EFIC's blanket FOI exemptions under challenge

The Productivity Commission in an inquiry in 2012 into the Export Finance and Insurance Commission (EFIC) concluded it should not continue to enjoy a blanket exemption from the Freedom of Information Act in relation to insurance and financial services and national interest transactions. The government rejected this recommendation in January 2013. A bill before parliament would enact legislation to give effect to recommendations that the government accepted, but makes no mention of this one. 

Jubilee Australia with support from other organisations, academics (and your humble blogger) is urging the committee to look again at this issue. Luke Fletcher in New Matilda provides a case study of why more disclosure about how EFIC goes about its job is important.

Quite apart from the specific arguments relevant to this case, blanket exemptions or exclusions from the FOI act for some government agencies entirely or in respect of certain functions, with no requirement to find harm from disclosure or to consider public interest factors, leave a significant hole in the principles of open, transparent and accountable government that underpin the FOI act.

Several submissions (mine, the Media Entertainment and Arts Alliance, there are others) to the Hawke review point this out but whether Dr Hawke showed interest we don't yet know.

Schedule 2 of the FOI act lists the relevant agencies and functions that entirely or in part are exempt. It  has never be re-examined as recommended by the Australian Law Reform Commission in it's 1995 report "Open Government." That report said most of the agencies listed in Schedule 2 should be required to demonstrate, within 12 months, that they warrant an exclusion, and otherwise be removed (Recommendations 74 & 75).

EFIC could not satisfy the Productivity Commission on this score.

Blanket exemptions can rarely be justified.In best practice information access laws, there are none.

Jubilee Australia will be giving evidence to the Senate committee examining the bill on Friday morning. In addition to pointing to the Productivity Commission Report, and the ALRC report, they might remind senators of the Open Government Declaration, the lofty objects of the FOI act, and the Prime Minister's clarion call of 2010: "let the sunshine in."

MEAA on the State of Press Freedom

The State of Press Freedom Report 2013 (pdf) published by the Media Entertainment and Arts Alliance contains a generally good summary and plenty of opinion from a media perspective on a whole range of relevant issues.(The report is is searchable here with chapters on privacy, suppression orders, anti-terrorism laws, whistleblower protection etc.)

Shield laws are a major concern this year, not surprising given current court challenges to the confidentiality of sources involving Steve Pennells, Adele Ferguson,Richard Baker,Nick McKenzie and Philip Dorling to name some high profile journalists on the receiving end. 

But Opposition Shadow Attorney General Senator Brandis was flabbergasted this was a high priority. And overblown in comments about the parlous state of press freedom here. Not mentioned is that Australia is ranked 26 of 179 countries by Reporters Without Borders

Associate Professor Fernandez of Curtin University includes a handy summary of the shield law provisions around the country- the gaps are Queensland, Northern Territory and South Australia that don't provide specific protection, there is no specific reference to ‘journalist’ in the Tasmanian Evidence Act, and those that have legislated in recent years (the Commonwealth, NSW, Victoria and Western Australia) haven't adopted uniform provisions. Standard federation practice you might say.

Michael McKinnon of Seven Network on freedom of information writes

..the promise of the reforms of 2010 have not been met and FoI is still a battleground. The OAIC has proven to be more of a problem than a solution to exercising a legal right of access of information.

McKinnon is critical of the Hawke review terms of reference and most reform ideas floated from within government, and makes a strong case for disclosure of advice documents in the public interest as a way of focusing on the quality of government decisions. 

I'm with him thus far but start to part company when he returns to familiar themes in discussing the performance of the Office of the Australian Information Commissioner.

McKinnon sees inconsistency in the OAIC role in review on the one hand, and other FoI functions (leadership, guidance, regular meetings with agencies and their representatives) on the other. I think they're complimentary not inconsistent. And that applicants should have a right of appeal to the AAT as well as the option of the OAIC, "as the OAIC is failing its core purpose of providing a timely and independent merits review mechanism." While there are serious questions about timeliness, I don't think the AAT as an option instead of OAIC review is the answer-lawyers for the agency at cost to the taxpayer and to the disadvantage of most applicants, although I know McKinnon is well able to handle things in the AAT himself. And no evidence that the AAT would be more timely.

(Addition: See McKinnon's assessment last year and my comments at the time.)

Too much tugging over who ministers meet

Queensland is soon to publish lobbying contacts.  

And Queensland Premier Campbell Newman and his Cabinet Ministers already publicly release information about portfolio related meetings and activities from their diaries. Not as fulsome as some might wish but a far sight better than other Australian jurisdictions. No other publishes lobbying contact information. Only one publishes the government leader's diary but the Prime Minister's Public Schedule lists media and public engagements and little else. 

