The state of FOI:a phrase, a sentence or about 240 words.

I know that editors and journalists have to be short and sharp, but in an otherwise fair comment about the state of the game and particularly the wider impact of lies to journalists in today's Australian, the reference to "Freedom of Information laws that barely function" is too harsh. John Hartigan, News CEO and Australia's Right to Know leader at the Free Speech Conference put it this way: "Freedom of Information has not worked as envisaged. In fact it’s become an oxymoron." The first part is right; the second a search for a headline.

A Google News search for "Freedom of Information" pages from Australia turns up plenty of media reports in any week based on documents obtained under the various freedom of information acts. And of course plenty of stories about delays, costs and knockbacks as well. We don't know but can summise about the non-media experience.

As evidence I'll never get a job in the media the extract below is a reminder of the conclusions about FOI in Australia in the Independent Audit of Free Speech Report for ARTK in October 2007.This still to my mind holds up almost 17 months later-I would say that wouldn't I? The question now is whether the current interest in reform will produce solutions to these problems.I notice ARTK has only a 14 page Summary of the Report on its relatively new website. Here is the full text of the 360 pages if you are interested. State of free speech in Australia-pdf.

"FOI laws work reasonably to provide access to personal information about the applicant, and on occasion to information about other important matters of public interest and concern. However, several factors result in FOI working less well in accessing documents relevant to government accountability. An issue in all jurisdictions is that governments have not taken sustained measures to deal with an enduring “culture of secrecy” still evident in many government agencies. Ministers and senior public service leaders have not been consistent strong advocates of open government principles.

FOI performance is patchy across all governments. In some agencies applications are managed in a professional manner and decisions on access reflect the law, its spirit and intent. In other cases the FOI process involves delay, high cost, and limited access to requested documents, often on grounds that suggest determined attempts to protect politically sensitive information. Claims that FOI is achieving its intended purpose, including opening government activities to scrutiny and criticism, are not substantiated by the available evidence.

FOI, in the federal arena in particular, is marked by a high degree of legal technicality which tends to dominate considerations about whether disclosure is in the public interest, or may demonstrate harm to an essential public interest. There are problems and inadequacies in the design of the laws; too much scope for
interpretation of exemption provisions in ways that lead to refusal of access to documents about matters of public interest and concern; cost barriers to access; and slow review processes that often fail to provide cost-effective resolution of complaints."

Sir Humphrey lives- surely not?

The late Nigel Hawthorne aka Sir Humphrey.

NSW Premier Nathan Rees and some of his close advisers might be a bit young to remember the famous BBC "Yes Minister " series. His comment last week that the Ombudsman's FOI Review Report is "currently under active consideration by my Government" for some of us, and without justification, we hope , prompted a memory of Sir Humphrey, the quintessential mandarin, on the meaning of words:

"'The matter is under consideration' means we have lost the file. 'The matter is under active consideration' means we are trying to find the file."

Hmm, but come to think of it, the Report was released two months ago.

ACT on the FOI reform bandwagon

The Australian Capital Territory is the latest to join the Australian Freedom of Information review rush following a decision last week by the Legislative Assembly to ask the Standing Committee on Justice and Community Safety to conduct an inquiry into the 1989 Act. The ACT Act is basically THE Commonwealth Act and the movement at the station there would prompt re-examination in any event, but an inquiry was also part of the deal for support by The Greens for the formation of an ALP minority government after last year's election. It's also been an issue the Liberals' Vicki Dunne has pursued for years. Sweet for Dunne, who has had some celebrated battles with the Stanhope governments over FOI, and who moved the motion to set up the inquiry- only to have a series of amendments added that string the terms of reference out to three pages of detail (and "any other relevant matter" to boot)-that she ends up in the chair.

Details here.Thanks to Ray Polglaze for the heads up.

FOI for Boffins (Mark 2)-warning:not for the faint-hearted

www.oxfordentrepreneurs.co.uk

You could write a book on the subject- a few will- but given the complexity involved in working through the Exposure Draft of the Federal Government's Freedom of Information Amendment (Reform) Bill, for my own purposes and perhaps of assistance to you, the following is a summary of some of the more significant aspects of what would change and stay the same.I won't repeat previous comments about the overall package, the pro-active disclosure provisions or the public interest provisions.

I presume Minister Faulkner's department would have had to put something like this together to brief him and the cabinet on the proposals, particularly the exemptions, in addition to the Companion Guide which doesn't quite do it. I may have missed something in the fine print or got it wrong-in that case let me know. I've stopped short of comment (in most cases) at this stage.

The Act as it stands is here. The documents released for consultation are here.
The Exposure Draft Bill here - PDF 543KB. Hope this doesn't stretch the relationship too far.Good luck

Scope of the Act
No change except for extension of the Act to documents held by a contracted service provider or subcontractor providing services to an agency and the agency would hold the document if it performed the service in its own right. An agency must take contractual measures to ensure it receives a document of this kind.(Schedule 6 in the Draft)

Charges
Application fees abolished and free processing time of one hour for all and five hours for journalists (bloggers?) and non-profits. Nothing in the Exposure Draft. A Draft regulation to be released shortly.

Applicants
New powers for the declaration by the Information Commissioner of a person to be a vexatious applicant. Requires a finding of "abuse of process"(as defined) or a "manifestly unreasonable" request or application.(89K-89N in the Draft)

Exemptions with no public interest test
National security, defence, international relations
Section 33. No change. A new subsection in Section 4(11 in the Draft) of the Act states to"avoid doubt" Section 33 covers information communicated pursuant to any treaty or formal instrument on the reciprocal protection of classified information with a foreign government or international organisation.

