Open and Shut

Names of "no gong, thanks" crowd unlikely to surface in Australia

2012-01-27T16:00:00.001+11:00

Dahl-Charlie and the Chocolate..

Lewis-Narnia and all that..

Thanks to reader Andrew for drawing attention to the release in the UK, in response to a Freedom of Information application by the BBC, of the names of those who declined a Queen's honour between 1951 and 1999, and who have since died-Roald Dahl and CS Lewis for two. "Until now, the information was so secret it was not included in official papers released under the 30-year rule," according to the BBC.

None of the 277 people on the list (pdf courtesy of BBC) are identifiable Australians-Imperial honours were the go until the Whitlam government abolished them and created the Order of Australia in 1975-although the request may have been limited to British names.

What's the likely story here?

Documents concerning consideration of names for submission for Imperial awards, up to 1974, and the later records held by the Office of the Governor General concerning the Council of the Order of Australia, the first of which are now 37 years old, in theory, should be well into open access (now after 20 not 30 years) and available from National Archives Australia. However unlike the UK, where personal information protections in the FOI act relate only to information concerning "a living individual," there is a hurdle: our archives act (s 33(1)(g)) qualifies the right to access through a provision that protects "information or matter the disclosure of which .. would involve the unreasonable disclosure of information relating to the personal affairs of any person (including a deceased person.)"

I don't know whether anyone has had a crack at this. Or sought records still held by the Office of the Governor General under the Freedom of Information Act. On the latter, probably not, given that the current battle over whether guidelines for awards are documents of "an administrative nature" subject to the act seems to be a first. A second hurdle once over the first would be whether the FOI act personal privacy conditional exemption s 47F applies.

Two significant differences to the Archives Act: the FOI definition of personal information makes no reference to a person as living or deceased. And section 47F includes an additional public interest test, not found in archives legislation (don't ask me!). I'd expect disclosure under FOI of names of those who declined an award would be unreasonable in the absence of consent (where practicable, from next of kin in the case of a deceased person) and in any event that public interest considerations in favour of release would not be strong.

But otherwise idle researchers out there, your time starts now!

Ever wondered about the award of an Australian gong?

2012-01-26T12:09:00.003+11:00

Amid the congratulations to over 400 commendable Australians who received Australia Day awards, the Canberra Times highlights costs incurred by the Office of the Governor-General for legal advice to fend off an application by Karen Kline to access the guidelines for selecting honours recipients. The case will be heard in the Administrative Appeals Tribunal next month. Here is a recap from last October. At that stage the office had spent 3000 hours dealing with the matter. The main issue-there may be others- is whether these documents held by staff employed under the Governor General Act including the Official Secretary who doubles as Secretary to the Council for the Order of Australia are "documents of an administrative nature", and thus within scope under Section 6A(1), or whether the FOI commissioner's decision they aren't should stand.

Sunshine prompts some parliamentarians to certify entitlement expenditure

2012-01-24T15:40:00.000+11:00

The Department of Finance and Deregulation list of parliamentarians and senators who had not certified that expenditure by Finance was for legal use of entitlements, referred to here a week ago when the count of non-certifiers was around the 100 mark as at 6 January, reduced to 64 by the 20th. How many rightfully asserted "not guilty" along with John Cobb is unknown. Ministers Roxon, Bowen and Crean, Opposition frontbenchers Bishop and Turnbull and The Greens Bandt are among those who tidied up the record in this period-for expenditure January to June 2011- but those still outstanding (you know what I mean) include minister Conroy, Tony Abbott, Joe Hockey, and Andrew Wilkie- who admittedly has had a busy few weeks.

As certification is voluntary (ahem, is anyone else concerned about this?), I imagine the issue is not anywhere near a high priority for the 20 listed who were not re-elected in 2010 (there are others from previous parliaments). They include Lindsay Tanner, Maxine McKew, and Pat Farmer who has run from the North to the South Pole raising money for the Red Cross, but this week was "in a tent at the US base, with his feet in warm water drinking a bottle of champagne."

Blue Book non-disclosure in NSW:behind the scenes

2012-01-19T15:19:00.000+11:00

snappedshot.com

Those who followed developments concerning access to incoming government briefs-the red and blue books- in Canberra following the 2010 election, and more recently in some of the states -will find the contents of a bundle of documents posted online in the NSW Department of Premier and Cabinet Disclosure Log in December of interest.

The documents DPC11/03467(pdf) were released to a GIPA applicant (I'm guessing the Daily Telegraph given this report in December) who sought access to documents provided by the Department to the Premier's Office after last year's election, the period from March until November 2011, in relation to access applications made under the GIPA act.

Question time briefs prepared for the Premier suggest what he might say if asked in Parliament about the refusal to disclose any of the incoming government folders, and provide him with other background information, including as some of us said in March, that the Premier could direct disclosure outside the act should he wish to do so, something that never happened.

One undated brief informs the Premier that the Department was reviewing its decision to refuse access in response to a GIPA application, in line with a recommendation from the Information Commissioner that all agencies should do so. (NSW Government Blue Books (pdf)). The only evidence of any result, in this batch of documents, are pages 88-89 from the Departmental Support Services section of the folder, about tabling procedures in parliament, GIPA processing and the registration of lobbyists scheme- they don't come any more bland. (A search on the department's website for "incoming government briefs" produces nothing from the folders at all.)

Fifty four of the 97 pages consist of weekly lists, through to September 2011, of GIPA applications received by and on hand in the Department-a first glimpse of a full list of what applicants seek. One of the briefing notes confirms that the Premier's office is only notified of a departmental determination after the event, but these lists show that detail about applications is known long before that, with applications from "the media" (no names or other details) categorised and distinguished from the rest.

On disclosure of what government agencies told their new masters and mistresses as they slid feet under the desk, compare and contrast NSW -virtually nothing-with significant if far from complete disclosure of similar documents by 13 or more federal government agencies including those bastions of closely guarded information, Treasury, Foreign Affairs and Defence. To repeat, poor form for a government that came to office indicating improvements in transparency and accountability were a high priority.

(Update: Stephen Murray in a comment on this post draws attention to the release of parts of four volumes of the folders-there are others- on the Premier's department Disclosure Log (a bit of digging on page three) following release, he says to the Australian Financial Review. His analysis of the content is worth reading. To summarise:
"So, what has now been released is an amalgam of mission statements, corporate plans, handbooks and guidelines along with a seeming dump of the combined contents of departmental Outlook Contacts and Appointments: more “Bland Books” than “Blue Books”.)

Or as the South Australian Ombudsman, bound by the legislation there to rule that incoming government briefs were cabinet documents exempt for the same reason as in NSW, but where unlike NSW, agencies retain a discretion to disclose, commented:

In my view, there are reasons why the agencies might give access to parts of the portfolio briefs and other briefing documents, notwithstanding that they are exempt.....I consider that there is a strong public interest in members of the public being aware of policy initiatives and other issues that the agencies consider important to South Australia. In my view, access to such information would enhance public participation in discussions about South Australia’s future, and would be consistent with the objects of the FOI Act of promoting openness and accountability, as well as the principles of administration. I consider these public interest factors to be strongest with respect to generic documents, that is documents prepared with either a returning Labor or an incoming Liberal government in mind

As to the bundle of Premier's department documents, there is no index or content list but here is what it contains, in order, with some comment along the way:

A1: Material used in a short training session for DPC staff.
Comment-pushes the right messages, nothing remarkable here.

A2: Extract from Ministerial Handbook June 2011-ditto

A3: Powerpoint presentation to ministerial staff on Probity and Accountability-ditto

A4:Ministers' staff training materials from Office of Information Commissioner-ditto

A5 (33/97): Question time brief: Incoming Government Folders May 2011-if asked about public access, the Premier is advised to emphasise the "important long standing convention" of confidentiality and given some ammunition to make the point.

Comment: In the background note, not in the recommended answer, the Department advises that as cabinet documents, the folders are covered by an absolute non disclosure provision in GIPA, and that the act prohibits ministerial interference in departmental decisions. Not spelled out is that that the the Department made sure the documents would have cabinet document status by sending an instruction circular to agencies before the election that the folders were to be prepared for submission to cabinet. That was all that was needed. The background note again, not the recommended answer, tells the Premier that he or the cabinet may approve public release of the folders. The Premier didn't act on this.