In Canberra, as Anne Davies of Fairfax Media can attest, and Sean Parnell of The Australian knows from experience, and in the other states, access to ministerial diaries is still a freedom of information tug of war. In each case access decisions turn on facts, often the legislative prescription for a minister's document and relevant exemptions. In this day and age it's way short of the standard we should expect, the UK providing one good practice example.

1904 Olympics{PD-US}

 Back to the tug of war.

The Full Court of the Supreme Court of Victoria in Office of the Premier v Herald and Weekly Times Pty Ltd [2013] VSCA 79 recently ruled that the electronic "private diary" of the then Victorian Premier's Chief of Staff was an 'official document of a Minister' and was subject to legally enforceable public rights of access under the Freedom of Information Act 1982 (Vic).

That was a threshold question. The HWT applied in November 2011 for access to the diary entries for the period 1February 2011 to 28 February 2011. It's not over yet despite having won on preliminary points in both VCAT and the Supreme Court. It's back to the Office of the Premier (neither the premier nor the chief of staff involved are there any longer) to decide "whether any exemptions are applicable and also whether any irrelevant or exempt material can be deleted so that the OTP can grant access to the HWT to a redacted copy of the diary' [86]. Oh dear, patience where are you?

The Court upheld the decision of the Victorian Civil and Administrative Tribunal although on three points of construction of the act it took a different view: the diary was a single document not a series of separate documents each containing one entry [52-55]; a document held by a minister is subject to the act only if it is in the actual or constructive possession of a Minister in his or her capacity as a Minister [56-67]; and the words ‘relates to the affairs of an agency’ in the definition of official document of a Minister or official document of the Minister in Section 5 of the act should be interpreted more narrowly. 

On this point Judge Tate (Whelan JJA and Kaye AJA concurring) said:

77 However, I consider that the Tribunal was wrong to construe the phrase ‘relates to the affairs of an agency’ as ‘includ[ing] anything that could be considered the business of government or the exercise by a Minister of his or Ministerial functions’.[79] In my opinion, the phrase is clearly restricted to the business of those entities that fall within the definition of ‘agencies’ and not more generally to the business of government. Moreover, it is restricted to the ‘affairs’ of an agency which must include at least the business and activities of the agency. In addition ‘affairs’ must include an agency’s ‘concerns’ in the sense of the area of governmental responsibility the agency is designed to discharge, or the area of government policy it is designed to implement, in keeping with its function of supporting the Minister with respect to a ministerial portfolio.
78 While the word ‘operations’ does not appear in the phrase there is nothing to preclude the ‘affairs of an agency’ from including its operations, but there is also nothing to support restricting those operations to internal operations. Indeed, the submission ultimately made by the OTP, that a document which relates to the ‘affairs of an agency’ must be one that ‘require[s] the document to relate to acts or actions being done by or within an agency’, to my mind, would extend to the external operations of an agency. In particular, the ‘affairs of an agency’ would include actions taken, including meetings arranged, between an officer of a government department, or other agency, and an external entity (regardless of whether the external entity was also an agency). Such an arrangement is an action taken by the agency. Arrangements made between, on the one hand, officers of a government department, or other agency, and, on the other hand, a ministerial adviser from an external entity, including the OTP, are included within the ‘affairs of an agency’. Documents that bear a direct or indirect relationship to those arrangements are thus included within the documents that ‘relate to the affairs of an agency’.
79 In summary, a document ‘relates to the affairs of an agency’, and thus falls within the second limb of the definition of an ‘official document of a Minister’, if it bears a direct or indirect relationship to the business and activities of an agency, or the agency’s area of governmental responsibility, or to arrangements between government departments or other agencies and external entities, including arrangements between agencies and Ministerial advisers from the Office of the Premier.

As I commented previously argy-bargy on this question would be less if something along the lines of the NSW GIPA act formula was adopted in Victoria and elsewhere (emphasis added):

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.

  
Overall though, on who ministers meet, way too much argy-bargy.

CCTV cameras: Premier dumps on ADT but quick to fix loophole

NSW Premier Barry O'Farrell didn't hold back in Parliament yesterday, describing the Administrative Decisions Tribunal decision concerning privacy and CCTV cameras in Nowra as "ridiculous" (four times) and "terrible" (twice). For good measure, "the tribunal was trying to make policy" and should put the interests of the entire community ahead of the interests of the individual who had argued successfully that there had been breaches of the Privacy and Personal Information Protection Act.

 That was a little difficult to square with the Premier's announcement that the Attorney General "advised me that the decision on Friday exposed a loophole in the State's privacy legislation, and today I can announce that that loophole will be fixed" by 

"a regulation to provide appropriate exemptions under that privacy legislation to allow local councils, including Shoalhaven City Council, to use such cameras without breaching privacy laws. The regulation will allow councils to use closed-circuit television cameras in public places."