Cabinet documents.
New section 34. Main changes are that a document prepared for submission to cabinet (exempt at present) will only be exempt where it has been or is proposed to be submitted and was brought into existence for the dominant purpose of submission for consideration by the cabinet; new subsection exempts a document brought into existence for the dominant purpose of briefing a Minister on such a document. Other current provisions in the exemption remain.

Executive Council
Section 35. Repealed.

Law enforcement
Section 37. No change.
.
Secrecy provisions in other acts
Section 38. No change to the exemption or to Schedule 3 that lists secrecy provisions in other acts prohibit disclosure.

Legal professional privilege.
Section 42. No change.

Material obtained in confidence.
Section 45. No change other than consequential amendments to 45(2).

Contempt of Parliament/contempt of court.
Section 46. No change
.
Companies and securities legislation.
Section 47. Repealed
.
Electoral rolls
Section 47A. No change.

Public interest conditional exemptions
The wording of each current exemption that includes a public interest provision is to be amended, to link back to the standard "must disclose unless at the time disclosure would on balance be contrary to the public interest" test in new Section 11A. Other than this:
Commonwealth-State relations
Old Section 33A repealed and replaced (47B in the draft). No substantive change.

Deliberative process.
This heading replaces "internal working documents". Old Section 36 replaced (47C). No substantive change.

Financial or property interests of the Commonwealth
Old Section 39 repealed and replaced (47D). No substantive change.

Certain operations of agencies
Old Section 40 repealed and replaced (47E). Only change is removal of subsection(e)- disclosure could be expected to have a substantial adverse effect on the conduct by or on behalf of the Commonwealth or an agency of industrial relations.

Personal privacy.
Old Section 41 repealed and replaced (47F).The exemption itself is unchanged:a document is is conditionally exempt if its disclosure under this Act would involve the unreasonable disclosure of personal information about any person (including a deceased person).
However a new subsection lists matters that a decision-maker must take into account including whether the information is well known or available from publicly accessible sources, and "any other matters" considered relevant.Perhaps this is meant to allow a step back from "disclosure to the world" in appropriate cases (as per the Marke decision in Victoria) although Section 11(2) remains: the right of access under the Act is not affected by any reasons the person gives for seeking access or the decision maker's belief as to what are his or her reasons for seeking access.
The other new twist is that in addition to the requirement to consider unreasonability (which has always required consideration of the public interest) the exemption provision now requires disclosure unless on balance contrary to the public interest.

Business documents
Old Section 43 repealed and replaced (47G). No substantive change in the exemption. However all three separate parts of the exemption will also now require consideration of whether disclosure is on balance contrary to the public interest. There is currently no additional test like this for a trade secret, or information that has a commercial value that would be destroyed or diminished by disclosure. The broader exemption for information concerning business,professional commercial or financial affairs continues to require a finding that disclosure would have an unreasonable affect or prejudice the future supply of that sort of information, plus new consideration of whether disclosure on balance would be contrary to the public interest.

Research
Old Section 43A repealed and replaced (47J). No substantive change.

The economy
Old Section 44 repealed .Current 1(a) not replaced: exempt where disclosure would, or could reasonably be expected to, have a substantial adverse effect on the ability of the Government of the Commonwealth to manage the economy of Australia.
The new section largely replicates the current 44(2) with the addition of an exemption where disclosure would have an unreasonable adverse effect on Australia's economy by "influencing a decision of a person or entity".

Exemption of certain persons and bodies
Section 7A(2)-intelligence agencies- repealed and replaced (20). No substantive change except to exempt a summary of or an extract from an intelligence agency document. No change to agencies listed in Schedule 3 that are exempt in respect of all or some functions except the addition of Department of Defence in relation to documents in respect of operational intelligence, and "special access programs under which a foreign government provides restricted access to technologies." And removal of Federal Airports Corporation.

Consultation Requirements
Sections 26A, 27, 27A repealed and replaced (18). No substantive change.

Review Processes and other bits and pieces
Another day.....If you got this far you know we both need a break.

Not guilty, your honour.

www.bushtelegraph.files.wordpress.com

In the NSW Legislative Council yesterday we had the following about non-ministerial involvement in Freedom of Information decision- making:

The Hon Greg Pearce: My question is directed to the Minister for Primary Industries, Minister for Energy, Minister for Mineral Resources, and Minister for State Development. Is it currently the practice, or has it ever been the practice, for any department or agency to send a draft determination of a Freedom of Information Act application to his ministerial office before making the response public?

The Hon Ian Macdonald: No, I am not aware of that. I will ask my office and come back to the member.

The Hon Don Harwin: My question without notice is directed to the Minister for Health. Is it currently the practice, or has it ever been the practice, for his department to send draft determinations of Freedom of Information Act applications to his ministerial office before making the response public?
The Hon John Della Bosca: I am not aware of such a practice, but I will ascertain information from my office and come back to the member as soon as practicable.

Minister Della Bosca later added:

"Earlier today the Hon. Don Harwin asked me a question about my office receiving draft freedom of information determinations. I can confirm to the House that my office does not receive draft freedom of information determinations. My office receives a copy of the final determination, as sent to applicants, for information purposes only. That makes sense because, as Opposition members would be aware, my office is frequently contacted to provide comment on issues pertaining to freedom of information releases."

