Many NSW disclosure logs yet to disclose anything at all

 Some journalists are concerned about losing the exclusive right, even for a brief period, to information obtained through the hard slog of a Freedom of Information application. The concerns arise as a result of the (coming in May 2011) Commonwealth requirement for an agency to post on the web within 10 working days documents released in response to a formal application under the Freedom of information Act-see here for an earlier comment. Australian Information Commissioner Professor John McMillan told Peter Mares on ABC National Interest this week that he understood the point that FOI works best when active journalists use the act. It was a difficult issue to resolve but the 10 day stipulation provided a way to work around the problem.

Experience in NSW, four months into the NSW GIPA act, has resulted in no apparent fuss about the way a similar but narrower requirement is working. The act states that an agency must publish on the web a disclosure log containing information about access applications where what is provided to the access applicant is "information that the agency considers may be of interest to other members of the public" (s 25).

As there is no reference to a time requirement in the NSW act perhaps information isn't being posted until well after it has been made available to the applicant, thus removing the potential  problem for journalists. Something of consolation to hard working scribes, or their employers at least, is that the applicant is entitled to full waiver of processing charges if information is made publicly available three working days before or after access is given to the applicant- s 67.

Other reasons may be that use of the act is low, or what has been requested and released isn't of interest to other members of the public, at least in the agency's judgment. Or heaven forbid, some agencies aren't compliant.

A quick survey of major state government agencies shows as at 12 November that it's very slim pickings out there, with the disclosure log in many key agencies containing no information at all.

"New disclosure czar hits ground running"

You can hear Peter Mares (with some FOI experiences of his own) in discussion with Australian Information Commissioner Professor John McMilllan on this week's ABC Radio National  National Interest. Here's my summary of points of interest.

Professor McMillan is upbeat about the prospects for lasting and effective open government reform, and says he's struck by the positive response from his hundreds of meetings with senior agency executives. Three factors make for real change this time- independent oversight through his office, strong government support, and the extent and force of the FOI reform wave in this country and elsewhere.

In response to a question about public servants still facing criminal prosecution for any unauthorised disclosure, Professor McMillan said a proper open government package needed more than FOI changes, and referrred to the "excellent" report on the review of secrecy laws from the Australian Law Reform Commission still waiting a government response.

Stronger adoption of electronic records management was essential to making the law work effectively.

Professor McMillan acknowledged that in the past agencies had been prepared to refuse access often on shaky grounds, putting the applicant to the test to take the matter further through a costly Tribunal process. This will be less likely now with review available free of charge from the Commissioner's Office. The Commissioner said the office discourages legal representation- that's a good thing as in the Tribunal agencies are usually well represented and aggrieved applicants often on their own.

Information warrior still turning up hidden gems

Photo:Steve Christo-Roden left.

Excuse the segue-but I expect quite a few readers will recall David Roden who did a terrific job as the first and only Director of the Freedom of Information Unit in the Premier's Department 1988-1991. Roden was responsible for getting FOI up, running, and off to a positive start in NSW, before the Unit was disbanded and a long leadership drought at the centre of government, only recently broken, ensued. He went on to occupy senior positions in the Department. Now retired, Roden is a volunteer war memorial spotter, aiming to catalogue Australia's many and varied memorials and the names that appear on them. He featured in "Tributes hidden but not forgotten" by John Huxley in the Sydney Morning Herald on Remembrance Day.

500 Freedom of Information applications behind top science journalism award

The only Australian angle on this is that the Walkley Award nominees who know their Freedom of Information law have a lot in common with Charles Duhigg of the New York Times. Duhigg is the winner of the  2010 American Association for the Advancement of Science Kavli Science Journalism large newspaper award for his "Toxic Waters" series, an investigation into the quality of American waters and the enforcement of environmental laws.This from First Science:

"As part of his reporting, Duhigg reviewed hundreds of scientific papers and spoke with dozens of researchers. He filed more than 500 Freedom of Information Act requests, built his own database, and ran thousands of queries to search for patterns in the data." 

That's worth some sort of FOI award as well!

