Some gems as NSW Ombudsman empties the FOI in-tray

The NSW Ombudsman has transitioned over the last year from the leading role of many years in dealing with Freedom of Information complaints, to cleaning up those on hand on 1 July 2010, or new, concerning FOI applications made before commencement of the replacement Government Information (Public Access) Act . The Information Commissioner is responsible for complaint investigation and external review for applications under the new act.

The Ombudsman's 2010-2011 Annual Report  (45-46) includes four case studies from investigations during the year, two concerning complaints by the then opposition leader, now Premier, regarding decisions by the premier's department to refuse access to ministerial advisers' salary and redundancy payments. The approaches displayed are (hopefully) now somewhat ancient history.

We have this glimpse of spinner's spinning:

During our investigation of the complaint, one of the media advisors argued that the release of her salary details would have an adverse impact on her spouse’s financial affairs. She maintained that if the details of her salary became known, it would hamper her spouse’s ability to ask for increased rent from tenants at their investment properties. Another media advisor argued that because she directed senior staff of a government agency, the release of her salary would be embarrassing to her. We expressed concern to the department about ministerial media advisors directing agency staff.

And this example of poor appreciation of the public interest.

The department refused to provide specific information about redundancies paid to staff previously employed in a ministerial office, who were then re-employed with either the same or a different Minister.

"The department provided an aggregate figure of $705,734 representing redundancies paid to 19 staff between 2005 and 2010, but refused to provide the amounts of individual redundancies, stating this would be an unreasonable disclosure of the staff’s personal affairs...In our view there was an overriding public interest in the disclosure of the details of all individual payments of public funds, particularly in the several cases where a ministerial employee was re-employed by the same office or re-employed in another ministerial office not long after receiving a redundancy payment. As a general principle, it seemed to us that information about the remuneration paid to a public official should not be treated as if it were a matter of complete secrecy

Presumably the Premier has had a quiet word about these world views since assuming office in March.

Manly Council's "concerning" FOI practices also attracted the Ombudsman's attention (47).

The Annual Report (47-50) includes a summary of the Ombudsman's expanded role under Public Interest Disclosures Act.

President Obama will never know

All he has to do is get to Canberra on 15 November, one day earlier than scheduled, to attend the Australian Information Commissioner's National Information Policy Conference "Public Sector Information: A National Resource" there that day. And stay in Australia one day longer than planned to attend The Centre for Legal Governance at Macquarie Law School and the Australian Academy of Law conference Tomorrow's Law: Disclosure of Information-Balancing Public and Private Interests in Sydney on 18 November. I'm on the panel looking at legal developments relating to whistleblowing. Other sessions will cover censorship and classification, and the interaction between journalism and the public interest.

The prez will never know what he's missing.

Neither will you if you don't book a spot soon.

ACT-more open government still to come

The Canberra Times is involved in a bit of tug of war with the ACT government over freedom of information issues, to which I made a small contribution today. Here is a related editorial

.http://www.canberratimes.com.au/news/opinion/editorial/general/freedom-in-law-but-not-in-attitude/2345529.aspx

"Woefully inadequate" search scores a cost order

Flikr-Creative Commons

The adequacy of the search by an agency for documents or information relevant to a freedom of information application is often a contentious issue.

Older FOI legislation such as the Commonwealth and Victorian acts are silent on what steps an agency must take to attempt to locate relevant material but a reasonable search (see OAIC Guidelines) is the  standard. In the Commonwealth arena, whether "all reasonable steps" were taken is an issue on review  where a decision to refuse access has been taken under s 24A (Chu v Telstra).

Justice Finn in Chu noted that while " an applicant might be able to help an agency in its attempt to locate a document, that person is hardly to be disadvantaged if he or she cannot." An applicant will often find it difficult to dispute agency claims that all reasonable steps were taken.

In a recent Victorian case the applicant pointed out deficiencies in the search process, to no avail, until the matter came before Deputy President Judge Hampel in the Victorian Civil and Administrative Tribunal. In Friends of Mallacoota Inc. v Department of Planning and Community Development (General) [2011] VCAT 1876, because of what had happened, she took the unusual step of awarding costs to the applicant despite ruling for the respondent agency on the substantive issue, that the documents in dispute were exempt.