A6: Question time brief on the related issue of ministerial involvement in GIPA decison making May 2011-covers similar ground.

A7 (37/97): Question time brief: Confidentiality of Incoming Government Briefings, undated-suggests the Premier maintain the line, but that he mention that the Department and other agencies have refused access applications, and those decisions have been subject to review by the office of Information Commissioner.

Comment. In the background note, not in the suggested answer, the Department says that as part of that review the Office of Information Commissioner in September 2011 "recommended that the agencies reconsider their decision to refuse access..and consider releasing some of the material-such as material that is solely factual material. The Department of Premier and Cabinet is reviewing its decision in the light of the Office of Information Commissioner's report and recommendations." Just what happened as a result is unclear.There only subsequent reference in these documents is that two pages from the folder that certainly fit the description "solely factual" appear as A9. (Update- thanks to Stephen Murray for the alert that parts of four volumes-there are others- released in December are here, but be sure to read Murray's comments as well.)

A8 (39/97): Question time brief: GIPA Applications made to DPC, undated. Advises the Premier, if asked about what information is provided to the Premier's Office about GIPA applications, to respond that the Department provides the office with a copy of a determination once it is made for information only, and that neither the Premier or his office have any role in determinations made by the Department or other agencies.

Comment: the background note provides additional information about the number of applications received over the year, and decisons to grant or refuse access. In December the Daily Telegraph ran this story, somewhat off the mark regarding claims to have discovered a new system " to ensure secret tip-offs about public efforts to access embarrassing government information."

A9 (41/97) Two pages ) from the 2011 Incoming Government Brief (88-89) containing factual information about tabling documents in Parliament , GIPA and the Lobbying Code Of Conduct. No briefing note or other accompanying material.

Comment: That's it for "solely factual information"?? Perhaps these pages only included here because of relevance to the GIPA application, but there is no sign of release of anything else about the Department or the state of the state in March 2011.

B1 (43-97): GIPA Applications received-Department of Premier and Cabinet- through to September 2011.

Comment: interesting micro-detail about what applicants ask for from Premier's, all categorised as General or Media. A nice heads up for the Premier and his staff-who hopefully stick to the non interference rule. I'm sure they read the Ministerial Handbook (A2) -Ministers and Ministers' offices are not entitled to be provided with draft access determinations; agencies must not provide them or seek advice or comment from the Minister or the Minister's office about determinations that have not been finalised) and even more importantly, the material provided by the OIC(A4) (it is an offence under the GIPA act for any person to act unlawfully, direct an unlawful action or improperly influence a decision)

PM's office draws a legal shade on sunshine

2012-01-17T16:10:00.001+11:00

Ceridwen [CC-BY-SA-2.0] Wikimedia Commons

FOI Editor at The Australian, Sean Parnell wrote over the break about the two decisions handed down (in Christmas week) by Australian Information Commissioner Professor John McMillan, upholding decisions on behalf of the Prime Minister to refuse access to documents because they were outside the scope of the Freedom of Information Act.

The issue in both cases was whether documents requested by Parnell were "official documents of a Minister."( Freedom of Information Act (s 4). The commissioner found that a letter sent in September 2010 by Emily's List, a Labor Party advocacy group which counts the Prime Minister as a member, congratulating her on her election victory, and separately, a list of the meetings and conference commitments of the Prime Minister at an ALP national conference, did not relate to the affairs of a government agency, an essential component of the definition, and therefore were not subject to the FOI act.

Parnell argued in both cases that the documents involved contact with people seeking to influence government decision making that should, in the interests of transparency, be disclosed. But as the commissioner observed

Whether there is a public interest in greater transparency surrounding contact between elected political leaders and business or community representatives is not the issue to be resolved in this IC review. That is a debate for another forum.

Hopefully an issue for the review of the Commonwealth act towards the end of the year, and for anytime anyone shows an interest in our weak lobbying laws that should require some disclosures about lobbying activity.

Section 4(1) of the Commonwealth FOI act defines ‘official document of a Minister' as ‘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'. (Most of the state FOI acts from memory, contain something similar except NSW where the law makes no reference to "affairs of an agency." The Government Information (Public Access) 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).

In Parnell and Prime Minister of Australia [2011] AICmr 10 the only document in contention was a letter sent in September 2010 from Emily's List congratulating the Prime Minister on her election. The commissioner summarised [12]:

The letter: outlines the assistance that EMILY's List Australia provided to women ALP candidates during the 2010 election campaign; made proposals as to how the Prime Minister could support the organisation; briefly commented on the alignment between research undertaken by the organisation on a particular topic and the announced policies of major political parties including the ALP; and attached a similar letter sent to the National Secretary of the ALP. The letter to the Prime Minister does not refer to any particular department or agency of the Australian Government, nor to any specific legislation or program administered by the Australian Government.

(In his application to the Prime Minister's Office Parnell also sought access to similar letters from the Catholic Church, Anglican Church, Uniting Church, Presbyterian Church, Baptist Church, Lutheran Church, Australian Christian Churches, Hillsong, Exclusive Brethren, Islamic Association of Australia and Australian Federation of Islamic Councils. Two relevant letters from ‘church organisations' were located. The Office denied access to both letters: one on the basis that it was exempt under s 47G (business affairs), and the other under s 47F (personal privacy). Parnell didn't challenge those decisions but those refusals might have raised interesting issues as well.)

The commissioner referred to his own published guidelines issued under s 93A of the FOI Act to which regard must be had by those performing a function or exercising a power under the FOI Act [2.17]:

The term [‘official document of a Minister'] does not extend to the personal documents of a minister or the minister's staff, documents of a party political nature, or documents held in the minister's capacity as a local member of parliament unless the correspondence concerns an agency within the minister's portfolio.

Parnell argued:

The decision-maker has wrongly taken the view that [the letter from EMILY's List Australia] is not an ‘official document of a Minister' under the Act. Given the organisation actively lobbied the Prime Minister during the election campaign on several issues, and briefed her advisers, and that the Prime Minister can use her position to bring affect to requested policy changes and the like, this is clearly an ‘official document of a Minister' under the Act. The Prime Minister is also a member of the organisation and has spoken in support of it in the past. If a company, organisation or individual lobbies a government or minister on an issue related to their portfolio responsibilities, and especially if those parties have a relationship, that correspondence must be made public in the interests of transparency of decision-making.

The commissioner reasoned:

13. The responsibilities of the Prime Minister are broad and extend potentially to all the nation's affairs, including the affairs of each agency or Department of the Australian Government. It is likely that most correspondence to the Prime Minister (as could be said of the letter in this case) is crafted directly or indirectly to influence the way that the Prime Minister approaches the task of governing the nation. That line of reasoning, unless balanced against other considerations, could lead to the conclusion that all correspondence to the Prime Minister, except letters of a purely private and personal nature, could be classified as ‘official documents' of the Prime Minister for FOI purposes.

14. However, I do not believe that ss 4(1) and 11(1)(b) of the FOI Act are to be applied in that way. The sections place a boundary on the documents in the possession of a Minister that are subject to the FOI Act. Further, I believe that the distinctions drawn in [2.17] of the Guidelines (quoted earlier) correctly chart that boundary. The particular distinction that is relevant to this case is between the official portfolio responsibilities of a Minister and a Minister's activities as a member of a political party who has been elected to the Parliament. A similar approach was adopted by the Administrative Appeals Tribunal in Re Michael Nassib Said and John Dawkins, MP (1993) 30 ALD 242.

15. In my view, the letter in this case relates to the activities of the Prime Minister as the leader of a political party that has been elected to government. The letter does not relate ‘to the affairs of an agency or of a Department of State'. It is not therefore a document that is an ‘official document of a Minister' to which the FOI Act applies.

In Parnell and Prime Minister of Australia (No 2) [2011]AICmr 12, Parnell had sought access to

.. diary entries, correspondence and other documents held by the Prime Minister's Office and detailing who Julia Gillard was asked to meet, and then met, as part of Labor Party business observer programs run in conjunction with state and federal Labor party conferences in 2008, 2009 and 2010.

The relevant documents held by the office were "a diary record on ALP letterhead that briefly lists the meetings and conference commitments of the Prime Minister for three days. That document lists the time of each meeting, the name of the other party and the organisation to which the person presumably belonged. The other three documents are printouts from an electronic diary and record the same details."

