are authorised "subject to" guidelines issued by the Ombudsman.

No news in good news

New right to information laws in NSW and Tasmania from 1 July didn't spark much coverage in major media in either state with no take up I can see on the media release  by Tasmanian Attorney General Lara Giddings welcoming the commencement of the RTI Act, or on a similar release by NSW Information Commissioner Deirdre O'Donnell. Commissioner O'Donnell gave applicants this useful quote to use in response to contiunuing run-around:

"There will no longer be any excuse for long drawn out applications for every piece of information requested by a member of the public or a journalist," she said. Under the GIPA Act, all government agencies must try to provide the requested information quickly and informally, with formal applications an absolute last resort." 

There may be more, but the only mentions of the new era in NSW that came to attention were in two local papers who understandably gave it some local flavour. Good on the Manly Daily 26 June and the Braidwood Times 30 June.

The NSW Office of Information Commissioner has a quarter page advertisement in today's Sydney papers announcing the changes and its role.If it appeared in the Daily Telegraph it makes an interesting bookend with this "Secret state" front-page screamer.

Let the new eras begin.

Image: City of Long Beach CA

Maybe the earth didn't move but new right to information laws commence today in NSW, 21 years to the day since the introduction of Freedom of Information, and Tasmania where the Ombudsman is the state information commissioner equivalent . No words of welcome in the dailies that I can see, but good luck to those on both sides of the equation looking to move things in the direction of more open and transparent government.  NSW Greens Lee Rhiannon is waiting for the new era to strike home with those within government who are arguing submissions by the NSW Government for federal Infrastructure Australia funding last year have to be guarded from public view.

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."

The story of a simple FOI-the Premier's Appointments Diary

Apart from revealing in the Tasmanian Times some of those who saw Premier Bartlett between May and November 2008, Bob Burton has written the details of what happened in the course of an eventually successful Freedom of Information application to obtain information from the Premier's appointment diary, and some of the considerations against release, floated by the Department of Premier and Cabinet, which in the end just wilted away. Burton, despite what at several points was looking like a complete miss, had the good fortune that the record of appointments was held by the Department, and the benefit of a tightly crafted application. Sticky issues of the kind encountered last year in NSW by Sean Parnell of The Australian in seeking direct from the premier's office information about appointments at an ALP convention and whether the information related to the affairs of an agency didn't seem to arise. Burton thinks public statements about the coming new era during debate on the yet to commence Right to Information Act was one factor that worked in his favour.

Memo Senate: Aussies back from beach soon

www.neatorama.com

"Reform Now" commented on a recent post about the few submissions posted so far on the Senate Finance and Public Administration website in connection with its examination of the Federal Government's Freedom of Information Reform (Amendment) Bill - five to date. Submissions close on 28 January, and I'm working on a submission to that deadline.

The reasons for a handful of submissions so far are obvious- the debate during the earlier Government consultation phase, and now, has been framed in a way that it has all been about words in an act, something that effectively sidelines most john and mary citizen types (but two out of five already in are from citizens on a mission), meaning its largely in the hands of boffins. And December/January isn't a great time of year for even boffins to drag out the computer and get to work on dissecting a few hundred pages of legislation (or the associated Exposure Draft on Fees and Charges, on which submissions closed two weeks ago.)

But fascinating to see Queensland Information Commissioner Julia Kinross in there already (PDF 259KB) arguing strongly a single issue- that Federal parliamentary departments should be covered by the FOI Act. She presents a good set of arguments for something I've been running with for years, so far to no avail.

However, ahem, the Information Commissioner didn't mention Queensland hadn't taken this step in its 2009 reforms. Parliament there remains outside the Right to Information Act 2009. Tasmania, by my analysis of their Right to Information Act, to commence in July 2010, did take this step. I've yet to hear anyone from the Tasmanian Government,  the media, other commentators or even the Queensland Information Commissioner, mention this important Australian precedent.