Difficult to square also with the role of the Tribunal: to review (Part 5) conduct claimed to be a contravention of an information protection principle and decide (s 53) the correct and preferable decision on the basis of factual material before it and the law as it stands at the time. 

Whether the Tribunal decision was terrible and ridiculous as the Premier asserts presumably won't now be tested at the Appeal Panel. But the loophole (a policy and legislative question) in the law at the time the Tribunal dealt with the matter will be fixed next week. 

Unlike other loopholes in NSW privacy legislation, once described as swiss cheese with more holes than cheese, that haven't attracted the same attention. 

Including to mention just three off the top of my head, that the law does not apply to ministers in the handling of personal information; state owned corporations are not subject to this or the Commonwealth Privacy Act; and uniquely, the police in NSW, whose privacy procedures were shown to be lax in the Shoalhaven case, are not subject to this law except (s 27) in connection with the exercise of educative and administrative functions, terms that a member of the Tribunal observed recently should be narrowly interpreted.

Ah dear, back to the current main game:

The New South Wales Government will introduce exemptions to ensure that local councils can continue to use closed-circuit television cameras to prevent crime. In other words, the use of closed-circuit television cameras by councils will be given an exemption through that section of the Privacy Act that was used on Friday to strike out their use in the Shoalhaven. We are drafting urgently a regulation to provide appropriate exemptions under that privacy legislation to allow local councils, including Shoalhaven City Council, to use such cameras without breaching privacy laws. The regulation will allow councils to use closed-circuit television cameras in public places.

The extract from Hansard 7 May (page 12) follows:

OAIC on a treadmill

The Office of Australian Information Commissioner continues on a roll publishing a further 18 Freedom of Information review decisions since 28 March, bringing the total to 52 in the year to 26 April as against 35 for the entire year in calendar 2012. Some decisions worth noting in another post, hopefully.

Impressive on the review decisions front but the published statistics, the latest for the March quarter, show it's an uphill battle to make much of a dent, and resources are under the squeeze. One area that clearly warrants new policy thinking (maybe Dr Hawke turned his mind to it?) is Extensions of Time applications to the OAIC by agencies:1740 in 2012-13 so far, 2224 last year.

In the March quarter:

• 101 review applications were completed,109 came in;

• The age of the oldest FOI complaint was down from 380 days to 312;

• The age of the oldest FOI review application went from 707 days to 795 days (presumably the same matter);

• The age of the oldest unallocated FOI complaint dropped from 138 days to 86, but it went the other way for privacy complaints, from 74 days to 110, and for FOI review applications from 141 days to 197;

• The average time taken to complete cases was down a whisker for FOI complaints (159 days), remained the same for privacy complaints (111 days), but for FOI reviews blew out from 207 days to 244 days. 

• 92 FOI review applications remained open for 366 + days and 168 for 151-365 days. 

CCTV cameras off limits in Nowra-for the moment at least

Rarely has a NSW Administrative Decisions Tribunal decision had the Prime Minister's attention!

However the decision that CCTV cameras in the street installed and operated by a local council breached privacy legislation had the Premier, the Prime Minister and the Federal Opposition all rushing to defend the practice and promising a legislative fix if needed to solve any legal problem.

Judicial Member Montgomery in SF v Shoalhaven City Council [2013] NSWADT 94
found the Council contravened the obligation imposed on it by sections 10, 11(a) and 12(c) of the NSW Privacy and Personal Information Act. 

There is a lot in the decision on the full range of information privacy principles. Judicial Member Montgomery found in favour of the Council on a number. 

The following extracts relate to the findings concerning breach of three principles. They turned on the evidence rather than anything else. Nothing has been said about an appeal so far. Other councils are putting on the thinking hat and the politicians seem ready to roll in any event.

Notice
Section 10 requires that the subject of an information collection is made aware of the implications for their privacy of the collection process, and of any protections that apply prior to or at the time of collection.

149. Section 10 is explicit in regard to the details of which the individual to whom the information relates are to be made aware. In the circumstances of this matter, the Council has collected the Applicant's personal information, and that of other individuals, and provided some signage in an effort to make people aware that images were being collected. I accept that the signage is sufficient to inform a majority of individuals that the cameras are in operation and, by implication, that personal information is being collected. It is not sufficient to inform individuals of the purposes for which the information is being collected.

150. Not all cameras have a sign near them. Increased signage would increase the likelihood that more individuals become aware that the cameras are in operation and that personal information is being collected.

151. I am not satisfied that the signage is sufficient to ensure that individuals are made aware of all of the information addressed by section 10.

An exemption to Section 10 where information is collected for law enforcement purposes did not apply. Police Officers are able to view a live feed of the images collected from the cameras and an arrangement is in place between the Police and the Council whereby an authorised Police Officer may apply for access to particular information.  

