Courier Mail scorecard

Six of 40 requests to Queensland government agencies for information about matters impacting on the community, all previously refused following Freedom of Information and other applications, have now been answered. That means 34 haven't. The Courier Mail is keeping track here.

There are leaks......and leaks.

The Australian Financial Review at the weekend reported on some of the current thinking in one government agency about dealing with Freedom of Information applications, based on "leaked notes about a briefing "provided to the Minister for Agriculture, Fisheries and Forests. The note quoted by Sophie Morris in "Freedom to beat those scoops"(no link available) says the Minister will be given"written informal advice" on requests being processed by the Department, and on whether"pre-release via the web is possible". A memo in March said the Minister would be told five days before the applicant of what is to be released, but there was no need to wait for a response from his office.

Pro-active disclosure on the web of as much information as possible about what is going on in a government agency is a good thing, but looking to dud an applicant by pre-release of specific requested information isn't.

Wouldn't it be a good idea if the Government gave us all an indication of its thinking on this and related issues, without the need for a leak, authorised or otherwise? In the light of the absence of any major embarrassment, I take it the Police have not been called to investigate this one

Leaks illustrate need for policy debate and resolution

Last week's leaks of a letter between ministerial colleagues, and the co-ordination comments from four major policy departments, on a cabinet submission on the FuelWatch program raised a number of issues.

The Australian Federal Police were called in to investigate; the Prime Minister said the public service was to blame for the departmental leak but in any event he favours policy contestability and debate about the issues; Matthew Moore in the Sydney Morning Herald wonders why we were surprised there were differing views within government about the proposal, but is concerned "(t)his is the moment bureaucrats and staff will whisper in ministerial ears that easing the FoI laws will lead to more advice becoming public and more troublesome stories about government splits"; and John McDonnell in The Australian says that if a public servant is behind this, a basic element in the trust relationship between ministers and public servants -never leak-has been broken.

It's not surprising that differences exist about the merits of a proposal under consideration by government, but it was surprising that we came to know about them in this case relatively soon after the decision was taken. Politically embarrassing leaks early in the life of a new government send shivers in a few directions.

We -the government, the media, the public-aren't used to this, don't usually get to see what goes on behind closed doors, in the interests of the government sounding decisive, wise and at one in choosing a particular course of action. If in announcing the decision to proceed with FuelWatch, the Government had indicated that expert opinion on the results for petrol prices was divided, even released a summary of what its advisers said, but concluded it held enough promise to go ahead, there would have been little room for subsequent embarrassing disclosure of differences in the ranks. Of course it would have been otherwise if the case for the proposal was threadbare. Maybe in that case the wise would not proceed.

Every organisation must have rules about who can disclose what about its internal workings , but given its role and the nature of the information it holds, special rules should apply to access to government information. We should be entitled to know through designated procedures(not leaks at the whim of someone in the system) what government knows unless some harm to essential public interests would result. Governments need thinking space to weigh advice and make a decision, then choose to act on the advice of this expert or that, or not at all, and to explain itself. However a government serious about transparency should not be trying to limit what we know about the views of its experts by locking the papers up for 30 years when they will be released into open access. Disclosure of the assessments of government advisers, no matter how this occurs, should not endanger the prospect of frank and candid advice in future. The Government should be demanding this sort of advice from its public servants on an ongoing basis.

Leakers are not necessarily whistleblowers who deserve sympathy or protection but not all leaks are matters of great national signifigance. Currently unauthorised disclosure of any fact or knowledge acquired in the course of duties by a federal government official is a one size fits all criminal offence under the Crimes Act, for which there is no public interest or other defence. Whistleblowers who act in accordance with established rules to bring to the attention of proper authorities, maladministration, corrupt conduct or the misuse of public money deserve special protection. In the event of an unauthorised public disclosure, the discloser should have an opportunity, in mitigation, to raise a claim of justification on defined public interest grounds.The NSW Protected Disclosures Act reflects this principle in a fashion, permitting disclosure to a journalist if no action has been taken six months after a matter was reported to a proper authority. And in the interests of us all, sensible shield laws are necessary to protect journalist sources.

Last week's leaks are a reminder we still have a long way to go in getting our laws in these areas sorted.

The right to know your surgeon's track record

Health professionals all know which surgeons to go to and which ones to avoid. Not so most members of the public.

The following letter was published in The Guardian last week. NSW Health Minister Reba Meagher and others who continue to drag their feet about disclosure of information about the health system here may need a stiff dose of the smelling salts if this crosses their desk.

