Deja vu: ALRC to look into privacy cause of action

I haven't tracked down the detail as yet, but after years of dithering and six months before a federal election will anyone be surprised that the whole idea of a statutory cause of action for breach of privacy-the subject of reams of anti-newsprint in News Ltd and other media self interested accounts- will as announced by Minister Conroy today

be referred to the Australian Law Reform Commission for detailed examination.

From whence it came with a recommendation in favour five years ago.

Supported by reports from the NSW and Victorian law reform commissions.

And by many of those who thought about the options and prepared a submission in response to the government's issues paper.

You've got to love them.

(Update: See a longer lament from Bruce Arnold of the University of Canberra on The Conversation.)

Bid for High Court to look at Governor General's FOI protections

In the March issue of Anne Summers Reports I've written a potted history of Karen Kline's so far unsuccessful attempt to use the Freedom of Information Act to access documents concerning the administration of the Australian Honours awards.
(The Secrets of Australian Honours page 6.)

It is a story familiar to regular readers here except this newsie bit, that Ron Merkel QC has taken up the case after the Full Federal Court decision went against Kline in December.

An application seeking special leave to appeal to the High Court was lodged on 15 February. Special leave is a formidable hurdle. The grounds for appeal, if the case gets that far, include whether the Federal Court erred in holding that any document that relates to a substantive  power or function of the Governor General is not a document that relates to matters of an administrative nature within the meaning of s 6A, and is thereby excluded from coverage of the Act.

A meaty subject worthy of the High Court's attention.

Merkel QC, a highly respected former judge of the Federal Court and one of Australia's leading human rights and civil liberties practitioners who has a string of commendable wins to his credit, appeared for Heather Osland in one of the few, and the most recent, Freedom of Information cases to make it to the High Court. The decision in that one made my 30 years of notable FOI cases list.


I don't know anything of his thinking on the Kline case other than by taking it on he clearly thinks there is something in it.

However in a major speech in December Merkel noted rights trends including three recent high profile cases where the courts have read the Constitution as requiring an "extraordinary limitation on Executive power", with power wound back in these cases "in a way not really thought possible in the 107, 108 years that preceded these decisions." 

Could Merkel's observation then that "we do have the reality of a very substantial Constitutional protection of fundamental rights and freedom in Australia" presage an interesting argument in the High Court regarding a constitutional limitation on exclusions from the Freedom of Information Act?

Anne Summers Reports is a terrific new publication, free and available for subscription here. Anne can only make it work with donations that help with the $300,000 annual cost.

Give it a thought.

Sunshine Week a shining example

It's Sunshine Week again in the US:

a national initiative to promote a dialogue about the importance of open government and freedom of information. Participants include news media, civic groups, libraries, nonprofits, schools and others interested in the public’s right to know. 

Terrific for them.

Having been there a year ago, here I am this time in Sydney green with envy at the leadership, enthusiasm, widespread participation and financial support from the Knight Foundation and others that makes this happen year after year.

And left to imagine how interesting some of these events listed for Washington will be as the week rolls on. 

Who, what, when, where and how could we ever make something like this happen here?

Transparency and accountability issues below the radar in WA election campaign

Western Australia seems certain to re-elect the Barnett Liberal Government tomorrow.
Transparency, accountability and related issues don't feature in the Liberal Party policy commitments. Their Public Sector Management Policy makes no mention of freedom of information, lobbying, political party donations, whistleblower protection or privacy. WA and SA are the two states yet to enact privacy legislation binding the state sector. 

Premier Barnett has referred often to the government's higher standards of accountability noting five ministers under the previous Labor government were forced to resign or were sacked because of connections to Corruption and Crime Commission inquiries

Labor may have said something on topic but there is no relevant detail in the public sector policy released last September or in more recent policy commitments listed here and here. 

The Greens mention the lot, at least in general terms, so the issues weren't entirely missing from the campaign.

Ministers and "engagement" in the FOI process

The release of guidelines in Queensland about reporting to and briefing the minister and senior officials on information access applications sets a new standard in transparency about such things.