Apart from this recognition, the Toxic Waters series has received The Scripps Howard National Journalism Award, the Investigative Reporters and Editors’ Medal, the National Academies’ reporting award, the investigative reporting award from the Society of Environmental Journalists, the 2009 Science in Society Journalism Award, as well as recognition from the Society of Professional Journalists, the Deadline Awards, the Society of American Business Editors and Writers, the Loeb Awards, and the John B. Oakes Awards at Columbia University.

I'd be interested in hearing from anyone who has had success or failure in seeking access to data held in databases under Australian freedom of information laws.

NSW makes a welcome start on political donations

Election campaign finance reform in NSW has moved forward with the passage of the Election Funding and Disclosures Amendment Bill yesterday. Much of the media attention has been on the ban on political donations, agreed at the last minute, placed on the alcohol, tobacco and gaming industries to go with the existing ban on donations from developers, and caps for donations and expenditure.There's more to it than that: for a summary see the Premier's Media Release: NSW – first in the country to reform election funding, or for all the detail, the 59 pages of amendment legislation, and the parliamentary debate.

While the changes are as Greens MLC John Kaye puts it a "solid step forward" and the caps on donations (maximum $5000, with identification of donors of more than $1000) reduce to a degree the importance of public disclosure, it's no step forward on that front. In fact it's a step backward. Reporting of donations to the electoral authority is currently required for the six month period to 30 June and 31 December each year (s 89). The Authority is required to publish on its website the disclosures of reportable donations and electoral expenditure "as soon as practicable after the due date for the making of the disclosure" (s 95). 

The amendment bill removes the six month reporting requirement and substitutes a 12 month reporting  period ending on 30 June. No change has been made to the requirement for publication of reportable donations on the web as soon as practicable after lodgement. So while the legislation removes some of the smoke (no pun intended) we're still a long long way from anything close to continuous disclosure of donations. Or knowing at the time NSW voters vote next March who has kicked the can for candidates and parties. All that will be revealed "as soon as practicable"- and well after 30 June.

Different strokes..

In writing about access issues concerning performance review information earlier in the week, I was bissfully unaware that in Illinois this is a current bone of contention between the state legislature and Governor Pat Quinn. A  bill to exempt personnel evaluations of all government employees from public scrutiny under the Freedom of Information Act was passed earlier in the year. The Governor vetoed the bill, exempting municipal and state police evaluations, but leaving others open to FOI scrutiny. Moves are underway to attempt to override the veto to restore the blanket exemptions. Some in the media thunder:

To assert that members of the public have no right to any information pertaining to personnel evaluations is contrary to the principle of open government. Some unionized state employees, for example, were guaranteed they wouldn’t be laid off for at least two years. The notion that we shouldn’t be able to see how they’re performing their jobs to assess the wisdom of this agreement is outrageous.

Update: thundering didn't help- both houses voted to overturn the veto.

Ministerial advisers unaware of changing times

The Open Government Declaration, and the message about routine disclosure being pushed by Australian Information Commissioner Professor John McMillan may have gone unnoticed to date in ministerial offices. From Crikey today (emphasis added). Refusing to provide details of who works for who is old order nonsense.

This morning Business Spectator (subscription) launches a first for Australian political reporting: a guide to the government’s ministerial staff -- the faceless people behind those who run the country. It was surprisingly hard to get this information. The men and women who work behind the scenes advising ministers and devising their policies, dealing with journalists, lobbyists, business people and bureaucrats, writing their speeches and generally picking them up and dusting them off when they fall down, definitely prefer to remain behind the scenes. Their bosses prefer that too. As a result, all governments’ ministerial staff generally remain unknown to those outside Parliament House, even though they are, in many ways, the heart of the government, responsible for the policies and politics of the ministers who front them. Most of the ministerial offices refused to co-operate with us, so we had to work behind the scenes ourselves. It took a few months, but we have now come up with a full list of ministerial staff and advisers.

Timely external review a problem in the west

The Western Australian Information Commissioner's Annual Report 2009-2010 naturally enough has a lot more on the subject. As previously indicated in his review report   the Commissioner says complaints received in the office are unlikely to be resolved in less than six months, in contrast with the one month timeframe envisaged in the act. On current projections the Commissioner says "it is unlikely that this will have improved by next year, despite the various steps taken by my office to improve efficiency and output."

