Can the media make a good fist of self-regulation?

The Finkelstein review report released in February didn't think so. It said the media had had the opportunity regarding print, had failed, and showed no sign of interest or capacity to address shortcomings. Separately it concluded that ACMA’s co-regulatory processes for television and broadcasting were cumbersome and slow. "The problems with both the external and self-regulatory mechanisms are inherent, and cannot be easily remedied by piecemeal measures." Hence a recommendation that a new statutory authority, the News Media Council, be established to set journalistic standards and handle complaints made by the public when those standards were breached.

 End of the world headlines that followed included:

"Media fears for freedom as watchdog unleashed" in The Australian

"Watchdog a 'threat to free press'" in The Australian

"Put simply, mooted muzzle would not work" in The Australian

"Bringing the media to heel" editorial in The Australian

"Media union to fight government control" in the Herald Sun

So this week, the Convergence Review in its final report stepped back from the Fink, suggesting the media be given another go, this time to achieve something even more complex than previously attempted, a self-regulatory scheme for all big news professional players regardless of platform (except the public broadcasters):

The Review proposes that the government first test the effectiveness of a self-regulatory arrangement that operates across all platforms. Under this approach, content service enterprises would be required to join and adequately fund an independent self-regulatory industry body which would develop self-regulatory standards for news and commentary and adjudicate complaints. As stated, this body would be predominantly funded by industry with some government contribution. The news standards body would set clear goals to be achieved within a specified time frame. If, on review, this industry-led body was not effective, the government would have the last resort option of introducing some direct statutory measures.

The Finkelstein stick has been transformed into the threat of a statutory regulator if they don't get it right this time. As Margaret Simons in Crikey (subscription) writes:

The Convergence Review Report has effectively concluded that Ray Finkelstein got the diagnosis right but the prescription wrong when he recommended statutory regulation for news media.

Perhaps the stick is worth waving but who would predict with any degree of confidence that a government three to five years hence would ever use it, regardless of how the proposed standards body performs? 

Government money might be something of an incentive to media leaders to move along recommended lines. So too the prospect of legal privileges being linked to such arrangements, although stronger language than "could" might make the point more effectively:

Membership of the news standards body could be a condition of retaining legal privileges currently provided for news and commentary in Commonwealth legislation. In particular, it seems reasonable that only those organisations that have committed to an industry self-regulatory scheme for upholding journalistic standards of fairness and accuracy should be entitled to the exemptions from the provisions of the Competition and Consumer Act 2010 concerning misleading and deceptive statements and from the obligations of the Privacy Act 1988 that would otherwise apply to those organisations. However, there is not the same argument for applying this requirement to laws protecting journalists’ sources. These laws apply to information collected by individual journalists, who might be freelance journalists rather than employees of an organisation.

The proposed communications regulator would have a role in the scheme including oversight of the adequacy of codes and capacity to act in the case of persistent or serious breaches. Chapter 4 of the Final Report has the details.

Given media hostility to the Fink, the proposed scheme reeks of pragmatism and realpolitick, and  comes with a load of qualifications about the prospects for real improvement in media standards. But given the state of play in Canberra it's unimaginable that the tough Fink line was ever a goer regardless of how you see the merits.

Media reaction to the report is, well a shade less alarm, although there is some of that, but in some instances, positive support. Chair of the Australian Press Council Professor Julian Disney welcomed the report, and wants prompt government action. The MEAA likes what it sees but thinks the recent strengthening of the Press Council with increased funding and commitment is already a big step in the right direction. Fairfax and some other players say yes, let's talk.

No prize for guessing News Limited says no way. It is yet to agree there is a problem, let alone articulate a better way forward. Its leadership credentials have been somewhat diminished by developments elsewhere in any event but it is far and away the biggest funder of the Press Council.

Comment from academe on The Conversation suggests it's all a far cry from what is really needed to lift standards.

Martin Hirst of Deakin University:

At best this suggested change amounts to a new set of dentures for the existing publisher’s poodle. It will be able to accept sanitised government funding in ways that will not upset the old-guard in the newspaper industry who see Armageddon in every attempt at regulation by government. There is no indication in this 170+ page report that there is any real problem or issue with media accountability and standards in Australia. This is a whitewash of the highest standard.