In all jurisdictions these aspects of the Freedom of information /Right to information process aren't discernible to those on the outside generally, or in a particular instance.

However recent glimpses of what happens or may happen in two major Federal agencies, Prime Minister and Cabinet and Immigration, raise questions about the extent to which senior officer and ministerial involvement and influence could be, or is brought to bear on the decision maker. Both would likely fail to meet the Queensland standard. 

The PM&C FOI Milestones document recently released to a Righttoknow FOI applicant Mr G King, outlines procedural steps that ensure many eyes are looking for "sensitivities" in requested documents and that the Prime Minister's Office and the Secretary of the Department have plenty of opportunity to comment before a final decision is taken.

With offence provisions in the law to reinforce independent decision making (replicated in NSW and Tasmania) now supported by guidelines regarding ministerial and senior officer engagement in the process, Queensland is well ahead of the rest. The Commonwealth lags on both fronts. (Dr Hawke?)

Australia and the OGP "inevitable, only a matter of time"

Australian interest in the Open Government Partnership has revived somewhat since the first mention here in September 2011 of our glaring but silent absence from the membership group.

It has been been rescued from the bin or retrieved from between the stools, now rating mentions in the mainstream media. Following those revealing Senate estimates hearings recently, Verona Burgess writing in the Australian Financial Review last Thursday (paywall) detailed the story so far. And Markus Mannheim in The Canberra Times this week gave it a run in the context of my "complex and voluminous" saga with Foreign Affairs and Trade - which he found "breathtaking" by the way. Me too.

But the latest is Australian membership is now talked about as "inevitable, only a matter of time."

Australian information Commissioner Professor John McMillan in a speech this week:

"Another way that governments around the world are changing their approach to information management is to join together in a new multilateral commitment, the Open Government Partnership. Fifty-eight national governments have or will endorse an Open Government Declaration that commits the participants 'to foster a global culture of open government that empowers and delivers for citizens, and advances the ideals of open and participatory 21st century government'. Australia has not yet joined the Open Government  Partnership - though I think it both essential and inevitable, only a matter of time....

It's March I know but as Senator Faukner put it in December, the time is now.

Queensland RTI charts unprompted new territory

Right to Information changes including new Disclosure log requirements came into effect in Queensland on 22 February with the commencement of the Right to Information and Integrity (Openness and Transparency (Amendment) Act 2012.

Two aspects are unique in Australia. Where they came from and why is unknown. They  bobbed up in a bill introduced in a hurry in the Queensland parliament late last year.


An RTI applicant must now reveal whether access is being sought "for the benefit of, or use of the document, by the applicant or another entity". Where access is sought for the benefit or use of another entity, the access applicant is required to name that other entity.

And after a valid application has been received and before any decision on disclosure is made, details of the information being sought and the date of the application must be included on the Disclosure Log. 

Neither gets a mention in all the various ideas put to the Hawke review in Canberra on how to improve the operation of the Federal government's freedom of information act.

In addition to those innovations the amendment scraps the previously available 24 hour minimum exclusive use period for information released to an applicant before it is posted on the disclosure log. The new formulation requires released documents to be posted on the disclosure log "as soon as practicable" after release to the applicant. 

If an applicant fails to access a released document within 40 business days, details identifying the document, information about the way in which it may be accessed and any applicable charge must now be included in a disclosure log as soon as practicable after the access period ends.

Exclusive use
The removal of the exclusive use period in Queensland came as media organisations in their joint submission to the Hawke review argue again for a five days exclusive use period when documents are released to a journalist in response to a Federal government FOI application. At present infomation is required to be posted within 10 days. Journalists contrast some agencies such as Treasury that have a same day release policy and Defence and Customs that in the absence of a legislative requirement give journalists an exclusive use period.

I’ve not heard any fuss from journalists about this issue in NSW where there is no statutory time provision for posting released information on the Disclosure log. Maybe the bigger pool of potential competitors on the national scene makes the difference. It has always been open to a minister/agency to release information publicly after an RTI/FOI application for that information has been received and that has certainly happened. In NSW, sensibly no GIPA charge applies in these circumstances.  