The Office received 125 complaints (and 19 other applications under the act) during the year. The break up suggests a rather different complainant profile than elsewhere: 60 from individual citizens, 21 from members of parliament, eight from non profits and just one from the media.

The number of access applications made to agencies under the act has steadily increased, from 3,323 at the end of the first full financial year of operation (1994/95) to 12,994 in 2009-2010. Western Australian Police topped the list with 2,198 - an increase of 19.0% from last year- with the next highest, two public hospitals (in total 2700), and another 4,060 received by various other health service providers (hospitals, health services and the Department of Health). (Western Australia doesn't have an information privacy act.)

The Commisioner's report includes the following performance indicators. From memory they have been standard for years. As the roles of our information commissioners vary to some extent, so too will performance measures to some degree, but the subject  and comparative performance warrants discussion and debate

Effectiveness:

Satisfaction of parties with review processes: 84% (down from 91% last year but consistent with earlier years), based on responses to a question in the Post Review Questionnaire sent to the parties in every matter. No results are published for two other questions mentioned in the report: "Do you consider that you were kept adequately informed regarding the progress of your case?" "Was the officer assigned to your case professional in his or her dealings with you?"

Satisfaction of agencies with advice and guidance provided. Score 98%, the same as previous years, also based on responses to a survey.

Extent to which complaints resolved by conciliation (this being one of the aims of the review scheme): 56%, down on previous years but explained by a decision by the Commissioner in 2009 to limit the time spent pursuing conciliation before moving to formal determination.
formal determination of complaints.

Efficiency

Average cost of reviews finalised: $7426.

Average cost of advisory services delivered per recipient: $176

Commonwealth Ombudsman brief on FOI.

The Commonwealth Ombudsman's Annual Report 2009-2010 has one page (83) on the 137 complaints received on Freedom of Information matters, a small number in comparison to the total number of 38000. "As with previous years, the majority of (FOI) complaints were about delay, the imposition and remission of fees and charges, and decisions that were not well explained." The baton-stick?- has largely changed hands from 1 November with the establishment of the Office of Australian Information Commissioner.

"We want to be the most open and transparent government in the world"

We've heard quite a few ambitious claims like this, but this time the message is from the UK Government as 10 Downing St launched its Transparency website yesterday. The site includes search facilities to access agency business plans that cover the next four years including data such as financial information, Structural Reform Plans and departmental priorities; find details of who ministers and ministerial advisers are meeting, and hospitality, gifts and overseas travel; who does what in Whitehall and what they're paid; and performance information on efficiency and effectiveness of policies and programs. More is promised. The PM, Deputy PM and head of the civil service all showed up for the launch.  Any Australian government in the running?

The case of the council manager's performance review-and sundry others.

A number of recent decisions on Freedom of Information issues of direct relevance to local councils, and perhaps of interest to a wider audience are noted in this post.  The NSW  Administrative Decisions Tribunal decisions concern the Freedom of Information Act, repealed and replaced by the Government Information (Public Access) Act from 1 July, but the "tail" of matters before the Tribunal is continuing.

The NSW decisions concern documents relating to the performance review of a council general manager, disclosure of documents relating to the engagement of recruitment consultants, disclosure of details of council staff education and qualifications, and credit card expenditure by councillors and staff. In Western Australia, the Information Commissioner considered issues concerning disclosure of a transcript of tape recording of a council meeting despite a councillor's submission that it contained personal information, and shouldn't be released, and the status of an elected person as "an officer" of the council. Decisions should be read against the particular facts, and bearing in mind access laws differ in the various jurisdictions.

If you're reading this you're interested in Gov 2.0 but you're not from Customs.

