The Beattie enigma: a "media tart" with poor record on transparency

The resignation of self confessed "media tart", Queensland Premier Peter Beattie last week, has prompted some reflection on his time in office, and his accomplishments.

In the Courier Mail ethicist Dr. Noel Preston puts the ruler over integrity in office and finds the record "disappointing". Dr. Preston says that Beattie leaves office with a record of undermining democracy and the institutions of government:

"The concerns are real, including: politicisation and bullying in the public service, adverse reports from a previous auditor-general, a perceived weakening of ethical standards in government-owned corporations, compromising the separation of powers in the relationship between the police commissioner and the government, and an inappropriate appointment process for the former information commissioner.

Indeed, it is the continued practice of information control and abuse of Freedom of Information through Cabinet secrecy which is most corrosive of democratic process and transparency".

See our earlier wheelie bin blog on the Queensland Cabinet exemption in FOI

Senior writer with the Mail and adjunct lecturer in the Department of Politics and Public Policy at Griffith University, Dr. Paul Williams, also notes that Beatties's political achievements are clouded by his approach to transparency in government:

"(H)is penchant for "spin" and the control of information.....make a less savoury record. The strangling of Freedom of Information laws is the most often cited, but his total domination of parliamentary and committee processes will also be noted".

Dr. Williams seems to sum up for both:

"These are legacies of which no one should be proud"

FOI delivers blow by blow account of nine year drafting exercise

Matthew Moore in his Sydney Morning Herald "What they won't tell you" column illustrates through documents obtained under the Freedom of Information Act some of the reasons it took over nine years to draft the revised NSW FOI Manual.

In "After nine years it must be a well written manual", he details some of the infighting between the Premier's Department and the Ombudsman's Office, with the then head of the Premier's Department, playing a key role in frustrating progress since 2002. Turnover of staff involved over the years must have contributed to the stop start nature of the project. And lack of firm direction from the top to get this done clearly allowed the exercise to meander on over the years.

Well at least a tick for FOI that the documents about what happened were released in response to an application by a regular user of the Act, who put "right to know" in action.

As to whether "it must be a well written manual", that's another question that those who now have to work with it, or rely on it, are best placed to answer. Good luck to us all.

Pass the parcel Freedom of Information application

I'm not quite at the stage of regularly reading the Combined Pensioners and Superannuants Association (CPSA) of NSW newsletter "The Voice" but an anonymous reader of the blog has drawn my attention to this article "How the NSW Government Frustrates CPSA FOI Applications" in the August edition.

There are always at least two sides to every story, but the CPSA version of events surrounding an unsuccessful attempt to access documents makes interesting reading. They sought access to information about a community consultation that the government claimed indicated "overwhelming" support for a policy initiative in which they were interested. There was a long delay that went far beyond the statutory time limit (including past the March election), followed by eventual transfer of the application to another agency. Then after a complaint to the Ombudsman (who found nothing untoward in the delay) they finally received a response from the second agency that no documents were held about consultation with the public.

Not a good look for the two agencies involved, RailCorp and the Ministry of Transport.

Thanks to the sharp eyed reader for the lead.

Australian Law Reform Commission releases privacy door stopper

It's hard to fault the Australian Law Reform Commission on its attention to detail in the just released discussion paper on reform of Australia's privacy laws. See:
Discussion Paper 72, Review of Australian Privacy Law

The report contains the Commission's preliminary views, runs to almost 2000 pages and includes over 300 recommendations.

For the faint hearted (or time pressed) the Overview (34 pages) available here might be all you need.

No one will be surprised that the Commission concludes that our privacy laws are fragmented, overlap, and are inconsistent, and have failed to keep up with developments in the world around us.

The Commission maps a path forward, calling for national consistency and a uniform set of principles to apply to public and private sector bodies. It recommends abolition of some exemptions from the Act that currently apply to small business and political parties, but says the exemption that applies to activities in the course of journalism should remain, with "journalism" defined in the legislation.

The paper recommends there should be a defined cause of action for breach of privacy, and sets out a range of defences. This issue is the subject of more detailed consideration in a NSW Law Reform Commission Paper that is already out for public comment.

The Commission recommends a notification of breach requirement, limited to where there is a reasonable prospect of harm to the interests of the person concerned. Trivial breaches would not require notification.

It revisits some Freedom of Information issues, and picks up on some of the recommendations made 12 years ago in the ALRC review of the FOI Act, which still awaits a response from the Federal Government. The recommendations include steps to remove overlap between FOI and privacy rights by confining an individual's right to access personal information from a Federal Government agency to the Privacy Act.

Importantly it calls for the creation of an Information Commissioner (the Ombudsman) to “own” responsibility for ensuring the Act is interpreted and applied appropriately, and to monitor what happens in FOI administration across all Federal Government agencies.

