Google releases government requests data

Google's Government Requests Tool  launched on 20 April provides information about requests for user data or content removal received from government agencies or arising from court orders around the world. In the last six months o f last year Australian government agencies made 155 requests for information including 17 for remove all or some information:14 from You Tube, and 1 each from Blogger and Geo and a web search. Google complied fully or partially with 52%. No other details. Has anyone asked Canberra about the requests for user data? Australian numbers for removal are small in comparison to Brazil, Germany, India (many arising from defamation suits) and the US.

Google states the release is a first step in providing more transparency about efforts at web censorship, noting many requests are entirely legitimate for example for removal of child pxxxography.

We also regularly receive requests from law enforcement agencies to hand over private user data. Again, the vast majority of these requests are valid and the information needed is for legitimate criminal investigations. However, data about these activities historically has not been broadly available. We believe that greater transparency will lead to less censorship

On political speech Google adds:

In our experience over the years a very small percentage of content removal requests from governments have centered on political speech, but often those requests are the ones that spark the most vigorous debate within Google. We have complied with some of those requests if, for instance, the material violated our own content policies. But for others, we didn’t. For example, in Argentina, a federal prosecutor claimed that information about him and his wife (a federal judge) had been posted for analysis on two political blogs and asked that we remove them. We removed a portion of one of the blogs for revealing private information about the judge, but otherwise did not comply. We also received a demand in late 2009 from a Canadian politician for the removal of a blog criticizing his policies. Again, we declined to remove the blog, because it did not violate our policies.

There’s a question mark on the world map for content removal requests from China- Chinese officials consider censorship demands as state secrets, so Google (who terminated its joint venture there because of government intrusion) politely says it cannot disclose that information at this time.

On a China related topic, my morning read at the moment in Hong Kong, the South China Morning Post today reports China shut down all anonymous comments on major news and business websites last year, and plans a real name identification system to prevent anonymous communication on websites, discussion groups and mobile telephones. Wang Chen, chief of the State Council Information Office reportedly told the Standing Committee of the National People's Congress one of the aims was to "keep harmful overseas information" from appearing on domestic websites. Wang is also reported to have said China now has more than 400 million internet users, so the finger in the dyke faces challenging times.

Gov 2.0 inching forward

The Federal Government in an announcement yesterday accepted most recommendations made in the Gov 2.0 Task Force Report of last December, including to make a Declaration of Open Government, and to other initiatives generally to promote greater openness and transparency, including talking this issue up with the states.


The Department of Finance and Deregulation is to be the lead agency, with the Information Commissioner (if and when the FOI Reform legislation creating the position passes) to report on  a raft of matters within 12 months. While accepting the need for major changes in copyright policy concerning its own materials, the Government has rejected the recommendation that the Commissioner not Attorney General's Department should be responsible for policy in this area.


Much is made of how the Report's objectives will be advanced by the publication schemes required under the FOI reform bill and relevant guidelines to be issued by the Commissioner. However in case you have missed the point previously made here on many occasions, the legislation is thin on specific publication requirements, the Commissioner "may" (not shall) issue guidelines, and an agency must have regard to (not must act in accordance with) any guidelines issued. The Explanatory Memorandum states  that the lack of prescription or powers to mandate publication are because agencies are in the best position to judge what information they hold should be published. I beg to differ and would feel more confident if a broader range of information to be pro-actively published was specified or the Commissioner had stronger powers.


Notwithstanding this is generally good stuff, albeit part of a long and probably slow journey, in the right direction. While I know why he would say this Opposition Senator Ronaldson's comment , reported in The Australian that" too much of this response is just blah, bureaucracy and boffin-speak,"is well, just blah blah.


We greatly look forward, as the Government now says it's on, to public servants participating in public discussion of issues within their area of expertise- including here on open government.


Update: Stilgherrian in Crikey today under the headline Slow,slow little steps to Gov 2.0 picks up on the endorsement in principle only of the recommendation that all public sector information should be open by default, with the government having to make the case for why information should not be released, that information should be free, easy to discover, freely re-usable, and published in machine-readable formats using open standards.

Australian free speech report card

On World Press Freedom Day, News Ltd boss and Australia's Right to Know leader John Hartigan writing in The Australian provides a report card on progress on free speech issues, suggesting  on the surface little has changed in three three years since he accused the Howard administration of being "the most secretive government we've ever had, even in wartime."