"The news that surgical mortality rates in England are to be published is a positive development (Report, May 29). But it is not the first time that any government anywhere in the world has released such information. Scotland has already laid claim to that world-first title. Comprehensive surgical mortality data was published in Scotland in 2006 when, following a freedom of information application, I required the health service to disclose the mortality rates of every individual surgeon - not just by hospital unit as is being proposed in England. It is worth recalling that at the time clinicians expressed their concern that the data would be misinterpreted by the public and that surgeons might not carry out high-risk operations for fear of being stigmatised in league tables. Neither of these fears has come to pass. It is a welcome step forward in accountability and transparency to have this type of information proactively published."
Kevin Dunion
Scottish information commissioner

2020 Summit Final Report

The Final Report of the 2020 Summit was released (without fanfare-not even a media release on the PM's website although some media report comments) on Saturday and is available in a number of formats. The report-all 399 pages- was prepared by the Department of Prime Minister and Cabinet from the notes of scribes who recorded discussions of the 10 groups.The introduction says the report" will assist the policy development process by describing the discussions and outlining the many ideas generated at the summit.... This report also seeks to present the ideas in accordance with the priorities given to them by the stream participants in the discussion and debates at the summit." The Prime Minister has undertaken to respond by the end of the year.(Postscript: the PM's media release did appear and is here)

What to make of the Governance chapter? Well the five priority themes- constitution, rights and responsibilities(an Australian Republic); create a modern federation; collaborative governance: revolutionise the ways government and communities interact; parliamentary reform and open and accountable government-and the top ideas to move ahead on fundamental change in these areas mostly make sense. There are good ideas about improved access to government information, better use of technology to enhance democratic practices such as citizen involvement in decision making, and making parliament more effective. Many ideas-for example a culture change on disclosure- could start tomorrow if the government chose to act.

Overall the Governance chapter lacks coherence, is repetitive, and provides little guidance on the weight that should be given to many ideas, some of which are trite and border on laughable as 2020 objectives. Most of us have spent plenty of time in sessions like this where a lot of stuff ends up on paper around the walls of a room, meant to capture what has been discussed. Someone then has to make sense of it all producing an account that often surprises participants because of its apparent logic and wisdom, while still satisfying them that all the important things have been captured for posterity .Whoever put together the reports on The future of the Australian economy, and Australia's future security and prosperity in a rapidly changing region and world, to cite two other group reports, are dab hands at this. However the Governance report seems to consist largely of what went up on the wall. At times I wondered whether anyone had given the chapter a close read before it was released.

Some examples:

• On Parliamentary Reform one of the "ideas"is that"the government(should) instruct the Australian Public Service that it has a duty to cooperate with the Parliament."If there are any doubts we need to get this sorted well before 2020.It not only makes it into the top ideas section-its there twice (9.11.3 and 9.12.3).
• On Open and Accountable Government, one idea (9.17.1) is that we should reform the current freedom of information system through "legislating through the Electoral Act." I'm mystified.
• On the same topic a recommendation on a charter of free speech (9.18) lists five matters to be addressed. Three of the five use different language to recommend the same thing- shield laws for journalists.

There follow pages and pages(40 in fact) of other "ideas" and a record of discussion in small group and plenary sessions that will test even the most interested reader. Just a few gems that should have had a little rework after they went up on the wall:

• Reform the public sector including "expedite issues of remuneration, flexibility and mobility"and "develop a citizen-or-community-focused public service and system that supports that"(9.64.3). Que?
• Parliamentary sittings moving around the country (9.70)
• By 2020 a national planning framework to......"develop an agreed future of Australia"(9.94.2) and"establish an agreed policy position, including principles, to facilitate outcome-based decision making"(9.94.8)
• "The Constitution was written by a bunch of morons in Melbourne and was never discussed with aboriginal people.It is therefore invalid"....."The Constitution needs to reflect the outcome of what the public wants.Public administration and the constitution are closely aligned"....There needs to be a reintegration of parliament".(page 319)
• "...The idea of subsidiary? The idea we should have a bias against decentralisation?"..."Politicians should be accountable if they mislead the government" (page 320).For the words in italics read subsidiarity and parliament, I think.

I gave it away after page 325, with 26 pages to go, after I caught sight of this "idea":"Elimination of jargon in governance and bureaucracy: there is too much jargon in bureaucracy and government documents which is obfuscatory. There is a need for clear writing, thinking and speaking".

Hear, hear.Who is going to tell the Prime Minister?

Good luck to the policy makers as they sift through all this.
Future of Governance.PDF 370KB
Future of Economy PDF 386KB
Australia's Future Security PDF 425KB

Access to legal advice-the more things change.....