Parnell submitted that the document was an official document of a minister for a number of reasons including that "a connection exists between the ALP business observer programs and the affairs of Australian Government agencies, as those participating in these programs are likely to do so in order to communicate views to the Prime Minister that are relevant to government policies or programs," and access had been granted to similar documents under access to information legislation in Western Australia and Queensland.

The commissioner concluded:

14.....There is nothing in those documents that relate to the affairs of any Australian Government agency. It is speculative whether the affairs of Australian Government agencies were discussed by the Prime Minister at the business observer program meetings. However, it may be that that did not occur and that the discussion was confined to other issues, such as the affairs of the ALP conference that was being held at the same time. 15. The documents do not indicate what was discussed, why a meeting was arranged, and indeed whether the meeting went ahead and who attended. There is nothing in the content of the documents that characterise them as official documents of a minister under the FOI Act

Prominent parliamentarians fail to certify entitements expenditure

2012-01-14T17:44:00.000+11:00

They're busy people. So some of our politicians appear not to have had the time (add other plausible excuse) to attend to an important accountability obligation: to certify that expenditure on entitlements by the Department of Finance and Deregulation on their behalf was in accordance with applicable legislation. That seems to be the take away from publication with no fanfare or explanation, of these lists of members and senators, and former parliamentarians. under the heading "Parliamentarians' Certification."
(Update: The mainstream media picked up on this story on 17 January)
(Further Update 24 January.)

For years Senate Estimates have prodded on this issue, the Auditor General has pointed to a sizeable gap in the accountability system, while the Belcher committee in 2010 recommended the publication of names of members and senators who did not certify legal entitlement use in accordance with prescribed terms. Presumably this is what has now been published by Finance. Around 100 names including 20 no longer in parliament have a blank against them. Some prominent front benchers feature (Tony Abbott, Simon Crean, Malcolm Turnbull, all three Bishops) but...House Speaker Peter Slipper gets a tick.

Apparently certification can be signed “subject to qualification” but the lists don't categorise in this way. There are a lot more no responses than previously indicated: there were said to be about 30 in 2009.

Concerns about accountability and transparency shortcomings in the system have been kicking around since an audit report in 1990-91. The adequacy of certification was next canvassed in a 2001‐02 Audit Report. Despite some improvements, an Auditor General's report in 2009 -2010 again identified weaknesses including the dangers of reliance for accountability purposes on (self) certification, and the fact compliance by parliamentarians was voluntary not mandatory. The issues and how they could be addressed were mapped out in detail last year by Helen Williams in her Review of Administration of Entitlements which Finance is working its way through, including changes to the presentation of information in reports provided for certification. (See Implementation progress – Recommendations of the Review of Administration of Ministerial and Parliamentary Services.)

The publication of names gives practical but partial effect to Recommendation 13 in the Belcher report- like (i) and(ii) there are many others that still await a government response:

That the Special Minister of State, on the advice of the Department of Finance and Deregulation, table in the parliament:
(i) the name of any sitting or former senator or member who has not substantially complied with a request for information about an alleged entitlement misuse within a reasonable time (for example, 28 days)
(ii) the outcome of the investigation into the complaint, and
(iii) regular reports setting out each senator’s and member’s compliance with the requirement for certification that entitlements have been accessed in accordance with the relevant legislation, including any justification given by the senator or member for non-compliance with the requirement.

So publication of the January-June 2011 list is a positive development, but it throws no light on which members and senators have consistently not complied with the certification requirement, in its various forms, for years. A Finance official told Senate Estimates in February 2009 that there were some reports that had not been certified going back to July 2007.

Senator Faulkner was the minister at the table during that hearing and obviously thought (p 99) publicly naming "genuine recalcitrants" was necessary, in the interests of proper accountability and transparency:

Senator Faulkner—But obviously the naming and shaming, so to speak, is the next step. You would recall that Senator Murray in fact placed some questions on notice about this issue.

Senator MOORE (ALP QLD)—Absolutely.

Senator Faulkner—I certainly would not want to be a parliamentarian so named and that of itself, I think, would be a significant sanction. The department obviously will continue to make their best efforts to ensure that this important process works at its best. It may be that you or another senator placing a question on notice about genuine recalcitrants in this area will have a positive impact. I recall, as you would, that when these matters have been discussed in the committee there has been a genuine reluctance to do that. No-one wants to see people named and shamed. What people want to see is the management reports certified and provided to the department. That is the name of the game, and hopefully the sort of focus that this issue has received in this committee assists in that.

Senator MOORE—So that is also an anomaly in the process. I remember hearing Senator Murray ask these questions regularly, and he asked me to continue to do it. It seems that, if there is going to be any real integrity in the process, it needs to move to the next step, so we will see what happens. But thank you for providing your information.

Senator Faulkner—Transparency, as you will appreciate, is a key element in that.

Senator MOORE—Absolutely.

Senator Faulkner—The more transparency there is, I am sure the better and more appropriate use of entitlements there will be.

Senator MOORE—And the issue of accountability, Minister.

Senator Faulkner—Absolutely.

Senator MOORE—We are receiving those entitlements; we have an accountability to respond.

Senator Faulkner—And the link between the two is very strong.
.........................................

In January 2012, finally a step in the right direction despite the fact Finance and Minister Gray now in Senator Faulkner's portfolio have made nothing of this in public at least.

A sign off that expenditure has been incurred for legal use of entitlements should be mandatory not voluntary for parliamentarians.

All payments to all parliamentarians should be published online

2012-01-11T23:05:00.003+11:00

Alicia Wood in the Sydney Morning Herald

..."the head of Infrastructure NSW, Nick Greiner, has cost taxpayers millions over the past 20 years because of entitlements given to former premiers who have served for at least four years. According to figures released by the Department of Premier and Cabinet as part of a freedom of information request, Mr Greiner has claimed the most in entitlements over the past three years. He is followed by Neville Wran and Bob Carr."

Cimexus-Flickr CCL

This sort of information should be routinely published without the need for a GIPA application, as is the case with payments by the Department of Finance and Deregulation to and on behalf of former prime ministers (and former federal parliamentarians). That department also publishes online, twice a year information about payments made to and on behalf of current members and senators. The detail and timeliness provides another sharp contrast with disclosures concerning current NSW parliamentarians. There, global figures for categories of annual sums paid to each member are buried away in appendices to the annual reports of the Department of the Legislative Assembly 2010-2011 pdf-Appendix G) and Legislative Council (Annual Report 2010/2011 pdf-Appendix I).

(The information released by the NSW Department of Premier and Cabinet is yet to make it onto the department's Disclosure Log.)

I haven't checked out recently or thoroughly the transparency situation regarding payments to parliamentarians in the other states Access to information may vary depending on whether some or all entitlements are paid by an executive government agency such as NSW P&C (subject to FOI/RTI) or a parliamentary department-Tasmania is the only jurisdiction where the access to information law extends to parliament itself (concerning matters of an administrative nature). As to the Federal scene where some payments in addition to those made by Finance are made by the parliamentary departments see yesterday's post. In February 2009, the presiding officers in NSW and the government of the day dismissed the suggestion by the Ombudsman that consideration be given to extending access to information legislation to the parliament. In Queensland expenses of ministers and former ministers are administered by Ministerial Services Branch of the Premier's Department (subject to the RTI act) but the Legislative Assembly and its parliamentary services department that pays on behalf of members are entities excluded from the act.

The South Australian Parliament publishes online an annual report on members interests and an annual report on travel by individual members, although not even close to real time.

The administration of all our parliaments-including any payment made to parliamentarians-should be subject to the same standards as any other government agency. That is, subject to freedom of information law, but these days published in a timely fashion on the internet (not buried away in an annual report).

Back to NSW. The Independent Commission Against Corruption in 2009 questioned whether the Parliament had in place a sufficiently comprehensive program to identify and manage corruption risks in relation to the use of Members’ allowances and entitlements. In findings of corrupt conduct against former NSW MP Karyn Paluzanno and members of her staff, the Commission Report (Chapter 3 page 20) included a recommendation that the Clerk of the Legislative Assembly consider whether a recently embraced audit program "has the capacity to detect corrupt conduct and, if not develop, implement and regularly evaluate a corruption prevention strategy that includes:

• a comprehensive risk assessment of the corruption risks in relation to the use of Members’ allowances and entitlements
• a corruption risk management plan describing the corruption risks identified and the strategies Parliament will adopt to manage each of these risks
• measures capable of detecting corrupt conduct and non-compliance by Members and electorate office staff."