It seems reasonable to allow some exclusive time with released information. Perhaps any applicant - not just a journalist - should be able to ask for a few days exclusive use at the time of making the request, with that elective to bind the agency?

Those of us using Righttoknow aren't concerned that others know what we are seeking.  And sharing the spoils from the moment we succeed.

As soon as practicable after a valid access application^[3] is made to a department or Minister, the department or Minister must include the following information in its disclosure log:

• details of the information being sought by the applicant, as stated in the application; and
• the date the application was made.^[4]

Departments and Ministers publishing details of information being sought by the applicant must first review the information and delete information where required under section 78B.
- See more at: http://www.oic.qld.gov.au/information-and-resources/guidelines/guidelines-access-and-amendment/disclosure-logs-departments-and-ministers#sthash.sEqyw7Vg.dpuf

As soon as practicable after a valid access application^[3] is made to a department or Minister, the department or Minister must include the following information in its disclosure log:

• details of the information being sought by the applicant, as stated in the application; and
• the date the application was made.^[4]

Departments and Ministers publishing details of information being sought by the applicant must first review the information and delete information where required under section 78B.
- See more at: http://www.oic.qld.gov.au/information-and-resources/guidelines/guidelines-access-and-amendment/disclosure-logs-departments-and-ministers#sthash.sEqyw7Vg.dpuf

As soon as practicable after a valid access application^[3] is made to a department or Minister, the department or Minister must include the following information in its disclosure log:

• details of the information being sought by the applicant, as stated in the application; and
• the date the application was made.^[4]

Departments and Ministers publishing details of information being sought by the applicant must first review the information and delete information where required under section 78B.
- See more at: http://www.oic.qld.gov.au/information-and-resources/guidelines/guidelines-access-and-amendment/disclosure-logs-departments-and-ministers#sthash.sEqyw7Vg.dpuf

As soon as practicable after a valid access application^[3] is made to a department or Minister, the department or Minister must include the following information in its disclosure log:

• details of the information being sought by the applicant, as stated in the application; and
• the date the application was made.^[4]

Departments and Ministers publishing details of information being sought by the applicant must first review the information and delete information where required under section 78B.
- See more at: http://www.oic.qld.gov.au/information-and-resources/guidelines/guidelines-access-and-amendment/disclosure-logs-departments-and-ministers#sthash.sEqyw7Vg.dpuf

NSW Information and Privacy Advisory Committee

The membership of the New South Wales’ inaugural advisory committee on right to information and privacy matters announced on Friday includes three worthies from the private sector- and moi! 

 

Glad of the opportunity.

 

The committee will advise Deirdre O'Donnell the NSW Information Commissioner, and Dr Elizabeth Coombs, the NSW Privacy Commissioner on privacy and information access matters. The Attorney General also has the capacity to refer issues to the committee.

 

Other members are Ms Teresa Corbin, Ms Angela Green and Mr Doug Peiffer, with three deputy members Mr Bruce Mansfield, Ms Julie Ann Priest and Ms Samantha Yorke, and two yet to be named senior public sector officers.

We'll do our best.

 

PM's diary messy enough to preclude disclosure

Wilcox-SMH

Anne Davies in Fairfax papers "Push for Gillard to reveal meetings" reports on the decision by Australian Information Commissioner Professor John McMillan to uphold refusal of her two Freedom of Information applications for diary entries of prime ministers Rudd and Gillard for 'practical refusal reasons'. In one instance because dealing with the request would substantially and unreasonably divert the resources of the Department from its other operations; in the other, because it would substantially and unreasonably interfere with the Prime Minister's functions.

Each Davies' request was for entries for one month, excluding personal appointments. It turns out that the electronic diaries are a mixture of official, party and personal engagements. The amount of detail in each entry varies, some containing only a name, phone number, and no detail of the nature of the activity or the capacity in which a person was scheduled to meet the Prime Minister. As the commissioner said "It is apparent that neither diary was prepared for public release." The PM Gillard document contains around 500 entries. The guesstimate of time needed to sort through and reach a decision on disclosure,163 working hours or just over 4 weeks.