Last week's Cebit Australia Gov 2.0 Conference in Canberra was the subject of these reports of proceedings and related interviews. In addition to lots of positive comments about how things are going, the possibilities for the future, and the constant refrain of the need for culture change, were these tidbits of particular interest (emphasis added):

IT news- amid all the talk about new tools, Customs says even accessing a site that looks like a blog is out:

"Mia Garlick, assistant secretary for digital economy branch DBCDE shared some cautionary tales on the path to open government thus far. Stressing she was not speaking for her Department but in a "personal and professional capacity"........ she discussed the recent case of Customs prohibiting staff from accessing Open Australia.org because it was classified as a blog and posed a threat to Customs' border and protection network. "Firstly Open Australia is not a blog," Garlick said. "It is actually an amazing example of Gov 2.0 in this country. It takes Hansard - which is very clunky and it repackages it into a searchable and easy to access form and it allows you to sign on for email alerts whenever your issue is mentioned in Hansard records. "That seems to me to be a useful and essential tool to those that work in Government." Garlick also questioned how a blog could be classified as a security risk. "Is anyone here from Customs Service in this room?" she asked. "You probably don't know that there are other blogs out there. Some of those blogs for example are the Whitehouse, another is the Department of Finance, my Department has a blog. There are lots of people are now using blogs."

ARN interview with Minister Gray, reveals he's a busy man, and:

"I mentioned Reinecke’s report (on progress on IT reform) and that was commissioned quite a few months ago. It needs to be made public and the deliberations around it need to be publicly ventilated. My personal view is that that’s a more valuable contribution than me talking to a whole range of people I also have a fundamental view that when the Government produces a substantial piece of work with insights into how we do what we do you can only get value out of making them available to the public. That’s why Ian’s report will be released."

Government News: a reminder from the UK that Gov 2.0 is not just techo territory:

"Andrew Stott director for transparency and digital engagement in the UK Government’s Cabinet Office delivered the international keynote address. The so-called “twittercrat” said it was more important for governments to focus on openness and releasing data sets, rather than Web 2.0 tools. “It’s not an IT project,” Mr Stott said. “This is not a technocrat activity. This is about increasing the transparency of government.” Mr Stott stressed the importance of political backing for Government 2.0. “Leadership is not just something you need from your CIO,” he said. “It’s political leadership and leadership from the top of the organisation. “You’ve got to have consistent policy principles and use those to make tough decisions.”

 Computerworld: just who is doing what and why:

"According to IBRS advisor, Guy Cranswick, while it was positive that governments were opening up and communicating with the public, the motivation was not greater transparency of government. “It is all very well government doing this, but to a large degree they are really satisfying their own internal constituencies and stakeholders — other people and agencies around the world,” Cranswick said. “ “I am not that convinced that the general public is that involved in [Gov 2.0] and that it has been executed that well.”

RBA disclosure to one, to all

As Sean Parnell reports in The Australian today, the Reserve Bank appears to be the first Commonwealth agency to introduce a "disclosure log" ahead of the Freedom of Act requirement that commences on 1 May, posting this notice on its website:

"In keeping with the intentions of the Act, and the Government's policy objective of enhancing a culture of disclosure across agencies, the Bank's policy generally is to release (via this website) documents provided to applicants in response to FOI applications. Such releases will be made publicly available at the same time as documents are released to the applicant. Facilities to inspect documents to which access has been granted are available."

Australia missing from survey of budget transparency

I had not heard of the International Budget Partnership until I came across references online to the Open Budget Survey 2010. IBP works with civil society and other groups "to make budget systems more transparent and accountable to the public." They believe that "the public has a right to comprehensive, timely, and useful information on how the government manages public funds." Their experience shows "that when ordinary people have information, skills, and opportunities to participate, broader public engagement in government budget processes can promote substantive improvements in governance and poverty.

So to the Report on the 2010 survey of 94 countries, 74 of which fail to meet basic standards of transparency and accountability in their national budgets: not a word about us. While developing countries are the main focus, and South Africa received the highest score, developed countries we would compare with such as New Zealand (2nd), United Kingdom (3rd), France (4th), Norway (5th) Sweden (6th), the United States (7th), Germany(12th) all feature in the top two categories.

There is no link to any Australian group, think tank or academic centre that looks at these issues. Surely not a true indication of interest and expertise? A volunteer before 2012? (In NZ it's Transparency International.)

