Budget papers score some criticisms

www.businesspectator.com.au

The gurus on economics and government finances seem to be too flat out to date to do much in the way of a close assessment of the Federal Budget papers against the Government's own standards of transparency and accountability outlined in the Operation Sunlight policy. But Peter Martin Economics Editor of The Age makes no bones about it overall:

"Tuesday's budget documents were amongst the least-clear on record. Why? Because they began to do stuff and then undid it, and in the rush to put the presentations together they weren't able to properly explain what they were doing. If you click on the link below, it'll take you to what I wrote - and I probably got that some of that wrong too. The presentation was a shemozzle. The opening pages or so the Budget speech are beyond parody. Swan's trick of not even mentioning the size of the deficit/surplus is a first, well almost. As for the forecasts, they may well turn out to be right, or not. What will happen as the economy recovers is fairly forecastable. When that will happen is pretty unforcastable."

Those that know a bit about the Defence Department find those papers disappointing. Geoffrey Barker in yesterday's Australian Financial Review("No defence for secrecy"- no link available) says:

"This year's defence budget has retreated from transparency, accountability and reality with the speed of an Iraqi regiment fleeing into the desert"

Barker points out that in outlining what will happen to $26.6 billion allocated to the Department, one and a half "skimpy" pages describe funding for acquisitions. In releasing the Defence White Paper recently the Government said the Budget would contain full costings for defence capability requirements. Barker quotes the White Paper as declaring:"Australia needs to show by word and deed that it is serious about such transparency" and suggests (Minister) Joel Fitzgibbon "will have the grace to blush over this year's Defence budget."

Mark Thompson of the Australian Strategic Policy Institute makes the same point in this report in today's Fairfax papers:

"..this week's federal budget had less detail than a standard defence budget, even though it followed the release of the Government's long-term national security plan. "It is very disappointing," he said. "The white paper is a major public policy event. [The] last time one came out, there were charts showing spending and where out money is going. The level of disclosure is way below what it should be in terms of public transparency and accountability. This simply is not good enough for a budget after a white paper."

...the budget this week provided few details about the make-up of the (planned $20 billion) savings. "Even though there is a very ambitious savings program in the offing, the amount of detail is disappointingly sparse," said Mr Thomson, a member of the Government's three-person advisory panel for the white paper. "This is less than a normal budget. It is a step backwards in terms of public disclosure. It is impossible for the taxpayers who are paying for this to make judgments about what is going on."

Minister Fitzgibbon says all will be revealed in due course.

Differences over shield laws- that's just in the Committee

The Senate Legal and Constitutional Affairs Committee reported yesterday (Budget day-how to get noticed) with the four Labor senators supporting the Government's proposal on a shield law for journalists but with the addition of words that would make it mandatory for a judge to take into consideration the public interest in disclosure of a protected confidence and/or protected identity information. The other five senators want other changes.The three Liberal Senators on the Committee want to see the law cover professional confidential relationships generally, and a rebuttable presumption in the law in favour of journalist-source confidentiality; the Greens Senator supports the rebuttable presumption and in addition wants the protection to extend beyond those working in the traditional media; and Independent Senator Nick Xenophon says he wants broader protections "similar to the UK and New Zealand laws."

How the Bill will fare in the Senate remains uncertain.No-one on the Committee supported the Government bill without changes. The Government needs the Opposition's votes or those of The Greens and independent senators to get legislation through. Getting that far will still leave the problem of national uniformity.

See Chris Merritt in The Australian today and an earlier comment on the issue here.

The Budget : read all about it

Maybe more than you ever wanted to know about the Commonwealth Government Budget in today's news. I'll be interested to see if someone with more knowledge of these things provides an assessment of the budget papers, given the Government's commitment to Operation Sunlight. The six key objectives are:

1. Tightening the outcomes and outputs framework;
2. Changing the Budget Papers to improve their readability and usefulness;
3. Improving the transparency of estimates;
4. Expanding the reach of budget reporting;
5. Improving inter-generational reporting; and
6. Improving the financial framework.