Senate Estimates committee hearings on the Federal Budget commenced in Canberra this week, just as the Government was dealing with its first embarrassing leak. And, as the investigation got underway, plenty of reminders that it is yet to deliver on its whistleblower protection promises .

The commencement of the committee hearings prompted a look at answers provided subsequently by the Government to some questions taken on notice on disclosure of advice issues the last time the committees met in February.

To Senator Ray's question PDF 55KB about any consideration being given to mandatory tabling in Parliament of legal advice received on the consitutionality of an act of government , which in his view went beyond the normal bounds of privacy and confidentiality, this response:"It is a longstanding practice, observed by successive Governments that legal advice is not disclosed unless there is a compelling reason to do so.While there may be circumstances where the Government may wish to make certain advice available any such decisions are matters for the Government of the day to make having regard to the facts of the particular case."

So the circumstances must have suited the Government to respond to another question by Senator Ray by releasing legal advice received that justified the tabling of an Auditor General's report critical of the Howard Government's rural grants program during the caretaker period just before last year's electionPDF 262KB

But they didn't suit when asked about whether legal advice had been obtained and from whom, about the constitutionality of quickly aborted plans for sittings of parliament in February, or about the apology to indigenous people. The response to both questions:"The Attorney-General has indicated that it would not be appropriate for the Department to provide the information sought." (Questions 55 and 56 here).It was the same response to the same questions(21 and 22) asked of the Australian Government Solicitor.

Its hardly the way to illustrate the difference between this government and its predecessors particularly given the commitment to "end the culture of secrecy"(Mr Rudd at the National Press Club in November last year), and Mr Rudd's view that "access to government information and decision-making are keys to a healthy and vibrant democracy."

Oh, and by the way the Federal Government's FOI Guidelines: fundamental principles and procedures which predates the Rudd Government but appears to still apply, includes the following from a memorandum from the then head of the Attorney General's Department to government agencies, cautioning against overuse of the legal professional privilege exemption in the Freedom of Information Act:" Federal Cabinet decided in June 1985 that agencies should not claim exemption for documents which have no particular sensitivity....The client should be advised that legal professional privilege should be waived unless some real harm would result from release of the documents."

Cain's call to enable FOI laws

Former Victorian Premier John Cain, responsible for the Freedom of Information Act introduced in that state in 1983, has added his voice to those calling for improvement in the laws and the way they operate. Cain says government contracting on the current scale was not contemplated at the time and confidentiality claims hide important information that should be publicly available.

Call for FOI review in Tasmania

Tasmania has a new Premier-but, mind you, it's nothing to do with "shreddergate" or other governance related recent scandals. Just before Premier Lennon took the great leap forward, the Ombudsman joined Rick Snell and Australia's Right to Know on ABC TV's Stateline last Friday in calling for a review of the state's Freedom of Information Act.The Ombudsman says he's willing, but does not have the resources to do the job. There is a great opportunity for the new Premier to draw a line in the sand on openness and transparency. Will he go where his predecessors have failed to tread?

Postscript: in an initiative that signals "I'm not Paul Lennon", ABC reports that Premier Bartlett's "first act as Premier has been to establish a Parliamentary committee to look into a body to examine the ethical conduct, standards and integrity of politicians and the public service in Tasmania. The joint select committee will be asked to look at mechanisms to promote ethical and open governments. He says the move can restore trust in the government."

Houses not in order

Picking up on the UK disclosures, does it really matter that we don't know much about payments from the public purse to members of parliament, and how each has spent the money?
In my view its"Accountability 101". Payments to ministers, as such, are usually accessible under freedom of information laws as relevant documents are held by the minister or the agency for which they have responsibility. Parliamentarians and payments to ministers in that capacity, are another matter.

I'm sure most are good honest hardworking folk, but that's no reason why we should not demand high level accountability for public money.Left to their own devices, our parliamentary representatives have created systems that have the potential for some nice little earners outside public glare. No wonder we haven't seen leadership from those who have the numbers to make parliamentary departments subject to freedom of information laws. A couple of examples.

Federal MPs get a daily travel allowance when away from home, including time spent in the nation's capital.There is a six monthly report on members travel published by the Department of Finance and Deregulation. Its not on the web, and gives total amounts spent. Last year now Shadow Treasurer Malcolm Turnbull publicly acknowledged he paid his Canberra allowance to his wife as rent on an apartment she owns there. As to what others do, none of us have a clue.