I'm sure we would come out of such an assessment fairly well, but it's a reminder that the Federal Government's budget initiative Operation Sunlight may still have a way to go and that some who look closely at these things find major flaws in transparency claims for example concerning the Defence budget.

Those in Canberra who manage Australia's aid should find plenty of material of interest in the report and its recommendations.Countries in our region that receive significant Australian aid and are in the third of five categories (Some information but fail to meet the basic standard) include Papua New Guinea, Philippines, Indonesia and Thailand. Malaysia, Pakistan, Timor-Leste and Afghanistan ( a significant improver since 2008) are in category four, Minimal. Cambodia, Vietnam, China are in Scant. Fiji (not on our books these days) is in the small No information group.

Here is just one aspect of transparency covered in the Report:

In 68 of the 94 countries surveyed, legislatures do not organize any public hearings at which the public is given an opportunity to testify on the budgets of individual ministries.(Come to think of it, neither do we.) Further, in 35 countries included in the Survey, all legislative budget discussions involving the executive are closed meetings; the public is excluded altogether from observing these meetings, even if they are committee hearings, and no public record of the meetings is provided. In 36 countries, only a few such discussions are open to the public.

Chief Justice reflects: admin law has come a long way in 40 years

In his Garran Oration 2010, Public Law and the Executive, delivered at the Institute of Public Administration Australia National Conference in Adelaide recently, NSW Chief Justice James Spigelman examined the growth and development of the law in Australia concerning the exercise of executive power. The address includes observations about the interpretation of the Commonwealth constitution, and the constitutionalisation of administrative law. The Chief Justice points to some surprising possible flow on effects to amendment of state constitutions that with hindsight might have rendered the abolition of the Queensland upper house of parliament unconstitutional. Much of the speech is devoted to the jurisprudence of judicial review of executive action and the proper role of the courts.

The Chief Justice reflects also on his first public foray into the world of government secrecy in a paper delivered to a conference in January 1972, his first book Secrecy: Political Censorship in Australia, published later that year, and the prominence it gave to the case of the late Detective Sergeant Arantz.

Arantz had leaked a research report on the incidence of crime in NSW that conflicted with the Government's public version of events, to be hounded out of the Police Force as a result of his public spiritedness, and with a politically influenced psychiatric assessment hanging over him to boot. (This post  on Arantz, and the book, was written last year on the death of Basil Sweeney, the journalist who broke the story.) As the Chief Justice observes:

The treatment that Phillip Arantz received is inconceivable today. The institutional structure has been transformed. I refer, for example, to Freedom of Information legislation, Whistleblower legislation, the Ombudsman, ICAC, Corruption Commissions, Integrity Commissions, Statutory Inspectorates and the enhancement, especially through Committee processes, of the efficacy of the ultimate accountability institution, the Parliament. These new mechanisms for ensuring the integrity of executive decision-making, have been reinforced by statute and by development of the common law, in the form of the invigoration of administrative law. This has been, in my opinion, the most significant judicial development of the law in my legal lifetime. We now have a vigorous set of institutions, principles and practices much of which have been conferred or extended by legislation, to reinforce the integrity of governmental activity.

Thank goodness.

NSW Information Commissioner takes GIPA on the road

NSW Information Commissioner Deirdre O'Donnell and her staff are to be commended for efforts to improve awareness of information rights through a series of roadshow presentations, first in regional centres and more recently in suburban Sydney locations for government employees, NGOs, members of the public and the media. Sessions are still to be held at Campbelltown, Bankstown, Parramatta, Hornsby and Castle Hill-details here if you are interested (program). Nothing scheduled for the CBD, perhaps reflecting the fact the top end of town has never shown much enthusiasm for the topic beyond self interest.(Update: business should be interested even on that score because as pointed out here, the new NSW law includes some changes of direct relevance. And on page 2 of the program there are details of two sessions in the CBD scheduled for March 2011, along with others at Chatswood, Gosford and Katoomba.)