Overall it’s an impressive piece of research that will keep the commentators busy during the consultation phase to follow.

There is, and no doubt will continue to be, plenty of reporting on the issue. See ZDNet Australia and Australian IT as two of many media reports today.

US record on openness mixed, but still strong supporter for FOI

In the US OpenTheGovernment.org has released its 2007 Secrecy Report Card providing statistics under a variety of headings to show that while there has been some improvement in interest in openness and accountability, as demonstrated by Congressional initiatives, in other respects, government secrecy across a broad array of government agencies has continued to expand.

It says something about the US, that statistics of this kind are readily accessible, and advocates of greater openness can draw on them to publish a report of this nature.

The US also deserves a tick for its support of Freedom of Information laws around the world. This release by the State Department, in support of International Right to Know Day on 28 September, shows that the US Government is prepared to give prominent critics of the current state of things in the US, a platform to espouse the benefits of FOI.

Australia Council protects grant recipients

The Australia Council has dug in its heels about release of details of grant recipients who have completed projects late or not at all. We commented in an earlier blog about the original determination to refuse a Freedom of Information application for documents.

This article in the Courier Mail reports the decision to refuse has been confirmed on internal review.

What's different is the earlier report quoted the Minister for Arts Senator Brandis as saying this sort of information should be in the public domain. As I said at the time, this makes sense to me. The later article says Senator Brandis "has chosen secrecy over transparency". No explanation offered here about an apparent change of heart.

APEC Refugee

With so many helicopters overhead and traffic disruptions as a result of the APEC Leaders Meeting in Sydney until Sunday, I'm heading out of town for a couple of days.

New policies in NSW FOI Manual

Those in the NSW public sector responsible for Freedom of Information issues have no doubt been reading the fine print of the new Manual issued by the Department of Premier and Cabinet and the NSW Ombudsman. As is well known, it has appeared 13 years after the last government guidance on the interpretation and application of the Act.

At 376 pages, it's a big read. It includes a whole range of new policies on various aspects of managing FOI requests. They are spread throughout but we have consolidated them in this document in the order in which they appear. Policies range from important issues right across the board to very minor matters. Some other important guidance in the Manual hasn't been given policy status.

The Manual also reflects differing opinions of the Department and the Ombudsman on various issues. This together with brief reports of sometimes conflicting court decisions may add to confusion amongst FOI practitioners rather than provide the long awaited clarity on important issues.

Unfortunately the Premier didn't take the opportunity in putting his name on a memorandum to ministers, to commit the Government to high standards of transparency.

Or to emphasise the importance of FOI and related issues.

Or like his Victorian counterpart to commit the government to an overhaul of the Act and a review of access to government information generally in the light of the information rich, technology enhanced world in which we live.

The NSW FOI Act, and associated policies and procedures are still very much "horse and buggy" in the google age.

Privacy Commissioner finds no fault in first newspaper investigation

The Federal Privacy Commissioner has released case notes of four recent finalised complaints. One, U v Newspaper Publisher (2007) PrivCmrA23 appears to be the first published of a complaint against a newspaper investigated by the Commissioner. Most media organisations are committed to codes of practice and complaints are investigated by industry bodies.

Under the Privacy Act an act or practice of a media organisation in the course of journalism is exempt if the organisation is publicly committed to comply with industry standards. Apparently this unnamed newspaper had made no such commitment. However on investigation the Privacy Commissioner was satisfied that the publication was an accurate account of opinion about the complainant and did not involve any breach of privacy principles.

NSW ADT requires Forests to disclose unit pricing

The NSW Administrative Decisions Tribunal has found in favour of an applicant who sought access under Freedom of Information to documents that contain the unit price of pulp supplied by Forests NSW from two regional forest areas in NSW.

In Watt v Forests NSW (2007) NSWADT197, the Tribunal decided that the information, now three years old, would not disclose information that had a commercial value, but in any event any value would not be destroyed or diminished by disclosure; would not disclose information concerning Forests NSW business affairs that would have an unreasonable adverse effect, or prejudice the future supply of information; and disclosure would not found an action for breach of confidence.

On this last point the Tribunal said (paragraphs 147-148) that public authorities subject to the FOI Act could not in effect render a document exempt simply by including a provision in a contract that information would not be disclosed and specifically disagreed with the decision in Fomiatti v University of Western Sydney. We commented at the time that the latter decision didn't seem consistent with FOI law.

The Tribunal went on to say that in any event there was a strong public interest in favour of disclosure, as it would contribute to debate on an issue of significant public interest

"the socio -economic and ecological value of these publicly owned forests and whether the existing operations provide an adequate return to the community from the use of a public resource. An uninformed public cannot usefully participate in that debate".