Judicial Member Montgomery said [156] a "small proportion of the information is used for law enforcement purposes however that is not the purpose for which it is collected. The information is collected for 'crime prevention' purposes" adding: " In the circumstances it is also doubtful that the Applicant's personal information was collected for 'crime prevention' purposes given that the Applicant was a private citizen going about his private business in a lawful manner." [157]
(Comment: the interpretation of these terms may involve legal argument if the matter goes further.)

Relevant not excessive information
Section 11(a) requires an agency to take such steps as are reasonable in the circumstances (having regard to the purposes for which the information is collected) to ensure that the information collected is relevant to that purpose, is not excessive, and is accurate, up to date and complete.

162. In my opinion, the vast majority of the information collected under the Council's CCTV program is 'collateral information' and is not relevant to the 'crime prevention' purpose. All of the Applicant's personal information is 'collateral information' and is not relevant to the 'crime prevention' purpose. Further, there is no suggestion that Police made any use of the collected information for law enforcement purposes.

163. In my view, the evidence is clear that the images and footage collected in relation to the Applicant are of such poor quality that, in any event, the information would be of little assistance for law enforcement purposes. Because of the poor quality of the footage it cannot be said that the information collected is complete. A high proportion of the frames were omitted giving the false impression that the Applicant was skipping rather than walking.

164. The expert evidence suggests that CCTV does little to prevent crime. The data available for the Nowra CBD suggests supports the Applicant's argument that the Council has not demonstrated that filming people in the Nowra CBD is reasonably necessary to prevent crime. In fact, available data suggests that since the Council's CCTV program was implemented crime has increased in the Nowra CBD in the categories of assaults, break and enters and malicious damage.

165. It seems to me that, at least at the time the Applicant's personal information was collected, the equipment used in the Council's CCTV program was unable to provide any meaningful data that would be able to assist in a general 'law enforcement' context.

166. In my view, the Applicant's personal information that has been collected is not relevant to the purpose of crime prevention, and is excessive, inaccurate and incomplete. In the circumstances, I agree with the Applicant that the Council has not complied with the obligation imposed on it by section 11 of the PPIP Act.

Reasonable security safeguards

Section 12(c) of the PPIP Act provides that an agency holding personal information must ensure that the information is protected by taking reasonable security safeguards against loss, unauthorised access and misuse.

169.... It is common ground that the collected data is only available to Council staff and Police Officers. In my view, the Council has developed sufficient safeguards, as are reasonable in the circumstances, to protect the personal information collected and are therefore sufficient to meet the requirements of section 12(c). The system as designed requires that the (Police) duty officer enter a user name and password at the commencement of their shift, to log into the 'live feed' monitor. However, the evidence suggests that this process has not been followed.

170. I agree with the Applicant that the use of a generic password rather than an individual user name and password for each authorised user means that there is no way of checking who is and isn't using the live monitor at the Nowra Police Station. There is no way of knowing whether those who are accessing the monitor have been appropriately trained. Section 12(c) provides that the agency 'must ensure' adequate protection of the collected information. While the system design would achieve this objective, the Council has not monitored compliance with the safeguards that are in place. As a consequence, the Council's CCTV program is open to unauthorised access and misuse and therefore fails to comply with section 12(c) of the PPIP Act. At a minimum, compliance would require appropriate training and monitoring of the use of individual user names and passwords to provide an audit trail of users of the system.

The orders are:

1. The Council is to refrain from any conduct or action in contravention of an information protection principle or a privacy code of practice;

2. The Council is to render a written apology to the Applicant for the breaches, and advise him of the steps to be taken by the Council to remove the possibility of similar breaches in the future.

Queensland lobbying rules require public disclosure of contacts

Lobbying rules have proved problematic for the Newman government in Queensland with two ministers resigning during the first 12 months over inappropriate contact and disclosure failings.

But Queensland can take a bow when it comes to scope, reporting of lobbying activity and transparency as a result of changes that took effect from 1 May 2013. Changes to the rules extend regulated lobbying activity beyond ministers and public officials to lobbying the Leader and Deputy Leader of the Opposition and staff; and require monthly reports to the Integrity Commissioner by registered lobbyists detailing lobbying activity including the client, lobbying contacts and the general purpose of the contact, and importantly, the publication of this information on the commissioner's website.

Not the proactive publication of details like we see in the UK Who Ministers are Meeting 
but a stark contrast to other Australian jurisdictions where registration and observance of a code of conduct is all that is required.

A Queensland parliamentary committee, while not happy that both client name and purpose of the meeting are to be published, has recommended extending the scheme to include paid in-house lobbyists of both corporations and associations, and a comprehensive review of the Integrity Act.