The Commission advocates generally that corruption risk is best managed by identifying and managing in a comprehensive manner those organisational features that allow corruption to occur and possibly go unnoticed or unreported. Dare I say, proper accountability, and appropriate transparency must be an essential part of any such plan.

Two years later this seems to have dropped from sight. This is the only reference in the Annual Report for 2010-2011:

The Members’ Entitlements Audit Plan commenced in 2009/10 and will continue in 2011/12 covering both the 54th and 55th Parliament Members...

"Appropriate transparency" regarding payment and use of public money to and by parliamentarians isn't evident in NSW.

Federal parliament and an echo from the past on transparency

2012-01-09T16:30:00.003+11:00

Phillip Dorling writing today in the Sydney Morning Herald

Department of Parliamentary Services secretary Alan Thompson sent staff a memo last week announcing his intention to retire with the expectation of finishing as agency head in early April. Mr Thompson said it had been ''an honour and a privilege'' to serve the Parliament over the past 3½ years. Mr Thompson's early departure comes as the Senate finance and public administration committee pursues a wide-ranging investigation into the performance of his agency, which employs 800 staff and spends $120 million a year providing services within Parliament House.

An Australian Law Reform Commission report completed in 1995

11.8 The parliamentary departments are currently excluded from the coverage of the FOI Act.[23] In 1979 the Senate Standing Committee expressed the view that the 'parliamentary departments should be encouraged to act as if the legislation were applicable to them'.[24] DP 59 proposed that the parliamentary departments should be brought within the scope of the FOI Act on the basis that documents that warrant protection would be adequately protected by the exemption provisions, for example s 46 (parliamentary privilege).[25] A number of submissions, including that of the Clerk of the Senate, support the proposal.[26] The Department of the Senate has, in any case, always acted as though it were subject to the FOI Act, releasing documents unless they would have fallen within an exemption. In contrast the Department of Parliamentary Reporting Staff considers that it should remain outside the Act because it does not have a public policy role or provide services to the public. It claims that extending the FOI Act to the parliamentary departments could expose them to lengthy and costly legal challenges in respect of material they would claim to be exempt under s 46.[27] The Department of the Parliamentary Librarian also opposes extending the Act to the parliamentary departments for similar reasons.[28] The Review is not persuaded by these arguments. It remains convinced, particularly in light of the experience of the Department of the Senate, that there is no justification for the parliamentary departments to be excluded from the Act and that being subject to the Act will not cause any greater inconvenience for them than is caused to other agencies subject to the Act. Accordingly, it recommends that the parliamentary departments be made subject to the FOI Act.

Recommendation 73

The parliamentary departments should be made subject to the FOI Act.

The response to this recommendation by the Howard, Rudd and Gillard governments, and every parliament since:

(This space intentionally left blank.)

FOI frustration for Schapelle Corby but not the death of democratic rights

2012-01-09T12:00:00.000+11:00

I wasn't aware of the Expendable Project until alerted by a comment from Jan Wilson on the recent post about Schapelle Corby, and haven't immersed myself in its claims about government skulduggery. But I have read the FOI Abuse Report, one of many, about freedom of information applications made on her behalf to a number of agencies, and what transpired.

FOI always has the capacity to disappoint which it has done in this case. But I don't see anything persuasive to support the claim that

"Schapelle Corby's democratic and legal rights, under freedom of information legislation in Australia, have been revoked."

Some comments.

It was a mistake for the applicant to ask for "all documents held about Schapelle Corby", given the history and the passage of time, thus leaving it open to those agencies that had many documents to refuse on the basis of substantial and unreasonable diversion of resources.

FOI 101: Frame the application as narrowly as possible, given what it is you are really after. Specify the period of time of interest. Be prepared to negotiate when faced with a substantial and unreasonable diversion of resources response, particularly when it is supported by what appear to be reasonable estimates of the time involved in processing the application.You can always follow up with a somewhat informed subsequent request.

There is nothing wrong with an agency querying the validity of an agent's authority to act on an applicant's behalf, particularly when the power of attorney produced in favour of Corby's sister was only to take effect in the event of loss of mental capacity. This isn't ducking and weaving for ducking and weaving sake.

Stuff-ups when a decision maker is dealing with many documents, like redacting small amounts of information already in the public domain, can happen and may be indicative of excessive caution, but are usually quickly addressed when brought to attention.

For Customs to respond that it only held 11 documents about Corby (all released in full) would have come as a surprise to me too-and might sensibly be challenged on the basis of inadequate search, difficult as that is.

Then there are the exemption claims. It's not surprising they crop up when it comes to information about the police, investigations, international relations etc. And there is plenty of potential for argument about whether the law has the balance right, and whether the decision maker in a particular case made the correct decision. But getting stuck into the decision maker, in the AFP for example, for making the judgment required by law about such matters as the public interest seems a bit rich. (Some aspects of AFP decisions are before the AAT, so it it will be interesting to see how they hold up to external scrutiny.)

The call that the ABC has “exempted itself” from the FOI act is wrong. In fact the ABC (and SBS) enjoys a generous specific exemption in respect of program materials. That exemption has been broadly interpreted by the courts, but it’s in the legislation as passed by parliament. I’ve been rabbiting on about the need to narrow it for years.

On a positive note, I wasn't aware The Expendable Project's FOI foray had come up with a referral letter from Customs to the AFP dated 1st June 2005 containing important evidence that would have been valuable to Allan Kessing as he was pursued through the courts under s 70 of the Crimes Act. The letter was not made available to his lawyers, or the court at the time, and has been mentioned frequently here and elsewhere since it emerged in support of Kessing's application for a pardon. Good for them.

And good to see activists using FOI to pursue what they see as an important cause, with no mention of any charges, presumably because of the November 2010 changes for personal information requests. Lots of frustration-welcome to the club, and thank goodness for the Australian Information Commissioner who has power to investigate complaints.

But I'd hold the death call on democratic and legal rights

Information access and piecing together the School for Killlers story

2012-01-05T14:05:00.000+11:00

The information access issue is a minor but important part of the shocking Tamworth Institution for Boys story reported before Christmas by Geoff Thompson of the ABC Investigative Unit. The most important aspect, is what went on there and how it was allowed to happen. The Institution for Boys, for absconders from other boy's homes aged 15-18 during the period 1948-1976, sounds like Port Arthur for hardened criminals a hundred years earlier.

The good order of society and the well being of its members-the public interest-is advanced by such a disclosure about the harsh and inhumane treatment of boys by a government institution under the mantle of "child welfare." You have to wonder what steps were taken in the past to hush it up,or if any steps are being taken now to get to the bottom of it. And dare I say, apologise or attempt to compensate for those still with us.

But what of Thompson's success in obtaining from the NSW Department of Family and Community Services a comprehensive list of boys sent there, then matching the data with other available information to link names to 35 violent deaths, and to ascertain the "school" was attended by some of Australia's most infamous killers and criminals, including Arthur Stanley 'Neddy' Smith, George Freeman, Kevin Crump, James Finch, Archibald McCafferty and Billy Munday?

Thompson in his report said the information resulted from a "Freedom of Information" request. If so, the application would have been made before 1 July 2010 when the NSW act was repealed. Alternatively Thompson may have used FOI as shorthand for the replacement act-and bigger mouthful-the NSW Government Information (Public Access) Act, perhaps not referred to in his stories because it is unknown to about 99% of the audience.

Thompson reported that the department, citing privacy concerns, withheld surnames but released a full list of given names and date of birth for boys sent there. He was able to match this with other (unspecified) information to establish Tamworth was a "school for killers."

The other information used to make the connection with known and notorious criminals may have been publicly available court records-there must be plenty of them for this crowd.

Whether the information released also helped Thompson identify and track down others is unclear. For the story Thompson interviewed six former inmates who did not go on to commit serious offences.

A given name and DOB of a person detained as a boy many years ago wouldn't usually get you far in tracking someone down in Australia. DOB information is not in the public domain. Boys in an institution wouldn't be in the phone book or, if under 18, on the electoral roll in those days.

