Privacy concerns about Victorian Coroner's files

Bill O'Shea, a past President of the Law Institute of Victoria, drew attention in The Age yesterday to the passage of legislation in Victoria that, in his view allows public access to coronial files, without appropriate privacy protections.

It's hard to know what to make of the outcome - O'Shea suggests it is contrary to Law Reform Commission recommendations - and the Victorian Privacy Commissioner, who usually doesn't miss much, has nothing on the web about the issue.

It's also unclear whether the law is in step or out of step with what happens elsewhere around the country.

FOI guidance available after long delay

Well finally the NSW Government has published an up to date statement of policy, and detailed guidance about the implementation of the Freedom of Information Act. It will take a little time to digest what's here and what it means but at least there is detail now on the public record about many aspects of the Act, that public servants and FOI applicants will find useful.

I'll have more to say about this later in the week.

Data security breaches a hidden problem in Australia

The Gartner IT Security Summit in Sydney this week was told that data security breaches are occurring regularly in Australia, and maybe more widespread than the well publicised incidents elsewhere in the world. The only difference here is that they are hidden from the public.

It's timely therefore that Senator Stott Despoja's Privacy (Data Security Breach Notification) Amendment Bill 2007, has hit the Senate (you can find the text and the explanatory memorandum under Bills introduced by Private Members).

This article (thanks to PogoWasRight for the lead) provides a summary and some additional background.

The Bill would require any Federal agency or private sector body subject to the Privacy Act, to notify the person concerned of any breach. There is nothing in the Bill that requires consideration of the type of breach and would seem to apply regardless of whether the disclosure is trivial or significant, and without regard to the prospect of harm. There will be criticisms of the breadth of this.

Unclear yet whether the Government - which controls the numbers and determines what legislation gets considered - is interested in advancing this issue with or without amendment.

Privacy expert says access card dead in the water

Australian privacy expert and Chair of the Australian Privacy Foundation, Roger Clarke, made it pretty clear in a recent address to the AFR GovTech Conference in Canberra, that the National Access Card has all the hallmarks of a monumental failure and is going nowhere.

He says that the people around the Minister responsible realise it's an unmitigated disaster and have shunted it into a siding:

"The big Booz Allen Hamilton contract will be paid out. But the tenderers for the big contracts can pack up and go home now and the public servants can go hunting for their next jobs. That will save us as taxpayers, a cool billion dollars that would have been sadly wasted if the project had proceeded".

At least we can be confident we won't hear much about it (from the Government at least) with a Federal election only months away.

Federal ALP Platform released

The Federal Australian Labor Party platform adopted at its National Conference in April has been posted on the web. Chapter 11 "Reforming Government" includes policy on a wide range of issues concerning integrity and openness in government administration including use of public money for political advertising, the operations of Parliament, ministerial conduct, campaign finance and whistle blower protection.

On Freedom of Information the final version doesn't vary from the draft quoted here in May, but states:

55. Labor will promote transparency and open government through improved freedom of information legislation. Conclusive certificates will be abolished and internal working documents that do not compromise national security will be accessible. Reports on the operation of government and government-funded agencies will be regularly tabled in parliament.

56. Freedom of information provisions should be available to all. Labor will ensure that the costs involved in using freedom of information procedures do not put them out of reach of the community.

57. Labor will ensure that considerations relating to outsourcing, privatisation, notions of commercial confidentiality and corporatisation are not used as excuses to allow government and government-funded agencies to escape the requirements of open government and accountability. The rights of clients and other recipients of such services, including rights to access to information, privacy, correction of inaccurate information and, where necessary, redress, will be maintained.

Coincidentally here is another report today about commitment to open government and accountability by US Democratic candidate Barack Obama.

UK Commissioner and public confidence in decision making

The UK Information Commissioner has made an interesting decision on access under the Freedom of Information Act to documents concerning a meeting between former Prime Minister Blair and a lobbying group of leading executives of multi national companies. While upholding a Cabinet Office decision to refuse access to some documents, the Commissioner ruled it was in the public interest to release background briefing materials in relation to the meeting.

The Commissioner's finding turned on his view that disclosure would "increase public confidence that decisions are properly made". See: Information Commissioner rules on Cabinet Office complaint.

It's been a long time here since we have seen that sort of factor cited as a determinative public interest.

NSW transparency sad State of affairs

Victorian Premier John Brumby's commitment to greater transparency has prompted Matthew Moore in today's Sydney Morning Herald, to reflect on the unhappy situation in NSW where media releases by the Premier and most ministers aren't even publicly available, and the Premier's only Freedom of Information commitment to publish an up to date manual for public servants by the end of 2006, is still to be realised.