In another decision Professor McMillan decided against the Office of the Prime Minister, ruling that the processing of an FOI request by Paul Fletcher MP for diary entries for PM Gillard's meetings with crossbench MPs over a 12 month period would not substantially and unreasonably interfere with the Prime Minister's functions because it would likely take less than 8 hours:

I am not satisfied that a practical refusal reason exists in this case to deny Mr Fletcher's request. For the reasons given, I doubt that the task will be as time-consuming as the Department has submitted. Lest I be wrong, and it will take 8 hours and 20 minutes to peruse the diary, plus additional time to reach a decision, I am not satisfied that the Office of the Prime Minister has discharged the onus of establishing that this would constitute a substantial and unreasonable interference with the Prime Minister's functions.

Professor McMillan suggests in Davies [45] that while not required to keep a diary of appointments or publish details, "ministers (or the Government) take a more active stance by proactively publishing a greater level of detail than at present about ministerial appointments and meetings."

Behind the game
Of course they should. Who gets to bend the ear of those at the top of the tree should be disclosed unless there are particular personal, (rare) business or security related reasons for non-disclosure. And published routinely, as Professor McMillan points out is the case with President Obama and Queensland Premier Newman. 

Then the even better precedent, "Who ministers are meeting" with details of ministerial meetings with outside organizations, hospitality, gifts and overseas travel for British Prime Minister David Cameron and the entire ministry. 

It all makes the published PM's schedule here look puny and inadequate by comparison.

The UK Government initiative to publish followed revelations during the News of the World scandal about access enjoyed but not publicised over the years by Rupert Murdoch.

(Public -or at least Fairfax readers-opinion: 65% in favour.)

Messy diaries take a long time to brush up
The Davies decision includes pages of consideration of issues concerning what can be taken into account in deciding what constitutes substantial and unreasonable diversion of resources: the resources that would be used in identifying, locating and collating documents; deciding whether to grant, refuse or defer access; consulting with other parties; redacting exempt material from documents; making copies of documents; and notifying an interim or final decision to an applicant. 

And of course if the record is as messy to start with as is the case with the PM's electronic diary, it's obviously going to take ages, and ages. Well something like 163 hours for each month of entries. More than enough to get into substantial diversion of resources territory. Watch out if the OAIC recommendation to the Hawke review, supported almost uniformly by agencies, comes to pass that 40 hours should be the capped limit on time spent responding to an FOI application.

Minister's document
Another issue [12-22] thrown up in the Fletcher decision is the application of the FOI act to a minister's documents. 'Official document of the Minister' is defined in s 4 as a document that is in a Minister's possession and 'that relates to the affairs of an agency or of a Department of State'.  Room for argy-bargy here as the Office of the Prime Minister demonstrated.

The office argued that entries relevant to the agreement with The Greens and independents on forming government were outside scope because the agreements were entered into by Ms Gillard as leader of the ALP, not as a minister. Professor McMillan rejected that, but it remains to be seen whether there is a further argument concerning some entries because they may not relate to the affairs of an agency or of a Department of State' despite Professor McMillan saying:

That phrase should be understood broadly as encompassing any matter that could be the subject of a Government action or decision, of legislation introduced into the Parliament by a Government minister, or that falls within the portfolio responsibility of a minister.

No mention in the decision of The Herald and Weekly Times v Office of the Premier [2012] VCAT 967 where Judge Jenkins ruled that the diary of Victorian Premier Baillieu's former chief of staff Michael Kapel was a document in the constructive possession of the premier, that many entries in a sample provided to the Tribunal related "to the affairs of an agency" even where they did not directly concern departmental business. The range of entries that Judge Jenkins found would qualify for release (subject to any exemption claim) include:

• (a) attendances involving a range of stakeholders, both with and without the Premier; and both with and without public servants;
• (b) interaction with public servants, both with and without the Premier;
• (c) attendances involving Parliamentary colleagues; the media, unions; community, business and ethnic parties and organisations;
• (d) attendances involving foreign dignitaries, including politicians and diplomats;
• (e) other entries which may record events, whether or not attended by the Chief of Staff; and
• (f) entries in the nature of descriptions, observations or outcomes.
•  
•  

Last August this decision was reportedly off on appeal but I haven't heard of it since.