Fascinating, in the light of the reported findings of the Ombudsman that there are widespread problems around this issue, to see if the pattern in these answers is repeated across the entire ministry.

From potholes to a big hole.

That NSW Ombudsman report sounds more fascinating by the day, with this from Simon Benson in today's Daily Telegraph that the report includes information that the RTA engaged a company connected with its former minister and former chief executive to deal with some of the ensuing mess that arose concerning the investigation of the handling of a Freedom of Information application for documents about..... potholes. Benson's opinion piece about how bungling and sneakiness turned a mole-hill into a mountain, and the editorial in stablemate The Australian, concluding "a tinpot government that is furtive about potholes has much to hide"-would take paint off the wall in many government headquarters. In NSW??

The Report was tabled in Parliament yesterday. There was also this exchange in the Legislative Assembly, among others

"Mr BARRY O'FARRELL: My question without notice is directed to the Premier. Given the Premier's promise to end the days of the secret State and to be honest, transparent and accountable, why will the Premier not release the Ombudsman's report into the handling of freedom of information requests by the Roads and Traffic Authority and the former Minister for Roads?

Mr NATHAN REES: I am advised that the Ombudsman's report will be tabled this afternoon in the other place. I can advise that in line with the Ombudsman's recommendations, the Roads and Traffic Authority provided the report to the Commissioner of the Independent Commission Against Corruption. I can also advise that we welcome the Ombudsman's recent report on the Freedom of Information Act. I have said that Act needs overhauling and we have considered the Ombudsman's proposal for a new Act. As I have said on many occasions, it is the Government's intention to completely overhaul the Freedom of Information Act, which is more than 20 years old and does not reflect the electronic age.The Ombudsman's report provides a road map for fundamental reform of freedom of information in this State. It is currently under active consideration by my Government."

But if you want to read the Report, at present the only option is to toddle down to Parliament House in Macquarie St during business hours and ask to see a copy.The Telegraph-the complainant- has a copy provided by the Ombudsman as is routine practice, but hasn't so far posted it on the web. So has the RTA, but no sign of it there either. The Ombudsman can't publish a report sent to a minister even when the minister tables it-his act only permits publication of a report sent directly to the Parliament. Parliament doesn't do anything even 20th century like automatically putting on the web important tabled documents of wide public interest. And so far nothing on the websites of the Premier or his department.

Last October the Premier raised hopes things would be very different by now.

Something bigger than a pothole.

A Daily Telegraph Freedom of Information application to the Roads and Traffic Authority for documents about potholes, and a subsequent investigation by the Ombudsman into interference from the then minister's office has taken another turn as reported today, with new information about steps taken to try to keep the Ombudsman at bay with big bucks paid to a top Sydney law firm. The Independent Commission Against Corruption is now investigating. The Telegraph also reports:

"Ministers will be banned from talking to their departments and staff about Freedom of Information applications under sweeping recommendations before Premier nathan Rees to stamp out political interference. The Government will also consider banning government agencies from using legal privilege to hide from investigations and keeping documents secret unless it can be proven to be justified. But Mr Rees has so far refused to implement all the recommendations, apart from submitting a draft memo to agencies reminding them that FOI applications should be made free of political interference."

Draft memo? In this report last month the paper said orders had been issued by the Premier to ministers to stay out of dealing with FOI applications. No wonder then and now there is nothing to this effect in the list of minsterial memoranda.

For a comment about political interference in FOI decision-making see this post in December 2007.

Transparency part of the answer to lifting performance in the hospital system

From the NSW Government's response to the Report of the Special Commission of Inquiry into Acute Care Services in NSW Public Hospitals( Garling) on Tuesday.

"A Bureau of Health Information will be created to support transparency in health data and allow greater local control of information analysis. Consistent with functions outlined in the final Garling Report, the Bureau will undertake public reporting, performance monitoring, ad-hoc data supply and analysis, evaluation and research."

The details of Garling's recommendations in this area are included at 75-79 in the response. All are supported. The Bureau is to be established in Stage One by July 2009. Some aspects of measurement and reporting are listed for action in Stage Two or Three. The Government also supports related recommendations, such as 90, for the public display by each ward of infection rates and compliance with hygiene standards.

Tasmania also sees the need to start again.

In contrast to the Federal Government's approach to reform in suggesting modifications to the 27 year old Freedom of Information Act, and putting out 130 pages of amendments for public comment,Tasmania today followed the lead of Queensland, and the NSW Ombudsman, with Attorney General Lara Giddings proposing that the existing complex and confusing Freedom of Information Act be scrapped and replaced by a right to information act. The Attorney General said (some of this has a familiar ring)

“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. “The aim is to be more open and reduce the traditional FOI approach to an option of last resort. “This will require significant cultural as well as legislative change within Government."..... The review is timely as it will also modernise our approach to FOI to better reflect the changing times in which we live and work, and the different ways in which we can access data and information using modern technology. “Over the life of the current Act we have moved from typing pools and stenographers to high speed internet, emails and digitisation of departmental records and information. “With improved information flow and increased community expectations around transparency, the old legislative framework is arguably no longer relevant or appropriate."

The Directions Paper outlining the proposals that have already had input from agencies and experts, and some useful international comparative information are here. Submissions close 8 May.It's a more publicly accessible process than what we have seen from Canberra.

Some analysis of the FOI reform package.

