Debate ongoing regarding government contracts

In the Letters page in the Sydney Morning Herald on 25-26 February Miles Lane of Roseville urged greater transparency regarding government contracts: “What can be so confidential about a simple construction contract to build a tunnel, road or desalination plant?”

He said that all such documents should be made readily available on line and that he would vote for a government that supported such a system.

With NSW Parliament resuming tomorrow he may get a chance to see where the Government stands on this issue. As mentioned in this blog on 10 February “Disclosure of Government contracts”, the independent member for Bligh, Clover Moore has a Bill before Parliament which will require state and local government organisations to disclose specified information about contracts on their website within 90 days.

Will the Government bring on debate on this Bill or let it languish like many other private member bills? Will the Government vote differently than it did on the last occasion similar legislation was before the Parliament when it voted against such mandatory disclosure requirements?

FOI reveals FBI objections to Guantanamo interrogation methods

Extensive media coverage in Australian and overseas press at the week end about the release of documents which revealed that FBI officers strenuously objected to aggressive interrogation techniques at Guantanamo Bay in 2002 and 2003.

The news stories arose from a court victory by a group of US organisations who had been seeking documents through FOI applications. Full details are contained on the American Civil Liberties Union website. The documents recently released had previously been made available to the ACLU in December 2004 with most of their contents deleted but a court ordered additional disclosures. The matter is scheduled for further hearing in April. To date more than 90,000 pages of government documents have been released as a result of the FOI lawsuit.

That’s a lot of FOI processing and a lot of time, money and energy expended on a court battle over the last two years.

Electronic Health Records developments

Saturday’s Sydney Morning Herald article “Reversal of privacy promise” provided an update on the NSW Health pilot schemes for the introduction of electronic health records. The article says that the Government has backed away from promises to keep the scheme voluntary and that the scheme will keep a record for every person who uses the health system. The report said that the Government will need to put in place a regulation to allow the scheme to proceed in this form as otherwise it involves a breach of HPP 15 in the Health Records and Information Privacy Act.

The Department of Health website includes a Healthelink update and a media release dated 21 February which provides more details about the Hunter pilot ("Hunter patients in health technology revolution").

Participation in the scheme is voluntary but these documents indicate that for those who choose not to participate a record of their non participation will be maintained. The privacy implications of this don’t seem too serious but its almost inevitable that the express consent provision in HPP 15 regarding the inclusion of information in a linked system will be altered at some point to an opt out option.

Schwarzenegger to identity thieves: "I'm watching you"

Identity theft continues to be the major privacy issue in the US. The California Government organised a summit "Teaming Up Against Identity Theft on 23 February" with lots of sessions about how to manage the issues and reduce the risks.

One of the workshops, Privacy Practices for Government Agencies, included a session led by the California Office of Privacy Protection whose website has some useful tips on the subject.

FOI cost order against applicant

The NSW Administrative Decisions Tribunal (ADT) in Miriani v Commissioner for Fair Trading decided in favour of a award of costs against another FOI applicant where it was clear that the application for review had no merit. This case involved a new hearing of the application for costs after the Appeal Panel found that an earlier decision erred in law in failing to provide the FOI applicant an opportunity to make submissions.

Blueprint for public sector reform

The NSW Audit of Expenditure and Assets Report by Michael Vertigan and Nigel Stokes provides the detailed basis for the initiatives announced yesterday by the Premier and has now been posted on the Government’s website.

The Report does not specifically discuss costs or benefits of FOI and privacy functions but it presents wide ranging suggestions about how government performance across the board could be improved.

Chapter 6 on restructuring government confirms that the changes announced yesterday are just the first step in a major reorganisation. While the Report includes a reference to the large number of independent or watchdog agencies in NSW it doesn’t specifically recommend any changes in the number or functions of the watchdogs at least.

The Report questions the need for separate bodies and boards for many government functions in NSW, an issue pointed out to the Government by the then Auditor General Tony Harris in a 1997 Performance Audit, Corporate Governance. His recommendations for review were never acted on.

Chapter 7 is the roadmap for efficiency reforms in the NSW public sector.

One of the surprising elements of the Report is that it feels the need to reiterate the importance of ideas like integrated planning and budgeting, focus on results, and the need for meaningful and monitorable performance measures.

All this suggests NSW has fallen a long way behind in public sector management. These ideas have been the bread and butter of public sector reform over the last 15 years and are well entrenched in public service elsewhere.

Qld Information Commissioner in FOI mess

Brisbane's Courier Mail on 23 February in an article headed "Lawyer launches bid to jail FOI head" reported on a court battle raging between Queensland's Information Commissioner and "a rogue lawyer" who describes himself as an "FOI warrior".

The lawyer has taken legal action over the way in which the Information Commission handled a complaint regarding an FOI application for documents from the Crime and Misconduct Commission.

According to the report he served court documents on the Commissioner at her home address; she complained to the police that she was being stalked; the lawyer has now taken court action against her for contempt of court and sought access to documents concerning her complaint to the police; and she objects to disclosure.