Tasmania FOI envy- in Michigan

We all have all heard stories about large Freedom of Information bills, but thanks to Rick Snell for this report of a $7 million charge by the Michigan Department of State Police for an FOI application by the Mackinak Centre for Public Policy. Just in passing, the Tasmanian Right to Information Act to commence on 1 July 2010 is an Australian first: no provision for processing charges, only an application fee.

Tasmanian Parliament hiding bold step under a bushel

Although no-one is shouting it from rooftops, Tasmania is to be the first Australian jurisdiction to bring the Parliament within the scope of information access law as a result of a provision in the Right to Information Act that appears to make information concerning administration of the Parliament accessible under the Act .This didn't rate a mention in the Minister's Second Reading speech in Parliament, wasn't referred to in materials issued during the review process such as the Directions Paper early in the year, or the Overview presentation in April 2009, and apart from a couple of jocular exchanges during the debate in the Legislative Council, wasn't mentioned in hours of debate about the detail of the Bill in Parliament.Notwithstanding, its a groundbreaking development and a step ahead of everywhere else in the country where Parliament is either not an organisation of the kind covered by Freedom of Information acts and similar laws, or has been specifically excluded.

The reason for the silence may be that it is not exactly up in lights from a reading of the Act. The clue lies in Section 6, under the unlikely heading "Exclusions of certain persons or bodies." The section provides (emphasis added):

(1) This Act does not apply to information in the possession of the following persons or public authorities, or in the possession of a person whose services are provided or procured for the purposes of assisting the person or public authority, unless the information relates to the administration of the relevant public authority:

(a) the Governor;
(b) a court;
(c) a tribunal;
(d) the Integrity Commission;
(e) a judge;
(f) an associate judge;
(g) a magistrate;
(h) the Solicitor-General;
(i) the Director of Public Prosecutions;
(j) the Ombudsman;
(k) the Auditor-General;
(l) the State Service Commissioner;
(m) the Anti-Discrimination Commissioner;
(n) the Public Guardian;
(o) the Health Complaints Commissioner;
(p) Parliament;
(q) a Member of Parliament.

The Act 's provisions concerning access rights, publication and disclosure are framed in terms of obligations and duties of a public authority (and irrelevantly for this discussion a Minister) -see for example sections 3 and 7.

First issue: is Parliament a public authority? You would expect so otherwise why refer to it in Section 6 - although I'm struggling to understand the significance of the inclusion of a Member of Parliament.

The only part of the definition of public authority in Section 5 that appears relevant is (e) a body, whether corporate or unincorporate, that is established by or under an Act for a public purpose.

Second issue: is the Tasmanian Parliament (and the Governor, added to the list in Section 6 as a result of an amendment in the House of Assembly put forward by the Opposition Leader Will Hodgman, and accepted by the Government) a body estabished by an Act for a public purpose?

The Constitution Act 1934 (the Preamble refers to earlier legislation concerning governance arrangements for the purpose of securing peace, welfare, and good government, now consolidated into this Act) states (Section 10)

"The Governor and the Legislative Council and House of Assembly shall together constitute the Parliament of Tasmania."

Conclusion: unless there is a quibble from a constitutional law perspective (admission-I'm no expert on this or Tasmanian law generally) it is clear, although not readily apparent from the discussion in Tasmania so far, that the Parliament (and as part of the Parliament and separately, the Governor) as a public authority will be subject to the Right to Information Act with respect to information in its possession that relates to matters of administration. This would include payments to and acquittals by members, and other use of public funds managed by the offices of the clerks. I'm still unclear about what results from the inclusion of a Member of Parliament in Section 6. Two relevant pieces of that puzzle. A member of a public authority is an officer of the authority (definition of officer in Section 5). As a result any information a member holds that relates to administration of Parliament is taken to be held by the Parliament. Section 5(3) of the Act provides:

"For the purpose of the definition of “information in the possession of a public authority”, a public authority is taken to be in possession of information if the public authority is entitled to the information.."