Minister Faulkner's Freedom of Information reform package is draft legislation to give effect to Labor's election commitments. ( Memory jogger- pre-election policy.pdf ).The commitment apart from words about the end of excessive secrecy, change in culture across government, and promotion of greater opennness and transparency, was to implement "key findings" of the Australian Law Reform Commission 1995 Open Government Report to revise (in largely unspecified ways) the Freedom of Information Act, to rationalise exemption provisions, abolish conclusive certificates, review charges and establish an information commissioner. The Minister clearly sees the draft legislation as something to wave in front of the public service as evidence that the government is serious about culture change.He said last week he had a memo to public service leaders sitting on his desk to this effect, hopefully sent by now.

The proposals deliver mostly on a legislative scheme to deliver on the commitments. Selectively mind you when it comes to the 106 Recommendations of the ALRC-see below. Here and there, for example in abolishing application fees entirely, the draft goes beyond what was proposed by the Commission.The Government's separate move to abolish all conclusive certificates also goes further than the Commission recommendations.

But "rationalise exemption provisions" has produced a bit of a damp squid with the abolition of two rarely used exemptions (Executive Council documents and documents prepared in accordance with companies and securities legislation) and a sub-section relating to documents concerning the conduct of industrial relations, all as recommended by the ALRC. All other 16 exemptions (including many internal combinations and permutations) remain, with a couple of welcome changes but some ALRC recommendations not acted upon. Exemptions will now be arranged in two neat boxes - absolute exemptions, and conditional exempt documents where a public interest test applies. (More about these in another post shortly.)

Some media reports suggest confusion that the Minister's statement about a single public interest test means there will be one exemption. That's what Queensland is proposing. Federally it means only that the current situation of several different formulations of a public interest test in the Act will be replaced by one test- whether disclosure is contrary to the public interest, relevant only to specified exemptions but not others.

Many of the ALRC's 106 recommendations related to non-legislative measures but quite a few statutory changes on issues other than exemptions have been rejected without explanation. As already pointed out, its a big x for the recommendation that the parliamentary departments which spend and pay money on and to our parliamentarians be brought within the scope of the Act; ditto for a recommendation now 13 years old to reduce the time limit for dealing with an application in three years from 30 days to 14 days; ditto that charges should only be imposed in respect of documents released; and ditto for other proposals of varying significance such as that chief executives of government agencies should have a duty under records legislation to create "such records as are necessary to document adequately government functions, policies, decisions, procedures and transactions." You might be surprised they don't have such a duty already, only an obligation to safeguard records once created.

Overall there are important positive changes- notably the proactive publication requirement- even if it falls way short at this stage on detail as mentioned here last week- and the pro-disclosure bias achieved through a clear statement of the objects of the act and a more forceful expression of relevant and irrelevant public interest factors.

But what we will end up with is hardly an access to government information act tailored to community needs and expectations and reflecting 21st century realities. It's still essentially the 1982 Act- in fact drafted in the 70s- with a lot of legalisms and horse and buggy features of the original, amended to reflect some aspects of the internet, to give effect to election commitments, and informed by many but by no means all of the changes recommended by the Australian Law Reform Commission all those years ago.

The reforms therefore represent significant incremental change but limited rethinking of basic concepts. In the dry and dusty 130 pages of proposed changes to the legislation there is no hint of bigger, broader consideration of access to government information in the Google Age. It wasn't much of an issue way back in 1995 when the internet and the information age had just dawned. But the debate (as picked up to some degree in the Queensland Solomon Report Chapter 3) these days has in some respects moved on from a good law that fairly balances the right to know and the imperatives of good government. The discussion is about government wide information access policies; the linking of public access considerations to an approach to information and communications technology management that is geared to reflect the changing sensitivity of information over time; access to search tools that would enable the citizen to search for government-held information of interest; improved access to digital information including government databases that might promote investigative reporting and further action by those outside government to achieve government policy objectives. And agency score-cards, performance agreements with chief executives, and penalties for obstruction.

Maybe the Government recognises this and expects the detail to flow forth when we have an information commissioner, or when we have a further review of the Act two years after the new legislation takes effect. In the meantime once the legislation passes Parliament later in the year, you will in 2010 be able to lodge an FOI application by email!!

If you are interested in ideas about FOI 2.0 this presentation by Rick Snell last year outlines what openness and accountability could mean in our times. (Pdf)

One reason we won't be spending much time tossing around these ideas is that the Government has done a neat job of "framing" the problem and the answer by putting on the table the proposed amendments to the Act in a way that will certainly limit public input to the proposals put forward, not broader concepts. In addition the technical language of the bill will limit participation in the discussion to the boffins and usual suspects. Few others will get through the draft and the links back to the Act, ALP policy and the ALRC Open Government Report to try to work out what was promised and recommended, and the merits of what is now proposed.

To the outsider, the bulk of available time to date on FOI reform appears to have been spent by Minister Faulkner, his office and the public service engaging in a 16 month, largely private internal seminar on drafting legislation to enable the Government to tick the box on another election commitment. It could have been different if there had been a serious attempt to reach out to engage the community on the subject of government transparency and accountability, not now after 16 months, but way back when minds first turned to the subject.That didn't occur. Overall, however its way better than what was on offer-nothing- from the last lot.

The rest of us have about six weeks now to offer a comment.

Surveillance questions in Victoria raise issues for us all.

The Victorian Law Reform Commission has released a Discussion Paper on Surveillance in Public Places. Chairperson of the commission, Neil Rees, said “surveillance affects all Victorians whether we are shopping, catching public transport, driving on major roads, or attending a sporting event”.