An Auditor General's report seven years ago noted there was no public reporting on other allowances or payments made to MPs who in addition to publicly funded electorate offices (and three staff), have a privately-plated Commonwealth vehicle, and receive electorate, printing, postal, and telephone allowances. While travel allowance payments are reported, travel at government expense by spouse or dependents is not. Many of the payments appear to be made on the basis of self certification, without the need for proof of expenditure.

The report says "a key area in which some overseas models reviewed, particularly those of Canada and the United States, differed from the approach currently taken in respect of the Australian Federal Parliament is that they provide for significantly greater levels of public disclosure of the guidelines and/or rules that govern entitlements’ expenditure by the members of the respective legislatures; and of the costs incurred by the individual members."

Minister of State John Faulkner to his credit has made a start- cracking down on payment of public funding for elections in the absence of evidence of expenditure, and winding back "printing allowances "that became electoral year war chests. Regulations were tabled in March to reduce the printing allowance for members of parliament from $150,000 a year to $100,000 a year and abolish the option to roll over 45 per cent of entitlements to the following year.

Senator Ludwig said at the time "Prior to the last election, with members of parliament having a printing allowance of $150,000 per annum and being able to roll over 45 per cent of that allowance to the next year, more than $240,000 could be spent by a single member of parliament in a single year—in a single election year. This cannot be justified as appropriate spending. The combination of the rollover and the increased level of the entitlement allowed members of parliament to build a war chest for election spending out of moneys originally designed for communicating with constituents and the community. This, of course, is taxpayers’ money."

Well yes, but unfortunately the Government appears to have done nothing about disclosure of what the money is spent on, or sought to limit use, so in an election year there is nothing to prevent a member paying for how to vote cards from printing allowance and for direct mail from the postal allowance.

In NSW, Greens MLC, Lee Rhiannon has been attempting to throw some light on what NSW MPs get in allowances and gives some details here. There appears to be no public reporting and many payments do not depend on evidence of use of the money. Her website lists the following:

• Expense allowance for members who have an official title.
• Electorate allowance. In theory to be spent on expenses. Rhiannon says payments can be pocketed by the member.
• Logistical support allocation: A lump sum of money to spend on travel, printing, stationery and other 'office expenses'.
• Electorate mailout account: A $5.5 million Carr Government initiative allowing MPs to send out glossy newsletters promoting themselves.
• Sydney allowance: Money given to non-Sydney MPs for the time they spend in the capital.
  
• Printing bonus: Extra money for some MPs to spend on printing.
  
• Charter transport: Rural MPs get cash to use for flying around their large electorates.

Rhiannon notes that parliamentarians also have home fax and phone bills paid, and free flights to and from Sydney - over 100 per year.

The parliament house websites contain no information on rules and guidelines for payments,or actual payments to members.

As to the other states and territories?

So while in the UK Freedom of Information has proved a useful tool to force some accountability, because records of expenditure were kept by the parliament, we have a clear need for more fundamental changes here. Don't expect a rush to action. The late Peter Andren is sorely missed.

FOI delivers parliamentary accountability-in UK

The House of Commons has released the documents containing information about how some members spend the allowance they receive when parliamentary duty requires those of them from other places to be in London, following the High Court decision referred to on this blog last week and the subject of Matthew Moore's column in the Sydney Morning Herald on Saturday.

There has been much to marvel at, as reported by the Daily Mail , none better than this account of the health minister insuring the life of her husband, also an MP and claiming the cost of their joint mortgage on a second home and the insurance premium as expenditure under the allowance. There has also been much head scratching that the equivalent of over $A250000 was spent arguing that the information should not be disclosed. Here is the account of Heather Brooke, the right-to-know campaigner who initially requested the details, of the three year battle and it's not over yet

The Daily Mail quotes Brooke, as saying: 'All public figures should learn from this case and realise that proactively publishing this information is the way forward and that by dragging their heels, MPs have only lowered themselves in the eyes of their constituents What is utterly unacceptable is the secrecy of the system and it indicates that MPs did not feel able to justify these expenses to their constituents.These revelations give the lie to MPs' arguments that these receipts would damage their security or privacy. The only reason they were held back was to avoid embarrassment.'

Its all now in the public domain after a long and expensive battle, because the houses of parliament in the UK are subject to the FOI legislation. In Australia, at Federal state and territory level they are not.