The changes this week flow from the Right to Information and Integrity (Openness and Transparency) Amendment Act 2012.

Privacy Awareness Week

I'll bet you were aware anyway.

If not, Privacy Awareness Week is underway and runs through until 4 May. It's a good idea.

In his first outing in this field, Attorney General Mark Dreyfus spoke at the launch event in Sydney on Monday. You won't find much there you didn't know if you followed the painfully slow development and passage of the amendments to the Privacy Act enacted last year and to commence in 2014. 

The Australian Law Reform Commission and its report 108 that kicked all this off in 2008, Privacy Law and Practice, didn't crack a mention.

Nor was there a mention of its recommendation all those years ago (in line with recommendations from the NSW and Victorian law reform commissions) for a statutory cause of action for a serious and unwarranted breach of privacy. As recently as 12 March this was on its way back to, ahem, the Australian Law Reform Commission for "detailed examination."

But presumably that's gone now along with the rest of the media reform package, parts of which addressed another ALRC recommendation: that the exemption from the Privacy Act media organisations enjoy in the conduct of journalism should be conditional on signing up to adequate privacy standards that include proper enforcement mechanisms. (How tough is that? But i digress...)

And no mention of other ALRC recommendations that in 2009 then responsible minister Ludwig identified as ‘second stage’ reform issues, including removal of exemptions for small business and, ahem again, political parties; telecommunications privacy; children’s privacy and leadership on the issue of national harmonisation of privacy laws.

The only second stage issue that received a run was data-breach notification. Voluntary and encouraged now, but mandatory notification is under consideration. Still.

On this subject the Attorney General said:

Hawke FOI review report lands in Attorney General's in- tray

The Hawke report on the operation of the Freedom of Information Act and the Australian Information Commissioner Act was due to be handed to Attorney General Dreyfus today and must be tabled in Parliament within 15 sitting days. With Parliament resuming on 14 May the report will be tabled before Parliament rises again for the winter recess at the end of June.

Maybe pleasant surprises lie ahead, like a forthright account of what needs to happen to achieve the lofty aims of the legislation. We'll wait to see.

But the review process - written submissions, then leave it all to us folks - was straight out of an out of date textbook. Magnified by the fact it is about the operation of legislation that has as an object "the promotion of Australia's representative democracy by increasing public participation in Government processes." 

The Department straight-batted queries regarding adequacy of the process in an answer to a question taken on notice from Senator Rhiannon PDF 134KB

As at 12 February more than 75 submissions had been received. Sixty nine have been published overall - 32 from government or government related agencies or individuals.

I have the impression Dr Hawke was almost entirely in the hands of the public service throughout the six month review, with AGD providing whatever support he needed.

Dr Hawke didn't appear to venture far from the Parliamentary Triangle here but went to NZ during the review wearing another hat and made some FOI contacts I understand.

Oh, I had one 40 minute phone conversation with him just after submissions closed. 

More than most I expect and more than anyone I heard from except Rick Snell who had about the same. 

Roll on June...

Integrity awards-parliamentarians step forward

You would like to think they will be inundated with nominations and find it hard to separate winners from a long list of worthy recipients.

The Accountability Roundtable is looking for members of Parliament "worthy of recognition for their commitment to honest, transparent and accountable government and the parliamentary system."

The awards honour two former Senators, John Button and Alan Missen. The Button Award is for Ministers and Shadow Ministers and their Parliamentary Secretaries and the Missen awards for all other members of the Commonwealth Parliament.  They were first awarded in 2010, respectively to the Defence Minister Senator John Faulkner and now retired backbencher Petro Georgiou.

Some musing over the possibilities in 2010. The Roundtable received 17 nominations that year. 

Your thoughts this time?

Nominations close 6 June and should be sent to Accountability Roundtable Chairman Tim Smith QC: jsmithth@iimetro.com.au or j_mesiti@optusnet.com.au 

The criteria for both awards are the same:

The award winner’s behaviour should be exemplary and reflect the best traditions of political service to the community.
The award winner will, in the relevant period, have demonstrated an outstanding commitment to the public interest in the performance of his or her role with
 Honesty
 Civility
 Independence 
and/or
Political Courage, in one or more of the following areas

• Supporting the principles and practice of transparent and accountable government

• Contributing effectively and constructively to parliamentary debate, committee deliberations and/or policy development in a way that promotes and/or supports good parliamentary practice and the institution of parliament.

• Pursuing a change in government policy or practice whether generally or in response to a constituency issue or injustice.

• Protecting peoples’ political and civil rights

Transparency silos not unique to Australian CSOs

Infrogmation

Australia isn't the only place faced with the situation that groups and activists beaver away in civil society silos, separately seeking to advance various transparency and accountability issues without much in the way of dialogue or joint effort on common high order goals.