The paper proposes possible reforms that could better regulate surveillance in Victoria including a new role for an independent regulator, new best practice standards, mandatory codes to govern surveillance in public places with sanctions for non-compliance including civil and criminal penalties, a licensing system for some particularly privacy invasive practices and a new statutory obligation to refrain from committing a serious invasion of privacy, modelled on the statutory cause of action proposed recently by the ALRC.

Surveillance in public places is not just an issue for Victorians-it raises the same concerns everywhere. So strange to recall that in NSW in June 2007 the NSW Attorney General dismissed recommendations from the NSW Law Reform Commission about what should be done about this and related problems posed by surveillance devices.. This from a post at the time:

"Eleven years ago ( the Government) gave the NSW Law Reform Commission a reference on this issue. The Commission released an issues paper in 1997 and undertook further research before releasing an interim report in 2001. The then Attorney General, asked for further work to be done, and a final report was made available to the Attorney General in 2005.There the report sat in the 'in tray' until last week when the new Attorney General tabled it in Parliament, and then said the recommendations in the final report were rejected. The full text of the news release said that issues concerning surveillance in the workplace had already been the subject of specific legislation, and surveillance for law enforcement purposes was being looked at on a national basis."

What happened to the national initiative? I can recall a vague reference in a Standing Committee of Attorneys General communique but can't find anything on the web. If it came to nothing, how come Victoria is the only state where the issue is now commanding attention from our legal policy thinkers?

Turning the switch to transparency.

You may or may not agree with Henry Ergas of Concept Economics in The Australian that the Government is on the road to disaster with half-baked populism involving long term costs. But his list of closed decision-making processes in the economic policy area is a reminder of from where we start with the new proposed object in the draft Freedom of Information Bill of promoting "Australia's representative democracy by contributing towards.....increasing public participation in Government processes with a view to promoting better-informed decision-making" :

"John Faulkner promised full disclosure. In fact, disclosure has been pitifully inadequate. Access to the modelling underpinning FuelWatch: refused. Access to the model used to evaluate the ETS: refused. Access to the cost-benefit studies underpinning the NBN: refused. Access to the Building Australia Fund's project appraisals: refused. Access to the Treasury's assessment of alternative stimulus packages: refused. This makes a mockery of democracy, whose virtue, as the historian and philosopher R.G. Collingwood argued, lies in forcing governments to operate "in the open air, and not as a post office distributing ready-made policies to a passively receptive country".

MPs so-called free trips under the spotlight.

Senator Nick Xenophon Independent South Australia.

Heightened interest in what members of parliament get up to and what they do and do not tell us, with the Sydney Morning Herald revealing that many benefit from free travel without disclosing who pays, and similar reports elsewhere. As reported in The Age Independent Senator Nick Xenophon wants all MPs to declare sponsored travel to parliament (within 60 days of taking their trip) and to reveal the funding source of any sponsored trips on a public website.(What's surprising about this is that it isn't the case already.) If they fail to declare their travel within time they will have to repay the cost of the trip in full.

Senator Xenophon said the changes will provide a level of scrutiny that the Australian taxpayer expects, and of course he is right, but gifts of travel are just part of the picture as mentioned here last week.

My letter sent yesterday to the editor of the Sydney Morning Herald didn't (weep) make it into print today- I know, one sentence always beats a couple of hundred words:

"The failure of Joel Fitgibbon to declare two gift trips to China, and your follow-up report that almost one in four MPs have accepted free overseas travel (“MPs hooked on Chinese junkets” March 28-29) raise the broader issue of transparency and our parliamentarians. The Register of Interests, updated and search enabled to allow the broader community to look at cross links such as gifts to different members from the same source is not published on Parliament’s website. Parliament has never thought it necessary apparently. That’s just the tip of an iceberg of what we don’t know about members and senators, for example their use of large chunks of our own money paid to them as electoral and other allowances. Some information is publicly released by the Department of Finance and Deregulation twice a year on travel and the use of cars, but it is limited and no, it’s not published on the web either.

Minister Faulkner last week outlined a future where much more government information will be automatically posted on the web and where the Freedom of Information Act in future will encourage, not discourage public participation in government, and increase scrutiny of government activities. The reform package represents action finally on many of the recommendations made by the Australian Law Reform Commission in 1995. One not acted upon was that the parliamentary departments that spend taxpayers money on and for our parliamentarians should be brought under the Act, as is the case for example in the UK, but nowhere in this country. Parliaments in Scotland and New Zealand are just two of those that publish on the web declarations of interests and Scotland in addition includes details of the expenditure of every taxpayers’ dollar by every member. Our government and parliament should deliver transparency to this standard."

Privacy and the media-occassional mistakes or something more?

John Hartigan of News Ltd and Australia's Right to Know acknowledged during his opening comments (speech) at the Free Speech Conference, "the media does make mistakes, as some of our newspapers realised last week ... and more mistakes will happen", but blamed this on human frailty-something we all know about- rather than malice or arrogant disregard. After the Conference Mr Hartigan is reported to have said

".. he hoped the fake Pauline Hanson pictures would not hurt the media freedoms campaign. "The reality is that there were a couple of judgments that had to be made with that story," he told The Sydney Morning Herald online. "One was, was it in the public interest and was it an invasion of her privacy? "Number two, was ... if the image was of her, and regrettably, it failed the test. "Editors make judgments a thousand times a day. "That was a particularly significant judgment. They got it wrong and they copped the opprobrium of the community, and so be it."