Good news and no news on transparency and accountability

The good news is that Minister of State John Faulkner's announcement of the first stage in electoral law reform saw legislation introduced into the Parliament on 15 May to

• Reduce the disclosure threshold for donors, registered political parties, candidates and others from ‘more than $10,000’ (indexed annually to the CPI) to a flat rate of $1,000.
• Treat donations to different branches of a political party as donations to the same party, so that donors will need to disclose donations totalling $1000 or more to any combination of the branches of the party.
• Reduce the timeframes for the lodgement of returns by political parties to every 6 months, and shorten a range of other reporting periods under the Act.
• Make it unlawful for registered political parties, candidates and members of a Senate group to accept overseas donations, and unlawful for associated entities and other third parties to receive overseas gifts that are used solely or substantially to incur political expenditure.
• Extend the prohibition on accepting anonymous gifts and donations for registered political parties, candidates and Senate groups to all anonymous gifts, and to also cover associated entities and other third persons that use anonymous donations for political purposes.

The legislation will also put a halt to the"money for running"(should that be jam?) rort where candidates who get more than 4% of the vote qualify for public funding but get the money regardless of whether they spent that much during the campaign:"any payment of election funding should be tied to actual “electoral expenditure” that has been incurred. The policy intention behind these measures is that candidates, registered political parties and Senate groups should only receive the lesser amount of either the electoral expenditure that was actually incurred in an election campaign, or the amount awarded per vote (currently approximately$2.18), provided at least 4% of first preference votes have been won. The existing entitlement remains unchanged, but the new claims process will require the agent of the candidates, registered political parties and Senate groups to lodge a claim specifying all or part of the electoral expenditure incurred in an election campaign for which they wish to receive election funding."(Senate Hansard 15 May page8).

The "no news" is that "The Rudd government is progressing with several accountability measures - Freedom of Information, privacy and whistleblowers reform," Senator Faulkner told The Weekend Australian , as reported on Saturday, six months since the election that brought the government to office, following its commitment to act on these issues.

Bloggers (and others), the future is yours!

Where are we bloggers on the edge of politics going, what sort of clout might we come to exercise, is new technology changing, for better or worse, the nature of dialogue about what's going on, or should be going on around us? I have just signed up for this Microsoft sponsored opportunity to hear Matt Bai from the US and some interesting Australian panelists discuss these issues in Canberra on 25 June.

Thanks to Peter Black for the heads up.

NSW ADT sticks to "disclosure to the world" but policy needs rethinking

The Appeal Panel of the NSW Administrative Decisions Tribunal in Cheney v Sydney West Area Health Service (2008) NSWADTAP 29 has decided that disclosure of documents to an applicant under the NSW Freedom of Information Act is "disclosure to the world", and that this prospect needs to be taken into account in determining whether disclosure of a document containing information about the personal affairs of a person to another would be unreasonable.

In this case the applicant, convicted of a crime, sought access to information to present to court in an application to overturn a conviction, and was prepared to provide an undertaking that the information would not be disclosed in any other circumstances. All documents but two had been released, and only parts of those were claimed exempt. Given the particular sensitivity of the information withheld about the victim of the crime, the Appeal Panel decided there had been no error of law in the finding that disclosure would be unreasonable.

The Appeal Panel discussed but declined to follow a contrary decision in the Supreme Court of Victoria in Marke v Victorian Police where the Court found that in considering whether disclosure of personal affairs information to another person was unreasonable, it was necessary to take into account all relevant circumstances, including the extent of likely further disclosure if the documents were released to this particular applicant. It was wrong to assume in every case that the documents would in effect come into the public domain. (I understand an appeal is pending in this case).

Some Australian FOI acts (eg the Federal and Western Australian acts), but not the NSW or Victorian acts, contain specific provisions to the effect that an applicant's reasons for seeking access are not relevant in any decision to grant access, and thus provide one of the justifications for the "disclosure to the world" consideration. Nevertheless, the issue of the applicant's motive or interest can crop up, for example in a rare case where disclosure is clearly relevant to an individual's right to justice and is strong enough to constitute a public interest in disclosure. This issue apparently was not argued or considered in the Cheney case. It would require more than an assertion, and a judgment about relevance, but a wrongful conviction is in the right sort of territory where this issue could be argued.