82. I have already expressed the view that the respondent’s searches were woefully inadequate. The applicant was in a position to demonstrate to the respondent, and did so, in precise detail, that its searches were inadequate. It did all that it could have, up until the time of the hearing to bring to the respondent’s attention to the deficiency of its searches and to request it to conduct further searches and to produce the documents sought in the request. That included making the second FOI request to the Minister. I am satisfied that request was only made because of the inadequacy of the original search, and the inadequacy of the Department’s response when taxed with that by the applicant.

83. The respondent’s conduct in my view is unjustifiable. When I indicated that I would order the respondent to conduct further searches, the respondent, whilst maintaining its formal reliance on Burton, undertook to conduct those searches. Within a week, it had identified, and provided a further 1350 pages, which clearly fell within the terms of the search. Only six documents were the subject of exemption claims from this further search. Clearly, the bulk of the material should have been identified in a timely fashion after receipt of the request, and a more cooperative or responsive attitude to the applicant should have been displayed from the time it first raised its concerns about the inadequacy of the searches.

Australian Information Commissioner first year report

The 2010-2011 Annual Report of the Office of Australian Information Commissioner, covering activities since the office was established on 1 November 2010, naturally enough is about the office-a separate report on the operation of the Freedom of Information Act with agency statistics for 2010-2011 is yet to be tabled in Parliament and released publicly. The report contains plenty of detail about this busy first eight months regarding organisation issues, FOI, privacy, and the work in progress, development of government wide information policy. Some points of interest:

Parliament above transparency and accountability law

The Sunday Herald Sun, fresh from its sister publication finding the Governor's office is a Freedom of Information no go zone, has discovered the Victorian Parliament is out of bounds as well:

Millions of dollars of taxpayers' money is poured into the Department of Parliamentary Services each year to pay for MPs' electorate offices, official functions, staff wages and the everyday operations of Parliament. The department also pays for the cars our parliamentarians drive, their petrol bills, computer and IT costs, utilities and postage and communications bills. But - in another example of the Baillieu Government not living up to its "open and transparent" election promise - every dollar spent in the Parliament will remain exempt under Freedom of Information laws.

When asked, the Premier and Opposition leader both didn't see the need for any change. neither did the parliamentary officers, and all agreed an annual report that contains global expenditure figures should be just fine for accountability hounds.Hardly. Parliaments receive hundreds of millions to carry out public functions, administer themselves and for various payments to and for and on behalf of parliamentarians.

WikiMedia Commons-MiniBjorn

As pointed out for years, this FOI exclusion is replicated in every Australian jurisdiction, except Tasmania where the parliament (and the governor) would seem to be subject to the Right to Information Act concerning matters of administration. Federally, no one speaks the FOI words when it comes to parliament and the government continues to dither about recommendations including for improvements in transparency regarding member entitlements. Member and senator expense claims paid by the Department of Finance (but not payments administered by the parliamentary departments) are published. The South Australian parliament publishes an annual travel expense report listing individual members expenditure.

On the broader issue just about everywhere beyond the Apple Isle, it's let them eat cake.(Update: This Courier Mail report in the last few days on Queensland legislators' expense claims is sourced to Right to Information disclosures. From whom is not mentioned, but something of a mystery as the Legislative Assembly and its parliamentary services department are entities excluded from the act. Mystery solved -thanks to a Queensland reader, these details relate to expenses of ministers and former ministers administered by Ministerial Services Branch of the Premier's Department. That department is subject to the RTI act.)

The Legislature in all jurisdictions should be subject to freedom of information law regarding administrative functions just as the courts are in most places.

Information Commissioner tells Queensland Police to get in line

The performance review report by Information Commissioner Julie Kinross on Queensland Police Service compliance with the Right to Information and Information Privacy acts is making news, particularly her recommendation that QPS better utilise a wealth of information assets for community as well as more traditional purposes.The report singles out the current dearth of published crime statistics recommending  on-line publication rather than an annual statistical review, to inform local communities and promote engagement with the police. QPS failure to attach priority to strategic information management was indicative of a general lack of appreciation of the objects of the RTI act.