Alexandra Wake of RMIT

There are some strong recommendations which deserve to be applauded, but the bottom line is, the recommendations of the Convergence Review will likely do little to solve the problems that prompted public concern in the United Kingdom and in Australia about news organisations their culture, ethics and practices..Unless forced, I doubt the new standards body will be able to agree to enforce a common media code aimed at promoting fairness, accuracy and transparency.

Parliament sails above expected standards of transparency

Amid all the hubbub about Speaker Slipper, sure not to die down anytime soon despite his decision to step aside for the moment, I've been wondering when the mainstream media would notice that reams of material about his (or any parliamentarians') expenditure of public money seems to be available from the Department of Finance and Deregulation, either in published form or in response to Freedom of Information applications, but nothing from the Parliament itself about payments made to or on his behalf.

Parliament not Finance pays salaries and electorate allowances of parliamentarians, additional salaries of parliamentary office holders, superannuation entitlements, resettlement allowance payments, and services and facilities to support parliamentarians in Parliament House including the cost of office accommodation, computing and other equipment, telephones, newspapers and stationery. And perhaps travel for office holders such as the speaker when on business connected to that office, but who knows, this is murky territory.

But hallelujah, this in an editorial in the Sydney Morning Herald on Saturday:

The case also raises the issue of transparency. Parliament is not covered by freedom-of-information legislation. It should be. It is no breach of Westminster tradition: the British Parliament is covered by it, as was shown by the recent expenses scandal. Given that Parliament has a budget of $180 million to spend on its members, there is significant public interest in ensuring it is spent properly.

I won't go back over years of pointing out that the Australian Law Reform Commission recommended this, ahem, 17 years ago. (Well I will actually.)

Or that no government or parliamentary leader has given a response since. 

Or that I've been ranting on for yonks about gaps in transparency for payments to parliamentarians most recently last week, further back last November or even further back, a year ago.

Or that parliament has been fiddling but not acting to establish the position of parliamentary integrity commissioner?

Has anyone asked minister for integrity issues/parliamentary entitlements, Special Minister of State Gray? 

Or the presiding officers of parliament?

Wait a minute, one of those is Speaker Slipper  who retains the position despite the fact he has stood aside from chairing parliamentary debate.

Ah you've got to love 'em!

Differences in FOI acts in protecting against harassment or intimidation

Privacy Commissioner Pilgrim in  'I' and Australian National University [2012] AICmr 12  (the first published review decision in which he rather than Professor McMillan or Dr Popple exercised powers under the Freedom of Information Act) set aside a decision to refuse access to emails sent to climate change scientists at the ANU that had been the basis of earlier media reports that death threats had been made against them. (Update: Christian Kerr in The Australian on 3 May provided a racier account, the ANU has since decided against appealing the decison, and Chris Merritt  found scope for some point scoring against Fairfax.)
 
Of interest is that the Commonwealth act contains no counterpart to provisions found in Queensland,Tasmanian and NSW acts that provide grounds for refusal where, with regard to matters of this kind, the likely effect of disclosure falls short of a reasonable expectation of harm to life and safety. Those state acts throw the risk or likelihood of harassment or intimidation into the harm mix.

Access in this case had been refused by the University on the basis of Section 37(1)(c) of the FOI act, that disclosure would, or could reasonably be expected to endanger the life or physical safety of any person, and Section 47F, the conditional exemption for personal information. The latter claim failed because the applicant was not seeking information that would reveal the identity of the individuals sending or receiving the emails in question.

Commissioner Pilgrim was satisfied that disclosure of the content of the documents could not be expected to endanger life or physical safety of any person. His decision was that edited copies (with information removed that would identify the individuals sending or receiving the emails) should be released to the applicant.

Privacy Awareness Week

Privacy Awareness Week kicks off on 30 April at breakfast in Sydney with Privacy Commissioner Timothy Pilgrim leading a panel discussion about data breaches and privacy best practice. Australian Information Commissioner Professor John McMillan will also launch the OAIC's revised Guide to Handling Personal Information Security Breaches at the event. Initiatives such as this and other events scheduled for the week by the OAIC, and the Northern Terrritory, Queensland, NSW and Victorian regulators to raise awareness are to be applauded.