As commented previously, Premier's Department guidance on agency implementation of the Act is 13 years old.

Privacy Awareness Week

The Privacy Commissioners in the region have got together for privacy awareness week this year.

Promote Privacy Awareness week 26 August - 1 September with a free poster.

Whoops, devil in the detail, again

This sounds like an expensive oversight.

For years, NSW Government agencies represented by the Crown Solicitor, have been arguing in the Administrative Decisions Tribunal that the Tribunal had no power to undertake a review of a Freedom of Information matter where the applicant in the case raised the issue of the sufficiency of search for documents.

The Tribunal has maintained the position that it has such powers.

In August last year the Department of Commerce, represented by the Crown Solicitor's Office made an application in a case where this issue arose, to have the question of law resolved by the Supreme Court.

The case was heard in January and a decision (Director General Department of Commerce v Cianfrano (2007) NSWSC849) handed down last week. The Crown Solicitor's Office took it seriously as the Crown Solicitor appeared in the proceedings.

Unfortunately for all, including the taxpayer, Justice Hall found that he had no authority to decide the matter as there had not been a proper reference from the Tribunal: under the relevant legislation, a matter could only be referred to the Court by an Appeal Panel of three members of the Tribunal. In this case the matter had been referred by the Deputy President of the Tribunal sitting alone.

It's back to the drawing board on this one a year after the attempt to have the matter resolved.

At the risk of being seen to have a food fetish....

I just have to bring to your attention this report from First Coast News in Florida, that a Freedom of Information application to the Food and Drug Administration resulted in a report that the object found by the applicant in a can of Libby's Green Beans, was indeed a cooked mouse.

I'm sure this was an isolated incident but as the report says the head and tail of the mouse are still unaccounted for, you should know that GAF Foods Australia lists Libby's as one of the brands imported here from Dubai.

When opening beans, please remain alert, even though the FDA report says that "as the mouse had been thermally processed, technically its safe to eat".

Miracle - FOI shows UK hospital food worse than patients thought

Shock horror!

The worst nightmares of those in the UK about hospital food have some basis as a series of Freedom of Information applications have led to the release of alarming information about the hygiene standards in kitchens used to prepare food for hospital patients.

There are now calls in the UK for published ratings for hospital canteens in addition to those already made available in many local council areas on restaurants.

Meanwhile in NSW the Government initiative to make information publicly available about food hygiene standards in restaurants, has got to the stage where there is now a register of convictions (the only conviction since 1 July, is for a restaurant that breached the law selling dodgy scotch whisky), and plans for a mid August meeting to discuss a database of council on the spot fines.

Maybe they need to include some stakeholders from the hospital system as well?

Victorian FOI reforms necessary everywhere - or just hot air?

FOI expert Rick Snell, of the University of Tasmania, was quoted in the Australian on Saturday as urging all Australian governments to reform Freedom of Information laws, along the lines of a commitment last week by Victorian Premier, John Brumby. Snell said all Australian laws were "out of date and needed an overhaul", and without reform Australia's FOI regime would remain one of the most restrictive in the world.

However Daily Telegraph columnist Piers Ackerman says that based on past performance by Australian Labor Party governments, Brumby's pledge will come to nothing. Ackerman seems to suggest that getting the truth out about the late High Court Justice Lionel Murphy, and a decision not to prosecute a union leader by former Victorian Premier, Joan Kirner, will be the test of whether the ALP "isn't just hot air on press freedom".

I can think of lots of other tests more relevant than these couple of archaeological digs into ancient history.

Victorian university exam papers and marking guides not exempt

It looks as if it came as something of a surprise to the University of Melbourne to discover that provisions of the Victorian Freedom of Information Act are a bit different from those in the Federal and other state FOI legislation when it comes to seeking to protect marking guides and examination papers.

In McKean v University of Melbourne (2007) VCAT1310, the Victorian Civil and Administrative Tribunal found that an examination paper and marking guides for two University examinations were not exempt from disclosure. The key issue when it came to the marking guides, was that the relevant provision of the Act provided for exemption where the use of the document for the purpose for which it was prepared, had not been completed. Once the exam was over, there was no grounds for claiming exemption.

In other Australian jurisdictions the legislation usually includes an exemption where disclosure would prejudice the effectiveness of procedures or measures for the conduct of examinations, and include a public interest test.

The Tribunal said that the University's arguments for exemption would have cut some ice elsewhere, but were not relevant given the provisions of the Victorian Act.