The Office-leading from the front in the pro-active disclosure stakes- has also published Review report: Right to Information Roadshow - regional, Oct 201 providing an overview, costs and lessons learned from the first 11 workshops held in regional locations outside Sydney. Total attendance was 696: about 600 from government agencies and what looks like a rather disappointing public turnout, none at one session and single figures at another six sessions. There is no breakdown of who showed up. Getting citizens interested in their rights, and participation in government processes is a tough gig, and requires a range of ongoing initiatives. I wonder if government agencies did anything to bring the briefings to the attention of locals? That might have helped spread the word. And whether scheduling sessions for business hours on weekdays necessarily excluded a segment of those who might be interested?

Good on the Commissioner for this first go (and for publishing the review report). From the feedback 91% of attendees were highly satisfied. An additional bonus was media exposure through interviews with local papers, television and radio. There's still time for Sydney folk to make it.

Broadband, Communications and the Digital Economy releases Red book: No 5

This is obviously going to be a long haul. Following a Freedom of Information application The Australian has obtained the incoming government brief from the Department of Broadband, Communications and the Digital Economy. The Department is yet to publish the brief. (Update: redacted brief published around 16 November.)

NSW whistleblower protections welcome but short of "world beater" class

The Protected Disclosures Amendment (Public Interest Disclosures) Bill passed all stages in the NSW Parliament on 27 October. The legislation implements most recommendations arising from a review undertaken by a parliamentary committee in 2008 that found the whistleblower law, apart from its shortcomings had been orphaned to the extent it was difficult to ascertain how effective it had been, if at all. The Committee reported in November last year. Opposition speakers were right to lament the slow process. Some minor Government and Opposition amendments to the bill as introduced were agreed to during Assembly debate on 21 October. 

There are many good features in the legislation, including an Australian first in including a reference to a government information contravention as wrongdoing, but in some respects it doesn't match the "world beater" standard of recent Queensland legislation  according to Professor A.J Brown, one of Australia's leading experts in this field, particularly circumstances in which protection is extended to disclosure of wrongdoing to the media. The National Secretary of Whistleblowers Australia was reported as saying " they’ve fiddled around at the edges of the legislation and in the end have set up systems that have a lot of room to do nothing."

The Minister and the Commissioner respond to questions

Transcripts of Q and A at Monday's launch of the Office of Australian Information Commissioner involving Minister O'Connor and Commissioner Professor McMillan at a doorstop at Parliament House, and an interview between the Commissioner and iT News both contain useful insights. 

The Minister resorted to  "Media 101" tactics in responding to questions at the doorstop about concern over a government proposal that companies providing internet access log and retain customer's private web browsing history for law enforcement to access when needed: he instead answered the questions he wished were asked about the new disclosure regime. (The Privacy Commissioner is reported to have said last week he is against such a scheme.) The Minister sounded much more at home answering questions about terroprism threats.

Some of the interesting responses are grouped below.

Australian Information Commissioner launches forth

Professor John McMillan at the launch of the Office of Australian Information Commissioner:

"The OAIC fills a major gap in the system. We will champion open government, provide advice and assistance to the public and promote better information management by government. Our Office will have a comprehensive range of functions, including investigating complaints, reviewing agency FOI decisions, education and awareness, and reporting on compliance," Professor McMillan said. "We will also have a role in advising government on information policy and practice. This function is taken up in an Issues Paper Towards an Australian Government Information Policy, which was released today. The issues paper proposes and invites written comments on ten draft principles on open public sector information....

"The Commonwealth Freedom of Information Act 1982 (FOI Act) has been revised to inject a much stronger pro-disclosure philosophy. A new Information Publication Scheme will require government agencies to publish far more information. Other changes include the simplification and narrowing of the range of exemptions from access, a new single public interest test weighted towards disclosure, and the abolition of application fees for accessing documents. "These changes reflect a broader policy change that acknowledges that information held by the Government is a national resource to be managed for public purposes. We look forward to ensuring that this policy shift becomes a reality for all Australians when they deal with Australian Government agencies", Professor McMillan said.

Comment: It is only Day One, but you wouldn't know anything has changed from a visit to the websites of Prime Minister and Cabinet, Treasury and Centrelink to name three agencies still stipulating payment of the now abolished $30 application fee. Defence, Foreign Affairs, and Immigration to name three others, have updated to incorporate the changes to fees and charges.