The review report provides a valuable template for assessing agency performance in any jurisdiction, focussing on:

• agency governance (leadership, governance mechanisms, information management including pro-active identification and release of information holdings, policies,procedures, delegations and roles and responsibilities of key personnel and training)

• agency community consultation and engagement strategies (this included contact with a group of stakeholders identified by the Information Commissioner not QPS, and must have come as something of a surprise to those involved)

• the adoption of push model strategies, for example, publication schemes, disclosure logs and administrative access schemes

•  compliance with legislative based requirements of the RTI and IP Acts for handling access and amendment applications; and

•  accountability and performance measurement systems.

The report notes QPS has ticked many compliance boxes such as having an information champion and an information steering committee, and has made progress on implementation in a number of respects. But the strong message is that the sleeves need to be rolled up regarding practical steps to lift the game to publish more information and improve processing of applications. The report doesn't give a rating but it's a "C" at best, noting many significant weaknesses and non-compliance in the way things are done. Some of the 28 recommendations gave QPS two weeks to get things sorted.  All recommendations are supported by QPS with those for immediate attention already actioned (Appendix 6). 

The polite but firm and steely tone is a contrast in some respects with the NSW Information Commissioner's report in July on compliance with the corresponding law by the NSW Police Force. While that report reached a similar conclusion-that the police could and should do much better- urgency was missing and police responses to some recommendations amounted to telling the Commissioner to go jump.

The Queen's Australian men and women in, and out, of FOI laws

While the Queen is among us, some unrelated controversy in Victoria over the lack of transparency and accountability at Government House, particularly concerning costs of Governor Alex Chernov's recent overseas visits, but more generally the exemption of the Governor's Office from the Freedom of Information Act by virtue of this provision in the (who would think to look there?) Constitution Act.

Premier Ted Baillieu called a meeting with key staff last week to discuss the issue and made contact with the Governor to weigh up public release of the documents. But it is believed a decision was made to leave the matter in the hands of the Governor.....the travel costs of Victoria's governors have always remained secret - and nothing appears about to change. A spokesman for Mr Baillieu, Simon Troeth, said the Government had nothing more to say about the issue further to a statement issued last week that "detailed questions about the Governor's official travel are matters for the Office of the Governor".

On exemption from the FOI act, for reasons hard to fathom, it's a mixed bag around the nation with the Governor in three jurisdictions subject to the access to information law to some degree, but not at all in three other states apart from Victoria.

The Commonwealth Freedom of Information Act applies to the Office of Official Secretary to the Governor General in respect of documents of an administrative nature ( with a current matter of contention). Similarly the Tasmanian Right to Information Act applies to the state Governor regarding information relating to administration. I can't see the Governor excluded from the South Australian Freedom of Information Act, so presumably the Governor is covered there, although glad to be corrected. 

As to other states, the office of Governor is not a public office for the purposes of the NSW  Government Information (Public Access )Act (clause 3), or the Queensland Right to Information Act, and the "Governor and the Governor’s establishment" are excluded from the Western Australian Freedom of Information Act. 

In Victoria for many obvious reasons, this being a relatively minor one, the penny should have dropped that the FOI act is in need of a thorough overhaul, but there is no sign of recognition so far. And in the other three states affording the Governor a complete exemption from FOI it's time to  amend the act to cast off this colonial overhang of fealty to the Queen's men and women. (Not to mention this relic of Australia's constitutional past- the Queen's powers to annul any law passed by the Australian Parliament within a year of its passage.) Cringe.

As to the Queen on home turf, this from Buckingham Palace:

The Royal Household is not a public authority within the meaning of the FOI Acts, and is therefore exempt from their provisions.Despite its exemption from the FOI Acts, the Royal Household's policy is to provide information as freely as possible in other areas, and to account openly for its use of public money

Orders in Bolt case sound like jackboots in Holt St

Quite a contrast in these comments on Friday on the orders issued in the Bolt case.