The FOI/ RTI-GIPA decision maker in Family and Community Services probably concluded that release of information in this form avoided the need for third party consultation (probably impractical in any event because of lack of current contact information and the numbers involved), sufficiently de-identified the information so that it was no longer "personal information," and that disclosure was not contrary to the public interest (to use the GIPA test).

On the face of things, all reasonable judgments and within the bounds of the law.

Unfortunately my attempt to contact Thompson through the ABC Investigative Unit to ask about aspects of his big FOI find came to nothing. We'd still love to hear, Geoff.

The potential to match given name and DOB from many years ago with other information to identify a person years later highlights a potential new "mosaic effect"- combining seemingly innocuous bits of information with other available information to form a more meaningful whole. The mosaic effect has long been an issue in freedom of information law/lore, most recently considered in this Federal Administrative Appeals Tribunal decision but the subject of more detailed consideration in a 1988 AAT decision Slater and Cox [at 28].

Those cases were about guarding against non-exempt information released in response to a number of FOI applications being pieced together to build information that might otherwise be exempt.

The Tamworth case raises the broader question whether decision makers in releasing information need to be mindful of other data aggregation possibilities.

As Rich Murnane in this US blog post notes:

"I’m not a privacy nut but we’re moving into an age where just about any information you want to find out about a person could be found out with an Internet browser. Data aggregation websites are exploiting this “Mosaic Effect” culling data together from social networks, online auctions, online real estate and tax databases and wherever else they can get grab information about people. Like it or not, sooner or later you won’t have to ask someone “boxers or briefs”, you’ll pay $36 to some random data aggregator and you’ll find out the person’s waist size too."

In the US a lot more information about individuals than is the case here-DOB, driver's license, car registration, for example-is in the public domain.

The issue for the decision maker In the Tamworth case was whether the information in question constituted personal information as defined in GIPA: information about a person whose identify is apparent or "can reasonably be ascertained from the information or opinion."

A given name, surname and DOB in a list of attendees at an institution, even 40-60 years ago is personal information, in the GIPA context, to be disclosed only where on balance not contrary to the public interest. The privacy considerations in this context should be given considerable weight. (See NSW Information Commissioner Guideline 4: personal information as a public interest consideration under GIPA

Given name alone as it appears in such a list wouldn't constitute information that enables identity to be ascertained. Unless other factors specified in the act weighed against disclosure, the information should be released.

Similarly given name and DOB, in the normal course of things.

Of course the decison maker in this case could have decided for good measure to redact DOB as well, in which event Thompson may have never got his story, and most of us still wouldn't know about the school for killers.

Whether information access law needs to set a higher standard that somehow requires the decision maker to have regard to the (largely unknown and growing) possibilities for supplementing released information through data aggregation is another issue.

Nigel Waters of the Australian Privacy Foundation and Australian Information Commissioner Professor John McMillan have had this recent exchange-and disagreement- about whether Commonwealth law (generally similar to NSW) and the commissioner's guidance gives sufficient weight to privacy considerations in the context of open government.

Openness Harmful to Privacy, Letter to Information Commissioner (20 Nov 2011), and the Commissioner's Reply (7 Dec 2011).

Difficult to make predictions, especially about the future

2012-01-04T17:28:00.004+11:00

Wikimedia Commons-Bastique

Ah, someone (Dan Quayle?) somewhere said it, and I know what they mean.

While I'm beavering away on predictions on press freedom issues for 2012 for publication in the Walkley Magazine February edition, my 2011 lot weren't waaaay off the mark:

Prime Minister Gillard’s commitment to “let the sun shine in” notwithstanding, the hard yards lie ahead in implementing reforms associated with the Freedom of Information Act introduced in November. (We've seen improvements, but hey, this was low hanging fruit and I'll take it.)

The Baillieu government will move on FoI changes in Victoria, leaving South Australia and Western Australia still in need of prompting to join the FoI reform bandwagon. (In the ballpark. Extremely modest and limited reform legislation limped into the Victorian Parliament before year end, but is still to emerge. No movement at the station in SA or WA.)

Talk a few years ago about the need to look at private-sector disclosure obligations (and protection for private-sector whistleblowers) will remain just that. (See 1 above.)

Shield laws for journalists will be influenced by the emergence of WikiLeaks– who or what is a journalist and in what circumstances should the presumption of protection apply? (Yes. Three state attorneys general are wedded to the idea that bloggers can't be journalists.)

Leakers of information of a kind that doesn’t qualify as wrongdoing will continue to run risks to their careers and penalties at law. (See 1 above.)

The adequacy of media standards, ethics, responsibility and self-regulation may also come in for discussion.(Yes, and I'd never even heard of Judge Finkelstein at the time.)

Media interests may be relaxed that consideration of reform of privacy laws will continue at a snail’s pace. (Snail's pace yes, but some media interests were frenzied at the prospect.)

Then of course, there are myriad other issues, including access to court information, and getting the balance right in defamation law. (See 1 above.)

Even censorship will get a run in 2011, with the Australian Law Reform Commission given a reference in December “to conduct a review of classification in Australia in light of changes in technology, media convergence and the global availability of media content.” (Yes.)

The most confident prediction? A busy year ahead. (Shame to take the money.)

Any crystal ball gazers like to try their hand at the year ahead?

Schapelle Corby on a point of order

2012-01-03T15:00:00.000+11:00

ABC TV

The details of the Freedom of Information application and the documents in dispute are not clear but Schapelle Corby is contesting a decision by the Australian Federal Police to deny access to some documents claimed exempt on grounds relating to the security, defence or international relations of the Commonwealth. The Administrative Appeals Tribunal in what might be the first published decision on the interpretation of amendments that came into effect in November 2010, was asked to rule on procedure arising from the requirement in s 60A:

Before determining that the document is not an exempt document under section 33, the Tribunal must request the Inspector-General of Intelligence and Security to appear personally and give evidence

The legal representative of the AFP, and the Inspector-General submitted that the section compels a second hearing if the Tribunal is minded to release documents after a first hearing. President Justice Downes and Deputy President Handley noted that a second hearing would "amount to an unusual, even unique, process" and

....create a number of problems. First, after a first hearing, the Tribunal would receive submissions on the documents and evidence before it at that time. The submissions to be put by an applicant would have to address that state of affairs. It is at least possible that such submissions might be compromised at the time of a further hearing, after further evidence from the Inspector-General, which affected the state of the evidence.
Other practical problems arise. Is the respondent to be given a further opportunity to put on evidence after the Inspector-General? Is the applicant to be given a further opportunity to put on evidence after the Inspector-General? The rules of procedural fairness would almost certainly ensure that at least the applicant should be entitled to put on further evidence and make further submissions. There is also the unusual fact that, before the Inspector-General was invited to give evidence, the Tribunal would be required, on the case put by the Australian Federal Police and the Inspector-General, at least on a preliminary basis, to form a view that the documents should be released. It is not the habit of courts or tribunals in Australia to release draft decisions and then invite further submissions, yet de facto that is what is being suggested here.

The Tribunal found nothing in s 60A that compelled the “two hearing approach.”

"It seems to us that the Tribunal, at any time that seems appropriate to the Tribunal, can make a request under s 60A, and the steps that s 60A require will come into play."[18]

No orders were issued, and the Tribunal suggested ways in which the matter could proceed to hearing likely to be in late February or March, when more about the documents in dispute will be revealed.

(Update-there is quite a Corby related FOI queue at Customs and the AFP)

Head-scratchers in secrecy claims for documents 30 years old

2012-01-03T14:26:00.000+11:00

From NAA website

The National Archives Authority released Cabinet papers for two years on 1 January, as part of the transition from the 30 to 20 years secrecy rule, comprising 800 of the papers considered and discussed by the Fraser and Hawke Cabinets in 1982 and 1983. The media coverage of what was released focuses, rightly, on some of the juicy bits. What wasn't released sparks interest here.

While a relatively small amount of information in the overall scheme of things (and about the same proportion as last year), you have to wonder whether excessive secrecy rather than legitimate well based concern about the effect of disclosure is at work here.

The titles of three documents withheld in their entirety isn't disclosed and parts of 25 others have been redacted. The "reasons" given are simply assertions of a claim for exemption under the Archives Act 1983. The NAA shorthand descriptions of two exemptions (section 33(1)(b), 33(1)(c)) leave out important elements of the exemption provision itself.