The ADT Appeal Panel reasons for refusing to follow the Victorian Supreme Court(17-20) were that the objects of the NSW Act refer to the "rights of the public"to access government information, not to the rights of an individual, and that the Act contains no reference to the motivation of the applicant or limitations on further disclosure:

"There is no provision, for example, for the agency or the Tribunal to place conditions on disclosure or to limit in any way the use that is made of documents that are disclosed pursuant to the FOI Act. If there were, then mechanisms would be needed for an agency to assess the credibility of any assurance in relation to the extent of disclosure. No such mechanisms are provided for, either by the agency or the Tribunal. In addition, if the approach of Hansen J in Marke v Victorian Police were followed the result would be that some applicants may be given access to documents while other applicants would not be granted access to the same documents. That situation leads to the conclusion that an applicant may need to give reasons for an FOI request and advise the agency of what he or she proposes to do with the documents. As we have said, there is no mechanism for an agency to assess the credibility of an applicant before reaching a decision as to whether or not disclosure would be unreasonable or whether the override discretion should be exercised. For those reasons, with respect, we do not consider that the views of Hansen J in Marke v Victorian Police should be followed by this Tribunal."(at 20).

In several earlier decisions NSW Tribunal members had taken a different approach. In Gilling v Hawkesbury Council (1999) NSWADT 94 Judicial Member Flemming said that in weighing whether disclosure was unreasonable there was a need to weigh public interest factors for and against disclosure. The applicant’s motive in seeking access to details of those who had complained to the Council about her was ‘to better understand the complaint and be able to respond to it. This is not an unreasonable purpose’ and disclosure was consistent with the objects of the Act. Deputy President Hennessy had followed a similar line of reasoning in another case involving the same parties.

Judicial Member Robinson in Humane Society v National Parks and Wildlife Services [2000] NSWADT 133 found that an application for access to the details (names and addresses) of holders of licences issued by the National Parks and Wildlife Service to cull flying foxes in order to protect their commercial orchards did not involve the unreasonable disclosure of information concerning their personal affairs. An important consideration was the motive of the applicant, who was planning to undertake research and observe the effects of such licences. As the motive went beyond mere curiosity and there was no evidence that the applicant intended to harass or otherwise interfere with the affairs of the licence holders, disclosure would not be unreasonable.

President O’Connor subsequently decided that the motive or interest of a particular applicant is an irrelevant consideration except perhaps where the interest in access is so strong that it could amount to a public interest in disclosure.

The question whether disclosure would result in the unreasonable disclosure of information concerning a person’s personal affairs must be approached in a relatively abstract way. The nature and content of the information is the primary consideration. The wishes of the person to whom the information relates are relevant, though not conclusive. The purpose of the third party can rarely, if ever, be given consideration. Ordinarily the motives or purpose of the access applicant have no relevance to the judgement required in considering whether Clause 6 should be invoked.

In theory, at least, once access is given under FOI to one citizen any other citizen who makes the same request should have the same rights. But some authorities do recognise that a point may be reached where an applicant may be able to demonstrate a personal need for the information that is of such strength as to amount to a public interest consideration in its own right.

I consider that the FOI Act does not establish a scheme under which agencies can deal differentially as between third party applicants who make the identical request for someone else’s personal records, and under which agencies can make varying calculuses as to the reasonableness of disclosure in that way."

This was precedent for a decision to refuse a father access to a document that would disclose to him the religion nominated in hospital by his estranged wife for their child, as his special relationship with the child was not relevant and his standing in the matter was no different from a complete stranger or a journalist.

In Victoria, in a long line of cases the Victorian Civil and Administrative Tribunal (and its predecessor) has taken the view that motive and purpose need to be considered, and may weigh in favour of disclosure to a particular applicant information which would not be disclosed to someone other than the applicant (see for example Birrell v Department of State Development [2001] VCAT 1258):"the balancing of interests requires a consideration of all the circumstances, including the interest that the applicant has in the information in question, the nature of the information that would be disclosed, the circumstances in which the information was obtained, the likelihood of the information that the person concerned would not wish to have disclosed without consent, and whether the information has any current relevance."

The Cheney decision puts things in NSW on a different footing, but it's yet another issue worthy of further examination by policy makers.

For example shouldn't there be some special consideration for access where the applicant has a unique relationship with the person concerned, such as a parent seeking access to documents concerning a child (as in the Uddin case), or a spouse or close relative who seeks access to information about a deceased person? Or for FOI acts to provide access to information that can only be used for particular purposes and not for others- there are precedents in other legislation in most jurisdictions.

Here is what the Australian Law Reform Commission had to say about this issue in its 1995 "Open Government" report:

"In 1987 the Senate Standing Committee on Legal and Constitutional Affairs recommended that the AAT and the courts should be able to release documents that would otherwise be exempt under s 41 or s 43(1)(c)(i) subject to undertakings by the applicant as to how the documents will be used. The Review does not support this recommendation. It would be difficult, particularly for the AAT, to enforce such conditions and, in any case, enforcement action would come too late. Any damage the conditions were designed to guard against would already have been done. In addition, if it was considered appropriate to allow the AAT and the courts to release documents subject to conditions, it would be logical also to allow agencies to do so. The difficulty of enforcing conditions imposed by an agency would be even greater than in respect of the AAT and the courts.