Argy-bargy on this question would be less if something along the lines of the NSW GIPA act formula was adopted (emphasis added and attention Dr Hawke):

A reference in this Act to government information held by an agency is, when the agency is a Minister, a reference to government information held by the Minister in the course of the exercise of official functions in, or for any official purpose of, or for the official use of, the office of Minister of the Crown.

details of ministerial meetings with outside organisations, hospitality, gifts and overseas travel across all departments. You can also find details of gifts and hospitality received by Special Advisers. - See more at: http://www.number10.gov.uk/transparency/who-ministers-are-meeting/#sthash.CsqVAwtB.dpuf

details of ministerial meetings with outside organisations, hospitality, gifts and overseas travel across all departments. You can also find details of gifts and hospitality received by Special Advisers. - See more at: http://www.number10.gov.uk/transparency/who-ministers-are-meeting/#sthash.CsqVAwtB.dpuf

details of ministerial meetings with outside organisations, hospitality, gifts and overseas travel across all departments. You can also find details of gifts and hospitality received by Special Advisers. - See more at: http://www.number10.gov.uk/transparency/who-ministers-are-meeting/#sthash.CsqVAwtB.dpuf

details of ministerial meetings with outside organisations, hospitality, gifts and overseas travel across all departments. You can also find details of gifts and hospitality received by Special Advisers. - See more at: http://www.number10.gov.uk/transparency/who-ministers-are-meeting/#sthash.CsqVAwtB.dpufBritish Prime Minister David Cameron
 

OAIC squeezed-make that throttled

Further to the recent reference here to the squeeze on Office of Australian Information Commissioner resources, there is an update in a supplementary OAIC submission to the Hawke review published yesterday. The issue sounds even more serious (emphasis added):

 In our submission, we gave information about the OAIC's staffing and funding levels since its establishment until December 2012.[15] The situation has changed further since then. We noted in our submission that the OAIC was structured around the former Office of the Privacy Commissioner (OPC). Initial planning anticipated that an average staffing level (ASL) of 68 OPC staff would be joined by an additional 32 staff for the FOI and information policy functions, for a combined ASL of 100. The OPC had an ASL of 60 at the end of 2009–10. By the end of 2010–11, the OAIC had an ASL of 75.26. This was projected to rise to 81 in the 2011–12 budget; the actual 2011–12 ASL was 79.87.
The 2012–13 portfolio budget statement forecast an ASL of 79. As at December 2012, the OAIC had 77.85 full-time equivalent staff;[16] as at February 2013, it has 63 (only three more than the OPC had when the OAIC commenced operation). This further reduction is the result of voluntary redundancies, and the non-extension of contracts, made necessary by the OAIC's limited budget.

On the same day the OAIC published three FOI review decisions: Besser 18 months after it was received, Fletcher after 17 months, and Davies  after 11 months. 

This is not the essential speedy access to independent external review of administrative decisions.

Same old, same old in South Australia

In preparation for an interview this morning with Radio Adelaide about the Hawke Freedom of Information review, and anticipating a couple of questions that didn't eventuate about South Australia, I had a quick look for an update on the local scene, and found-not much at all. 

SA stood to one side, along with the west, from the FOI reform movement of 2007-2010 that saw significant change at the national level and in Queensland, NSW and Tasmania. The SA FOI act of 1991 remains as it has always been since commencement 21 years ago and way short of a modern information access law that reflects 21st century expectations and norms.

In a recent reshuffle Premier Jay Weatherill assumed responsibility for the Public Sector and has announced political donation reform but is yet to mention transparency or open government as far as I can see. Tom Kenyon who had the job among others a year ago didn't seem well disposed to FOI but said something at the time about more pro-active publication. That may have been it.