It's not clear from this whether Mr Hartigan thought the editors had slipped up on both judgments although one interpretation is that, as a couple of editors themselves acknowledged, the only mistake was that the photos were of someone else.

I agree that one poor judgment should be seen in context, but the record includes more than an isolated incident- a couple of other recent questionable calls (by Fairfax publications as it turns out) were mentioned when I first took issue with the claim everything was rosy in the media privacy garden two weeks ago. A reader has also been in touch about publication last month of the image and first name on television and in the papers of a former girlfriend of a man charged in Victoria with arson during the bushfires and separated from him for over a year, wondering about any conceivable public interest in that one.

Presumably Mr Hartigan-because he hasn't said otherwise- still is of the view that overall, the media-privacy framework is working well and no changes are required.The proposed statutory cause of action clearly would have important implications for the media but it is only one of the proposals from the Australian Law Reform Commission that are relevant. For example that the media exemption from the Privacy Act only be available where there is a commitment, and conduct evidencing that commitment, to standards that deal with privacy adequately in accordance with criteria established by the Privacy Commissioner (more than yes, we signed up to something we all thought was pretty good); and the exemption to only apply to journalism as defined, not entertainment or other such activities of media organisations.

New criteria would almost certainly require some changes to aspects of current arrangements. As Mark Scott of the ABC- who also said the media needs to look closely at the cause of action proposal- told the Conference, the Australian Press Council - the self-regulatory body of the print media - is largely powerless and opaque.

There is a need for some serious discussion and debate- of a more substantive kind than that at the Free Speech Conference- about these issues, including points raised in a just published policy statement from the Australian Privacy Foundation such as

"Appropriate forms of action must be available when complaints are upheld. The primary recourse needs to be published acknowledgement of inappropriate behaviour, and apology. In the case of privacy intrusions that are serious, blatant or repeated, a gradated series of sanctions is necessary, including professional rebuke, and the award of adequate (but not excessive) damages against corporations and against individuals.

Minister's mistake raises broader issue of parliament and transparency.

Defence Minister Joel Fitzgibbon is in the spotlight now over his failure to declare on the Register of Interests that two trips to China years ago were paid for by a long-time friend and well-connected Chinese born Australian businesswoman/property developer who has made substantial donations to the ALP.

The Register of Interests contains information of financial interests, stocks and shares held, gifts received over a certain value, and memberships of Clubs and Associations for Senators and Representatives.It's available for public inspection at Parliament House during business hours if you happen to be in Canberra.

We know courtesy of Open Australia that the Register consists of 1500 pages often handwritten, and is only available now on the web page they have put up for each member and senator because a volunteer Stephen Thorne at Netbox Blue scanned the lot.There is a caveat on what is on the web that it is not supported or maintained by Parliament and may not be up to date.

It's a great volunteer effort but how to explain Parliament never saw the need for this level of transparency or the need to provide not just the register but search capability (not possible in the format provided to Open Australia) that would enable us to readily ascertain where declared interests and gifts cross and connect?

The issue of access to information about members and senators cropped up at the Free Speech Conference on Tuesday. Minister Faulkner (transcript) responded to a question about parliamentarians from Michael McKinnon:

"The Government does not propose to include MPs within the scope of the FOI Act. This act is about providing access to documents of the executive, and I have announced today very significant far reaching reform in relation to that."

He went on to say, correctly, that some information about parliamentarians and their use of our money is held by the Department of Finance and Deregulation. It's far short of the full picture.

I asked the Minister about web availability of reports on travel by members of parliament and by chance about that Register of Interests. Here is the minister's response:

"..I do accept also the principle that transparency is important in these areas. I have long argued as persuasively as I can within government and within the Parliament, that certainly in the area of the administration of parliamentary entitlements, more transparency leads to better practice. And I have made any number of statements to that effect. It leads to more accountability and better practice. So I support the princ… not only do I support the principle, I hope you've seen some very tangible indications that I'm putting that into practice wearing my hat as Special Minister of State. You do mention the issue of the Register of Pecuniary Interests. The point may well be well made in relation to it not being available on the web. I'm very loath to trample into areas that are the responsibility of both the Department of the House of Representatives and the Department of the Senate, as you would appreciate. The points are well made, and I can certainly pass that on to my colleagues, the Speaker of the House of Representatives and the President of the Senate."

I'm not holding my breath on the last point. But the question remains why the Government decided not to act on the 1995 Australian Law Reform Commission recommendation (Open Government Report 77 Recommendation 73) that the parliamentary departments be brought within the scope of the Freedom of Information Act.That's the situation in the UK- the Government having retired hurt from a recent proposal to change this- and the Canadian Information Commissioner (Recommendation 7) has just made a recommendation to this effect because

" Canadians expect all publicly funded bodies to be publicly accountable under access to information legislation. Therefore, it is recommended that the administrative records of the Senate, the House of Commons, the Library of Parliament ....be covered by the Act, subject to provisions protecting Parliamentary..privileges"

Australians are likely to share the sentiment, not just concerning the Federal parliament but in respect of each state and territory parliament as well.

Pro-active publication of information a good move, but we could lift the game.

The Government's Freedom of Information Amendment (Reform) Bill 2009 - PDF will among many other things, impose an obligation on each Federal government agency to develop a plan, and to pro-actively publish on the web a range of information about what it does and how it does it, plus information that is relied upon in making decisions that affect members of the public.