David Marr  in Fairfax papers suggested the order requiring publication of a notice drafted by the judge alongside Bolt's regular column and of equal size on two separate occasions over the course of the next two weeks means Bolt and the Herald Sun got off lightly:

Really, Bolt and his editors should be breaking out the champagne. If the nine had sued in defamation, the paper might now be signing cheques for a few million dollars. The legal bills won't be cheap - the paper has been directed to pay most of the trial costs - but Bolt's ugly columns have not cost much more than a fair dose of embarrassment.

Chris Merritt in The Australian on the other hand thinks an order like this means the jackboots can't be far behind::

(The law) has already had a corrosive effect not just on free speech but on the Federal Court's standing. It has encouraged (Justice) Bromberg to believe he is required by law to take on the role of uber-editor, criticising words and phrases and taking it on himself to list material that Bolt should have included in his columns. Within days, the nation will be treated to a spectacle that has no place in a free society. Bromberg, using the coercive power of the state, will force the free media to publish the judge's opinion. There is a solid line of precedents to support such a course, and those precedents stretch all the way back to Berlin in the 1930s.

Marr sees the need to amend the act, acknowledging some limit should be set on this type of public speech, albeit at a higher level:

The anti-vilification provisions of the Racial Discrimination Act used to attack Bolt are drafted far too broadly. They outlaw speech that is merely offensive or insulting. Vigorous public discussion in a free society is impossible without causing insult and offence.... But short of abolishing these anti-vilification protections entirely, no amendment of the law would have helped the hapless Bolt. He didn't just offend and insult. Justice Bromberg found the columnist's efforts were also likely to humiliate and intimidate the fair-skinned Aborigines attacked in those columns. Bolt ticked all the boxes in the Racial Discrimination Act. And the judge clearly signalled that in his opinion the columnist had also defamed the nine by accusing them of the cynical late-life adoption of Aboriginal identity.

Merritt says the orders strengthen the argument that the law should be repealed and links the Bolt matter to other developments:

Those who see this as a simple debate about journalistic standards are wilfully blind to the horrific course the law is taking in this country....This issue will not go away. It will fester up to the next election, creating one more focus for the opposition to chip away at the Gillard government's emerging vulnerability on free speech. Very soon, the government will reveal its formal position on whether it believes it should change the law to encourage Australians to sue each other for breaches of privacy. Those who believe this proposal is anything but a sop to Bob Brown's hatred of the media are again wilfully blind.

Marr notes the decision not to appeal:

The Herald Sun put out a statement after yesterday's decision: ''All Australians should have the right to express their opinions freely, even where their opinions are controversial or unpopular to some in the community.'' Absolutely correct. But surely not even in this awkward jam is Bolt's paper arguing that columnists are free to get it so comprehensively wrong when they mount ferocious attacks on people. There are limits.

Merritt thinks it's now up to the government to act and suggests limits are the problem:

Labor needs to decide where it stands on free speech. Remaining silent in the face of such erosion of a fundamental human right will send a very clear message.

For mine, Marr is close to the money. Merritt continues along a well worn path-over the top.

The orders by Justice Bromberg include this text of the notice to be published:

Information Commissioner at the Estimates table

Australian Information Commissioner Professor John McMillan also appeared before a Senate Estimates committee this week. In answer to questions from Senator Rhiannon he was positive about the first 12 months of the reformed scheme, with the news that applications for policy related type material are up 48.6 per cent-as noted recently there were only 2730 requests other than personal information requests in 2009-2010. (Not that everyone is happy about an upsurge in engagement)

Professor McMillan repeated his reservations about the recent 39 of 89 ranking for the Commonwealth FOI act in an international survey :