Some redactions that prompt more than the usual amount of head-scratching, bearing in mind the documents are 29-30 years old, include

To protect Australia’s security, defence or international relations. Six documents relate to Antactica including "Australian policy objectives in Antarctica." Then there is "Overview of Defence counter-terrorist capability", "Australian policy towards China" and "Future Australian interest in Christmas Island".

Withheld because release would have a substantial adverse effect on the financial or property interests of the Australian government or a government institution. "New policy proposals 1982-1983 - Treasury" (!!) (The exemption contains a public interest test- disclosure would not, on balance, be in the public interest.)

To protect information because its release would adversely impact on the business, commercial or financial affairs of a person, organisation or undertaking." Report of Mr A F Smith on the Office of the Deputy Crown Solicitor (DCS), Perth." (!!!!!)

Christmas and other greetings

2011-12-23T07:38:00.003+11:00

Photo by DAVID ILIFF. License: CC-BY-SA 3.0

That's about it for the moment. Quite a few things still piled up in my "to do" box, so will sort wheat from chaff in the course of the next week or so. In the meantime, thanks for the interest and encouragement during the year, celebrate well whatever you celebrate around now, and best wishes for good health and happiness in 2012.

Indian cricket not just tested on Australian pitches

2011-12-22T10:01:00.000+11:00

Wikimedia Commons Ricky212.

Unlike Australia's access to information laws, the Indian Right to Information Act (s 2(h) may be extended to cover any non-government organisation substantially financed (directly or indirectly) by funds provided by the national or a state government. While Cricket Australia only has to worry about winning the cricket, its Indian counterpart is facing an off-field challenge-that it should be made subject to the RTI act. The Times of India reports:

"Ignoring objections raised by the Board of Control for Cricket in India (BCCI), the government said there were reasonable grounds for bringing the organisation under the Right to Information Act. In a seven-page written statement submitted before the Central Information Commission, the sports ministry said although there was no direct funding of BCCI, it got "substantial indirect funding" from the government in the form of revenue foregone like "concessions in income tax, customs duty" and land at concessional rates for stadiums.

The ministry also argued that BCCI performed functions akin to state and 'public duties' by selecting national teams and representing India in international events. Citing the Emblems and Names (Prevention of Improper Use) Act, the ministry said, "Since the name Board of Control for Cricket in India suggests patronage of the government, the BCCI may have to drop the name 'India' from its name in case they continue to act as 'private body'."

It added, "In view of the above, the present position of the government of India in this regard is that there exists just and reasonable grounds for BCCI to be declared as a 'public authority' under the Right to Information Act, 2005."

Cricket Australia and many other sports and other groups in Australia receive direct government funding, some very large amounts, but are not subject to freedom of information laws, as (to paraphrase and generalise) the laws don't extend beyond documents/information held by a government agency or a contractor carrying out a service to the public on behalf of an agency. Government funding doesn't do the trick.

Except in Tasmania. The Right to Information Act (s 8) provides:

"If a private organisation is funded by or performs a role of a public authority, a person is entitled to the information related to –

(a) that performance; or
(b) the progress of work; or
(c) the evaluation of work; or
(d) the expenditure of public moneys –

held by the public authority, unless the information is exempt information."

Has anyone in Tassie explored this?

There are of course lots of gaps in the coverage in all our information access laws that deserve re-examination. Just one example, the National E-Health Transition Authority with $90 million in Federal and state government funding but as a company is safely beyond any FOI net.(Update-NeHTA's FOI-free status featured in this article the next day by Karen Dearne in Australian IT.)

And then there was the announcement in March 2009 that the Australian Law Reform Commission would be asked to examine the case for extending freedom of information legislation to the private sector. This decision disappeared completely from sight when then Special Minister of State Senator Faulkner became Minister for Defence later that year.

Cricket Australia and the rest are left to get on with winning.

Queensland agencies warned of dangers of "briefing up" on RTI requests.

2011-12-21T14:40:00.002+11:00

Following the post last week about the Daily Telegraph's excitement concerning "secret tip-offs" to the NSW Premier about freedom of information applications, and my comment regarding fortnightly reports to the premier's department regarding applications on hand, a Queensland reader wrote that in 2010 a proposal was floated there to introduce a similar reporting requirement. The proposal encountered resistance from government agencies particularly over privacy concerns and was jettisoned pretty quickly. Someone has since made a request under the Right to Information Act for relevant documents. Some posted here on the premier's department disclosure log include comments along these lines from several agencies. Both the Solomon Committee and the Information Commissioner while acknowledging others need to be kept informed, also have drawn attention to the dangers of "briefing up" about FOI applications, particularly any express or implied invitation to the minister's office or senior echelons to become involved in decision making required by law to be made in an other's name.

The Solomon committee (p 316) in Queensland had looked at "contentious issues management" practices observing that it was perfectly acceptable to keep others informed about FOI

"requests for documents that might result, when released, in the government having to deal, unprepared, with a contentious issue. Freeing up information for an applicant does not require that the government be kept in ignorance of the process that its own agency is undertaking to provide the information."

However

"it is totally unacceptable for a superior officer (or a ministerial officer or media advisor) to try to influence a decision by an FOI officer whose responsibility is to apply the law."

In two separate reports the Queensland Information Commissioner has since commented on "briefing up" about FOI/RTI applications in two compliance review reports.

Regarding Queensland Health ( 8.3.3 starting at p.45):

Agency decision-makers frequently need to discuss applications with other people in the agency. Some information requests are so complex that decision-makers need assistance to understand the information or datasets involved, and to identify and consider the public interest factors that might affect whether the information should be released. This is an appropriate information gathering process.

A separate, but related practice, is to provide a briefing about the outcome of certain applications to senior agency staff. This is commonly done if the agency decision-maker anticipates releasing sensitive information, for example, information that might result in a media report or a question in Parliament. OIC appreciates the need for agencies to brief senior executives about the release of sensitive information in time for senior staff to prepare for media attention. To ensure independence of decision-making, the briefing would occur after a decision had been made to release information, and the information would be released shortly after the briefing. In practice this approach may not allow
sufficient time for briefing notes to be prepared or considered prior to the release of the information. The agency’s entitlement to an accurate briefing prior to release must be accepted.

It is important to note that information gathering and briefing of senior staff are two separate processes which should not be conflated. In particular, issues arise if an agency briefs senior executives prior to the finalisation of the decision and the briefing is done in such a way that there is ambiguity about whether the decision-maker is gathering information from the senior personnel or briefing the senior personnel about an imminent decision. A practice of briefing senior personnel within an agency prior to deciding to release information to the applicant exposes an agency to two key areas of risk as follows: Increased risk of perception of interference with the decision-making process by senior personnel, whether or not this has occurred; and pressure on the legislative timeframe of 25 business days for processing an application to allow time for the briefing procedure. Either application processing has to be shortened to incorporate time for the briefing process into the 25 business days, or there will be occasions when an extension of time for decision-making has to be sought from the applicant.

Similar comments appear in a compliance report on Queensland Police Service (section 8.4.1 p.67)

Thanks to the reader for the links.

Should ministers be in the know about access applications?

2011-12-13T09:00:00.000+11:00

Sydney's Daily Telegraph at the weekend under the headline"Barry O'Farrell's secret Freedom of Information warnings" reported that NSW Premier in one of his first acts in power following the March election, set up a system "to ensure secret tip-offs about public efforts to access embarrassing government information" and potentially more seriously, that his department suggest he lie if asked about the system in parliament.

"Documents obtained under FOI have shown the Office of the Premier installed a system on May 19 to receive weekly status reports from his department on requests from the media, opposition and general public."

I don't know what system Premier O'Farrell set up, but for many years, the Premier's department has required each agency to provide a fortnightly report on FOI applications on hand, and I would be surprised if this in some form doesn't form part of a regular briefing for each minister concerning portfolio agencies and to the Premier overall.

On a side issue, I'm not aware agencies refer to this possible use or disclosure of personal information in any privacy notice in their GIPA material, as they should where the applicant is an individual. It would be better still not to include personal information in any such report if a minister insists on continuing the practice. Let's hope this close ministerial interest extends to whether their agencies are living up to the spirit and intent of the law. And that applications by journalists and the opposition once identified aren't singled out for differential slow and tougher decisions as Alisdair Roberts discovered a few years ago in Canada. (Is there a double standard on access to information?)