The decision appears to represent something of a national breakthrough in access to information of this kind. See this earlier post concerning the Tasmanian Ombudsman, and a decision there not to require price information to be disclosed.

Federal Attorney General on Freedom of Information laws

Federal Attorney General, Phillip Ruddock, has dismissed criticisms by Geoffrey Robertson QC of the state of free speech in Australia, and his call for some statutory protection of rights. According to the article, the Attorney General also said that Australia's freedom of information laws ensured all appropriate material is available to the public.

As University of Tasmania academic Rick Snell points out in a recently published article "Information Flows - the real art of information management and freedom of information" the critics of the FOI laws include some independent heavy hitters (page 61):

"A series of key institutional players - the Australian Law Reform Commission, the Commonwealth Ombudsman, the Auditor General and a Senate Committee - have all carefully pinpointed problems in access processing and variable compliance to the FOI Act over a ten year period".

The Australian Law Reform Commission Report referred to was completed in December 1995. The Federal Government has never formally responded to its 106 recommendations although the Attorney General makes it clear the Government is satisfied with the status quo.

Be aware of ID fraud risks

The Federal Attorney General also yesterday launched National Identity Fraud Awareness Week to increase awareness of identity theft.

The release says nothing about the Government's views regarding the introduction of a requirement to notify personal data security breaches which is seen to be an important element in seeking to limit identity fraud. The Federal Privacy Commissioner favours such a move, and Senator Stott Despoja has a Bill on this issue before the Senate.

Doctors' incompetence and your right to know

The ABC television program presented by Four Corners on Monday night, First Do No Harm brought to attention a long running saga at Canberra Hospital concerning the competence of the former head of the neurology department, and what has happened to another doctor at the hospital who acted to bring the issue to the attention of the authorities. It also showed some of the tragic results of failed surgical procedures.

The program also raised prominently the public right to know about the skills and experience of those in medical practice who are involved in high stakes surgery of this kind. Other medical practitioners knew to steer people clear of this particular surgeon, and the then Minister for Health was prompted to call for a full investigation when he learned a member of the hospital board was going to Sydney rather than risk treatment at Canberra Hospital.

The doctor concerned has since retired, but satisfactory arrangements for return to work by the doctor who acted in the patients interests, remain unresolved.

There are some big issues here. Hopefully the medical profession and others will keep this issue in the limelight.

Coincidentally in the US last week, a Federal judge in Washington ruled that records of claims made by doctors on the Federal Medicare program, (presumably without the patients' names and details) must be disclosed to a consumer publication which sought them under the Freedom of Information Act. The Justice Department opposed release on the grounds that it could invade doctors privacy by making their income public. The judge said those concerns were minimal and outweighed by the public interest in disclosure. For good measure the judge said the information should be made available without charge, rejecting the $20,000 fee Medicare sought to impose.

It turns out that the Freedom of Information applicant Consumer's CheckBook, sees access to these records as a way of assessing how many times individual doctors have billed Medicare for major, high risk procedures, in order to gauge their experience levels. Eventually it hopes to add other data in order to give a more complete picture.

"It's hard to get information on doctors. This will be a valuable and important thing", said the President of CheckBook.

Tell it to former patients at Canberra Hospital.

Some privacy concerns on the rise but Aussies laid back about security cameras

The Federal Privacy Commissioner has released results of its 2007 survey of public attitudes towards privacy.

The media release is here and the report here. (PDF)

Concerns about identity theft, particularly through the use of the internet, are on the rise; confidence in the trustworthiness of health service providers is high; nine out of ten Australians are concerned about information personal information being sent overseas; and over 70% regard government agencies with confidence.

On the other hand public trust in financial institutions has declined; and 36% have decided not to deal with a business or charity because of practices in the handling of personal information.

And perhaps surprisingly, most Australians are aware of the presence of closed circuit television cameras in various locations, but the majority is not concerned about their use.

Aussie winner of privacy competition

Congratulations to Melbourne school girl Erica Hei-Yuan Chan ( see full release), the winner of the Privacy Week International competition for secondary school students promoting the awareness of privacy issues.

Privacy Commisioners at odds over Access Card

Notwithstanding the fact that the President of the Australian Privacy Foundation thinks the National Access Card project is dead in the water, consultation comments on the draft Human Services (Enhanced Service Delivery) Bill 2007 continue to hit the deck.

And what a contrast in the views expressed by two of our Privacy Commissioners.

Federal Commissioner Karen Curtis welcomes progress on the privacy front in changes made to the first draft, but provides a list of other suggestions for safeguards that should be considered as spelled out in this submission.

On the other hand, Victorian Privacy Commissioner Helen Versey ( 23 August 2007) says the scheme still raises a whole range of privacy and security concerns. So concerning in fact, that

"In its present form and as embodied by the Exposure Draft, the proposed Access Card still presents unacceptable privacy risks that far outweigh any benefits that a single card might bring. The personal information of most, if not all, of the Australian population remains vulnerable to misuse, including for criminal purposes".

Do public servants take much notice of tribunal decisions?

At both Federal and state government level, Australia has many tribunals that undertake merits review of administrative decisions. In a recent paper "The Impact of External Administrative Law Review: Tribunals", Linda Pearson of the University of NSW (and a part time member of the NSW Administrative Decisions Tribunal) raises some important questions about the impact of tribunal decisions on the bureaucracy. She says that despite the fact that lawyers, administrators, tribunals and courts have been talking about these issues for 30 years, there is still limited evidence about impact, beyond the anecdotal.

Pearson says that the total operating costs for the five Federal tribunals is $90million per annum and at the state level cannot be easily assessed.

As Pearson says, we just don't know what happens within government agencies when tribunal decisions are handed down on matters that are relevant to ongoing administration. Do decision makers know about them, and do they translate any key points on interpretation of the law into practice when such issues again arise?

Anecdotal evidence in NSW at least is that Administrative Decisions Tribunal Freedom of Information and privacy decisions, and the guidance they offer on interpretation and application of the law are not well and widely known throughout the NSW public sector.

Then of course there is the related issue of what weight to attach to particular decisions in the light of the fact that there are significant inconsistencies in many tribunal judgments.

Many individuals obtain justice through tribunal consideration of their applications. Pearson is right to say that more work should be done to see what general effects such decisions have on decision makers.

Federal Labor spells out FOI reforms

Opposition Shadow Attorney General, Joe Ludwig, in a speech last week to an information conference in Melbourne, said that Freedom of Information reform would be a priority if the Australian Labor Party was elected in the forthcoming federal election.

Senator Ludwig said that action need to be taken to promote a pro disclosure culture. Labor would "look at putting in place key findings of the 1996 Australian Law Reform Commission Open Government Report". He specifically mentioned revision of the Act, the establishment of an Information Commissioner, rationalisation of exemptions so that information would only be withheld where this was in the public interest, and ensuring charges are not a barrier to access. Senator Ludwig also said consideration would be given to combining responsibility in government for information access and privacy issues.

The speech also included a commitment to reforming shield laws for the media and other professions, and whistleblower legislation.

Full text: Joe Ludwig speech

On FOI, Australia far from perfect but....

Rick Snell, writing in the Sydney Morning Herald yesterday sounded a real note of optimism about the prospect of the Cambodian Government not only embracing Freedom of Information, but also being prepared to consider progressive concepts that the Australian Government hasn't yet contemplated.

I'm not sure what the Cambodian experts would say about this. One Cambodian American friend of mine who has worked in international affairs for more than thirty years at the School of Advanced International Studies at the Johns Hopkins University and in international organisations, has read the article. He describes the Cambodian Government as "murderous and corrupt" and completely under the control of Hun Sen, with a statute book of laws that sound impressive but have never been implemented.

Rick is no doubt aware that the President of the World Bank has just given the Cambodians a stern warning about corruption, and that Prime Minister Hun Sen has "angrily denied" allegations of fraud and corruption with World Bank funding. Cambodia was ranked 151 among 163 countries in Transparency International's 2006 Corruption Perceptions index

I think Rick's comparison of the Cambodian and Australian position on FOI is a bit rough, given the fact that the "progressive" draft FOI policy is yet to be considered at the top in Cambodia, the law is yet to be passed and their track record on implementation of even basic democratic laws and rights is pathetic. While things here are far from perfect it will be amazing if Cambodia, under the present regime will get within cooee of transparency standards of any government in Australia.

Interest in FOI would have to form part of a much bigger picture to be taken seriously in Cambodia.

FOI technicalities take years to resolve

In this recent decision Justice Gray of the Federal Court, found that Federal ministers in receipt of a Freedom of Information application, can't simply transfer a request to their departments under Section 16 of the Act on the basis that the subject matter of the document sought is more closely connected to the functions of the departments, without first locating the documents in their possession. Even though it was accepted that the ministers didn't hold documents, the grounds on which they sought to transfer the requests were not open to them. It's another example of the legal technicalities involved in FOI administration.

A couple of other points. The applicant represented herself in the Federal Court, having rejected the services of a Court provided counsel "as she did not feel he had a sufficient understanding of administrative law". And she won.

The wheels of justice, as evidenced in this case, are moving at glacial speed. Justice Gray heard this matter on 15 February 2006. The decision was handed down on 8 August 2007. The original FOI applications go back to 2004.