Will other jurisdictions follow this important Tasmanian lead?

Tasmanian Parliament delivers RTI package

The Tasmanian Right to Information Act, to replace the Freedom of Information Act, and the Personal Information Protection Amendment Act have now passed both Houses of Parliament, with a few mostly minor amendments. The RTI Act is to commence on 1 July 2010, allowing plenty of preparation time for the new era, and the PIPA Act (primarily transfering amendment of personal information records from Freedom of Information to the privacy act ) on a date to be proclaimed. Debate on the bills was generally of a high standard with some well informed questions and comments in both houses. While debate was sprung on the Assembly quickly (48 hours notice) there can be no criticism that there wasn't adequate discussion. If you are a detail person here are links to debate in the House of Assembly on 15 October (see the Hansard-commencing 4:39 PM), and the Legislative Council on 28 (Hansard- commencing 9:39 PM) and 29 October (Hansard-debate after 3 PM).

The couple of non controversial amendments agreed to in the Council may need to be ticked by the Assembly although this should be routine.One concerns what happens if the Ombudsman exercises authority conferred by the Act (unusual in the Australian context where ombudsman/information commissioners do not have determinative powers) to order that information be released and the authority ignores the order.There was some mulling over possible options including the creation of an offence, but the Council settled on the less draconian but potentially powerful requirement for the Ombudsman to report such an event to a joint select committee of Parliament.

An observation: this is pretty good stuff but there is nothing in the RTI Act that specifies what information will be published by public authorities in accordance with the much talked about new "push model." All is yet to be revealed with everything dependent on guidelines to be issued by the Ombudsman. And no-one in many hours of parliamentary debate made much of this rather large hole in the statutory scheme.

I'm still thinking through a potentially significant, unique aspect of the Act- more in another post.

Tasmanian FOI replacement bill through lower house

The Tasmanian House of Assembly passed the Right to Information Bill and related legislation yesterday. Some changes from the Draft are evident and interested to see any close analysis of the differences.The promise of greater proactive disclosure has been given more credibility by a provision requiring the Ombudsman to issue guidelines on all means of access and disclosure, including publication, informal and formal requests. Still room for quibbles ( "impecunious" even survived) but overall significant, positive change.

The House also passed the Personal Information Protection Amendment Bill.

Both bills now go to the Legislative Council.

More disclosure might lead to less questions about public servant travel

Damien Brown in The Mercury reports that questions in State Parliament in Hobart yesterday about travel expenses of Health Secretary David Roberts had the Minister and Deputy Premier Lara Giddings crying foul, suggesting professional public servants would be discouraged from relocating to Tasmania by "appalling" and "disgusting" questioning.

Hmm, there I was hoping governments and senior public servants there and elsewhere would be working on the basis that the publication of this sort of information on a regular basis is one of the things that might be expected in the new or coming era of proactive disclosure. As Attorney General, Minister Giddings has carriage of that matter in Tasmania (referred to here yesterday) as well.

Brown reports:

"Mr Roberts' 60 intrastate, interstate and international trips between December 2007 and May this year were part of a $110,000 travel bill for Tasmania's top health bureaucrats obtained by Mr Whiteley (Opposition Health spokesman) under Freedom of Information legislation. The figures also featured the travel movements of deputy secretary Alice Birchall.

Mr Whiteley defended his questioning."I asked them questions. Can't I do that?" he said in Parliament."All I am doing is asking questions and for you to justify these expenses -- they are massive expenses. You must be joking if you think we can't ask questions."

The Minister said:

"We have had FoI after FoI on two specific individuals -- that is what I call a personal attack. Why are we not asking questions of all of our public servants?

I'm not against travel when its necessary and useful, but the question for the Minister is why not publish this information regularly- and for ministers as well. I doubt the slightest slowdown in recruitment of public servants as a result. Anyone concerned should try private sector transparency demands for top executives these days.