The Ombudsman continues to haul some agencies back to toe the line when asked.

But it's the same old, same old in SA - an out of date law, limited publication requirements, the exclusions include parliament, no online publication of parliamentarians entitlements, no legislated requirement for publication of contracts (note in passing: no disclosure of payments to Lance Armstrong), no transparency regarding grants to industry, lobbying rules limited to registration for some but that's it, lack of leadership on openness and transparency, closed government culture, delay, high cost, limited resources, etc, etc. 

SA alone has an accredited FOI decision maker system, but I've not seen any evaluation of how that has worked.

With a year to go to the next state election, perhaps time for some pressure on the major parties to join The Greens Mark Parnell and Family First Robert Brokenshire in at least talking about transparency and open government?

If only Radio Adelaide had asked....

DFAT submission should catch Hawke eye

Stephanie Peatling's article in Fairfax Media yesterday Public servants baulk at FOI changes mentions several agency submissions to the Hawke Freedom of Information review including the submission from the Department of Foreign Affairs and Trade. Peatling notes DFAT "questions whether the government is getting ''value for money'' from the 2010 changes. While it had ''no concerns with the value-for-money proposition in relation to personal FOI requests by members of the general public'', ''questions of value'' could be raised about applications made by other applicants such as journalists, lawyers and not-for-profit organisations."

For an agency that plays a key role in the international consideration and propagation of human rights, DFAT's submission is all about trimming, limiting and reducing FOI rights here at home.

 I concede DFAT deals with information that is often sensitive - I worked there a long time ago. Information access on occasion obviously raises complex issues of balance. The department get more non-personal requests than they did previously. But hey, that's not inconsistent with what the government said it wanted to achieve in opening government to more scrutiny.

 What emerges from the submission to Dr Hawke is a DFAT cultural preference to be left alone to get on with the job without pesky busybodies sticking their nose in, and an abundance of caution and excessive secrecy. I think it's in a class of its own.
Department of Foreign Affairs and Trade [PDF 397KB] (pdf).

 A contrast to the Department of Defence, an agency that also deals with complex stuff. The Defence submission makes some suggestions for change but has none of the "stop this train, I want to get off" character that permeates DFAT's submission.
Department of Defence [PDF 195KB]

Peatling highlighted one DFAT gem in a submission full of them.

I wonder whether Dr Hawke will provide a forum for discussion of these propositions and others that fall well short of this standard, but are equally enticing?

Hawke submissions and who knows what they are talking about?

Attitudes and culture within government agencies regarding openness and transparency as reflected in submissions to the Hawke Freedom of information review was an issue also picked up in Stephanie Peatling's article in Fairfax Media yesterday: Public servants baulk at FOI changes. 

"The public service is revolting against reforms" are the reporter's words not mine but I admit to the following contributions to Peatling's report, along the lines of my brief summary in a recent post.

 'The first word that comes to mind is blowback,'' lawyer and FOI expert Peter Timmins said. ''The general thrust of most of them is to bring into question the reforms of 2010.''.... Mr Timmins said many members of the public service still tried to keep information from being released for fear of the political fallout.
 ''There are still decisions that err on the side of excessive secrecy,'' Mr Timmins said. ''There's a perspective that all this [the reforms] has gone too far.''

The article attracted comments on-line including this from Eudaimonia of Kingston who really knows how to hurt a guy:

 I doubt if Mr Timmins and his ilk really know much about the FOI Act. I was involved with FOI as a practitioner for 19 years from its inception in Dec '82. For some strange reason, some applicants delude themselves that they will get more mileage out of their request by making it through a lawyer. It couldn't be farther from the truth. Primarily, lawyers, due to the sterile nature of their training. invariably have no concept of ''the spirit of the Act'', which is enshrined in s3 (I think). It was unique to FOI in 1982. Essentially, it says that if there's no good reason for refusing access, then the document should be released. Moreover, the average lawyer may have spent a few lectures and tutorials on FOI in the entire course of his/her training. Upon being hired by the applicant, they pull out their copy of the Act and have a read of it, probably for the first time in some cases. Often their copy of the Act is out-of-date. I once was contacted by a QC on behalf of his client. He was still using a superceded version in which ''personal information about'' had not been substituted for ''information relating to the personal affairs of'' (s41) - very different concepts in law. God only knows what his client was paying for a Silk's advice.