As to the design of the law, there are aspects of it in which Australia scored very low which I would not have thought were weaknesses in our law, for example, the fact that the FOI Act does not apply to the parliament or the judiciary. We have a clear, constitutional separation of functions in Australia which I think makes this inappropriate. Some other nations do not have that clear separation and so they do go down that path. We have a stable, constitutional democracy in which we can essentially rely on the public service to uphold the law, so we do not have penalties in our FOI Act. Some other countries, against a backdrop of corruption and maladministration, do have penalties in the FOI Act, and they have scored higher on this analysis. My comment, and I have commented at international fora, is that I think these analyses are valuable and useful—we get some advantage from them—but there is some bias by reason of the fact that it is essentially designed by civil society organisations working primarily with developing countries in designing a new integrity framework. I do not think Australia's ranking really reflects where we are—

Probably so. But the FOI act does apply to the courts in respect of administrative matters, a fact not acknowleged in the survey, so any constitutional problem has been avoided. The ALRC in 1995 thought that extending the act to the parliamentary departments was possible and recommended so:

there is no justification for the parliamentary departments to be excluded from the Act.. being subject to the Act will not cause any greater inconvenience for them than is caused to other agencies subject to the Act.

No one in authority has ventured there since. Tasmania has done it. If there is a constitutional problem, parliament could act to bind its departments to comply and give the Information Commissioner appropriate powers. Explaining away the lack of penalties in the act because "we have stable, constitutional democracy in which we can essentially rely on the public service to uphold the law" begs the question why we bother with penalties for public servants for all sorts of other things including disclosure of information without authorisation. And why the Commonwealth chose not to follow the lead of Queensland, NSW and Tasmania where offence provisions for improper conduct by officials were included in reform legislation.

Questioned about exclusions from the act, Professor McMillan referred to the comprehensive review of the FOI Act to commence by this time next year:

It is certain that one of the issues in that review will be whether the act should apply to security intelligence agencies. It does, for example, in the United States with the CIA and in the United Kingdom with MI5, but it does not apply in Australia. Clearly it is an important policy issue. I expect it will be one of the issues that we will examine and on which we will get many submissions, and I have an open mind. 

In answer to a question about Australia's non-participation to date in the Open Government Partnership, Professor McMillan who attended an initial meeting in Washington in July prior to the launch in September, said it was a matter for government decision and suggested timing was the problem, although he came back in July with "a lot of questions in my mind about the way the partnership would be conducted."

Back to the future: FOI back in lawyers' box

In answer to questions at Senate Estimates this week, Renee Leon, Deputy Secretary (Governance) Department of Prime Minister and Cabinet confirmed that the Privacy and Freedom of Information Branch is being moved back to the Attorney-General's Department from whence it came following election of the Rudd government in 2007. Then it had 10 staff. As it goes back it has seven.

Bureaucratic chess, you might say. But it's a disappointing reversal of the belated recognition then that FOI was more than an administrative law matter. The transfer of the function to the Prime Minister's portfolio and to PM&C (and the assignment of responsibility for a bundle of integrity issues to a senior minister with stature and clout in John Faulkner) put FOI centre-stage in the accountability, good government and democratic practices frameworks. It loosened, in theory at least, the lawyers hold, suggesting a public management prism at the center of government provided the best perspective for consideration of policy and ongoing responsibility for laws concerning information flows between government and the citizenry. Just the sort of thing to fit neatly into the responsibilities of someone with the title Deputy Secretary (Governance) in fact.

You can see these views are widely shared: with FOI at the Commonwealth level back in AGD, it's a full hand for attorney generals/justice departments across the country who now manage the function in all jurisdictions. The Commonwealth brief flirtation with something different followed 20 years of NSW experience where from 1988 FOI was a Premier's Department responsibility. That too changed after the passage of reform laws in 2009. 

(Another thought: the same emphasis on the law rather than public management and access to information as a service is reflected in the many agencies at Federal and state level where the FOI function is located in the legal branch. Lawyers should play a role in FOI in the same way they do on a myriad of other issues-when required. Public servants without law degrees give effect to the law all day every day in all sorts of areas without a lawyer at their shoulder. FOI, in most places now with a pro-disclosure element, would be better placed in governance or linked to public affairs.)