The Review considers that amending the Act to permit an agency to take into account a special relationship between the applicant and the third party when determining whether the public interest in disclosure outweighs any interference with the third party's personal privacy is a preferable option. Such an amendment would not mean that the existence of a special relationship would automatically preclude the document from being exempt. It will merely be a relevant factor in determining whether the information should be withheld. There will be circumstances, for example a situation involving domestic violence, where the special relationship will contribute to the conclusion that disclosure is not, on balance, in the public interest.[24] The important thing is that the relationship will be a factor that can properly be taken into account. By 'special relationship' the Review means a close relationship, generally a family relationship. It does not mean any situation in which the requested information is of special significance to the applicant, as opposed to the general public. The FOI Commissioner's guidelines should explain this and provide examples. The guidelines should also make clear, however, that in weighing the public interest in the applicant being given access to the information, the decision maker should take into account the fact that there is nothing in the legislation to prevent a successful applicant from distributing the information more widely."

Another of those recommendations not acted on since the report was completed in 1995. NSW and states other than Victoria should also have a think about this.

ALRC to recommend privacy data breach notification requirement

We'll be hearing a lot more about this when the report is released, but Australian Law Reform Commission President David Weisbrot told a conference yesterday that the review of privacy laws will include a recommendation for a notification requirement for personal data breaches that involve a real risk of harm.

A tale of two tax stories

The latest edition of "Open Government:a journal on Freedom of Information" includes a comparative case study by Dr Judith Bannister of Swinburne University of Technology in Melbourne of two freedom of information applications for tax policy related documents to treasury departments in the United Kingdom and Australia.

Both agencies resisted disclosure, relying on public interest arguments, but in the UK, the Information Commissioner overruled the decision, the minister did not resort to additional protection of a ministerial veto, and the documents were released. In Australia (the McKinnon case), a ministerial certificate was issued, no holes were found during the restricted reviews that followed, all the way to the High Court, and the documents have never seen the light of day.

Still living in hope that the Rudd Government will deliver on those election promises. Some day.

No stopping big brother

The Federal Government claimed a "saving" of $1.2 billion over four years in last week's budget for ditching (last December) the Howard Government's National Access Card, but there is no stopping exploration of the wonders of technology, ie data matching. Minister for Human Services Joe Ludwig has provided details of a plan to spend $138 million on a program to enable Centrelink to cross check information about welfare recipients through direct access to their bank accounts, in addition to tax records. Any recipient is fair game-no need to show reasonable suspicion of fraud, before this intrusion on what we once regarded as part of life involving some degree of privacy."Nothing to hide, nothing to fear" advocates might want to keep an eye on the next function creep step that technology enables government to take in accessing potentially handy data about the citizenry.

Haneef detention-1300 documents and still counting

Dr Haneef's legal team did not come up empty handed after seeking documents under the Freedom of Information Act held about their client's detention- some 1300 pages of sometimes heavily edited documents were released, and Crikey has posted them on the web.(As it's a subscription service they may not last long on free content.) The lawyers are seeking an expedited hearing of an application for review of the decision to refuse access to some documents. As mentioned here recently, some documents were claimed to be exempt

"because disclosure "may jeopardise future investigations and discourage bureaucrats from giving frank advice to ministers". Maybe the first reason cuts some ice but the second is another of those chestnuts Mr Rudd and his ministers need to toss on the fire."

The documents released reveal weaknesses in Government claims made at the time and have been passed to the Inquiry into Dr Haneef's detention.

NSW ADT rules government policy subject to objectives of FOI Act

In the latest decision in a long running battle over access to documents about the sale of the Sydney markets, the NSW Administrative Decisions Tribunal has upheld a decision by the Department of Premier and Cabinet to refuse access to documents, based on cabinet documents, executive council documents, and legal professional privilege exemptions. The decision addresses several matters of broader interest.

The Tribunal again rejected submissions that in respect of cabinet and executive council documents (restricted documents under Section 57 of the Freedom of Information Act), it did not have powers to undertake normal merits review of the agency determination(at 41-46).