Meanwhile consideration of the case for a legislated requirement for notification of a serious breach of data security presumably grinds on.

Privacy law reform generally, identified by the federal government as long ago as 2006 as an issue, has moved at glacial pace since the government's announced response in October 2009 to the Australian Law Reform Commission report of a year earlier. First stage reform issues such as the proposed new form Australian Privacy Principles are still unfinished business.

Slipper saga reminds of lack of transparency concerning payments to parliamentarians

7 News

Plenty to read about House of Representatives Speaker Peter Slipper, some courtesy of documents obtained under Freedom of Information by News Limited publications from the Department of Finance and Deregulation, which manages most entitlement payments to members and senators.

But details of payments and related information concerning use of entitlements by Mr Slipper for which the parliament itself is responsible haven't featured so far. That sort of information about parliamentarians isn't available. See this post from last November about gaps in the system of accountability and transparency and recommendations for change, yet to be acted upon by parliament or the government, that have been floating around for years.

Long before it became an issue attracting national attention, Bill Hoffman at the Sunshine Coast Daily was on the Peter Slipper expense case. In March he detailed his unsuccessful effort to access information about payments by the parliament while Mr Slipper was Deputy Speaker last year.

Hoffman's article included this response from House of Representatives Serjeant-at-Arms Robyn McClelland which referred for the first time to future consideration of a public reporting regime for such payments, On past form don't expect to hear much from parliamentarians about the subject, or prompt action on much-needed improvements to the system:

Dear Mr Hoffman,

I refer to previous emails. The department has considered your request.

We have not previously had a request to our knowledge for % (sic) release of details of expenditure for services provided to individual members. Such details have not been released previously and we do not propose to make the details that you have requested available to you at this time. We will consider a public reporting regime involving publication of expenditure details. Any development of a reporting regime will involve considering the information available, developing a consistent approach across the parliamentary departments, and consultation with members. We will write to inform you if the information becomes publicly available.

NBN Co FOI performance review won't examine broader exclusion issues

Attorney-General Nicola Roxon announced this week that what has ensued since June 2011 when NBN Co commenced operating under the Commonwealth Freedom of Information Act (albeit with coverage limited to documents that don't concern commercial activities) will be reviewed by a yet to be named eminent person. 

The review stems from an agreement between the government and The Greens reached at the time the amendment was passed to bring NBN Co under FOI law a year ago. The Greens were wary that the government formulation of the NBN Co exemption, along the lines of long standing exemptions enjoyed by other GBEs and similar bodies, left too much room for avoiding disclosure, hence the agreed review of performance in return for their votes. At the time Malcolm Turnbull of the Opposition was convinced The Greens had been conned, and that the legislated formula provided too much hiding room for NBN Co. We'll see what has happened when the review report is tabled in parliament in June. I'm assuming, knowing all along that the review was to happen, that NBN Co has been reasonably well behaved.

  

Broader issues

The review notwithstanding, the justification for special exemptions afforded to a range of organisations and the inelegant form of words used in s7 and schedule 2 to achieve this will remain matters for another day. Along with the justification for exclusion of an unknown number of government owned corporations similar to NBN Co in structure, such as the National Electronic Health Transition Authority, that carry out important public functions with large allocations of public money.

Similar issues, rarely explored in most instances, also exist at state level.(Tasmania may be an exception because of the broad definition of public authority in s 5.)

Queensland Attorney General showed interest in scope issues in opposition

In Queensland last year  the Supreme Court ruled Special Purpose Vehicles were not subject to the Right to information Act. Then Opposition Member for Kawana, Jarrod Bleijie introduced the Right to Information (Government-related Entities) Amendment Bill into Parliament in September, partly in response to the court decision. Mr Bleijie is now Attorney General, minister responsible for the RTI act.

His 2011 bill, which lapsed when parliament was dissolved prior to the election in March, would extend the RTI act to cover "any corporation supported directly or indirectly by government funds or other assistance, or over which the state, a minister or a department is in a position to exercise control."