However Hartigan says that underneath, the Rudd government has worked hard at change: "It cannot be accused of laziness or inertia on freedom of speech, and we should celebrate this."Hartigan goes on to give the Government a tick on Freedom of Information reform, although the Reform Bill is yet to pass, and as he says,everything depends on implementation. Overall he gives the Federal government a good report card for free speech so far: "The signs are good, but there's still a long way to go, not least because we were coming from so far behind in the first place." And a special gong for Queensland on FOI reform results with NSW poised to get a new regime underway on 1 July.

In my opinion this assessment of the Federal government is on the overly generous side on FOI and other reforms still in the legislative pipeline. On FOI, talked about for the first year or so as a high priority,  there is nothing concrete to show for two and a half years in office except the abolition of conclusive certificates  and the appointment of John McMillan as Information Commissioner Designate.

 The yet to pass Reform Bill is generally good and welcome but equally noteworthy for unexplained omissions, to mention just a few: the failure to extend the Act to the administration of Parliament, the absence of offence provisions for improperly seeking to influence decisions on access and leaving untouched a provision that empowers a minister to decide on access to an agency's documents, no change in time limits that remain as they were almost 30 years ago, proactive publication requirements that lack teeth and apart from disclosure logs and information about statutory appointments leave it to government agencies to decide what should be published "because they know best." I could go on....

I think on results it's a C rather than what sounds like a B from Hartigan mainly awarded on the basis of effort. 

Margaret Simons on The Content Makers raises another issue about report cards:

.. I could not help feeling, as I read Harto’s fine words, what a report card on the role of newspaper executives and editors would look like. What grade would we give News Limited, and other Right to Know Coalition partners, on issues such as invasion of privacy (thus sabotaging any attempt to forestall restrictive privacy legislation). Sadly, when it comes to media campaigns, the moral highground is awfully slippery.

China blocks me!

I'm in Hong Kong this week after 15 days in China (fantastic and all that) where I found that access to Open and Shut is blocked.The thought of Chinese officials beavering away to find me in the blogosphere, making sense of my ramblings and then cutting  access seems a bit bizarre.

Subversive? Moi?

The explanation would have to be that key word blocks are in place for terms like freedom of information, open government, etc. so I'm not taking the ban personally as either a slight or compliment. But if anyone in China is reading, I'd be glad to hear your side of the story.

This blog will resume something close to normal transmission shortly.

Update: Shane McLeod of the ABC tells me there is a blanket block in China on blogs hosted on Blogspot and similar blog sites. This post by John Prandato refers to China's recent attempts to tighten the grip following the departure of Google (I could use Google in China but selective links were blocked):

Earlier this month, China quietly acknowledged the creation of a new “Internet news coordination bureau,” officially responsible for “guidance, coordination and other work related to the construction and management of Web culture.” And just this week, China’s legislature proposed an amendment to the Law on Guarding State Secrets that would require telecommunications companies to “detect, report and delete” leaks of “state secrets,” broadly defined by the government as “information concerning national security and interests that, if released, would harm the country’s security and interests.” These measures are just the latest pieces fastened to a massive regulatory system, much to the chagrin of the international human rights community and many of China’s 400 million Internet users.

Prandato (and McLeod) mention that net savvy locals get around the block problem through virtual private networks, but two weeks enjoying other things there meant I never came close to this solution.

China bound

I'm in China and Hong Kong for the next couple of weeks so attention to the blogoshere will be a bit more sporadic than usual.

Parliamentary integrity awards still up for grabs

The deadline for nominations for the Federal Parliamentary Integrity Awards sponsored by the Accountability Round Table has been extended to 20 April. A recent convivial exchange over a glass or two with a few friends saw some support for Minister Faulkner for the Button front bencher award and a mention for Deputy Prime Minister Gillard for talking up transparency in the education system and My School, and Parliamentary Secretary Bob McMullan, more a lifetime contribution, but no Opposition frontbenchers; and a wider field for the backbencher Missen including Melissa Parke, Mark Dreyfus and Senator Kate Lundy from the Government, Petro Georgio and Senators Russell Trood and Judith Troeth from the Opposition, Senators Bob Brown and Scott Ludlam from the Greens and independent Senator Nick Xenophon.

What if, on balance, the public interest always determined the outcome?