Martin Tisne at Open Up had also written about this in February after attending a meeting in Poland and again in April, offering these reasons why working together had proved difficult for CSOs in the UK:

(1) Each community of practice (whether budget groups, freedom of information, open data groups, extractives’ groups) has its own language, discourse, way of working, basic reason for why they are doing this in the first place (e.g. whether to deepen democracy or decrease poverty) which can be a big barrier to doing business together.
(2) NGOs are in competition for limited resources: why should civil society groups make an effort to coordinate when they will ultimately be competing against each other for a limited pot of funding?
(3) Coordination, partnership is hard work! Why do it unless there is a clear pay-off at the end? With limited resources to start with, why should CSOs work and partner together, when they could forge ahead with their own agenda (perhaps faster)?

I think it's a version of (3) here, more than anything else - limited resources, organisations stretched and forced to make hard choices about the use of time leaving little for the big picture, and pre-occupied with individual agendas. And of course for anyone who puts a hand up, that coalition formation and development is hard work.

Tisne says that in the UK the "OGP is playing a huge role in bringing together a broad group of civil society groups working on opengov that had previously never met nor worked on a common platform."

Hopefully that could be the way things go here - in the lead up, or when we get to "yes" on the OGP.

Callinan CMC report uses blunderbuss on RTI act when spit and polish might do

The Executive Summary of the Callinan Report on the review of the Queensland Crime and Misconduct  Commission, when released a few weeks ago, included what seemed to be an extraordinary, broad recommendation that the Right to Information Act be amended to restrict agencies and the Information Commissioner from being required to give reasons for refusal to release documents for a period of nine months after an application was received.

It is far from the most important issue raised in the report, which takes the stick to what it calls "the integrity industry." I'll leave those to others. 

But the lack of clarity in the RTI act recommendation, and the absence of information about other options considered, and the lack of an explanation for it in the Summary meant the publication of the report itself was awaited with interest.

The (redacted) full report has now appeared in Parliament tabled papers 2448-2452. (Hats off to the Queensland Parliament, I think the only Australian jurisdiction where tabled papers are published promptly on-line.) It is also here (Redacted) Full report (in a very large pdf).

Rather than a full, deep analysis, the review's examination of the RTI issue is limited to one page (113) in 248.

The given as far as Callinan is concerned is that the need for confidentiality regarding any fact of, or identity of a person who is subject of a complaint or of an investigation, or interest in a matter before the CMC is absolute.

The report proceeds from there seemingly, conflating two issues. One, how information of this kind might be safeguarded by an exemption. Two, the dangers posed to confidentiality if a decision to refuse access requires reasons to be given.

The report summarises the RTI problem thus:

At present the relevant agency, and on review the information Commissioner must give reasons for its decision whether to give access to documents which may in effect disclose that a matter is under investigation by the CMC and which would probably enable identification of the subject matter and the person who is the subject of investigation.

No examples are given to support the contention that the act isn't working in practice and there is no reference to the matter being raised in submissions.

As to what to do about the problem, the report says it would be possible to add to the categories of exempt information in the RTI act, information that would tend to identify the existence, nature or subject of a complaint to or investigation by the CMC. But

"we think it would be still possible for resourceful organisations to ascertain by process of elimination that a document has not been disclosed because it is related to a CMC  complaint or investigation.

From there it makes the jump to this radical solution (no emphasis added, the report underlines "any"):

"In order to prevent this possibility most effectively it would be better that agencies and the commissioner simply not be required to give any reasons in any case for a period of nine months of the application unless the Supreme Court for compelling reasons of public interest orders otherwise. Unless the discretion of the Information Commissioner not to give reasons is a general one and not in respect of the CMC alone the objective of confidentiality would be defeated..."

No new exemption is proposed. Simply(!) that the requirement for reasons for refusal of access by an agency or the Information Commissioner in "any case" be dispensed with for nine months.

There is no mention in this discussion of the existing section 55 of the Right to Information Act which provides that nothing in the act "requires an agency or Minister to give information as to the existence or non-existence of a document containing prescribed information."  Or reference to the possibility, that if this isn't capable of doing the job, of tweaking, with modifications drawn from other jurisdictions which apparently aren't struggling unsuccessfully to protect information of the kind Callinan wants protected.

The report recommends the same "give no reasons" provision should be included in the Ombudsman Act so that the Ombudsman would not have to explain a decision to refuse to intervene in a matter because it was the subject of a CMC complaint or investigation.

This part of the report concludes 

Without these (protections), as appears from this and other chapters of this Report, the requirement of secrecy is a hollow protection easily evaded.

Really?