The Budget papers are here.

Not much else that seems relevant to Freedom of Information and privacy issues, other than the funding for the Information Commissioner referred to here last night if you missed it.

Stephanie Peatling in the Sydney Morning Herald on the Government's $1.3 billion boost to solar energy includes this snippet:

"As part of the budget, the Government also released the Wilkins review, a report by the former head of the NSW Cabinet Office, Roger Wilkins, on the effectiveness of the Government's energy-efficiency measures. The Herald was repeatedly denied access to the report despite freedom-of-information requests. The report recommended a significant streamlining of existing programs."

UK snout stories interesting, but...

The Australian media are finding plenty to say, as in "MPs on nose for snouts in trough" by Paola Totaro in Fairfax papers today, about rorts revealed in the UK. Few if any seem to be making the point that in many respects we just don't know how Australian counterparts spend much of the taxpayers' money that comes their way.

More than awareness needed for this privacy problem

Things aren't good in the small and medium size business sector in Australia and New Zealand when it comes to protection of personal information. A survey by Symantec shows security breaches - where information has been subject to unauthorised access, often where the data is lost, stolen, or hacked- had occurred in more than half the businesses surveyed. By contrast, 29 per cent of companies in the US and 27 per cent in Canada experienced breaches. One factor according to Symantec is that companies in many parts of the US are governed by data mandatory disclosure laws which require an organisation to inform their customers of any loss of their personal information. It's one of the many privacy issues on the Federal Government's plate as it considers recommendations from the Australian Law Reform Commission.

Government shows the money for Information Commissioner's Office

The planned Office of the Information Commissioner-scheduled to come into operation with effect from 1 January 2010, after the Commonwealth Freedom of Information Reform legislation is passed by Parliament, makes it into this year's Commonwealth budget announced tonight. This from the Portfolio Budget Statement of The Department of Prime Minister and Cabinet:

"The Office of the Information Commissioner will operate under the FMA Act as a statutory agency within the Prime Minister and Cabinet portfolio. The Office will comprise two new independent statutory office holders, the Information Commissioner and the Freedom of Information Commissioner, as well as the existing Privacy Commissioner. The existing Office of the Privacy Commissioner will be incorporated into the Office of the Information Commissioner. The establishment of the Office of the Information Commissioner will provide a whole-of-government clearing house for complaints, oversight and reporting on freedom of information and privacy matters. The co-location of privacy and FOI regulation will ensure the development of a consistent workable information policy. "

As to hard cold cash the allocations in the budget and forward estimates allocated to PM&C for the Office are $2.961 million in 2009-10, $4.982 million in 2010-11, $5.031 million in 2011-12 and $5.080 million in 2012-13. Enough? Who knows.

Details of allocations for the Office of the Privacy Commissioner- to be folded into the Information Commissioner's Office from 1 January- are at page 351 of the Department of the Prime Minister and Cabinet Statement. Presumably some rollover of the $7.294 million allocated this year will end up with the new office.

Raising your privacy awareness

A couple of things from Privacy Awareness Week last week- what you missed it?

Former High Court Justice Michael Kirby, and a major figure in the development of thinking about information privacy in the eighties in his capacity at the time as President of the Australian Law Reform Commission, spoke at an event organised by the Federal Privacy Commissioner. According to this report by Karen Meade in The Australian, Mr Kirby said technological developments mean the practical end of the "use" principle that personal information collected for one purpose can only be used for that purpose except in limited circumstances.

"When the limitation of use principle was originally formulated, it allowed you to keep control over the data shadow you send out when information of a private character is collected (for use by businesses and government agencies). That became inappropriate when internet technologies came along 20 years later. "Likewise, we now know that if you are in public places, you can be caught out (on camera) cleaning your ear, or picking your nose and, in those countries that permit the televising of courts, an occasional judge can be caught out having a nap."

But Mr Kirby said the "enormous blessings" of new technologies required regulators to take a balanced view on personal privacy, especially as these technologies have significantly changed society's attitudes."