Not much Gov 2.0 detail in Tasmania's RTI Exposure Draft

Submissions closed today on the Tasmanian Exposure Draft Right to Information Bill 2009, to replace the Freedom of Information Act, and the Personal Information Protection Amendment Bill 2009. I didn't manage a submission, but make these couple of comments.

While there are some positives, the RTI Bill is not all you hope for in a modern, plain - English, access to government information act. The drafting for a start strikes as "old-style" - even "impecunious" gets a run in Section 17 - but that's neither here nor there in the broad scheme of things.

More importantly, while the Department of Justice Review team's webpage states the Bill proposes (among other things) to "mandate greater proactive release of information by the Government", the Exposure Draft does nothing of the sort. It does not require the proactive publication of any information, simply authorising agencies to release information by way of "routine" (in the public interest), "active" (in response to requests outside the Act) or "required" (by another act) disclosures, all to be preferred to the last option of "assessed" disclosure- release in response to a formal application under the Act. No further requirements are imposed regarding proactive disclosure. The Ombudsman who has specified powers may (Section 50) issue guidelines relating to disclosure under the four specified types. But if any guidelines are issued there is nothing in the Exposure Draft that requires an agency to have regard to or comply with them. There is a general power to make regulations for the purposes of the Act (Section 55) but under the Bill as it stands, each agency will decide what if any information should be proactively released. There is no mention of the Internet in 85 pages.

A couple of other points.

The application fee for assessed disclosure applications for the "impecunious" and a Member of Parliament acting in connection with official duties can be waived (Section 17) but no-one else who might be seeking information for broad public purposes gets a mention. Neither is there any mention of processing charges, so maybe there's to be none?

Grounds of exemption are to a large extent Australian standard, and for those subject to a public interest test, some relevant considerations for and against disclosure are listed (Schedule 1) to be taken into account in deciding whether disclosure would not be contrary to the public interest. A couple are unusual and may be unique- (t) whether the applicant is resident in Australia; and (u) whether the information is wrong or inaccurate.

Schedule 3 includes matters relevant to refusing an application on grounds of substantial and unreasonable diversion of resources. Regular users of the Act for example journalists, interest groups and politicians might be a little wary about what could constitute "applications of the same kind" and "similar information" as in:

(g) the extent to which the applicant is a repeat applicant to the public authority in respect of applications of the same kind, or a repeat applicant across government in respect of applications of the same kind, and the extent to which the present application might have been adequately met by those previous applications; and (j) the number and volume of assessed disclosures of information to the applicant about similar information in the 12-month period immediately prior to the present application.

There is no Information Commissioner as such and the Ombudsman (Section 48) has various powers some of which need beefing up from the discretionary "may", and as mentioned above, given some clout, although in one respect - the power to direct an agency to implement the Ombudsman's decision after considering a review application - the Tasmanian Ombudsman is a step ahead of what the information commissioners can deliver under Queensland, NSW or proposed Federal legislation.

Other good elements: the Act (Section 8) covers information related to performance, evaluation or progress of work provided to a public authority by a private organisation that is funded by or performs a role of that public authority unless the information is exempt; the shift from "documents' to "information" and clear search requirements for electronic information (Section 10); the inclusion of an offence for "unduly" influencing a decision (although there appears to be a drafting error in Section 51 which seems to apply to internal review decisions, but not not others).

Tassie goes for Right to Information

The Tasmanian Government has released the Exposure Draft of the proposed Right to Information Bill, which sounds close to the Queensland and NSW models. Deputy Premier and Attorney General Lara Giddings calls for feedback on the Bill which proposes to replace the current Freedom of Information Act ; mandates greater proactive release of information by Government; spells out the factors to be considered when applying the overarching public interest test; creates clear timelines for processing applications, if the information is not already available; and increases the powers of the Ombudsman for external review and monitoring. The Bill can be accessed here- I haven't looked yet. Update:Rick Snell thinks significant improvement- but proof of the pudding and all that. Submissions close 1 October.