This was the Deputy Secretary's explanation for the decision to move the branch to AGD:

"They came to the Department of the Prime Minister and Cabinet principally because the government had made a commitment to do broad reform to freedom of information laws. In the context of that being a significant whole-of-government activity that affects every portfolio, it was thought appropriate that that should be moved to the Department of the Prime Minister and Cabinet while those reforms were undertaken. The reforms to freedom of information have now been completed and are embedded in the implementation stages, and now it is an appropriate time for the implementation function to go back to the Attorney-General's Department."

 Ms Leon responded to Senator Rhiannon's questions regarding reduced staff:

"The reforms to FOI.. have been completed now, and that was a significant body of work that that branch was doing... It has not been a cut so much as over time priorities shift and staff are either moved around or not replaced as positions fall vacant. So over a period of four years a reduction of two or three people is not unusual in an area with changing priorities.
Senator Rhiannon: But, considering commitments such as the consultation on a private right of action, shouldn't the government be at least retaining the staffing levels or even supplementing the resources of the branch rather than this cutback? There has been a reduction, whatever the reason.
Ms Leon : Within those existing resources of the branch, the branch has successfully produced a comprehensive discussion paper on the statutory course of action. So the numbers in the branch are adequate to enable them to perform their duties."

To an outsider the slim staff resources might partly explain the painfully slow action on privacy reform. 

Tony Abbott's mailing list-Part 2.

A reply to my email to Tony Abbott-from my local member Malcolm Turnbull.  Nothing apparently to all those reports of substantial personal data bases held by the Liberal Party ( and others as well)?? No defence of the exemptions from the Spam and Privacy acts, but I appreciate the response nevertheless. I know Mr Abbott is busy but you will read it here if he  gets around to a reply. I won't be applying to suppress details on the Electoral Roll, but don't want further warnings the sky is to fall with personal solicitations that opening the wallet for the Liberal Party will help.

Dear Mr and Mrs Timmins,

Thanks for including my (sic) into your email – there is a link at the top & bottom of the email you received which will allow you to unsubscribe from all Liberal updates.

In regards to your question, the only information the Liberal Party would have on you is the information provided by the Electoral Commission ie. your names and address, which is publicly available. I believe you can apply to have your details suppressed – and have included a link where you can check on your details and make changes: https://oevf.aec.gov.au/ <https://oevf.aec.gov.au/>

I hope this helps,
Malcolm
 

Privacy law reform- in the fullness of time

Sure to be in someone's lifetime.

This recent speech by Australian Law Reform Commission President Professor Rosalind Croucher provides a useful summary of the history and current status of privacy law reform, including e-health issues. Reading the timelines reinforces the view that wheels just keep spinning on issues that in 2006 were important enough to refer to the ALRC, and on which the Commission reported in 2008.

A situation confirmed in these exchanges in the Senate Estimates hearing ( at 19:53) this week for the Department of Prime Minister and Cabinet:

Senator Rhiannon I wanted to move onto health privacy. Health privacy rules promised as part of the first tranche of the Privacy Act amendments are some of the issues that I want to cover. Why has the government proceeded with the introduction of individual health identifiers and electronic health records without ensuring that an appropriate health privacy framework was in place first; and also what stage has been reached in the government's consideration of health privacy rules?

Ms Leon (Deputy Secretary Governance) : The question is one that partly will be able to be answered here and partly will need to be addressed to the Department of Health and Ageing, which has carriage of the health issues that you have raised. In relation to where the privacy reforms are up to, as you would be aware the government has provided two exposure drafts on aspects of the privacy reforms to the relevant Senate committee, which has reported on both of those. Those drafts will now be subject to some amendments in response to the committee recommendations. In relation to health reform, it is likely that the health reforms will be drafted subsequent to the reforms that are currently the subject of committee consideration and redrafting in response to those committee reports.

Senator RHIANNON: Can you tell us when that will happen, please?

Ms Leon : We do not have an exact date for that yet.

Senator RHIANNON: When will you determine that date? As you know, these things so often fall by the wayside. Do you have some framework for it?

Ms Leon : It certainly is not falling by the wayside; it is receiving very active consideration. But exactly when it will be drafted will depend on the range of other legislative drafting priorities that are with the Office of Parliamentary Counsel.