The RTI act currently (s 16) provides for extension of the act by regulation to such entities, but Labor made no move in this direction. Mr Bleijie in opposition saw merit in legislating in a job lot for such bodies to be subject to the RTI act but it remains to be seen whether the view from behind a ministerial desk takes on a different hue-as so often is the case. 

Official: Victorian FOI fails to deliver

The report by the Victorian Auditor General on the extent to which the 11 Victorian public sector (VPS) departments and Victoria Police meet the requirements of the Freedom of Information Act 1982 won't surprise those who work in or have experience in dealing with the system.

 Media reports today grab on to "scathing" and "damning" to describe the report's findings but the report best speaks for itself:

Since FOI legislation was introduced 30 years ago, Victoria has gone from being at the forefront of FOI law and administration to one of the least progressive jurisdictions in Australia. Over time, apathy and resistance to scrutiny have adversely affected the operation of the Act, restricting the amount of information being released. As a result, agencies are not meeting the object of the Act, which is ‘to extend as far as possible the right of the community to access information’. The public’s right to timely, comprehensive and accurate information is consequently being frustrated. The VPS’s systemic failure to support this right is a failure to deliver Parliament’s intent. The prevailing culture and lack of transparent processes allow principal officer —secretaries and chief executive officers of agencies—to avoid fulfilling their responsibilities. Principal officers are not being held to account for their agency’s underperformance and non-compliance. Agencies are routinely disregarding the 45- day statutory time limit for processing requests and the five-day ministerial noting period, and there are serious flaws in record keeping practices and FOI searches in the Department of Human Services and Victoria Police. The Department of Justice has not satisfactorily fulfilled its role as lead agency for FOI. More effective leadership is required to promote an appropriate culture, improve transparency of government information and adequately inform Parliament and the community about FOI.

The Ombudsman has reached similar conclusions in various reports over the years to no avail, as the Auditor General notes citing this example:

None of the 12 audited agencies implemented all of the recommendations made by the Victorian Ombudsman in 2006. This is indicative of a poor, resistant culture and low level of priority placed on FOI, which DOJ has not managed to address effectively.

The report does not reflect on the role ministers have played in all this- ministerial conduct being  beyond the auditor's reach-but ministers in governments of both persuasions set tone at the top and went along happily with nary a word of concern about a system now described as apathetic and resistant to scrutiny.

Premier Baillieu gilds the lily in claiming (as reported in The Age) that government legislation to establish a freedom of information commissioner is the answer to the problem. That act doesn't encompass the more fundamental reform needed to mandate pro-active disclosure or changes to exemption provisions that would bring Victorian law closer to contemporary standards that properly balance confidentiality in the interests of good government and public rights to gain access to government information.

A 45 day response time for requests which, according to the Auditor General, is routinely disregarded in any event, is a bad joke in this day and age. As is the formal practice of "ministerial noting" before an agency decision is notified to the applicant- a practice open to abuse and the cause of long delays in some cases documented in the report.

The FOI commissioner model adopted in Victoria but yet to commence has significant weaknesses apparent well before it takes effect but which were simply shrugged off by the government during parliamentary debate.

While these holes in the bucket remain as they are, as well as serious systemic flaws in record management practices identified by the Auditor General (documented in detail in this 2008 report  and raised also in this recent Ombudsman report Own motion investigation into the management and storage of ward records by the Department of Human Services (256KB) FOI  in Victoria will continue to fail to deliver fully on its promise

Australia shuns good company at OGP meeting in Brazil

You are known by the company you keep. For this reason Australia sensibly looks for a seat at the right international tables. But for some reason we weren't in Brazilia yesterday in any official capacity at least, when over 1,000 representatives from 55 member governments  and 200 civil society organisations got together for the first annual high-level meeting of the Open Government Partnership (OGP), an initiative launched in September 2011 by President Obama and Brazilian President Rousseff. 

The meeting was chaired by President Rousseff and U.S. Secretary of State Hillary Clinton who spoke of the opportunity the OGP provided to

"set a new global standard for good governance and to strengthen a global ethos of transparency and accountability... we intend to do all we can to help make the Open Government Partnership a leader in ensuring that the 21^st century is an era of openness, transparency, accountability, freedom, democracy, and results for people everywhere."