For mine, the case for the recommendation that no reasons should be given in any RTI case isn't well argued; the report doesn't consider less radical alternatives; and the recommendation if accepted would turn on its head the general well established principle that an administrative decision-maker has an obligation to give reasons. It would mean that public servants have to be taken at their word that there are good reasons for refusal of access which can't be scrutinised or effectively challenged for nine months, unless through Supreme Court proceedings.

The blunderbuss should be put back on the shelf, replaced by something more suited to polishing rather than blasting the existing RTI framework, where this is necessary.

Quite apart from reasons being more than an RTI issue through a general requirement in the Queensland Judiciary Act, the Queensland Ombudsman's Good Decisions Guide (pdf) (page 10) advocates

giving reasons is good administrative practice in that it promotes fairness, transparency and accountability in decision-making.

Recommendation 10 in the review report reads:

"Transparency an idea whose time, definitively, has come."

So said co-chair of the Steering Committee, UK Cabinet Office Minister Francis Maude,

in welcoming the eight new members - Argentina, Costa Rica, Finland, Hungary, Panama, Trinidad and Tobago, Ghana, and Liberia - to the Open Government Partnership in London this week. Twenty of the 58 member countries were represented at the Steering Committee and associated meetings. Mr Maude said

In just 18 months, the OGP has grown into a global movement of 58 countries. Now we must cement the credibility of the OGP as an international force for change by deepening engagement with existing participants and turning promises into actions.Transparency is a tool for reformers all over the world. The best way to make the OGP transparency message stick and encourage more countries to join, is to show how openness empowers citizens and improves their lives; and to make ourselves accountable if we fail to live up to our promises. Once people see the advantages of transparency, the democratic impetus for open government will be irresistible, and there will be no turning back............The UK is a world leader in transparency and we want to be the most transparent government in the world. We are also committed to helping other countries share in the benefits of transparency by increasing participation and exchanging information on openness initiatives through the OGP. An understanding of the potential of open data to sharpen accountability, fuel economic growth and prosperity, and improve public services is an important part of this.

During the week, Sir Tim Berners-Lee, founder of the World Wide Web Foundation, launched the first in-depth study of how open data can be harnessed to foster better governance and provide better services in developing countries. ‘Exploring the Emerging Impacts of Open Data in Developing Countries’ (ODDC) grew out of discussions at the OGP in April 2012; and a progress report will be given at the OGP summit in London 31 October-1 November.

Who knows, maybe Australia will make that one?

Australia and the OGP: seize the day at Sydney EITI Conference?

Sounds as if the meetings of the Open Government Partnership in London this week were likely challenging - Toby McIntosh identified in advance these ticklish issues from a crowded agenda.

We're just onlookers of course (did we have anyone working the corridors?) until we take the plunge when the challenges will take on new relevance. 

But hopefully things have progressed regarding our intentions, through that "inter-agency group" revealed in February, since Foreign Minister Carr said yes in principle to membership, and DFAT Secretary Varghese committed to a speedy resolution and response to that letter of invitation in 2011 from Hillary Clinton still cluttering someone's intray.

In any event, glad to see in Australian IT this week, Dr Nick Tate, president of the Australian Computer Society among other important positions, query what's holding us back.

Here's a thought on how we could make a late but stylish entry to the OGP, courtesy of the Extractive Industries Transparency Initiative (EITI) Global Conference, Beyond Transparency in Sydney, May 23-24. 

A Government minister, possibly Foreign Minister Carr or Assistant Treasurer Bradbury is expected to welcome the thousand delegates from around the world.

While strong supporters of the EITI internationally, including through a sizeable cash contribution to assist implementation, the Government apparently isn't in a position at this stage to announce  a commitment to implement the EITI on home turf. 

However the complementary goals of the two initiatives and the many cross-overs of those involved with or engaged in the EITI and the OGP in many countries, means this is just the occasion for an announcement that Australia intends to join the OGP. 

An action statement to this audience, would, more than words, lift our standing as a country committed to high standards of transparency and accountability at home, and prepared to put shoulder to the wheel for this cause abroad.
 
So if you have their ear, a word or a message advocating this is the way to go to Minister Carr, Attorney General Dreyfus, Assistant Treasurer Bradbury and any others close to the seat of power might give things a nudge in the right direction.

By the way registration  for the EITI conference is free. I've signed up and look forward to meeting readers and others there. 

Maybe even one who illustrates the point about common EITI/OGP ground: Maryati Abdullah of Publish What You Pay (Indonesia), a member of the Indonesian OGP core team and one of three new members of the Open Government Partnership Steering Committee welcomed at the London meeting.

More about the EITI and Australia, EITI and OGP and our scattered voice on transparency issues generally..

Decade old SA cabinet documents published, in an unexciting first

The South Australian Government has pro-actively published selected 10 year old Cabinet documents. It's a positive policy step on from that taken by former premier and current High Commissioner in London Mike Rann in 2009 to limit application of the cabinet exemption to ten years. 