Senator RHIANNON: When you say 'other legislative drafting priorities' you do not mean in this area; you mean—

Ms Leon : No, I mean legislation generally. Getting a slot in the parliamentary drafting program does depend on the legislative priorities across the whole—

Senator RHIANNON: Is that the only thing holding it up?

Ms Leon : Certainly getting it drafted will depend upon resources in the Office of Parliamentary Counsel.

Senator RHIANNON: Are there other matters holding it up, though? You have shifted it over to the drafting office, but are there other matters internal that are holding it up?

Ms Leon : There is work proceeding, as I indicated, on the response to the committee reports on the two exposure draft bills that have already been considered, and that is certainly taking the bulk of the attention of the relevant people.

Administration of Australian gongs a matter of administration?

Transparency in the administration of the Australian honours awards was the issue du jour at the Senate Estimates Committee hearing this week on the Office of the Official Secretary to the Governor General. Questions were raised about this Freedom of Information case now before the AAT in which the FOI commissioner upheld a claim that documents requested were outside the scope of the act. Something of a stand-off, just short of a public interest immunity claim followed a request by Senator Ronaldson, taken on notice, for the policy manual and other documents used in decision making to be made available to the committee. As Senator Ryan and the chair pointed out refusal of access under FOI is not in itself grounds for refusal to comply with a request for documents by a member of a parliamentary committee.

Things have moved quite a way from the original position that saw the Official Secretary claim the honours secretariat was not subject to the FOI act.  Having shifted on that, the FOI issue now in contention in the AAT is whether the requested documents held by staff employed under the Governor General Act including the Official Secretary who doubles as Secretary to the Council for the Order of Australia are "documents of an administrative nature", and thus within scope, or whether the FOI commissioner's decision they aren't stands. That's before any exemption argument. A public interest immunity claim would rest on other grounds. The Official Secretary said the office has spent 3000 hours to date on the various Freedom of Information applications and reviews by this applicant.

TGA "partial release" destined for the classic file

The Therapeutic Goods Administration has something of a reputation for lack of transparency, and was the subject of a review into practices by former ombudsman Professor Dennis Pearce. The Government is yet to respond to the report's recommendations. Two Freedom of Information disclosures by the TGA appear on the Disclosure Log of its parent department Health and Ageing, which otherwise seems to include some interesting material. The TGA documents concern an application for approval in 1966 (254-1011) and another document (261- 1011) released in response to a request for "Sponsors on the ARTG and the number of Infringement Notices and Enforceable Undertakings issued by the TGA." Take a look.

FOI 261-1011 document 1 (PDF 29 KB). 

This passed muster as a "partial release."  Thanks to a reader for the tip.

Apparently a further review  is underway at the TGA into packaging and labelling disclosures.

Queensland RTI gaps under scrutiny

My scepticism about any action regarding Opposition bills introduced into the Queensland Parliament was misplaced-too much exposure to NSW and Federal practices where such bills struggle for oxygen. The Legal Affairs, Police, Corrective Services and Emergency Services Committee is undertaking an inquiry into the Right to Information (Government-Related Entities) Amendment Bill 2011 introduced by shadow attorney general Jarrod Bleijie. Submissions close 4 November with a report in March 2012. Queensland Special Purpose Vehicles and other gaps in the Right to Information Act will be under examination.

ACT Open Government website debuts with cabinet summaries

The ACT Government's Open Government website is up and running including a single disclosure log for documents released by government agencies in response to Freedom of Information applications, to be posted within ( a generous) 15 business days of release, plus media releases and data sets. And a summary of cabinet outcomes with material posted initially for the period June to September.

The Chief Minister's Welcome statement, " I am pleased that we will be the first Australian government to make a summary of our Cabinet outcomes available..." is welcome, but either makes a neat distinction or ignores the fact that the Queensland Government has been publishing Cabinet material including decisions since July 2008.