47 countries have joined the partnership in the last eight months. Apart from President Rousseff and Secretary Clinton, President Kikwete of Tanzania, Prime Minister Gilauri of Georgia, UK Cabinet Minister Frances Maude, and dozens of senior government leaders from around the world thought it important enough to attend the Brazil meeting. Libya was represented. The UK and US are co-chairs for the next 12 months.

The Australian government talks the talk about the importance of open government but either has difficulties with the partnership concept not shared by those who have joined, or other more pressing priorities. Our reasons for not signing up are so far unexplained, although in response to my report that the word recently in Washington was we would not be joining, a spokesperson was quoted by itnews saying we continue to consider and consult- eight months on for heavens sake!

Australian ministers who should have an interest including Attorney General Roxon (on Q&A and elsewhere) and Foreign Minister Carr (on his first visit to Europe) obviously had other pressing matters requiring their attention, but Trade Minister Emerson has been in Latin America for the past week for other reasons, and in Brazilia days ago, but apparently with no time for this sort of stuff, and had moved on to Colombia by the time the meeting began.

More than a pity that we sit out international action on open government in the 21st century while the following participating countries give it a high priority and the cause a shot in the arm by being seen in this sort of good company. Australia and NZ could give the notably light Asia -Pacific region representation a lift:

(* denotes Steering Committee member):

Brazil*	Colombia	Italy	Peru
Indonesia*	Costa Rica	Jordan	Romania
Mexico*	Croatia	Kenya	Russia
Norway*	Czech Republic	Latvia	Serbia
Philippines*	Denmark	Liberia	Slovak Republic
South Africa*	Dominican Republic	Lithuania	South Korea
United Kingdom*	El Salvador	Macedonia	Spain
United States*	Estonia	Malta	Sweden
Albania	Georgia	Moldova	Tanzania
Armenia	Ghana	Mongolia	Trinidad and Tobago
Azerbaijan	Greece	Montenegro	Turkey
Bulgaria	Guatemala	Netherlands	Ukraine
Canada	Honduras	Panama	Uruguay
Chile	Israel	Paraguay

Overseas FOI travel bug

 I'm not the only Aussie with an FOI interest voyaging forth-according to this post by Alasdair Roberts he and Australian Information Commissioner John McMillan spoke at a forum in Beijing earlier this week entitled "Does Access to Information Really Make Governments More Transparent."  Hopefully the short answer was "yes" but I'm sure there is an interested audience beyond Beijing. Professor McMillan's speech or other details of the discussion are yet to appear on the OAIC website. 

 I'll be back in the middle of next week.

Out of touch-again

While in Spain, France and Italy-no sympathy messages required-I'll be mostly resuming my out of touch position.

Australia and Open Government Partnership

Thanks to itnews for the news from the horse's mouth that Australia is still considering and consulting on this-as it has been saying for nine months or so. My source in Washington who told me we were out said that he got this from the Australian Embassy when he rang to seek clarification after hearing about Australia's position from other sources.

If we are luke-warm to cold on the idea of a commitment because we are already in good shape, I guess Mexico, the US and UK, all founding governments with reasonable records, might have said the same thing-but didn't.

 I'm a bit handicapped to contribute more as I'm on the way to Europe but two relevant posts from last year if you didn't see them: from September when I first raised our absence and this in October includes a link to Professor McMillan's response to questions asked at the time in Estimates by The Greens Senator Rhiannon. 

I'll be glad if my report turns out to be wrong-as I said in September, Australia should be proud to line up on this one.

FOI charges review

Sorry to say I lost the original post somewhere while crossing the Atlantic as I tried to update it. Briefly it noted the publication of Professor McMillan's report, welcomed the idea of simplification but reserved comment until I have a chance to read the detail, and linked to some media coverage of the issue. Sorry.

Australia to sit out Open Government Partnership

We don't say no to Washington all that often but while there last week, I was told by someone following the initiative closely that Australia has decided not to join the Open Government Partnership, launched by President Obama in New York in September last year. Just what's the problem is unknown but I recall Australian Information Commissioner Professor John McMillan telling a Senate committee last year that  we had some questions concerning the initiative. Whatever, concerns haven't been enough to hold back the eight founding governments and 38 others participating who will meet in Brazil next month.