The Tribunal also rejected an argument by the Department that government policy as set out in a memorandum issued to agencies about cabinet documents imposed a blanket prohibition on the exercise of its discretion to release such documents found to be exempt. In comments that would apply as well to the exercise of the discretion by a government agency, the Tribunal said:

80 I am satisfied that the Premier’s Memorandum satisfies the definition of ‘Government policy’ in section 64(5). I have reviewed this policy. While recognising that the proper administration of the Government requires a degree of confidentiality for Cabinet documents, and that the unauthorised and/or premature disclosure of Government documents undermines the process of government, policy must be read subject to the provisions of the law, in this instance the provisions of the FOI Act. The objects of the Act, quoted above, provide a legally enforceable public right of access to information held by the Government, “subject only to such restrictions as are reasonably necessary for the proper administration of the Government” (section 5(2)(b)).

81 In the light of the provisions of the FOI Act, the Premier’s Memorandum does not, in my view, impose a blanket prohibition on the Tribunal exercising its residual discretion in relation to documents (3), (4), (5) and (7), as claimed by the Department. However, the Tribunal should, where appropriate, give effect to that policy in exercising its powers. For example, in determining what restrictions are reasonably necessary for the proper administration of the Government?

The Tribunal was not satisfied that the evidence warranted exercise of the discretion to require disclosure in this case.

UK shows a lead on Freedom of Information

The High Court dismissed an appeal by the House of Commons from a decision of the Information Tribunal requiring disclosure of payments relating to the Additional Costs Allowance, an allowance payable to Members of Parliament who represent constituencies outside London or outer London constituencies.The judgment includes this observation :

"We have no doubt that the public interest is at stake. We are not here dealing with idle gossip, or public curiosity about what in truth are trivialities. The expenditure of public money through the payment of MPs' salaries and allowances is a matter of direct and reasonable interest to taxpayers. They are obliged to pay their taxes at whatever level and on whatever basis the legislature may decide, in part at least to fund the legislative process. Their interest is reinforced by the absence of a coherent system for the exercise of control over and the lack of a clear understanding of the arrangements which govern the payment of ACA. Although the relevant rules are made by the House itself, questions whether the payments have in fact been made within the rules, and even when made within them, whether the rules are appropriate in contemporary society, have a wide resonance throughout the body politic. In the end they bear on public confidence in the operation of our democratic system at its very pinnacle, the House of Commons itself. The nature of the legitimate public interest engaged by these applications is obvious."

Unlike the UK , none of Australia's freedom of information acts extends to information held by our parliaments. The Australian Law Reform Commission Open Government Report, in one of 106 recommendations in 1995 that have not been acted on, recommended this be rectified in the case of Federal parliamentary departments. Only patchy information is available about payments to members of parliament, for example where relevant documents are held by a government agency responsible for some payments such as travel.Parliaments generally handle payments of allowances and entitlements.

And while we continue to see ongoing resistance here to disclosure of advice documents, several decisions in the UK have found the strong public interest in knowing what advice government received justified disclosure after a decision on a matter has been made within government, as outlined in this article by Maurice Frankel of the Campaign for Freedom of Information. Similarly while Minister of State Faulkner introduces a registration requirement for lobbyists, in the UK, in the light of a recent decision, the lobbying industry is on notice that representations to government are not automatically confidential, given the public interest in knowing who is seeking to influence decision making.

NSW Premier not commited to FOI reform

The following Q and A in the NSW Parliament last Thursday, saw the Premier play straight bat when asked for a commitment to act on the recommendations to come from the Ombudsman's review:

Ms CLOVER MOORE: I direct my question to the Premier. Given that the New South Wales Freedom of Information Act is based on principles developed more than 30 years ago and that it has been the subject of more than 60 amendments, and given the poor rate of freedom of information releases in New South Wales, will the New South Wales Government commit to implementing the Ombudsman's recommendations following his review of the Act?

Mr MORRIS IEMMA: As the member quite correctly states, the Ombudsman has commenced a review. The Government welcomes that review and will provide whatever assistance and cooperation he requires in that process. The member also made the point that the legislation has been around for a long time. I add that the Freedom of Information Act is one means by which information is released to the public. The member might recall that in previous years the bulk of freedom of information requests related to health records. They are now made available to the public outside the freedom of information process.

I understand the member had a role in the release of contract and tender information. It is also now released outside the freedom of information process. The information that is released now contains much more detail than would have been possible under the old freedom of information process. The Government welcomes the Ombudsman's review. It will support it and cooperate with the Ombudsman. It will also give very serious consideration to his recommendations when the report is completed.

As Matthew Moore commented in the Sydney Morning Herald yesterday, the dismissive (or lack of) government response to recent recommendations in Ombudsman reports on FOI complaints do not encourage optimism that the Government is at the ready to act on what comes out of the review.