I imagine those hostile to the idea- mainly some powerful voices in the media- would say "he would say that wouldn't he"- but Mr Kirby commented as follows on one of the issues of the day:

"..the federal Government should seriously consider the introduction of a new tort to deal with instances of "serious invasions of privacy", as recommended by the Australian Law Reform Commission in its landmark review of privacy and data protection. "While media reports suggest the notion of giving people the right to sue for serious invasions of privacy would put an end to the media's capacity to investigate and report on matters of public interest, this proposal is actually quite modest," he said. "Would we really consider it wrong for Australian law to deliver a remedy in a case where there has been an interference with an individual's home or family life? Or where an individual has been subjected to unauthorised surveillance, private communications have been misused or disclosed, or where sensitive facts relating to an individual's private life have been disclosed?"

The Federal Privacy Commissioner also put out a raft of useful materials on privacy issues last week including some new information sheets for public and private sector organisations and a report on portable storage devices and privacy related issues.

The Commissioner also published some new case notes. One relates to an "own-motion" investigation into a medical centre after "medical documents, including patients' prescriptions and pathology results, were found scattered in a public park next door. The name of the centre was visible on some of the documents. The documents included patients' names, addresses and phone numbers. The information given to the Commissioner suggested that the documents had come from a large bin at the rear of the private medical centre." Vandals at it again apparently- the Commissioner was satisfied after intervention that action had been taken to prevent a reoccurence.

Some useful stuff also released last week by the Victorian Privacy Commissioner including the joint initiative by regional bodies "Think before you upload!" a short animated video which aims to highlight the possible risks for young people of using on-line technologies such as social networking and gaming sites.

What about Australian MPs' allowances and expenses?

The UK MPs' expenses issue- 1626 articles listed in a Google news search this morning-continues to be big news there. Heather Brooke and her "Your Right to Know" blog deserve the credit for pushing against the odds for four years for transparency and accountability from parliamentarians for allowance and expense reimbursements.Before the latest furore The Westminster Gravy train shown on Channel 4 last month was based on Brooke's work. Brooke was assisted in her campaign by the UK Freedom of Information Act which applies to the houses of parliament. Martin Rosenbaum on Open Secrets gives a potted history of how this came to pass, finally the result of this conclusion reached by members of the House of Commons Select Committee on Public Administration in 1999:

"There are many administrative functions carried out within Parliament which, it seems to us, do not need to be protected, any more than do those of the police. The justification for the exclusion of Parliament has not been made out. The exclusion may well convey the wrong impression to the general public, given the purpose of this legislation."

In Australia our systems for payments to MPs at Federal, state and territory level seem to vary from the opaque to the murky. It emerged in a Senate Estimates Committee hearing earlier this year even for some payments made by the Federal Department of Finance and Deregulation on behalf of MPs (subject to scrutiny but only part of the picture) some members have refused for years to sign off a statement that the expenditure was properly incurred.This is a fail grade on Accountability 101. Many of the allowances paid to parliamentarians require no certification or receive any scrutiny.

Meanwhile amidst all the positive talk about transparency and accountability our leaders tell us Freedom of Information laws should not apply to parliament- no correspondence to be entered into.Can anyone explain why the conclusions of the UK House Committee- particularly concerning the impression of the general public- don't apply equally here?

Press Council reform takes a hair-cut in tough times

Buried away at the back of the Government's response to the Report of the 2020 Summit in a list of "Ideas others may progress", this from the Governance Group:

"• Improve accountability of the media (Press Council). The media should be accountable to the public, including radio, television and media on the internet.
• Improve media diversity and accountability.
• Expand the role of the Press Council to: Strengthen and reinvigorate the
professionalism of journalists;Improved accountability; Review roles of Press Council in light of new media."

The Government's response: " The Press Council is independent of government and reform should be driven by the industry."

The idea at the Summit seems to have been that the media needed to get its act together and that a media wide industry body might help. However according to Mark Pearson in The Australian the only reform likely is a slimmer Press Council with a narrower focus following a proposal by News for a 33% budget cut. This follows a month after the Council's chairman proposed an expanded role, and a 36% increase in funding.