Irish damper up about DNA of the unconvicted

Just a postscript on the recent post about retention of DNA samples.

The Irish Times reports that their Human Rights Commission is of the view that retention of DNA samples for indefinite period of those who have not been convicted of a crime is "an unacceptable invasion of the right to privacy".

Makes sense, but sadly no sign of a public debate about such issues on this side of the world.

Not enough light on safety issues and government reports

This report in The Australian that Chinese-made tyres recalled in the US after a double fatality, are still being sold in Australia, didn't refer to a related access to government information issue.

Public Citizen has the details: a 2000 Act requiring the creation of an early warning database that would alert consumers of potential defects in automobiles has not resulted in information being made available to members of the public. In fact until July 2006 the US National Highway Traffic Safety Administration finally lost a two year Freedom of Information battle to keep this information secret, when a court ordered information in the database to be released in response to a Freedom of Information application.

In Australia we also don't see routine publication of information of this kind concerning public health and safety issues. It's another area that shouldn't require Freedom of Information processes.

Matthew Moore in his column this week in the SMH raised a similar issue concerning access to other government held information, in this case reports about animal welfare and the live sheep export trade, only released after a long and expensive FOI battle.

More contenders for the "sunshine solution".

Good FOI news from Victoria

In one of his first speeches in office, the new Victorian Premier John Brumby, has committed his Government to greater openness and transparency, including a rewrite of the Freedom of Information Act.

His predecessor made a commitment to reforms prior to last year's election, but never got around to it before resigning.

Sunshine solution to getting Thomas back on track

Short posts, on holidays (back later this week though folks).

Readers will be aware of the recent fuss about the safety of Chinese exports, including, heaven forbid, Thomas the Tank Engine toys that contain too much lead.

Australians and others at least enjoy some legal protections and the importers and distributors of such products including big brand names, have an incentive to act to protect their reputation. In this editorial the UK Financial Times says that Chinese consumers, who have been subjected to appalling abuses, including the sale of lethal antibiotics and milk powder, don't have information or power to remedy the situation: the Government there resorts to "spectacularly ineffective methods" (like executing the boss of the State Food and Drug Administration) instead of promoting transparent regulation, media freedom and an independent judiciary.

The "sunshine" solution which is usually, at least to some degree, the best remedy. The Financial Times says that China must accept that Chinese consumers, as well as those in developed countries, "have the right to know what they are buying and deserve to be protected from dangerous products".

Police DNA powers raise privacy concerns - at least in UK

Short posts, on holidays.

NSW Police Commissioner, Ken Moroney, recently made news with his suggestion that the Police should be able to keep a database of DNA of those found innocent of a crime. He was commenting about a Government decision to give the Police powers to demand DNA samples of suspects arrested for any offence, not just serious crimes. Despite apparent Government willingness to confer the powers, the Commissioner decried any intention to use DNA sampling for minor crimes.

Last week this issue made the news in the UK where a proposal for similar police powers is under consideration. In this report, The Daily Telegraph says that the whole issue of the national DNA database, now with a record of 4 million samples, is to be the subject of an inquiry but the UK Human Genetics Commission.

One of the major concerns is police power to collect samples for people arrested for minor offences, such as dropping litter or ignoring a road sign - the sort of thing that sounds possible in the light of the proposed NSW legislation. But relax folks, the Police Commissioner (who retires shortly) says the police won't use the powers for such things. Phew....

In this opinion piece on Saturday, Sam Leith explains why the police shouldn't have powers to take DNA samples from those charged with minor crimes, or to keep samples from those found innocent. Leith says just because the police give you a ticket if you don't pick up the dog poo shouldn't mean that your DNA is held indefinitely on a national database.

Canadian Privacy Commissioner on notification of privacy breaches

Short posts, on holidays.

Like Senator Stott Despoja (see post below), the Canadian Privacy Commissioner is pressing for statutory changes that would mandate notification to those effected by a breach of data security principles, but in the meantime the Commissioner has issued voluntary guidelines on the subject, including criteria for notification and a checklist of issues to be considered.

The Australian Federal Privacy Commissioner favours a notification requirement, but this issue is probably not going anywhere before the Australian Law Reform Commission reports next year.

Proposal for data breach notification

Short posts, on holidays.

According to AustralianIT, Democrats Senator Stott Despoja, plans when Federal Parliament resumes, to introduce a private members bill requiring organisations to notify customers in the event of a data breach concerning personal information.

Such a requirement seems inevitable, given international trends, but as usual, the devil will be in the detail.

Thanks PogoWasRight for the lead.