 I understand the UK will co-chair the initiative with the US for the ensuing 12 months. 

Who knows what our new Foreign Minister Bob Carr thinks about it all. If he made a speech during his 10 years as premier of NSW extolling the virtues of FOI, I missed it. In his time in that office even ministerial media releases didn't get posted on the web, media management and spin came ahead of other considerations, and the open government cause generally suffered from the lack of high level leadership and support. DFAT already has a tendency towards excessive secrecy so it's a nice fit on that score.

A pity as Australia has something of a positive record worth sharing in international company. As to which parts of the OGP Declaration trouble us, your guess is as good as mine:

Out of touch

I'm traveling, with limited internet access, so will be back to this when I get the chance.

Tough times for whisleblowers

So what's new...

The session on whistleblowers at the National Freedom of Information Day Conference in Washington last Friday was hardly encouraging for those brave enough to contemplate taking a stand on wrong-doing, as summarised here by Nikki Troika of the First Amendment Center. Lucy Dalglish of the Reporters Committee on Freedom of the Press told the conference the post WikiLeaks situation seems to be there is no judgment call within government on the nature of information disclosed to the media or publicly in cases labeled as involving national-security issues. The government’s attitude, she said, has been to try to track and punish any such disclosures.

Outside the conference the talk here is that it is hard to see Assange being charged with anything unless conspiracy with the leaker or leakers can be shown-always a high hurdle.

Australia makes news at US National Freedom of Information Day Conference

But it wasn't for any great freedom of information accomplishment. On the contrary we together with other countries involved in negotiating the Trans-Pacific Partnership copped quite a serve over the lack of transparency.

Last Friday at the Sunshine Week conference I attended in Washington, Lori Wallach of Public Citizen Trade Watch, recently returned from observing the 11th round of negotiations in Melbourne on the TPP trade agreement spoke to her just published article  in the March edition of American Prospect. Wallach said "unprecedented secrecy" surrounds the draft texts under discussion, quoting former US trade official Gary Horlick as saying it "is the least transparent trade negotiation I have ever seen" in his 40 years in the game. Wallach contends the negotiation has been misbranded as "trade": the 26 proposed TPP chapters

 "include domestic policy on financial, health-care, energy, telecommunications, and other service-sector regulation; patents and copyrights; food and product standards; land use and natural resources; professional licensing and immigration; and government procurement."

Wallach said decisions are being taken without public access to any documents or details or, in the US case, input from members of Congress serving on key committees whose jurisdiction is directly implicated. And that the governments involved have ignored a global “release the texts” campaign led by unions and civil-society groups. However more than 600 business representatives serving as official U.S. trade advisers have full access to an array of draft texts and an inside role in the process. "The strategy is to squelch informed debate until a deal is signed and any alterations become difficult."

Wallach's talk prompted a look at other materials. The Department of Foreign Affairs and Trade website confirms that it is no secret that the TPP will involve more than trade (emphasis added):

The Australian Government will pursue a TPP outcome that eliminates or at least substantially reduces barriers to trade and investment. The TPP is more than a traditional trade agreement; it will also deal with behind-the-border impediments to trade and investment.

This report from another observer at the Melbourne negotiations puts Australia up there leading on the confidentiality issue-and avoiding rather than answering questions:

The Australian chief negotiator opened the briefing with a statement of the chapters which had made progress during the round. Intellectual Property was not mentioned as one of these chapters, though market access, services, rules of origin and capacity building were amongst those specifically mentioned. He stated that there were more than 20 negotiating groups.

As usual, very few substantive questions were answered. Some procedural questions also went unanswered.

The first question came in the form of request for greater transparency, including the release of the text, in order to permit the general public to be part of the process. The Australian chief negotiator stated that the stakeholder forum provides the primary way for stakeholders to participate and it is common practice not to release texts during negotiations of free trade agreements. He suggested that releasing the text would not be feasible because "nothing is agreed until it is agreed."