Phew!

Big changes in NSW public sector

The NSW Government’s Economic and Financial Statement released today contains no specific reference to administrative issues associated with privacy and access to government information. The continuation of the 1% efficiency dividend is one factor designed to reduce the overall public sector workforce by 5000 over the next few years, and privacy and FOI functions will be affected by the planned mergers and amalgamations of government agencies.

Reducing numbers of staff while not changing the functions that must be performed is usually not a workable solution to limiting the costs of government.

The Statement refers to the Audit of Expenditure and Assets Report commissioned in August last year and relies on that report as justification for many of the announced changes. It also refers to a number of other recommendations still to be considered. However the Report itself does not appear to have been released today.

RTA exempt documents tabled in Parliament

The Daily Telegraph today provides details of changes to traffic light phasing in inner city locations which they claim have been made to help funnel traffic into the Cross City Tunnel. The report says that the details are from a document tabled to a parliamentary inquiry into the Tunnel.

The Telegraph says that an FOI application by the opposition for documents containing this information was refused by the RTA on the grounds that disclosure could facilitate the commission of a terrorist act.

IT security system failure may have privacy implications

Canterbury University in New Zealand suffered a major security failure on its student website over the week end, with the possible result that student ID, medical conditions, emergency contact details and outstanding payments could have been accessed and changed by anyone with a university computer user code and password.

The University’s Director of IT said that there was no evidence of a hacker and that the problem may have been caused by heavy traffic during enrolments last week.

The incident raised the possibility of a breach of privacy legislation on the grounds of failure to ensure that reasonable security safeguards were in place to protect sensitive information.

The NZ Privacy Commissioner said that while it was convenient for people to access information about themselves, they needed to know that the system was secure.

Thanks to David Fraser's Canadian privacy blog for the lead.

High stress in the NSW public sector

The Daily Telegraph reported on 21 February that documents released under the FOI Act reveal high levels of stress in the NSW public sector with one in five RTA employees off work at any one time because of mental stress, body stress, or physical injury. Prison officers, police, nurses and fire fighters also feature prominently in the list of public sector workers making workers compensation claims.

Paranoia in the US National Archives

The New York Times has reported that a seven year old secret program at the National Archives has seen thousands of historical documents removed from public access despite the fact that some had already been published by the State Department and others photocopied years ago by private historians.

Several experts interviewed for the story say that the program is removing material that can do no conceivable harm to national security, and is part of a marked trend towards greater secrecy. They say the Bush administration has increased the pace of classifying documents, slowed declassification and discouraged the release of some material under the FOI Act.

Among the documents previously available and now withdrawn is a 1948 memorandum on a CIA scheme to float balloons over countries behind the Iron Curtain and drop propaganda leaflets. It has been reclassified as part of the program, even though it was published by the State Department in 1996.

Access to local council records

The NSW Department of Local Government’s Practice Note 16 on Meetings Practice is primarily about good practice meetings management for local councils, but also includes some comment about information access issues.

Section 1.4 discusses what should or should not be included in Council business papers with a reminder that details of council payments (cheque warrants) should not be listed and copies of plans should not be included (with a comment about the vexed problem of copyright); Section 1.6 is about public access to business papers and charges, reiterating the Department’s views about copying charges. This section has a reminder for councillors that documents held or acquired in the course of civic duties are council documents not personal documents of the councillor.

Section 2.13 is about the tape recording of council meetings.

Those in local councils responsible for information access issues might find these parts of the document useful.

Perhaps other useful guidance is on the horizon. The Privacy NSW website mentions that Fact Sheet No. 6 "Local Government records and the public interest test" has been removed from the website for revision.

National identity cards

The UK moved a step closer to the introduction of a national identity card with the passage of legislation by the House of Commons. The Bill as passed involves some modifications from that originally proposed by the Government. There are also final legislative steps still to occur. However it seems certain that a card will be introduced despite strong opposition, concern about the cost and uncertainty about what benefits the card will provide.

The newly elected Canadian Government has also indicated it will examine the possibility of a national ID card there.

FOI delivers breaking news reports

While journalists and others have legitimate scope for criticism about the way our FOI laws operate, documents released under the FOI Act continue to provide stories for the major media. Today’s front page Sydney Morning Herald report that there has been a drain of good teachers from our most needy public schools is just one of a recent series of articles generated in whole or in part by FOI applications.

Today’s (Melbourne) Age story regarding a climate change report prepared for the Commonwealth Government but released with options and recommendations deleted, also states that the report was unsuccessfully sought under FOI late last year, but has now been released (with deletions) by the Government. In the last few weeks the Daily Telegraph has published FOI based reports on violence in schools and security problems in NSW rail system.

The Australian has had several stories out of documents obtained under FOI regarding faulty defence personnel clothing.

SBS television achieved a world scoop by airing last week previously supressed photos of incidents in Abu Ghraib prison in Iraq obtained by the American Civil Liberties Union under FOI after a long and drawn out court battle.