There's plenty of scope for "what if" thinking about government openness and transparency. John Hartigan, chairman and chief executive of News Limited, writes in What if? edited by Peta Seaton to be published on 16 April, about cabinet documents and the blanket secrecy afforded them under our freedom of information laws. I'm afraid it's all over red rover on this sort of idea in the current round of FOI reforms, and "what if all exemptions included a public interest test" is an even better question. In this Weekend Australian article on the book by Michael  Stutchbury, Hartigan concedes

"that cabinet should be a safe place where ministers can frankly and secretly speak their minds. But he also says there is no excuse for Australia's blanket cabinet secrecy. Until recently in Queensland, bureaucrats could routinely wheel trolley-loads of documents into the cabinet room just to exempt them from Freedom of Information laws. Hartigan says the public's right to know should trump cabinet secrecy in cases such as this newspaper's publication of leaked documents revealing security weaknesses at Australian airports. The solution, he suggests, is provided by New Zealand's Official Information Act, which has encouraged cabinet papers and minutes to be routinely released unless there is a good reason, such as national security, not to. "While the New Zealand model presumes openness from the outset, ours still presumes that cabinet information is always secret. It's subtle, but it's the wrong way round," Hartigan writes.

Four years hard labor on Court Information Bill

Attorney General Hatzistergos in The Australian explains how the NSW Court Information Bill reflects the various interests that go towards public confidence in the justice system and why the government is confident it has struck the right balance, while Susannah Moran elsewhere in the paper claims the bill is far more restrictive in some respects than a proposal put by Chief Justice Spigelman. The Attorney is right about the long gestation period "as the government conducted exhaustive consultations with a range of stakeholders, including media organisations, the courts, the legal profession, privacy advocates and victims groups." Four years since a discussion paper was issued on the subject. Whether  the result, still to come before the Legislative Council, delivers fully on open justice only qualified by necessary restrictions on access and publication of information, I'll leave it to experts.

More open government needs more than black letter lawyering

Pushing for agency compliance with the law is an important element in seeking to achieve the worthy objects spelled out in access to information laws, and we are seeing a bit more of this in guidance issued by the NSW Office of Information Commissioner this week on what is required regarding publication of open access information.  But something more- promoting thinking about what can be done that goes beyond the strict letter of the law- is also necessary if the spirit and intent of more open government is to take hold in the corridors of power.

The release in the US of Open Government Plans designed to increase transparency and collaboration by cabinet level agencies with the public is an example and one those leading the effort here should emulate.  Release coincided with a deadline under the Open Government Directive requiring government agencies to take a deep look at and plot out an open government strategy. A drop of 46,000 Freedom of Information applications is attributed to initiatives already taken. The Plans take things further. OMB Watch highlights some impressive efforts noting agencies see the plans a first step or version 1.0 of their open government efforts, with plans to collect reactions and input and update the plans regularly. Agency progress is being tracked-one of the measures is what has been done to ask the public what information should be more readily available. OMB Watch concludes the plans "represent strong positive steps toward a government that is open and honest with the public about its actions and performance on critical issues." 

The White House emphasises "Open government is not the work of any single office.  The entire Obama Administration is moving forward to translate the values of openness into lasting improvements in the way government makes decisions, solves problems, and addresses national challenges."

These are the sort of messages our leaders need to make loud and clear as well. Black letter law has its place in this but it's not anywhere near the full story.

Rider in FOI determination doesn't give rise to review or amendment rights

Throwing in a few words in a notice of determination that have little to do with the decision to release or not release the requested documents did not render the decision void, voidable or otherwise invalid, and was not a matter within Tribunal jurisdiction ruled Judicial Member Malony of the NSW Administrative Decisions Tribunal in GA v University of Sydney [2010] NSWADT 76, a matter that clearly has plenty of history.

The issue argued by the FOI applicant was the inclusion of the words "The University does not admit any assumption made or implied in your FOI application" in the original decision and internal review determination. Senior Member Malony said:

"The issue for the Tribunal on external review is whether or not GA should have access to the documents requested, not whether or not the rider is or is not authorised by the Act."[38]

Another aspect of the matter concerned a decision by the Tribunal Registrar to refuse to amend the record by redacting the same words from documents lodged in proceedings. Judicial Member Malony said the decision was correct  because the sentence in a document containing the applicant' name was not information about GA’s personal affairs for the purpose of the amendment provisions of the FOI act [58].

Finally the Tribunal had no jurisdiction to consider a claim for review under the Privacy and Personal Information Protection Act concerning the inclusion of these words in documents held by the University because the sentence did not contain personal information about GA - that is, information or opinion about him [71].

Ultimate exercise in futility

This action in the Administrative Appeals Tribunal by Garners Beach Habitat Action Group, a third party who objected to a submission made to the Department of the Environment, Water, Heritage and the Arts about a proposed development being released to the developer.