A later question regarding the release of the text came when one stakeholder asked if the TPPA negotiating parties would consider a release after a composite text had been reached as is done at the WTO. The Australian chief negotiator repeated that in his view, the answer had already been clearly stated, that this is not the WTO and they would not release the text.

When asked whether all countries had finished tabling their IP text and whether the US specifically had tabled its text (marked as "placeholder" text in the prior leaks) on biologics, the length of the access window, internet retransmission and copyright limitations and exceptions, the Australian negotiator immediately responded that they would not release text. When pressed to answer simply whether specific text had been tabled or not, Barbara Weisel, US chief negotiator, did not clearly answer the question but seemed to indicate that such text had not been tabled yet. She noted that USTR is still consulting with stakeholders regarding some provisions, presumably on biologics and the length of the access window.

I don't know what relevant FOI activity has been undertaken. Participants have sought to head things off at the pass with this agreement on confidentiality to apply for four years, with NZ  acting as the organiser in chief:

First, all participants agree that the negotiating texts, proposals of each Government, accompanying explanatory material, emails related to the substance of the negotiations, and other information exchanged in the context of the negotiations, is provided and will be held in confidence, unless each participant involved in a communication subsequently agrees to its release. This means that the documents may be provided only to (1) government officials or (2) persons outside government who participate in that government’s domestic consultation process and who have a need to review or be advised of the information in these documents. Anyone given access to the documents will be alerted that they cannot share the documents with people not authorized to see them. All participants plan to hold these documents in confidence for four years after entry into force of the Trans Pacific Partnership Agreement, or if no agreement enters into force, for four years after the last round of negotiations. Second, while the negotiating documents are confidential, each participant may mail, e-mail, fax, or discuss these documents over unsecured lines with the groups of people mentioned above (i.e., government officials and persons who participate in the domestic consultation process). The participants may also store these documents in a locked file cabinet or within a secured building; that is, the documents do not need to be stored in safes. Each participant can also create and store these documents on unclassified computer systems. Lastly, the participants will mark the documents they create in a manner that makes clear that the documents will be held in confidence.The policy underlying this approach is to maintain the confidentiality of documents, while at the same time allowing the participants to develop their negotiating positions and communicate internally and with each other. We look forward to your confirmation that you agree with this approach.

In answer to a question, Wallach said Peru's FOI law offers the best chance of some access to TPP documents and a court case there is underway.

What public servants think about open government, a question yet to be asked

The Australian Public Service Commission State of the Service Report referred to in a recent post on whistleblower protection was published in November 2011 together with  results of an employee survey . The report details the activities and human resource management practices of APS agencies. But the survey again was a missed opportunity to gather data about awareness of open government reforms and respect for privacy that would throw some light on prevailing culture and assist to track change over time. Nothing has changed since last year in this respect.


Question 70 for example asked about familiarity with the Standards of Ministerial Ethics, the Register of Lobbyists, and the Lobbying Code of Conduct-around 50% in each case of a large sample of public servants had not heard of these, or were not sure. But no-one was asked about familiarity with the Open Government Declaration, with freedom of information reforms of 2009-2010 or asked to respond to any questions designed to guage general attitudes concerning open government, or appreciation of the law regarding respect for information privacy and what that entails.


Responses to questions such as these would be a modest but useful start to testing culture. After all culture change has been one of the prime objects the government says it is on about in moving towards greater transparency. 


The only jurisdiction that has attempted a to gather base-line data is Queensland where a survey was undertaken on behalf of the Queensland Information Commissioner last year. 


Results of that survey showed the reaction to questions by a large number of Queensland public servants was "what reforms?" but at least those in the know thought important changes were underway and were having a positive effect. We know little about the views of Commonwealth public servants although those who signed off on submissions to the fees and charges review hardly exhibited an enthusiastic embrace of the new regime.

ABC FOI setbacks won't draw sympathy from the chair

A nice juxtaposition.

In a week when Freedom of Information Commissioner Popple in two review decisions ruled the ABC had pushed too far in applying the exemption it enjoys under the Freedom of Information Act in relation to program materials, beyond what generous court interpretations allow, former NSW chief justice James Spigelman was appointed chairman of the ABC, to widespread acclaim.