Those with long memories might also recall s 10 of the Victorian Freedom of Information Act  that came into effect in 1983, and still in force, requiring the Premier to "cause to be published on a continuing basis a register containing- (a) details of the terms of all decisions made by the Cabinet after the date of commencement of this Act; (b) the reference number assigned to each such decision; and (c) the date on which the decision was made. (2) The information referred to in subsection (1) shall be entered on the register at the discretion of the Premier." 

It was heralded at the time as groundbreaking. Notice it doesn't say when or how. There is this reference to cabinet decisions to 1993 at the Public Record Office. A search of the Department of Premier and Cabinet website for something contemporary produces zero results. A Victorian reader may know when it dropped off the radar and, ahem, why.

Other governments are yet to take such a grand step.

Barrister's right to know what was said, not who said it

Sydney barrister David Smallbone has the legal profession buzzing, not just in NSW over the selection process for silks but his partial victory in the Federal Court  in Smallbone v New South Wales Bar Bar Association [2011] FCA 1145 is of interest concerning privacy practices, and confirmation that exceptions to the right to access personal information under the Privacy Act are not absolute and must be read in the context of all the relevant circumstances including the nature of the information in question.

On the first point, it pays to read those privacy notices most people tick and flick [8-19]. And crossing out parts you don't agree to doesn't mean the organisation (the Bar Council at least) won't do business with you, although that may bne one of many changes in the light of this decision [20-22].

On the second, the exceptions in the Privacy Act to the general rule that access must be provided to an individual seeking access to personal information held, must be read in accordance with the words "except to the extent that" in National Privacy Principle 6.1.

Justice Yates decided that the exception to the right of access in NPP 6.1(c)- except to the extent that "providing access would have an unreasonable impact upon the privacy of other individuals"- should preclude Mr Smallbone from access to any information that would identify individuals consulted about his application who answered questions about his competence and experience, as they had been assured of confidentiality, and to information about others who made an application. But it did not preclude access to the answers provided (“yes”, “no” and “not yet”) by those who responded to the questions.The nature of the information was an important factor in this case [51]. Justice Yates concluded:

65. I am not satisfied, however, that providing the applicant with other information about him, such as the expressions of opinion in the form of the designated answers, or the answers to the question whether the member providing the information had the relevant direct personal experience of the applicant, would have, in the particular circumstances of this case, an unreasonable impact upon the privacy of other individuals. Similarly, I am not satisfied that providing that information by reference to broad sub-categories such as “judicial”, “senior counsel”, “junior counsel” and “solicitors” would have such an impact.

Who's on Tony Abbott's mailing list?

Not sure how widespread this was across the country but yesterday here, an out of the blue email from Tony Abbott, to which this reply this morning-will post any response:

Mr Abbott,
Your email received yesterday claiming dire consequences as a result of climate change legislation, and asking for a donation, is the first ever received from you, or in memory, from the NSW Liberal Party.

One, how did you/the NSW Liberal Party obtain our email address? It’s no secret, but we don’t appreciate what amounts to an unsolicited commercial message (your offer, in exchange, to hold the government to account), even from organisations that are exempt from the Spam Act.

Two, can you tell us why you think political parties should enjoy continued exemption from the Spam Act and the Privacy Act?  With regard to the latter, the party appears to collect, use and perhaps disclose personal information that is not subject to a right to inspect and amend if incorrect?

Three, just to show that you/the Liberal Party follow good privacy practices regardless, please forward whatever other personal information you or the party holds in data bases about Peter or Susan Timmins so we can check if it is correct and up to date.

Four, I’m appalled at your stand on the climate change issue and your overwhelming negativity on just about everything to do with addressing important issues that face the nation.

Five, please ensure we are removed from whatever mailing list you used, after you reply to One and Two and respond to Three. You no doubt have our street address and phone numbers.

Six, this has been sent also to our local member Malcolm Turnbull, who has our email address and sends constituents news from time to time.

Peter and Susan Timmins.

Open Australia back on air

WikiMedia Commons Damian Yerrick

 Or round of applause if you prefer for the return of the invaluable Open Australia Hansard service, and thanks to the volunteers involved for filling the gaps since the service was interrupted earlier in the year as a result of changes to Parliament's system. You do a great job.