The decision-maker in the Department decided none of the exemptions in the FOI Act were applicable, and this decision was upheld on internal review. The third party elected not to appeal to the Tribunal at that point, preferring instead to complain to the Ombudsman. The appeal period in relation to the decision expired. The documents had now been released in their entirety. But the applicant decided to ask the Tribunal to rule on the question of whether the documents should have been released in any event. Senior Member McCabe accepted that the Tribunal had jurisdiction but dismissed the proceedings as frivolous under s 42B of the Administrative Appeals Tribunal Act 1975 on the basis there was no point persisting with the appeal because the documents had already been released. "As a practical matter, there is nothing left for the Tribunal to do....The decision to release the documents cannot be unmade in a practical sense." And then proceeded to explain why the third party's arguments against disclosure wouldn't have succeeded in any event.

The tax-payer was the one out of pocket here.

Wikileaks trumps FOI processes

Wikileaks posting of a video of a US army assault in Baghdad in 2007 that left 12 people dead, including two Reuters news agency employees, comes after Reuters spent 2½ years without success trying to obtain the video through the Freedom of Information Act, according to the Sydney Morning Herald. I imagine disclosure was claimed likely to damage national security or international relations. Perhaps the act itself did a lot in this regard amongst those in Iraq who heard about it in the three years since. The leaked video has now been seen more than 2 million times on YouTube. Oh and its the same Wikileaks that last year published the news that  proposed Australian legislation would ban some of its pages- for leaking information about the websites the Government proposed to ban.You've got to love them!
(Update: Richard Ackland in The Sydney Morning Herald on the same subject reminds us we live in a different world to when the Pentagon Papers made it into print after two years of court battles.)

The Age in top form on integrity failings

A terrific report by Katharine Murphy in The Age about the sidelining of the Auditor General from a role in policing money to be spent in taxpayer-funded advertising campaigns- a major integrity reform introduced by a government that had promised to be cleaner than its predecessor. Pulling the Auditor General off the job to now be undertaken by three former public servants stands in contrast to the Prime Minister's "absolute undertaking" in October 2007 "for the Auditor-General to certify whether individual advertisements contain legitimate public information or not."

The Age editorial on this and a related issue of transparency gaps in political donation laws also neatly nails a couple of Federal and Victorian government failings.

Scoring the local on food hygiene could make us all feel better

It's almost four years since the issue of transparency regarding hygiene standards in restaraunts was first mentioned here, and Matthew Moore of the Sydney Morning Herald began exposing excessive secrecy surrounding this issue, so terrific to see the NSW Government and local councils now preparing to introduce a score system that that moves things up a notch. Seems like only yesterday that some councils were arguing that release of fines imposed for breach of hygiene standards was personal information concerning the owner, among other howlers, until Blacktown and then Woollahra concils decided the public interest in disclosure trumped other considerations. The new emphasis on transparency as a spur to lift everyone's performance is a welcome shift from "name and shame" the laggards. And better public policy.

NSW Information Commissioner appointed

I haven't seen the announcement but understand that Deirdre O'Donnell, the Telecommunications Industry Ombudsman and a former Western Australian Ombudsman has been announced  nominated today as NSW Information Commisioner. We wish her well. Update. This is from the OIC announcement of the nomination now subject to Parliamentary committee endorsement:

Ms O’Donnell’s wealth of experience ensures she is well-qualified to drive right to information reforms in NSW. As Telecommunications Industry Ombudsman, she has led the TIO scheme through unprecedented growth over the past two years.

From 2002 to 2007, Ms O’Donnell was the Western Australian Ombudsman and exercised broad investigative powers, including those of the Royal Commission. Western Australia was the first state to establish an ombudsman's office in 1972, and Ms O'Donnell was the first woman to be appointed to the position.

Her other roles include serving as State Records Commissioner, a member of the Western Australian Integrity Coordinating Group, and the Energy Ombudsman Western Australia. Her outstanding contributions won Ms O’Donnell acclaim in 2008, in the form of a public service medal in the Australia Day Honours.

Ms O'Donnell has qualifications in arts, education and French, as well as an MBA and a Masters in Commercial Law from Melbourne University.