While there is more detail in Schedule 2 Clause 8 than the current Part II of the FOI Act on what is to be published, the only really new aspects are the publication of information routinely provided to Parliament, and information routinely released in response to FOI applications. The agency may publish other information (8(3)), and the Information Commissioner may issue guidelines (93A). If any are issued, each agency must have regard to them and the objects of the Act-which include increasing discussion, comment and review of Government activities- in developing a plan and publishing information on the web (9A).The agency in conjunction with the Information Commissioner must review the scheme after five-yes five-years (9).

Two quibbles-we need to stiffen up the pro-active publication of information requirement and we should start now.

The UK has been doing this for years. Their Information Commissioner's Model Scheme is mandatory for government agencies and lists classes of information required to be published. I guess our Information Commissioner will publish guidelines even though the Bill stops short of an obligation to do so.The Australian draft categories look light on and if the intention was to leave the detail to the Information Commissioner, why not make the issuance of guidelines a duty not a discretion? Otherwise agencies left to themselves to develop a plan to reflect the objects of the Act will result in a dog's breakfast. Requirements in the UK list of particular relevance are highlighted. I would add a few specifics such as policy research papers, expert reports, grants (Minister Tanner instructed that this happen from January), loans and guarantees for starters, and countries such as Canada include senior officer travel and expenses:

Who we are and what we do.
Organisational information, locations and contacts, constitutional and legal governance.

What we spend and how we spend it.
Financial information relating to projected and actual income and expenditure, tendering, procurement and contracts.

What our priorities are and how we are doing.
Strategy and performance information, plans, assessments, inspections and reviews.

How we make decisions.
Policy proposals and decisions. Decision making processes, internal criteria and procedures, consultations.

Our policies and procedures.
Current written protocols for delivering our functions and responsibilities.

Lists and Registers.
Information held in registers required by law and other lists and registers relating to the functions of the authority.

The Services we Offer.
Advice and guidance, booklets and leaflets, transactions and media releases. A description of the services offered.

And why not get cracking now? Government agencies should be instructed with immediate effect to see what additional information consistent with the Government's intentions can be made available on the web readily accessible using publicly available search engines. At the risk of causing a mass heart attack in Canberra, also how about some pro-active publication of information about those cabinet decisions fit for public consumption, in line with this voluntary non-legislated lead from Queensland?

Responses to FOI proposals.

Some citizens speak:
From letters in The Australian:

Faulkner, freedom fighter: Three cheers for John Faulkner, a rare politician with the guts and integrity to put the interests of the whole community ahead of the interests of his party with the drafting of the new freedom of information laws. Mark Pearce Richmond, NSW

Could Special Minister of State John Faulkner please give Communications Minister Stephen Conroy a copy of the proposed FOI legislation with the bit that says "and potential embarrassment will no longer be an excuse for keeping government documents secret" underlined? Maybe then Senator Conroy will come to his senses and give up pushing the unworkable internet filtering proposal he is obsessing about. Stephen Mead Rowville, Vic

And from the Sydney Morning Herald:

A rare political animal: Only a politician with nothing to hide could conceive of and drive the agenda for more transparent freedom of information legislation. John Faulkner: a rare and tireless ethical politician who respects public office above anything else ("Democracy should be the freedom to know", March 25). Robyn Dalziell Castle Hill

A more open society such as the "courageous" Senator Faulkner foreshadows requires that the media play a critical part, yes, but a responsible one. Beat-ups with screaming headlines about unpopular but essential political decisions are likely to make politicians pull their heads in faster than a threatened tortoise and revert to the darkness and safety beneath the shell. Ron Sinclair Bathurst.

As well as some of the usual suspects, with overall positives, as reported by Nicola Berkovic in The Australian.

FOI for Boffins

I mentioned recently that a journalist had asked me where to find FOI for Dummies but if such a publication exists it won't be much help in coming to grips with the fine print of the Government's proposed reforms contained in the Exposure Draft Freedom of Information Amendment (Reform) Bill 2009.The published Companion Guide helps on some of the main points but you wouldn't want to rely on that for the complete picture.

The Draft Bill runs to 130 pages- and that's just the proposed changes. These proposals are in addition to the changes in the Bill currently before the Parliament to abolish conclusive certificates and a few other things beside. To make sense of it all you need to refer back to the current version of the Act to get the gist of seemingly innocuous provisions such as "Repeal the section" or at the end of the paragraph add "and." By way of contrast the Queensland draft Right to Information Bill put on the table in December was 178 pages, but was a complete rewrite, so a lot easier to manage.

What I said at the time was the good news about the Queensland Bill also goes for the Commonwealth's draft:

"Heartening in particular that the drafting style is straightforward, relatively plain english; in the emphasis on proactive disclosure and agency publishing schemes; to find a great preamble that captures the democratic principles that underpin the legislation; the clear statement of objects to provide a right of access to information unless disclosure on balance is contrary to the public interest; and at least a slimmed down list of exemptions."

Except the last point- basically all the previous exemptions remain in one form or another.

By the way, the nature of the proposals have a lot more in common than this with David Solomon's Queensland recommendations, and in some areas-eg real embrace of access to government information in the digital age- fall short of what he put forward.

However what is on offer here is good, positive change- with some quibbles of varying significance- and when passed will make a big difference. Just one illlustration. The Shadow Attorney General Senator George Brandis said on Tuesday at the Free Speech Conference that the Minister's claims about the significance of changes to spell out relevant and irrelevant public interest considerations regarding disclosure and nondisclosure didn't amount to a row of beans. Now the Senator, like the rest of the panelists only had an hour to absorb the fruit of 16 months work by untold public servants, ministerial advisers and ministers, so could be forgiven for omissions, but he missed a major feature of the proposals.