Anything more than stomachs rumbling in Adelaide?

www.electricpig.co.uk

Some rumblings in South Australia, at the instigation of the Ombudsman, at council refusals to disclose information on "public interest" grounds sought under the Freedom of Information Act about breaches of food hygiene standards. The NSW Food Authority now has 922 penalty notices listed in its register of council issued penalty notices, searchable by name, suburb, post code, type of problem, etc. Only three results for "rats" but 38 for "cockroaches" so far.

Anything doing in Adelaide (or Perth or Melbourne) about broader FOI reform given movement at the station just about everywhere else?

Who knows what parliamentarians do with our money?

The three jurisdictions in Australia moving now on Freedom of Information reforms have shown no interest in extending the scope of legislation to parliament.The Federal and NSW governments haven't bothered to explain publicly why they rejected recommendations to this effect from the Australian Law Reform Commission and the NSW Ombudsman respectively. Maybe its a separation of powers, constitutional thing. But both could act to improve transparency particularly about the expenditure of public money by parliamentarians, by taking steps in Parliament to have the institution adopt rules requiring disclosure of payment of allowances and other expenditure on behalf of members. Neither government controls their upper house but I imagine the cross-benches would jump at the chance to get behind them on this.

Prompted by news from the UK over the weekend about latest developments there. Big, bad news for Prime Minister Brown acording to the Financial Times.

"The 646 MPs at Westminster are under growing pressure after the publication of receipts showing lavish and sometimes outlandish use of taxpayers’ money. The deluge began after one British newspaper, the Daily Telegraph, obtained details of all of the receipts for MPs’ expenses submitted over four years. After an unsuccessful battle waged by politicians against freedom of information campaigners, officials had been due to publish them in July.

The revelations have shown senior ministers and backbench politicians alike milking the system to their maximum advantage even if the claims all fall within the Commons rules. MPs were found to have charged for everything from eyeliner and baby food to a bag of manure and – in one case – a mole catcher. Others used the cash to build up property portfolios, often changing the definition of their “main” and “second” homes to maximise income."

The Daily Mail has plenty more detail.

Meanwhile our lot keep heads below the parapet, although a bit of digging brings up some news from time to time, today on Parliamentary Secretary Jan McLucas.

Corporate ID theft and government contract disclosures

With developments here moving in the direction, or already there, of routine on-line publication of information about government contracts, this report in the Chicago Tribune about a scam in which perpetrators stole the identities of companies listed as contractors to the state Auditor, then managed to have $2million deposited into false bank accounts, is of interest.

"This is probably the first major public case of corporate identity theft," said Fordham University law professor Joel Reidenberg, who is also director of the school's Center on Law and Information Policy. "This case could be the tip of the iceberg for corporations," he said. "It's going to be very challenging for policy-makers and for companies to deal effectively with this.".... And corporations looking to avoid similar predicaments will have a harder time making information confidential, since government contracts contain a wealth of information that's required to be public, although exemptions exist for sensitive information like tax identification numbers. "We don't want the state contracting with private parties secretly, so that's got to be public," Reidenberg said. "That's going to be a real challenge."

Any Australian experience?

Only a small round table required for Federal FOI Reform discussion

The public forum on the Federal Government's Freedom of Information Reform package in Canberra yesterday was a useful chat about some of the issues arising and the detail of elements of the draft legislation. But not much in the way of improved understanding about why some of the 1995 recommendations of the Australian Law Reform Commission -for example,extension of the act to the parliament, reducing time for processing from the long established 30 days to 14 days, fees to be based on documents released - have not been acted upon. The answer from officials is that the tabled draft legislation is the Government's policy - and that's about it.