FOI in the frame sometimes

Freedom of Information did rate a mention when 19 departmental secretaries had a chat in 2008 with the Remuneration Tribunal about the challenges of the job, as summarised in a report by John Egan released this week. As did managing illegal and inappropriate directions, and delivering programs which have a political purpose and are not in the national interest. The Age reports

The position today is one of high risk. Legal actions can often be personal, freedom-of-information requests are challenging, some ministers can be hostile in their relationship with the secretary,'' the report says. ''The secretary is often required to manage illegal or inappropriate ministerial direction and … new initiatives which have not been funded in the department's budget.'' Secretaries were ''absolutely accountable … when things go 'belly up', irrespective of the source of the error''. ''Ministers don't ''fall on their swords'' any more. The secretary is accountable for protecting the minister. Secretaries have to manage conflicts between the department and the minister and the minister and the government … in the delivery of programs which have a political purpose and are not in the national interest. This is an awkward area of management.''

Awkward indeed.The Egan report is part of the Office of Secretary Report.

FOI separate world from Advisory Committee proposals for creating more open government

The Advisory Committee report to the Prime Minister Ahead of the Game: Blueprint for Reform of Australian Government Administration released this week identifies four broad areas where Australian Public Service performance can be improved and nine interdependent reforms, supported by twenty-eight recommendations to deliver these outcomes.

One area for performance improvement is "forging a stronger relationship with citizens through better delivery of services and through greater involvement of citizens in their government." The discussion of relevant issues in Chapter 3 [17-19]  on how the APS is performing and how it can improve in this area is brief and narrow. 

Freedom of information doesn't rate  a mention at all. The only reference to culture is this quote

Media buffs and FOI reform advocates only

In Crikey today, Margaret Simons picks up on my recent post about Australia's Right to Know and, publicly at least, what seems a limp effort on reform of freedom of information laws, particularly in awareness raising and mobilising potential allies to the cause. This is a taste- but non-subscribers can get 21 days free. Simons has asked ARTK  what it is doing. We'll happily publish any reply.

Disclosure of former MPs names and expenses in the public interest.

In a case before Western Australian Information Commissioner Sven Bluemmel involving the Department of Premier and Cabinet, an unnamed former member of state parliament, V,  one of 33 who objected to the disclosure of their names (six didn't) in a document detailing the type and amount of expenses paid, has failed in a bid to argue that disclosure would not be in the public interest.

FOI reform record fails to score a mention in NSW leaders debate

The NSW leaders televised debate on Friday saw Premier Keneally proclaim her pride in leading the Labor government despite its current public standing and record, and Opposition leader O'Farrell  making much of his  five priorities  which include a number of commitments to make government more accountable, including an independent audit of the state's finances, and commitments on election financing and donations, lobbyist regulation, Freedom of Information and the ICAC.

On one of the rare occasions transparency came up directly O'Farrell for a moment tried to defend the indefensible-Opposition support for an offence provision where a newspaper or magazine publishes information that reformats and uses publicly available information on the My school website - before stating he was prepared to look at other responses. The Premier made short work on him on this one.

The Opposition's policy statement "Reform Freedom of Information laws and establish an Open Government Commissioner" released on Friday is reproduced below because some of you will want to avoid a hard to get rid of pop-up designed to get you to subscribe.

In promising overhaul of the FOI act and open government changes including an Open Government Commissioner in the Ombudsman's Office, no cost applications  and enforced publication of grants, you would be forgiven for thinking the Opposition missed last year's reform process and the passage through Parliament of the replacement for FOI, the Government Information (Public Access) Act (yet to commence), and the creation of the yet to be filled position of Information Commissioner. I'm sure they were there but not a mention. Then again the Premier didn't think her predecessor's initiative in pushing these changes through Parliament was worth bragging about during the debate either. 

The Opposition policy statement:

The community has the right to openness, accountability and transparency when it comes to government decision-making and information. Community scrutiny of government – including through increased access to government information – both protects the public interest and propels better public sector decision-making and performance. In government the NSW Liberals & Nationals will pursue a new era of open government.

 This will include reforming the Freedom of Information (FOI) process based on the following basic principles and initiatives:

• - pro-active disclosure of government information;
• - one-stop online shop for information from all government agencies;
• - enforced public disclosure of government contracts and grants; and
• - no cost for FOI applications and the establishment of mandatory deadlines.

We will also appoint a fully independent Open Government Commissioner within the Office of the NSW Ombudsman who will:

• - play an independent ‘watchdog’ role and drive the information-sharing performance of Government agencies toward the highest standards of openness, accountability and transparency;
• - provide citizens with advice and hear complaints on FOI and other government information matters; and
• - report annually on the government’s overall performance and on the comparative performance of government agencies, including total number of requests, number of requests complied with, turnaround times, number of complaints and number of complaints upheld or denied.

The people of NSW deserve open government.

 Amen to that.