The Telegraph seems to be confusing communication with a minister's office about the status of access applications, with communication inviting, encouraging or allowing the minister or staff to influence or direct a decision to be made in an agency officer's name. The "lie" claim reflects this confusion.

The article refers to an Ombudsman investigation following one of its complaints concerning the RTA, stating the Ombudsman at the time "recommended communication about FOI between ministerial offices and their departments be banned..."

What the Ombudsman was on about at the time wasn't simply "communication ". As set out in his Annual Report 2008-2009 (page 97) the Ombudsman found practice at the RTA was to send draft FOI determinations to the Minister’s office. The Ombudsman could see no justification for this:

It opens up the determination process to an unacceptable risk of political interference and has the potential to compromise the independence of the decisions made. It also regularly led to unjustifiable delays in processing FOI applications as matters were stalled while a response from the Minister’s office was pending. In the case of the journalist’s applications, it affected the way the determinations were made."

The Ombudsman continues:

The appropriateness of involving the Minister’s office in agency FOI applications is of relevance to the entire public sector. For this reason, we recommended that the Department of Premier and Cabinet develop a Code of Conduct to clarify the role and relationship of a Minister’s staff with agency staff. A draft Code of Conduct has been prepared, but not yet finalised. We also recommended that the Premier issue a memorandum to all agencies making clear that ministerial offices are not to be involved in the FOI determination process when it relates to applications for agency documents. The Premier issued the memorandum in August 2009.

I'm not aware the draft Code of Conduct ever advanced to a final. Someone -the new Public Service Commission?- should dust it off. Premier O"Farrell might also usefully reiterate the "stay out of GIPA decisions" directive issued by then premier Rees. And he and other ministers might stop to question why they need anything much at all about FOI applications on hand, as distinct from perfectly reasonable notification that a decision has been made to release information the minister should know about and may be the subject of questions from the media or in parliament once in the public domain.

Elsewhere, the Commonwealth (s 23) and Victorian (s 26) FOI acts both contain a provision that allows a minister to make a decision on an application for an agency's documents, a provision that potentially could justify communication with the minister's office about a particular application. The extent to which these provisions are utilised is unknown. This type of provision is not replicated in the NSW or other access law where the legislated distinction is that a minister makes the decision on an application for a minister's document, and an agency officer independently makes the decision on an application for an agency document.

In Victoria Attorney General Guidelines, in place since 2009 refer to a time honoured practice there, that remains unchanged since the Baillieu government was elected a year ago. The Guidelines require an agency to provide a brief to the minister five days before a decision on documents that are sensitive in any way is finalised. Not that this is a request for permission, the Guidelines continue. Of course minister, of course..

It's no secret system, but no better for the transparency.

Back to the future for Commonwealth FOI and Privacy

2011-12-13T08:04:00.001+11:00

The Prime Minister in unveiling widespread changes to the ministry yesterday announced that Minister for Privacy and Freedom of Information Brendan O'Connor is to be appointed Minister for Human Services and Minister Assisting for School Education. And Nicola Roxon "will be appointed as the nation’s first female Attorney-General. The Attorney-General will take on additional responsibility for Privacy and Freedom of Information."

Thus endeth a 15 month experiment with a separate minister carrying the privacy and FOI title. Hard to see from the outside that it all amounted to much. Privacy reform is still to happen with deadlines about the only things that have passed since the Australian Law Reform Commission recommended action in 2008 and then Special Minister of State Joe Ludwig in 2009 accepted many and announced a two stage timetable for action. Wheels are still spinning on these issues. Minister O'Connor was there for the start up of changes in FOI in November last year, but it's hard to recall any public contribution that inspired or went beyond safe grounds.

With the decision in October to move the public service policy function from the Prime Minister's department to Attorney General's, the circle is complete. Down come the neon lights and privacy and FOI are back where they always were prior to the election of the Rudd government in 2007.

Nicola Roxon is not new to these issues having shown interest while Shadow Attorney General before then, and since in the Health portfolio where transparency and privacy issues loom large. She has a strong law background including as an associate to then High Court judge Mary Gaudron.

The Prime Minister also announced some administrative changes including that responsibility "for the National Archives will move from my portfolio to the new Department of Regional Australia, Local Government, Arts and Sport." A shift from the center of government to an agency likely to be known as RALGAS is unlikely to excite the troops at NAA I imagine.

No mention of the bundle of integrity and related issues or the minister responsible Gary Gray -presumably no change.

Victorian FOI commissioner bill no joke, worth at least a grin

2011-12-12T08:10:00.001+11:00

Wikimedia Commons Vigneron

Victoria's proposed freedom of information commissioner scheme is under the hammer in today's Herald Sun dismissed as " a joke" in this editorial and as a "toothless tiger" in an accompanying report by Peter Rolfe who quotes Rick Snell describing the legislation as

"a patchwork job on an existing dodgy framework legislated in the early 1980s on 1960s principles"."It's a further step backwards and a further authorisation of management and top-level executives in the decision-making process," he said.

Rick Snell is right about what amounts to a bandaid over a slerotric artery. The underlying Victorian FOI act reflects thinking circa 30 years ago about getting the balance right between the private space necessary for good government on the one hand and and public access to government information on the other. Things have moved on apace since then particularly in recent years in Australia and the "dodgy framework" badly needs attention in Victoria as well.

No mention of this bigger reform landscape in Minister McIntosh's Media Release or speech to Parliament (Assembly Hansard 8 December 60-64)-no one else spoke and debate was adjourned until 22 December.

The weaknesses in the commissioner bill cited in the Rolfe article are significant-review by the commissioner will not extend to cabinet documents or documents denied access on national security grounds, or in respect of any decision by a minister on a request for a minister's documents or on a request to an agency any decision by the principal officer-and unjustified. However not mentioned in the Herald Sun is that these and other matters not subject to review such as the adequacy of search for documents and third party objections not acted upon by an agency, can be the subject of a complaint to the commissioner. A complaint is different from a review application- after any investigation the commissioner in these cases only has recommendatory powers-see Complaints below.)

While not a complete zero the case for the carve-outs is weak or in the case of the last mentioned simply not made.

But "joke" and "step backward" for the whole shebang are too strong. The bill is worth a grin at least while muttering "could do better" at the same time. Despite the limited scope of reform and some weaknesses there are positives in what is being proposed.

If passed, the bill's provision come into force no later than 1 December 2012 but the search for a commissioner is still ongoing, and the budget allocation for 2011-2012 for the office is $1 million a small proportion of the four year figure of $7.9 million much trumpeted by the government. FOI applicants in Victoria may have a while to wait before the turn for the better.

The Freedom of Information Amendment (Freedom of Information Commissioner) Bill 2011 will amend the Freedom of Information Act 1983.

New review proposals

The scheme abolishes right to internal review by the agency. The right in future will be to apply to the Freedom of Information Commissioner, an office established by the bill, regarding a decision of an agency refusing to grant or deferring access to a document; a decision of an agency not to waive or reduce an application fee under section 17; a decision to refuse to amend a document containing information concerning personal affairs. All existing rights to seek review by the Victorian Civil and Administrative Tribunal remain, so an aggrieved applicant in these areas has a choice at first instance. (Similar to NSW but not the Commonwealth where Australian Information Commissioner review is mandatory before a matter can be taken to the AAT.) VCAT remains the review option for other matters including where a third party objects to an agency decision to disclose personal or business information and wishes to go further than a complaint to the commissioner.

The commissioner must conduct a review in a timely, efficient and fair manner, with as little formality and technicality as possible.

There are various grounds on which the commissioner may determine not to accept an application for review or dismiss a review at any stage including where the commissioner "considers that a review is not appropriate in the circumstances."

After making preliminary inquiries, the commissioner, with the agreement of the applicant, may refer the matter back to the agency for reconsideration, "if it appears .. reasonably likely that the agency will be able to make a fresh decision in a way that is satisfactory to the applicant and in accordance with law."

The commissioner may facilitate an agreement between the parties in relation to the decision under review.