No-one seems to have got around in the meantime to amending the act. Policy is one thing but the SA FOI act (Schedule 1 Clause 1) in 2013 still stipulates the cabinet exemption is in force for 20 years after a document comes into existence.

As the Premier and Deputy Premier said the publication of the submissions is a first for SA.  It could of course go even further by publishing more relevant information, such as cabinet outcomes as in the ACT, and recent cabinet documents as in Queensland. (As could the Commonwealth, and the other states. And dare I ask, has anyone in Victoria brushed the cobwebs from the cabinet register required to be published by s 10 of the act?)

Also good to see the SA Government flag "further announcements in relation to the proactive disclosure of Government information after establishing a cross agency Govrnment accountability project" to be headed by the Deputy Premier. 

SA is years behind in this area with the FOI act requirement simply to publish information about structure and functions, the types of documents held, and policy documents as defined. The Commonwealth, Queensland, NSW and Tasmanian governments significantly expanded the publishing requirement in 2009-2010.

I'll leave it to the locals to discover any gems in the documents themselves.

This submission by then Minister for Administrative Services now Premier Jay Weatherill in 2002, noting the intention to draft a Freedom of Information Amendment Bill is, well, unexciting. It's the backdrop to this Bill if you are trying to connect the dots to changes at that time.

As Premier Mr Weatherill has the chance to deliver much more in a state well behind in the FOI reform stakes.

Australian democracy in good shape says Economist IU

Ahh, perspective, perspective.

You won't hear much about this from those lamenting that a hung parliament doesn't work, or in media that caters to the 'democracy is dead' crowd.

The Democracy Index 2012 (Download here) published by The Economist Intelligence Unit has Australia 6 (New Zealand 5) in ranking democratic practices in 167 countries. Both at the top end of the 25 that make it into the Full Democracy category.

We can all point to plenty of "could do much better" examples but Australia's overall score (9.22/10) based on 60 indicators, hasn't changed for three years. The methodology and the sixty indicators are at page 29. Strangely none drill down too far on transparency and accountability.

Open Gov convoluted at ABS

The 2011 Census for free on the web sounded great until, as reported by ITNews, a programmer tried to access it and found it so incredibly difficult that the DVD for $250 was looking more attractive. Leading to speculation maybe this is what the ABS intended all along. Bear with us, says the Bureau. We're on the continuous improvement journey.

According to the spokesperson, the ABS has worked hard to reduce the costs since 2006, when similar datapacks cost $805. As for the convoluted download site layout with registration and obfuscated file paths, the spokesperson said there was room for improvement. "The ABS is constantly looking at ways it can simplify the website and enhance the user experience," iTnews was told via email.

OAIC in overdrive

That pick up in pace at the Office of Australian Information Commissioner continues: 34 Freedom of Information review decisions published in 2013 to 28 March, against 35 for the entire year last year.

Acting Freedom of Information Commissioner Toni Peroni  (Pirani-apologies) who was, is (?) Assistant Secretary Business Law Branch Attorney General's Department ) has been the decision maker in many of the recently published decisions. A new hand, on loan or on deck? ( I'm informed Acting while Commissioner Popple is on leave.)

Some points of interest below, drawn from a number of decisions concerning business information, and others regarding charges, diversion of resources and testing assumptions such as "five minutes a page" widely used in the charges calculator, and information received from a foreign government agency.

C U Thursday, maybe?

Look forward to catching up with readers who make it to the Walkley Talks "Press freedom in Australia is under assault" at the State Library this Thursday at 6.30. Free but phone  (02) 9273 1414

Sunshine best served straight

It's come a long way since this post seven years ago about Matthew Moore's exposure of excessive secrecy concerning compliance with food hygiene standards, and six years since the first Freedom of Information breakthrough by the Blacktown Advocate leading to release of the names of local offending restaurants. Then in 2008 the publication of statewide details by the NSW Food Authority, finally put paid to some of the early nonsense about "privacy" and placed the public interest properly in the middle of the table.

Esther Han's front page splash in The Sun Herald today on the results from the first full release of data from the Food Authority's register reveals that more than 3500 of the 36,000 eateries inspected across the state failed hygiene tests. Over 8000 penalty notices were issued in the past five years. More than 1000 related to cockroach infestations, rodent activity and droppings in commercial kitchens. The worst offenders get more free publicity. (Update: a special serve for the fast food chains in this follow on.)

Testimony to some degree to the old adage, sunshine etc: "Last year 785 food businesses were named and shamed compared with 1309 businesses the year before."The number of food businesses appearing on the register has almost halved in three years..."  

I've lost track of whether this fight for transparency is still to be won in some other states and welcome any updates.