The draft drew positive comments overall, with particular mention of the way the new objects and specified public interest considerations tip things in the direction of disclosure. Issues raised and discussed included whether the continuing centrality of "documents" in the legislation is appropriate in the digital information age; the need for some expedited processing process; what can be expected from the publication scheme and problems in making it work in a uniform fashion; how to promote compliance and the powers the Information Commissioner will need; the exemptions, and the new broadened public interest test; and the review and appeal processes. There were plenty of suggestions from participants about how aspects of the draft might be improved. Written submissions close next Friday.

There were about 15 in the room but if you exclude those from the Department of Prime Minister and Cabinet, the Minister's Office, the Privacy Commission, the Archives Authority and the ACT Government, it came down to a very small group consisting of the major law firms, the Media Entertainment and Arts Alliance, Dr Moira Paterson from Monash University, a self-described interested citizen, and your humble blogger, with a few latecomers, designations unknown.

No business, interest, community or rights groups; other academics even from the handily located Australian National University or the University of Canberra; journalists who cover government, FOI or related law fields, or other media representative organisations. And as to the citizenry.....

It was just a few days before Parliament resumes, so plenty of other distractions for those in Canberra including a stream of Budget leaks. The tyranny of distance and other priorities for the rest perhaps. I'd like to think it wasn't a reliable indication of attitudes out there to one of the new objects of the legislation: to promote representative democracy by increasing public participation in Government's processes.

Canberra bound as we speak

I'm off to Canberra this morning to attend the public forum later today at PM&C on the Federal Government's Freedom of Information Reform proposals. I may not get a chance to add anything here until Friday afternoon. In the meantime your thoughts, or questions are welcome.

A couple of candidates for improved transparency in NSW

www.grantsready.com

The publication of information about school performance and government grants in NSW, which both featured in news reports critical of the current transparency arrangements yesterday, are examples of the sort of thing the public should expect to be different with a government now moving in the direction of best practice access to government information.

The Auditor General in a report on grant administration- over $5 billion in 2006-7- found little evidence of political fiddling but highlighted the need for more transparency about what grants are available where the money goes, and what is achieved as a result. The report includes the following:

"While agencies publish who gets grants and how much they get, most do not publish robust evaluations that explain what grant programs have achieved and how the distribution of funds has made good use of public money."

The Department of State and Regional Development doesn't publish details of industry support (grants and any other form) for one (any others?) and is exempted from the current (and proposed) Freedom of Information requirement for publication of contracts to ensure this information remains confidential. If there is any argument against disclosure, and I can't see it, surely a one to two year limitation on disclosure is all that should be required, not a blanket and enduring limitation on public access.

My guess is that publication of grants made by most agencies is tucked away in an appendix to an annual report. The Auditor General stops short of going this far, but for mine the publication requirement- at least for sizable whacks of public money- should be for agency specific and government wide information up on the web, searchable by recipient name, purpose, post code and electorate, and include performance measures and evaluations.

Federal Minister of Finance Tanner made a small start on improved transparency with a web publication requirement for Federal grants with this announcement in December 2008 about web publication of agency specific information -anyone know how it's going?

Google Public Data shows governments a potential trick or two

If governments haven't got it regarding the potential power of technology to utilise their information for public purposes in readily accessible formats, it's Google to the rescue with the launch in the US last week of Google Public Data. Here is the Washington Post take. Meanwhile in the context of Federal Freedom of Information reforms here we are still talking about "documents" taking lots of words in the proposed new legislation to define what we mean. The world has moved on from paper-based documents, with just a polite gesture on the side to digital records. So should we. On a related topic here is a recent post about issues in googling government information.

Federal public servants urged to get on board for openness and transparency

Special Minister of State Faulkner did get that letter off last week to Federal Government public service bosses, and he did urge them to get on board with Government policy on access to information now, not to just sit there awaiting new Freedom of Information legislation:

"These reforms, although important, will not deliver the openness and transparency so essential to accountability and to a robust democracy, unless FOI decision-makers embrace the disposition towards disclosure which informs the FOI Act reforms. In anticipation of these reforms, the Government is asking secretaries and agency heads to take a lead role in facilitating the Government’s policy objective of enhancing a culture of disclosure across agencies. This includes making it clear to FOI decision makers in your department or agency that the starting point for considering FOI requests should be a presumption in favour of giving access to documents."