In 1972 Spigelman's book Secrecy: Political Censorship in Australia helped put FOI on the agenda for the Whitlam government, with Spigelman himself appointed to a key position on the Prime Minister's staff following the election in December of that year. He went on to head the short-lived department of media while still in his twenties before an illustrious legal career.

Not that issues like those in the two FOI cases decided this week are going to take time at the board table. Although given Mark Scott's best memory of his days as a journalist before elevation to editorial and managerial positions, was using FOI to dig out a few gems about the education system, he and Spigelman maybe should kick back and shoot the breeze on FOI after a board meeting sometime.

In Herald and Weekly Times Dr Popple examined the legal precedents regarding interpretation of s 7(2) and part II of Schedule 2 of the FOI Act, citing the Full Court of the Federal Court conclusion in Bell that the expression 'in relation to its program material and its datacasting content' covered 'documents relating to program material, as well as program material itself'. The documents in dispute in this case were "documents dealing with salaries, or any other payments, paid by the ABC in the financial year 2009–2010 to program makers working on the following television and radio programs..".HWT specified 10 television programs and three radio programs. Dr Popple concluded:

16. In ABC v UTS, Bennett J decided that there was a sufficient relationship between documents concerning complaints about ABC programs and the ABC's program material for the exemption to apply. I think the connection between the documents in this IC review and the ABC's program material is so remote that there is not even an indirect relationship between them. The complaints in ABC v UTS were about the content of the program material; information about the salaries of program makers relates only to the administrative process of the production of that material."

Dr Popple found the documents were not exempt on the basis of Schedule 2 and referred the matter back to the ABC, noting that other exemptions such as the conditional exemption for protection of personal information may apply-but there are reasonableness and public interest tests that apply as well.

In "F", Dr Popple reached a similar conclusion about the documents in dispute:

Secrecy and foreign affairs

My hurried contribution before taking off for a while, to a discussion on secrecy and international and foreign affairs on the Lowy Institute Interpreter - here is the thread - where the question was asked, to get things going, whether we have a culture of secrecy in government.

Sunshine Week- a great idea still to hit our shores

It's that time of the year - well it is next week - when the US open government community, led and co-ordinated by the Association of Newspaper Editors and the Reporters Committee for Freedom of the Press demonstrate the importance of open transparent government through Sunshine Week publicity and events.

I've been lamenting for years the absence here of a Knight Foundation to fund the start up, and a formidable team with a shared interest, prepared each year to invest time and resources to help build public awareness of the importance of the right to know. For everyone, not just the media.

 Three years ago, the coalition of media groups Australia's Right to Know organised a conference in Sydney on FOI reform, but hasn't repeated it. Or at any stage reached out to partners who might share an interest in open, participatory government. Despite the great name, ARTK's focus has been on media not citizen interests. And it's maintaining a very low profile - the last addition to published submissions on its website was in October 2009  and to the media releases list, in May 2010

By happenstance I'll be in Washington next week, attending a couple of events and renewing some contacts.

While the Queensland Information Commissioner has organised three Right to know days and the NSW Commissioner is talking about a Sydney event later this year, oh for a local equivalent of a group like these Sunshine Week partners:

American Library Association ♦ Association of Alternative Newsweeklies ♦ Association of American Editorial Cartoonists ♦ Center for Democracy & Technology ♦ Center for Public Integrity ♦ Center for Responsive Politics ♦ Collaboration on Government Secrecy ♦ Electronic Frontier Foundation ♦ First Amendment Center ♦ Investigative News Network ♦ League of Women Voters ♦ Media Law Resource Center ♦ National Association of Broadcasters ♦ National Conference of Editorial Writers ♦ National Freedom of Information Coalition ♦ National Newspaper Association ♦ National Press Club ♦ National Security Archive ♦ Newspaper Association of America ♦ OMB Watch ♦ Online News Association ♦ Openthegovernment.org ♦ Patch ♦ Project on Government Secrecy ♦ Project on Government Oversight ♦ Radio Television Digital News Association ♦ Society of Professional Journalists ♦ Student Press Law Center ♦ Sunlight Foundation ♦ Sunshine in Government Initiative