Open government in transition: keep watch, still to come

 The report "Open Public sector information: from principles to practice" released on Friday by Australian Information Commissioner Professor John McMillan contains the results of a survey conducted in April and May 2012 of information management practices in Australian Government agencies, in particular how the Open Public Sector Information Principles were being implemented.

Professor McMillan's key take away is "that Australian Government agencies are actively embracing an open access and proactive disclosure culture" although there are "many policy challenges and practical obstacles that must be tackled. It is more a time of transition than fulfilment."

I haven't been through the report in detail but what stands out on the openness front are problems of awareness, attitude, leadership, resources and the limited powers in legislation or with the OAIC to require agencies to publish information that should be in the public domain.

The report includes a section on the advantages of keeping abreast of international developments for example through the Open Government Partnership, and after extolling the importance of top level leadership here at home, a polite public service plea for more help:

"..there has not since been the same explicit promotion of open government reform and cultural change by Government as occurred in 2009–10. We believe that explicit support would be valuable and timely in continuing the watershed reforms."

The PM's "let the sunshine in" moment of September 2010 could do with a rerun. Often.

The Sydney Morning Herald sub -editor, with some justification, saw the absence of political leadership as the story: "Openness policy stymied from the top"

Tribunal rules against council’s bid to keep the lid on manager’s performance.

(Sorry about the formatting-something went haywire here.)

In a decision that is sure to attract attention in the local government sector and perhaps beyond, NSW Administrative Decisions Tribunal Deputy President Higgins in Clarke v Blacktown City Council [2013] NSWADT 36 found there was no overriding public interest that prevented disclosure of most of a council report on the performance assessment of the council's general manager. 

 The council tried at every step for over two years to withhold what it argued was sensitive information in the report submitted to the full council in September 2010.

 I represented Mr Clarke in the later stages of the ADT review including with written submissions and appeared for him in the hearing before Deputy President Higgins. With his permission this commentary draws more broadly on the applicant's experience than is the case with usual observations about court, tribunal and commissioner decisions.

Deputy President Higgins ordered disclosure of withheld information consisting of 

• two paragraphs in the report containing the assessment and overall rating of the general manager's performance by the review panel;

•  the strategic objectives against which the general manager was assessed; 

•  and the general manager's self assessment of performance against each of these previously confidential objectives.

The council has 28 days to appeal the decision and has not yet released the documents.

It remains to be seen what if anything was worth the effort and expense.
 
The Tribunal decided in favour of the council on only one category of information in dispute:  the review panel's assessment of the general manager's performance against each of the objectives. Deputy President Higgins said there was a strong public interest in disclosure of this information [80] but decided disclosure on balance was contrary to the public interest on personal information and "provided in confidence" grounds.

Significance
The decision is not a precedent that marks the end of confidentiality as a necessary element in the performance review process, or for the disclosure of information of a highly personal nature about a public servant.  

Deputy President Higgins and along the way, the Office of Information Commissioner NSW, decided the public interest required disclosure of information about the performance of the general manager in carrying out the public duties set out in the Local Government Act and in acting to deliver on the council's priorities, goals and plans that should also be disclosed. Despite council claims that withheld information was all personal information, and other harms to the public interest would result from disclosure including at one stage a risk to someone of harm or serious harassment or intimidation


Background
The applicant, Mr Clarke is a former councillor, and an activist, advocate and self-described altruist in his endeavours for greater accountability and transparency in the local area. He is 85 years of age.

Mr Clarke's application under the NSW GIPA act in November 2010 sought access to the report submitted to the council by the councillors that had conducted the review, and for documents concerning the way the review had been conducted. His interest was sparked when two months before the required review of performance took place, the council renewed the general manager's contract for five years. The report had been submitted to a closed session of the council. Little detail was reported publicly. 