But as in all things, balance:

"Senator Faulkner said that not all documents could or should be released under the FOI Act and there will always be some which should properly be exempt under the FOI Act.But as the letter states: “The challenge in reforming FOI laws, is to extend access to government documents as far as possible without jeopardising the confidentiality of material that is genuinely confidential to government."

Detail of NSW FOI reforms

The Premier's media release is here and NSW Freedom of Information Reform package here. Submissions close 15 June.(Correction:3June) If you take a look, really hope you come back here and leave a comment, question or observation. Allcomers welcome.

NSW FOI reforms- close to gold star

The draft bills and other documents concerning the proposed NSW Open Government Information Act will be available online later today.

The three media reports on the proposed changes this morning are here.

There is a lot of fine print to be read closely but my initial reading indicates a lot to like in this reform package. For plain English it leaves some of the other efforts-notably Canberra's draft bill- for dead.It manages to set out the new sheme in 64 pages (Canberra's amendments only take 130 and Queensland's draft bill runs to 178 ).

The scheme itself follows what is emerging as an Australian standard- a clear statement of objects based on the concept of responsible and representative government that is" open, accountable, fair, and effective"; emphasis on proactive disclosure; a simplified set of refusal reasons, some eg cabinet documents absolute, most with a public interest test and the presumption in favour of disclosure unless an overriding public interest against; a codified list of other provisions in acts that override this act; an independent information commissioner to provide leadership on achieving the objects, deal with complaints and review etc.

Some completely unnecessary reasons to refuse access go- one that relates to anything the World Masters games organisers say is confidential; another more significant improvement is removal of an over-the-top provision inserted at the height of terrorism paranoia that no other jurisdiction in the country felt necessary.While legal privilege remains, an agency is required to give consideration to waiver- a positive first anywhere in the country.

There is a welcome clear statement that decisions on access to agency documents are not subject to direction or control by ministers (Clause 9), and offence provisions (111-115) for doing something a person knows is contrary to the Act, directing unlawful action, influencing a decision, knowingly misleading a person in carrying out functions, or concealing or destroying information.

Fees and charges are to remain at the same level set 20 years ago, including 20 hours free for your own information, and a reduction is to be available where release would be of special benefit to the public generally. An agency can also waive fees and charges entirely.

Helpfully the Companion Guide lists the Ombudsman's 88 recommendations, and the Government response- in contrast, try working out which recommendations the Federal Government accepted from the 1995 ALRC "Open Government" Report. Unhelpfully it doesn't give any explanation for rejecting or sidelining relatively few -notably that the Parliament should be brought within the scope of the act, that it should extend to information held by a contractor carrying out an agency's functions, that the Premier should proactively release information after cabinet meetings, that a confusing aspect of the Local Government Act (S12(6)) should be repealed and that the Information Commissioner should be in the Ombudsman's office. A number of related matters have been deferred or passed back to the NSWLRC pending finalisation of its examination of privacy laws (but NSW Privacy should in my view be folded into the Information Commissioner's office from the start)

Room for improvement-sure. The proactive release requirements aren't detailed sufficiently. We have gone backwards on time limits from 21 days for processing to 20 working days. The review and complaint arrangements are messier than they could be. Some unnecessary exemptions remain such as Executive Council documents - the Federal Government is removing this exemption. Some new ones crop up - the Register of Ministerial Interests held by the Premier is for the first time explicitly out of bounds, etc,etc- there are certain to be others from a closer reading.

Overall this is good stuff, but as always implementation is the key. And a new start-up Information Commission won't be in place for quite a while.

Hopefully the "orphan" status of FOI in NSW is also a thing of the past as a standing committee of parliament is to be charged with oversight, and a statutory review of the legislatrion is required every five years.

Premier Rees tables Freedom of Information reform proposals

NSW Premier Nathan Rees has released to the media today the draft Open Government Information Bill and other documents related to replacement of the Freedom of Information Act.They are not on the web as yet, but the text of the Premier's media release dated tomorrow is as follows, I'll have something to say when I see the detail. A lot of this sounds good at first glance. But another reference to the NSW Law Reform Commission on privacy, meanwhile leaving Privacy NSW, from the sound of this, to stand alone-please!!:

"Premier Nathan Rees has today released exposure draft legislation to deliver fundamental reform of FOI laws in New South Wales. Mr Rees said that the FOI Act had not been updated in 20 years, and it is time for a complete overhaul. “This new legislation builds on our commitment to deliver greater openness and transparency,” Mr Rees said. The Premier has released three Bills for public comment.

• The Open Government Information Bill replaces the FOI Act. It promotes greater pro-active disclosure of information by Government. It also confers a legal right for any member of the public to apply for access to information held by the NSW Government, including local councils.

• The Information Commissioner Bill establishes a new, independent office of Information Commissioner. The new office will be responsible for championing the new legislation and ensuring all Government agencies comply with it.

• The Open Government Information (Consequential Amendments and Repeals) Act amends and consolidates other related legislation

“These reforms underline the presumption that Government information should be accessible to the public,” Mr Rees said. “Agencies should release information without having to wait for someone to make a formal application for it.” Mr Rees said that the reforms were guided by the review of the FOI Act published by the Ombudsman in February this year. “They also take into account proposed reforms that are taking place in Queensland and the Commonwealth,” Mr Rees said.

The legislation retains protections for information where there is an overriding public interest against disclosure. This includes information which is private, personal information about individual citizens and commercially sensitive information of businesses. The confidentiality of Cabinet, which is a cornerstone of the Westminster system of democracy, will also be maintained.

The exposure draft bills are available on the Department of Premier and Cabinet’s website. Public submissions are requested by 3 June 2009.

FOI Reform
Last year, the Premier stated in Parliament: “I intend to create a new Freedom of Information Act in New South Wales early next year….”
Key changes
• Establishment of the Information Commissioner: The Bill establishes the Information Commissioner with the same level of independence as the Ombudsman and the same powers that the Ombudsman’s Office currently has in relation to FOI.
• A single ‘Public Interest’ touchstone: The draft legislation provides a clear requirement that an agency should release information unless there is an overriding public interest against disclosure.
• Review: Decisions concerning access to documents held in Minister’s offices, which are currently only subject to review determinations by the Administrative Decision Tribunal, will also become subject to review recommendations by the Information Commissioner.
• Streamlined rights of reviews, with applicants to have the option of by-passing Internal Review and applying for a review directly to the Information Commissioner or the ADT
• Abolition of Ministerial certificates
• Offences: There are no offences in the current FOI Act. In accordance with the Ombudsman’s recommendations the draft legislation includes new offences, including for knowingly acting in contravention of the Act. Proceedings for offences may be brought by the DPP or another agency authorised by the Attorney-General.
• State-owned corporations and local authorities will be made subject to the requirements that are imposed on all other agencies to pro-actively disclosure government contracts (other than commercial-in-confidence provisions), except that SOCs will not be required to disclose the details of any contract entered into in the course of their competitive market activities.
• Legally privileged documents: where an application is made for documents which are legally privileged, the legislation will direct agencies to consider waiving the privilege and releasing the documents. Decisions will be reviewable by the IC and the ADT.
• Deferral of access will be limited to a maximum period of 12 months (consistent with agencies’ annual reporting cycles). If the document is not published within 12 months, the applicant is entitled to apply again for the document and the agency cannot defer access again.
• Realistic time frames for dealing with applications: The Bill allows agencies up to four weeks to deal with an application, but provides that if an application is not dealt with in that time the applicant is entitled to a full refund.
Privacy
• The draft legislation continues to protect privacy by ensuring that personal information held by Government can be withheld on public interest grounds.
• A reference will be given to the NSW Law Reform Commission to examine and recommend policies for the handling of access applications for personal information.
• This will inform the development of regulations and guidelines under the OGI Bill.