Without the slightest irony, Bill O'Reilly of Fox News 'O'Reilly Factor' last week said that the photos had been shown by "some sleazy Australian television channel".

Our SBS sleazy? Coming from Fox News this might be a classic 'pot calling the kettle' accusation.

Familiar but important refrain

Oppositon parties are always committed to greater openness and transparency in government, but the track record is that this enthusiasm passes quickly once electoral success has been achieved. According to the Courier Mail this week the Queensland opposition is committed to changes in FOI including some moderation of the wide cabinet document exemption that exists in that state, and also removing an exemption for state government business enterprises. Good stuff, but the proof of the pudding........

Big Brother coming again

This article in The Age on 16 February and other press converage over the last couple of days comment on Federal government plans to extend message interception laws and concerns that the proposals will lead to unjustified intrusion into the affairs of innocent people.

Proud to be Public Servant

The Secretary of the Department of Prime Minister and Cabinet, Peter Shergold spoke at the National Press club at Canberra this week about the contemporary public service. It was a strong defence of the professionalism and capability of the public service with Shergold citing the many significant accomplishments that only dedicated public servants could achieve. Shergold also responded to what he sees as misguided and unfair criticisms and rejected the accusation that the public service has been politicised during the Howard government term in office.

Shergold also commented about the importance of confidentiality in the relationship between public servants and ministers and said that despite increased opportunities for scrutiny, frank advice can only be guaranteed where confidentiality is assured.

"Of course the Australian Public Service needs to be accountable for the way it plays its role. It is - more than ever before. The Westminster tradition has evolved considerably in the last thirty years: there is now much greater scrutiny of public service decision-making than in the past through Parliamentary committees, the Audit Office, and the Ombudsman; through legislation which, within limits set by Parliament, provides freedom of information to the public; and the opportunity, through an extended panoply of administrative law, for citizens to have decisions reviewed. There is now a network of integrity which did not exist 30 years ago.

Yet confidentiality remains a fundamental requisite of democratic decision-making. A public service which cannot provide its frank advice in confidence will rapidly lose its ability to influence. No government will willingly involve officials in decision-making if they fear that the written advice, or an account of its oral discussion, will end up in the newspapers if the government’s judgement is not accepted. Those who leak the deliberations of government, as opposed to those who whistleblow on corruption, undermine democratic process. They erode the trust between government and public administration which lies at the heart of good governance. They diminish the opportunity for public servants to inform and influence policy and, conversely, reduce the willingness of government to seek the broadest range of advice from across the administration. They undermine whole of government approaches. It is for that reason that I protect the confidentiality of Ministerial decision-making just as zealously as journalists protect the confidentiality of their informants."

He added however that in some fields public servants must be in a position to make independent decisions without ministerial interference or direction

"Ministers cannot change the outcome of a tender process which has been delegated to a public servant, or use public funds in ways for which they have not been appropriated, or ask to see the advice that their departments have provided to a previous government, or tell a public servant how to respond to an FOI application, or - without the agreement of the Opposition - commit a future government during an election caretaker period, or decide on which senior executives are appointed to their departments. In these, and many other ways, power is balanced between the Australian government and its public administration so that, on occasion, the only possible response will be “No, Minister”."

Australia Day Award for FOI Implementer

David Roden currently Director Management Services in the Premier's Department was awarded a Public Service Medal in the awards announced on Australia Day. David was in charge of the FOI Unit in the Premier's Department from the time the Unit was formed in 1988 to prepare for the introduction of FOI in NSW and continued in that position until the Unit was abolished in 1991. He provided outstanding leadership and support for FOI during this time. The abolition of the FOI Unit was said at the time to be justified because of the Unit's success in managing initial implementation across the public sector. The Ombudsman and others criticised the decision on the grounds that it failed to recognise that the culture change required by the FOI Act requires constant leadership and support. Unfortunately FOI in NSW over much of the period since has been "orphaned" with few signs of open support and encouragement from the top.

National Electronic Health Record Projects

Insiders involved in the development of electronic health records no doubt have a good idea about the state of play but to outside observers the whole process is something of a mystery. At least on the basis of recent media reports it seems to be one step forward and another back.

The recent announcement of a delay in the NSW Health tender for a electronic medical record supplier (see our posting below 10 February - NSW health records project delayed) has been followed by an agreement at the Council of Australian Governments meeting last week to allocate $45 million over three years to development of a national system of individual health care identifiers to be used to link electronic medical records.

According to an article in The Australian Financial Review on 14 February this project is one of three projects being overseen by the National E-Health Transition Authority, an independent organisation charged with developing standards required to effectively roll out national electronic health records.

While the technological issues are obviously daunting there are also major privacy issues that need to be addressed. As reported by the Review the Chief Executive of the Authority said that the three projects will commence in July and be completed within three years. He said that a study into privacy issues associated with the proposed individual health care identifier was yet to be completed and it was too early to say whether patients would be able to opt out of the system.

Under current NSW legislation the inclusion of any individual’s health records in an electronic system require the express consent of the individual concerned.