Delay
Apart from obfuscation, Mr Clarke endured delay at every step of the way.
 
It took eight months for the Office of Information Commissioner NSW to issue a ruling in his favour after he took the matter there in January 2011. The council then made a new decision basically maintaining its previous position. When Mr Clarke took that decision to the ADT, another eight months passed before a hearing, with council dragging things out whenever the chance arose.  After the matter was heard in July 2012, the decision was reserved for seven months. 

This is not the promised and necessary speedy access to independent review. 
  
The time line illustrates the persistence needed when an applicant is faced with agency resistance to disclosure, particularly when the information in question is information the boss doesn't want disclosed, and where it has available funds to employ lawyers who can argue the toss about GIPA in this case, Sparke Helmore.

The council stared down the Office of Information Commissioner. 

Inconsequential parts of the report and attachments were released at various points.

Eighteen months in, on the morning of the first day of the ADT hearing, 11 pages of information from the report were put on the table. The information was similar to information contained in the council's 2009 and 2010 annual reports. 

Deputy President Higgins' decision two years and three months since it all began now requires more.

Cost
According to Mr Clarke, Blacktown City Council has spent something of the order of $40,000 on this so far and hundreds of hours of staff time seeking to protect information about the performance review from disclosure. The Local Government and Shires Associations also sprung into action to assist, inviting other NSW councils to contribute to the cost of defending Blacktown's decision in the Tribunal. One example from Leichhardt Municipal Council (pdf) although the $162 on the line there wouldn't help defray costs much at all. Ratepayers in Blacktown and elsewhere should be asking questions.

In addition, NSW taxpayers have also footed a sizeable but unquantified bill for the hours, days, weeks and months spent on the case by the Office of Information Commissioner and the ADT. As for Mr Clarke's time, he's an altruist.

Broader concerns 
Mr Clarke's doubts about the thoroughness of the review process were confirmed when council was unable to locate any relevant documents that guided the councillors involved in undertaking the review other than the pro-forma, a questionnaire provided by a consultant engaged to assist and Mr Moore's self assessment. The Division of Local Government recommends training for this task, and along with the ICAC publishes guidance regarding managing performance and corruption and other risks. The council apparently provided none of this to the councillors involved.

Public interest 
Two relevant extracts from the decisions concerning the public interest in disclosure are worthy of wide dissemination: 
 

The Office of Information Commissioner 7 September 2011:

54.....Mr Moore is engaged in the exercise of public functions and is a representative of the agency. He has been reappointed to the position of General Manager for a further five-year term, which strengthens the public interest in favour of the release of information that accounts for that decision and demonstrates that he is performing at the required standard.
55. While there are considerations against disclosure that apply to the information requested by the applicant, the Information Commissioner is not satisfied that they are strong enough to outweigh the presumption and further considerations in favour of disclosure. The Information Commissioner recommends that there is no overriding public interest against disclosure of this information and that the information should be disclosed to the applicant.

Deputy President Higgins [71] 12 February 2013:

“In my view, there is a ..public interest in having sufficient information to scrutinise the statutory functions being performed by a general manager of a local government, as that position is one of considerable power and influence in the manner in which a local government operates and exercises its functions (for example, its service, regulatory, administrative and revenue functions). That is, information about the statutory functions being performed by the general manager and what methods and processes are used by the elected Council Members to monitor and assess those functions will enhance local government accountability.”

In passing, Blacktown City Council engaged in another expensive but largely unsuccessful effort leading to this Tribunal decision in 2011 to prevent disclosure of a lengthy confidential report into irregularities involving an employee and a contractor. Michael McKinnon of the Seven Network pursued that one.

Aspects of the decision in his case rankle with Mr Clarke particularly the Tribunal's interpretation of his application and the reasonableness finding regarding the council's search for relevant information. Not surprisingly, he is moving on with another cause.

Blacktown needs more like him.


Timeline: