Senate powers to access documents one of the issues for 2010

The  Senate Finance and Public Administration Committee will be sharpening the pencil this week and next with a report due on 2 February on a problem former Clerk of the Senate Harry Evans describes as one of the biggest facing legislatures around the world: what should be done when a minister, on claimed public interest immunity grounds, refuses to produce documents in response to an order, and the Senate only has a broad statement of reasons  for the claim?

The Committee is considering a proposal to call on an independent arbiter to determine if the claims are justified. Since the resolution was referred last November, the Committee received 11 submissions and held a hearing in Sydney on 7 December.

Here's Harry Evans in his first appearance before a senate committee in a private capacity, on the nature of the problem, and how the resolution might help:

A large part of the problem is that Public Service departments have an instinctive reaction to withhold information from disclosure. If a committee or the Senate itself asks for something and there a vague idea that it is sensitive in some way or it is something that has not been published, the instinctive reaction of government departments is to say, ‘No, you can’t have it,’ and then to think up some plausible reasons why you cannot have it. Then it goes to the minister and the minister more or less feels obliged to support the department. Ministers are naturally reluctant to overrule their department and say: ‘No. I think this information should be disclosed’—although, good ministers should know how to do that. So you have the problem of these cases remaining unresolved.

If this system were in place, I hope it would deal with the problem at the source back in the department, where departmental officers would say to themselves: ‘If we say they can’t have it, it has to go to the minister and the minister has to make a decision and then, if the Senate is not satisfied, it will go off to this arbitration and we will have to make a submission or produce the information to the arbitrator. That is a very time-consuming and troublesome process. Let’s think more carefully about whether we can really let them have it in the first place.’ I hope that would be the deterrent effect of this process being in place—right back at the source, officers of departments will think more carefully about whether there really are any persuasive and valid reasons for withholding information in the first place.

The weight of evidence before the Committee suggests the need, if much is to be accomplished, to come up with something stronger than what was proposed - asking the Auditor General (in any claim of commercial in confidence) or an otherwise independent arbiter (in the case of other claims) for a report based on the Minister's stated reasons. The Government is unlikely to find some of the suggestions in submissions and evidence palatable.

 

Professor Anne Twomey, who has researched and written about the NSW scheme, says the whole exercise will be a waste of time if the proposal goes ahead without a requirement to produce documents to the arbiter. She has other concerns about the proposed resolution, and urged the Committee to ensure the resolution contained clear rules about what qualified for a public interest immunity claim and what did not.

Clerk of the NSW Legislative Council Lynn Lovelock can't see how the scheme can work without the documents being available to the arbiter. Auditor General Ian McPhee doesn't want a role in any of this, saying that asking him to arbitrate goes beyond traditional functions of his office. Commonwealth Ombudsman Professor John McMillan sees merit, and alignment of functions, in giving the arbiter's job to the proposed Information Commissioner.

The hat you are wearing may have FOI implications.

This report by Richard Baker in The Age about an unsuccessful Freedom of Information application to the Reserve Bank of Australia for a report on the legality of multimillion-dollar payments to foreign middlemen used to win currency printing contracts, appears to indicate the RBA is claiming that a  document held by an officer of an agency as director of a separate but related entity is not held by the agency , and not subject to FOI.

According to The Age, the 2007 report by Freehills was for the Board of Note Printing Australia, a wholly owned RBA company. The company and a sister company Securency, jointly owned by the RBA and a British firm, are both chaired by Assistant RBA Governor Bob Rankin who apparently holds a a copy of the report in that capacity. According to The Age the RBA is refusing to release the Freehills report on the grounds that it is ''not a document of the agency'' and ''not within the RBA's purview to release''.

The odds would appear to be against The Age on this one, but it's an interesting issue. 

The term ‘document of an agency’ is defined by subsection 4(1) of the FOI Act to mean a document ‘in the possession of an agency’, whether it was created in the agency or received by the agency from another agency or a source outside the government. Possession is the critical factor.

The RBA response is presumably based on the argument that there is no copy of the report in  RBA's records management system, and any copy held by Dr Rankin has not been received in his capacity as an officer of the RBA, but in his separate capacity as a director of the company. The Age of course might argue that he only holds a copy because he is an officer of the RBA which appointed him, as part of his duties, to be a director of the companies. Therefore it is held by him as an officer in the performance of his duties as an officer of the RBA.

Good luck.

Rann: whatever it cost, it's worth it.

Dean Jaensch in The Advertiser today comments on Lance Armstrong's ringing endorsement for Premier Mike Rann in a press conference, when he said he would very much like to see "Ranny" win the South Australian election, due soon, and be returned to office. Armstrong is being paid an appearance fee by the Government, rumoured to be $2 million, but the Government says it can't reveal the amount  because  this would put the Tour Down Under at risk of being stolen. Jaensch makes a number of good points about the endorsement, and comments:

"For a government that says it is in favour of freedom of information and open government, it is hard to see the justification for refusing to tell the public what appearance fee was paid...Certainly there is competition between the states for anything worth having. But when taxpayers' money is concerned, there seems to be a more important principle at stake than "we got it first".

There is of course.  From a distance in any event, serious SA interest in freedom of information and open government is hard to discern

Teachers on free speech about schools: should be a law against it!

The proposed publication of national school performance data now has teachers threatening to boycott  literacy and numeracy tests unless the Government bans the publication of league tables. You have to wonder what the same teachers tell students when it comes to discussion of free speech in the classroom.

In the information age, to argue that taking publicly available data from a Government website ( to be published on My School from 28 January) and breaking it down for comparative purposes in whatever way suits local community, state or other interests, then publishing it in a newspaper or on the internet or in any other way, should be against the law, seems to overlook important points.

Not just that freedom of speech, including discussion and debate of matters of major significance in the community should only give way to other public interests in limited circumstances, and there are no contrary personal privacy, business or government interests to be harmed in this instance; and the strong right to know, transparency and accountability arguments for disclosure of information about what is happening in schools that soak up very large amounts of public money. But  going back to what the Government plans to publish, the evidence in many fields that disclosure of key performance provides ongoing incentive for improvement by the good as well as the not so good, holding out the prospect that publication will have a beneficial effect throughout the school system.

Yet teachers seriously want a law against any playing around with the published data (as already is the case for newspapers and magazines under NSW law) claiming this will lead to shaming kids who attend poor performing schools. Deputy Prime Minister Gillard rightly says league tables aren't the objective, and the experts tell us more needs to be done to educate parents and others in fully understanding what the My School data means. It would help also if some of the media took a deep breath before charging off with sensational headlines on the subject. But Gillard is right to argue that this is about more transparency and better information for all concerned about the education system, and to state the Government has no intention to limit media reporting of publicly available information. I'm with her.

Early "Gotcha" prize

Sean Parnell FOI Editor of The Australian is a contender - but it's still early in the year -  for this story yesterday that Freedom of Information requests to the Prime Minister and the Treasurer for any written references given, resulted in a refusal from the PM on the basis that such documents are not covered by the Act, while Treasurer Wayne Swan released his in full. Parnell is seeking review of the decision.

To come within the scope of the Federal FOI Act an official document (Section 4) held by a minister must be a document that is in "the possession of a Minister, .. in his or her capacity as a Minister, being a document that relates to the affairs of an agency or of a Department of State." I guess the argument is that (generally) personal references given by the PM don't relate to the affairs of an agency.

Parnell ran into a similar hurdle last year when he tried under the NSW FOI Act (which has substantially the same definition of Minister's document) to access then Premier Iemma's appointment diary for a day at the ALP  State Conference meeting business observers, losing in the Administrative Decisions Tribunal on grounds that this did not relate to the affairs of an agency.  Parnell mentioned he had been granted access to this type of information in Western Australia. But he and others interested  could do a little better in NSW, come the commencement of the Government Information (Public Access) Act ("early in 2010"). The Act extends to information held by a minister or member of the minister's personal staff "in the course of the exercise of official functions in,or for any official purpose of, or for the use of, the office of Minister of the Crown" (Schedule 4 Clause 11). No reference to the need to relate to an agency's affairs.

E-health privacy concerns suggest close scrutiny in the Senate.

The quietish run for the Federal Government's e-health plans seems to be coming to an end, with The Australian IT and Adelaide Now both reporting concerns about patient privacy and data security risks, and putting a different slant on things than Health Minister Roxon might have hoped after taking part in a demonstration of connectivity yesterday. 

From the Oz:

Ms Roxon insists the unique identifiers will be available on a secure system operated by Medicare Australia. The Australian Privacy Foundation  says the proposed legislation "fails to take account of significant concerns, despite these having repeatedly (being) drawn to the attention of senior health officials". "Information about consumers will be available to (around) 600,000 health workers, and the numbers will be stored in several thousand local health service information systems, regardless of their security arrangements," the privacy group said. "The bill should also mandate provision for consumer access to their own data."

The Australasian College of Health Informatics is concerned that the Council of Australian Governments "is yet to make a decision on a national e-health record implementation".

From Adelaide Now:

Software developer Peter West, who left NEHTA in September, says centralising the information will make it easier for hackers to access and increase the chance of abuse by medical staff. He says he is one of several people who have quit amid privacy concerns.

University of South Australia PhD candidate Steven Clark, whose doctorate is on the intersection of law and technology in privacy and security, said personal health information was valuable. Critical questions about "who, how, when and why" the information was to be accessed remained unanswered, he said. "In a place like Adelaide there's a lot of people you don't want knowing that your sister is on anti-psychotic medication, or your brother is going through counselling after a rape event," he said. "Who gets access to that?"

University of Adelaide Professor of Public Health Policy Christian Gericke said centralisation of data was a good idea as long as safeguards were preserved. "I have experiences with databases in Germany and the UK, and that's worked very well," he said. "Technically the difficulties are not that big to make them safe - but they were not internet-based, and that's one of the problems (with the Australian model)."

Retention and destruction of drafts might need a closer look

While it wasn't a key point in the case, Deputy President Levy in Mullen v Department of Broadband, Communications and the Digital Economy [2010] AATA 7 refers [37] to drafts of documents requested in a Freedom of Information application and to the agency's claim that departmental policy does not require "such documents to be kept and, in fact, requir(es) them to be destroyed." Deputy President Levy agreed [43] the drafts could not be located after a reasonable search, and that was the end of the matter.

So what's the story on retention of drafts?

Journalist credentials- by hypnosis

Richard Ackland has a column in today's Sydney Morning Herald  in which he asks, as more information is sought online, where this leaves journalism and the cosy codes that govern the conduct of journalists? In other words who is a journalist in an online world of bloggers and others in which news people make the "awful discovery" that any number of readers know infinitely more about the topic being reported than the journalist who delivers the goods?

The issue was also canvassed here recently in the context of Freedom of Information charge concessions that the Federal Government proposes, which would involve each government agency determining on reasonable belief that the applicant is a journalist. I've suggested that any test should be based on functions- the gathering and analysis of information for dissemination or possible dissemination, or in order to promote scrutiny, discussion, comment or review of Government activities - not someone's right to or credentials for a label, should be the determining factor. That is of course if journalists of any stripe deserve the proposed better treatment than John and Mary Citizen who might be out there pursuing the object of the FOI Act by seeking to scrutinise government activity.

But if the proposals go ahead, and being able to prove you are a journalist becomes important, applicants should invest in the CD Ackland says promises to teach journalism by a ''subliminal technique'', and wave proof of purchase in front of any government agency that queries their status.

Sound of wheels turning on Christmas eve.

The NSWLRC Report on Privacy Principles dated August was released on 22 December, without statement or comment by the Commission or the Attorney General. The Report recommends a number of changes to the Australian Law Reform Commission's Unified Privacy Principles. The Federal Government had responded to the UPP recommendations on 14 October, after the Report was completed but before release. How the NSWLRC recommendations fit, and their impact on the Federal Government's ambition to lead the country towards uniform laws is unclear. The Commission's reference on privacy laws is still incomplete after four years.

Meanwhile the Acting NSW Privacy Commissioner on 24 December  renewed eight Directions that provide relief from compliance for some or all NSW government agencies with all or some privacy principles for another 12 months, including one for certain information transfers that grandfathers any agreement, formal or informal, between government agencies in existence at the time the NSW Privacy and Personal Information Protection Act commenced on 1 July 2000. Directions can be issued where justified by a finding that the Direction is in the public interest. No list of any agreements has  been published nor any published detailed reasons for the finding. While approval for agreements of this kind might have been a reasonable transitional move ten years ago, why they need to be preserved still where otherwise contrary to the law is hard to fathom.

Not just ASIO

From The Australian:

"Perth barrister Malcolm McCusker QC has taken up the fight of accused war criminal Charles Zentai for no fee in an attempt to help the 88-year-old avoid extradition to Hungary.
Mr McCusker's first task will be to argue in the Federal Court for access to the unedited documents on which Home Affairs Minister Brendan O'Connor based his extradition ruling in the case. Mr O'Connor ruled last November that Mr Zentai was eligible for extradition on war crimes charges, but his office has told Mr Zentai the departmental documents in the case cannot be completely released due to legal professional privilege.
Mr Zentai's legal team has only an edited version of the 60-page document.
"We need to at least know what the reason was behind the minister's decision," Mr McCusker said. "They're refusing to give it to us . . . so much for open government."

WA leads on ANPR- privacy doesn't rate a mention

This breathless recent report in The Australian about the Western Australian Police leading the nation in the wonders of Automated Number Plate Technology, failed to mention the fact that ANPR won the Orwell Award for the most invasive technology at the Australian Privacy Foundation Big Brother Awards. Or the fact that the state is one of two Australian jurisdictions that doesn't have a general privacy law that applies to the public sector. The Information Privacy Bill described by the APF as extremely weak has been  before the WA Parliament since March 2007, and hasn't moved in the Legislative Council since December of that year. Therefore the technological marvel of instant access by the Police to a wide range of information about you held by government agencies when they photo your numberplate, highlighted as a great plus all round in The Australian, doesn't amount to any sort of problem at all.

We're ASIO, we're right, believe us

Who knows - ASIO's assessment that five tamil refugees originally from Sri Lanka pose a danger to national security, opinion formed before they arrived in the country, might be right. But the five, let alone the rest of us won't be be able to assess or test ASIO's findings. Pamela Curr pointed out the problem with this in The Age on Tuesday. Today's Sydney Morning Herald has the Minister for Immigration, Chris Evans, saying even he did not know what the security concerns were. ''Those decisions are made by ASIO and they don't discuss the detail of those things,'' he said.

Absolute faith in the infallibility of any agency is a big call, and a mistaken one in ASIO's case according to a former Immigration officer, and David Manne, a refugee lawyer, both quoted in the article.

 "... Manne, said secrecy was part of the problem. People suspected of being a risk were never told why. ''ASIO gets information but it never puts it to the person,'' he said. ''These people are stuck in indefinite detention but it's impossible to find out what the concerns are.'' The process had to be made transparent and subject to independent scrutiny. ''ASIO has made serious mistakes in the past,'' he said. ''It's crucial that we don't revert to the previous situation where these people's plight became a political football.'

FOI fees and charges proposals raise questions and uncertainties

The Department of Prime Minister and Cabinet set 11 January for submissions on the Freedom of Information (Fees and Charges) Amendment Regulations Exposure Draft, presumably because something close to business as usual would return to Canberra,  so I scrambled a few thoughts together yesterday to meet the deadline. My initial reaction when the Exposure Draft was released last month had been positive, with qualifications, and there are still good things in this. But closer examination raised questions about both the policy approach and the detail as it applies to access to non-personal documents.

The Department doesn't intend to post comments received on the Exposure Draft (?) but if you are interested,  the submission is here. (If you were getting a troublesome pop-up it has now been removed.) Discussion, observations or corrections are welcome.

Key points raised were:

Federal Government FOI Annual Report a curate's egg

The Annual Report on Federal Freedom of Information Act for the year ending 30 June 2009 was released by Minister Ludwig on 22 December, with the Minister's Media Release, not surprisingly, emphasising the positive, opening as follows:

Australian Government agencies are taking less time to make decisions on requests for information under the Freedom of Information Act.

This was a reference to the good news that processing applications within 30 days was up from 67% to 83% (although the story wasn't nearly as good where processing non-personal requests was concerned.)

Some other salient facts didn't escape the media, or at least those that reported on the subject, including that the number of applications were down by 5% on the previous year, the lowest number since 1989-1990. And the percentage of refusals was up.Here are some points from my reading of the Report.

McKinnon High Court challenge documents released; still trouble elsewhere

Special Minister of State Senator Ludwig made sure the public were informed that Treasury documents the subject of the ministerial certificate that prompted an unsuccessful High Court challenge in 2006 had now been released by that department, in the first instance that has come to light of a new application for documents previously covered by a certificate, following legislative removal of the power to issue them.(I know these things happen but as of today the link to the Minister's Media statement 52/2009, says the page, ahem, can't be found.  is now working just fine.)

You can read this report by Andrew Fraser in The Weekend Australian. As to what Michael McKinnon now with the Seven Network can make of the documents close to 7 years old on which a couple of million was spent to keep them from public view...

But no such public statement from the Minister about an Ombudsman finding that the practice of Federal agencies only starting the clock after they had decided whether to remit the application fee, in effect giving them double the 30 day processing time limit. Or any response to the Ombudsman's call to clarify guidelines without waiting for the legislative changes before the Parliament.

"The principle is simple: if you're paying for it, you should know about it"

Getting the balance right between transparency and acccountability for the use of public funds, and the efficient and effective conduct of government functions in pursuing the interests of the state is a vexed and complicated question. The Age is on the warpath about lack of public information about Victorian taxpayer contributions to major events. Makes sense to me.I don't know whether Victoria is better or worse than other states in this area, but it is two years since the Government showed an interest in broad Freedom of Information reform. The legislative proposal that didn't get through Parliament then falls far short of current best practice ideas.

 Here's the gist of the editorial

Exceptions to 30 year rule still rule

One aspect of the annual release of Federal Government cabinet documents thirty years old that did not attract much attention was what was not released because of continuing sensitivity. Fairfax papers did report as follows:

Not all of the 1979 cabinet documents have been released: at least 24 were censored. Most of these were in the areas of defence, foreign affairs, and security and intelligence. Australians are not able to see entire cabinet information on defence spending, Chinese and Russian policies on Vietnam's invasion of Kampuchea, ASIS' move to Canberra, pro-Palestinian terrorist interests, an assessment of threats to internal security, Antarctic mineral resources, and security of ESSO/BHP installations in Gippsland. Sections of documents have been withheld mainly to protect Australia's security, defence or international relations.

Here are the published details of documents withheld ( only one) or withheld in part.

Bright new open government year yet to dawn in NSW.

Matthew Moore in the Sydney Morning Herald (Shortage of candidates stalls FOI) had the NSW Attorney General confirm the rumour reported here that the first attempt to recruit an information commissioner had been abandoned with headhunters now on the job. This was a position that last September was of such urgency it warranted a two week response deadline to public advertisements.

In an editorial (the second in this link) "Shutters start to close once more", the paper said "the slackening pace of reform in this area is cause for serious concern, which it is, and commented:

.. go-slow tactics are standard bureaucratic procedure where a policy goes against the interests of the public service. They have been part of the gradual process by which existing freedom-of-information laws have been rendered ineffective in this state.

The Herald urged Premier Keneally to match her predecessor's enthusiasm for genuine freedom-of-information reforms which put the public interest, not Labor's interest, first and I'd add amen to that.

Business as usual

I'm back on deck with a fresh blog look for 2010 and some new features that hopefully add to the efficacy of the site- particularly a "read more" feature that should give you an option to read further, or not  as the case may be, when I have a rush of blood and go on and on, as happens from time to time.

Happy new year.

Best wishes and thanks for your interest in issues covered here. Year on year we registered a 78% increase in traffic in 2009, with November and December figures up 115% and 132% on the same months last year. Total hits were over 30,000, 78% from Australia, 10% from the US, 3% from the UK, with Canada, New Zealand, India, Germany, Ireland, Malaysia and the Netherlands, in that order, rounding out the top ten. Be back in action soon.