Up to now the courts have been prepared to interpret the Act as not requiring a pro-disclosure bias because the objects in Section 3 include a reference to a right of access subject to the exemption provisions. Thus "no leaning" in favour of disclosure. However in the new objects there is no mention of exemptions, simply this:

"(2) The Parliament intends, by these objects, to promote Australia’s representative democracy by contributing towards the following:(a) increasing public participation in Government processes, with a view to promoting better-informed decision-making;
(b) increasing scrutiny, discussion, comment and review of the Government’s activities.
(3) The Parliament also intends, by these objects, to increase recognition that information held by the Government is to be managed for public purposes, and is a national resource.
(4) The Parliament also intends that functions and powers given by this Act are to be performed and exercised, as far as possible, to facilitate and promote public access to information, promptly and at the lowest reasonable cost.

The reference to Parliament's intention in last sub-clause is not new but the rest is. Read in conjunction with the legislative demise of most of those silly "Howard" factors that favoured non disclosure since 1985, the duty to take into account the following when weighing the public interest (quibble- only relevant to some not all exemptions) will move things strongly in the direction we were trying to go in way back in 1982:

"(3) Factors favouring access to the document in the public interest include whether giving access to the document would do any of the following: (a) promote the objects of this Act (including all the matters set out in sections 3 and 3A); (b) inform debate on a matter of public importance; (c) promote effective oversight of public expenditure;"

More-including some quibbles later.

The morning after.

Those reptiles of the press were busy after yesterday's Free Speech conference as you will see through the links in this Google News search. Most are generally positive about the Freedom of Information proposals but cautious and conscious of the task ahead and what is involved, not just in FOI, to turn the secrecy ship around. As to opinion, Jack Waterford Canberra Times, (no link available), Sean Parnell in The Australian, and Matthew Moore and the editorial in the Sydney Morning Herald are all interesting. Perhaps the frostiest view of it all is the editorial in The Australian.

The set of documents released yesterday are all here, so you make up your own mind if you like.

From my quick look the couple of reports that say all the existing exemptions in the FOI Act are to go, to be replaced by a single public interest test are not correct.Exemptions stay, some are rejigged and some will have a public interest component for the first time. Those hoary old public interest chestnuts-confusion, possible misinterpretation, communication by senior officers etc- are to be legislated out of existence, thank goodness. Changes to the objects of the act and the listing of public interest factors that favour disclosure might just mean decision-makers and the courts will in future lean in favour of disclosure in interpreting exemptions.

Australia's Right to Know

I'm just back from Australia's Right to Know Free Speech Conference and would say that the day was a highly positive discussion of many issues of interest and concern around the topic. (Some speakers' papers are here).

With one notable exception: the discussion about the media and privacy was pathetic, largely because the issue was framed by News Ltd's lawyer Robert Todd from Blake Dawson around a series of straw men such as the effects of publication of photos of children and UK privacy decisions in the courts concerning photographs of JK Rowling and her kids on the street. And a photo of a child running from a napalm bomb in Vietnam in 1968!! The panel discussion that followed was all over the place but hardly on target.

There was a complete failure for example to address the highly relevant and topical issue raised by News Ltd CEO John Hartigan a week or so ago that the current media- privacy framework works well. But there was plenty of special pleading about why a general and non-media specific statutory cause of action for breach of privacy would be the end of the world as we know it, including from the former editor of the Daily Telegraph David Penberthy who sounded on occasion that he might struggle to spell p..r..i..v..a..c..y.

But all power to ABC boss Mark Scott who had earlier departed from the partyline by saying that the media should seriously consider getting on board to work out a clear statement of the law in this area, and for being the only media speaker on the day to mention the need to match media freedoms with high standards of professional responsibility that must accompany press freedoms. (Correction - John Hartigan also referred to this).

Those of you who weren't there might be staggered to learn that the elephant in the room - the incredible judgment by Penberthy's successor Neil Breen to publish those photos- only received a passing reference from Judge Ron Sackville (in a terrific talk about the philosophical underpinnings of freedom of speech) and a sideswipe from John Hartigan that the media shouldn't let a few people out there decide what was in the public interest. Presumably Hartigan thinks that media editors are perfectly placed and instilled with appropriate wisdom to make this decision, and shouldn't be subject to any second guessing or any penalties for getting this wrong even in the most egregious cases.

What should be the main story of the day were the very positive remarks from Minister of State John Faulkner on the Government's Freedom of Information reform proposals, including the release of an exposure draft of an amendment bill that includes many significant changes- greater pro-active disclosure, clearer relevant public interest considerations and exclusions of some hoary old chestnuts around this issue that the public service has run with for years. And complete removal of application fees and reduction of charges generally. We have heard a lot of this before but Minister Faulkner successfully came across today that he is not only well-intentioned but serious. There were plenty of sceptics on the panels and in the audience , and everyone accepts there is a big anti-disclosure culture to change. But first things first and overall the proposals look good. I need to have a closer look at the detail before saying anything more.

There was lively discussion of the Dreyfus report on whistleblower protection but a large gap in understanding between Mark Dreyfus who presented the findings of his committee report as aimed at improving governance, and media voices who argued that this should be about the right to know just about everything possibly untoward that happens within the government system.

Lots of criticism of the Government's proposed shield laws for journalists and the circumstances in which a judge should exercise a discretion to accept the refusal to answer questions about the source of information.

More comments over the next few days.