The bill imposes a 30 day turn around for commissioner reviews which seems highly idealistic, although the limited scope for review will help, and there is no time limit for investigation of a complaint. But experience in other jurisdictions is instructive. This for example from the Queensland Information Commissioner's latest annual report:

"the number of median days to finalise a review was 77 days; the service target was 90 days." The Australian Information Commissioner hasn't reported in that detail but between 1 November 2010 and 30 June 2011 received 176 applications for review that raised over 250 review issues. Twenty-nine of the applications were finalised by 30 June 2011.

The Victorian commissioner's decision "has the same effect as a decision of the agency" so is determinative of the status of the documents requested unless the agency or applicant appeals to VCAT. The bill provides that if the FOI commissioner does not make a decision within the required time, the commissioner will be taken to have made a decision refusing to grant access to the document. Once the commissioner makes a decision or deemed decision an applicant or an agency will have 60 days to appeal the decision to VCAT. Even if it does not intend to appeal a commissioner decision requiring an agency to release a document does not take effect until 60 days after notice of the decision is given-that's not good.

The open ended appeal right for an agency is also a potential concern because an agency could drag things out by simply lodging an appeal. The commonwealth scheme in similar fashion provides for an application to the AAT where the agency or applicant contends the commissioner's decision is wrong. My five cents worth would favour a general right of tribunal review for an applicant still aggrieved after a commissioner decision but limited right for an agency. Queensland and Western Australia limit appeal rights from an information commissioner decision by any party to a question of law.)

In VCAT the Tribunal, on its own motion or on the application of the Freedom of Information Commissioner, may call on the commissioner to assist the Tribunal in respect of a review. (In the Commonwealth scheme the commissioner has no role in AAT proceedings.)

Complaints

Separately the commissioner has a complaints function.

"A complaint may be made to the commissioner about any of the following-no specific mention of a decision taken by a principal officer of an agency
(a) an action taken or failed to be taken by an agency in the performance or purported performance of the agency's functions and obligations under this Act, including a decision by an agency that a document does not exist or cannot be located;
(b) a delay by a Minister in dealing with a request;
(c) an action taken or failed to be taken by a Minister in making a decision under section 24 deferring access to a document;
(d) an action taken or failed to be taken by a Minister in making a decision to disclose a document that is claimed to be exempt under section 33;
(e) an action taken or failed to be taken by a Minister in making a decision to disclose a document that is claimed to be exempt under section 34."

If a complaint cannot be resolved informally, the Freedom of Information Commissioner must use his or her best endeavours to conciliate the complaint. If conciliation fails or is unlikely to succeed the commissioner may investigate and report findings including recommendations that the commissioner considers appropriate. The recommendations may include suggestions for improvements to the policies, procedures and systems of the agency in relation to compliance with this Act. But of course recommendations are simply that- the agency or minister concerned may or may not accept and act upon them.

The commissioner has an annual report function for matters specified including agency statistics.

Protection for complainants

No civil action lies against a person who makes a complaint to the Freedom of Information Commissioner under this Act for anything done in good faith by that person in making that complaint." I don't recall anything similar in other Australian FOI type legislation-but someone out there may know better.

Professional standards

The bill provides that the responsible minister may set professional standards that may be subject to regulations made under the act in which case principal officers of agencies must ensure that any officer or employee complies with the professional standards. Further, complaints can be made to the FOI commissioner in relation to any breaches of the standards by agencies-all this is potentially a good thing.

New parliamentary committee

As is the establishment of an oversight committee established through amendment to the Parliamentary Committees Act.

(1) The functions of the Accountability and Oversight Committee are—
(a) to monitor and review the performance of the functions and exercise of the powers of the Freedom of Information Commissioner; and
(b) to consider and investigate complaints concerning the Freedom of Information Commissioner and the operation of the office of the Freedom of Information Commissioner; and
(c) to report to Parliament on any matter relating to—
(i) the performance of the functions and the exercise of the powers of the Freedom of Information Commissioner; and
(ii) any complaint concerning the Freedom of Information Commissioner and the operation of the office of the Freedom of Information Commissioner— that requires the attention of Parliament; and
(d) to examine the annual report of the Freedom of Information Commissioner and any other reports by the Commissioner and report to Parliament on any matters it thinks fit concerning those reports; and
(e) to inquire into matters concerning freedom of information referred to it by the Parliament and to report to Parliament on those matters.

Victoria unveils Freedom of Information Commissioner legislation

2011-12-08T17:02:00.001+11:00

The Victorian Freedom of Information Amendment (Freedom of Information Commissioner) Bill 2011 is before the Parliament. The main purposes are

to amend the Freedom of Information Act 1982 to establish a Freedom of Information Commissioner; and to improve the operation of that Act;

to amend the Parliamentary Committees Act 2003 to establish an Accountability and Oversight Committee of the Parliament;

and to make related and consequential amendments to other Acts.

The Minister's Media release provides a summary of the main points. Hard to argue with this:

Minister responsible for the establishment of an anti-corruption commission Andrew McIntosh said this was the most significant change to Victoria's Freedom of Information laws since their introduction almost 30 years ago.

It's a good and welcome development, delivering after a year on a pre-election commitment.

More on the model when I get through the detail.

However despite the reference in purposes to improving the operation of the FOI act, the bill is focused squarely on the commissioner's position, functions, powers and related matters and doesn't address the many weaknesses and outdated provisions in the act itself compared to reforms elsewhere.

NSW Information Commissioner powers too limited

2011-12-08T16:00:00.000+11:00

The NSW Information Commissioner has published three reports of reviews under the Government Information (Public Access) Act, the first since the act commenced on 1 July last year. One report is about access to the incoming state government briefs from March this year, the others are local council cases of broader significance, one (Clarke) concerning access to performance review information about the general manager, the other (Beale) to a report prepared for the ICAC.

The absence of published reports of this kind till now has been a surprising gap in the materials made available by the commissioner, as users of the act and agencies need and benefit ( well, theoretically sometimes) from guidance on the commissioner's approach to interpretation and application of the act in practical circumstances.

The published reports also highlight a weakness in the NSW model that is unique in the Australian context-the commissioner's powers are limited to making a recommendation and are not binding on the agency or reviewable. All three published reports are favourable to the applicant to some degree and recommend the agency concerned make a fresh determination.The agencies may or may not act in accordance with the recommendations, which are also open ended as to time. None of the three published reports include any indication of the agency response.

The applicant, after a long wait for an information commissioner decision (in one case (Clarke) the IC report was finalised in September 2011 following an application received in November 2010), then waiting to see if an agency responds by making a fresh determination in accordance with the recommendation, could if still aggrieved take the matter to the Administrative Decisions Tribunal. And start again a process that is likely to take another 6-12 months if not settled. At least the Tribunal has determinative powers.

The NSW model is unique among information commissioners around the country. Elsewhere (Commonwealth, Queensland and Western Australia) the commissioner has powers to decide whether a document should be released in accordance with the law, subject to further merits review (Commonwealth) or judicial/error of law review (Queensland and WA). The Ombudsman in South Australia and Tasmania similarly. Victoria is introducing legislation to create the position of Freedom of Information Commissioner today which seems likely to be in similar mode. More on that when the bill is available.

The NSW review framework is not designed for speedy resolution of disputed decisions on access or efficiency for applicants and agencies. While an overhaul is warranted, it will be interesting in the meantime to see if the NSW commissioner follows up recommendations and publishes (agency names please) information about acceptance and rejection, and how long each takes to respond.

Commonwealth FOI statistics reveal busy first year

2011-12-08T15:13:00.000+11:00

The 2010-2011 Annual Report on agencies and the operation of the Commonwealth Freedom of Information released last Friday covers the four months leading up to the commencement of changes to the law in November and the period to 30 June.

The Australian Information Commissioner, Professor John McMillan and Freedom of Information Commissioner Dr James Popple report progress.

"(W)e have seen a marked shift in agencies’ attitudes towards releasing government information, under FOI and through proactive disclosure" Dr Popple said.

Applications overall were up 9.3%- personal information requests by 3.6% and "other" requests by 48.4%. Off a very low base as noted by Dr Popple:

“The numbers of requests in the last two years have been the lowest in more than 20 years, largely due to proactive steps that some agencies have taken to release information outside of the FOI regime.”

Hopefully that's the reason as increased participation in government is one of the objects of the act.

Other details from the report include:

90.6% of all access requests (19504 of the total of 23,605- 82.6%- were for personal information) were granted in full or in part, a decrease of 1.9%. From the report:

"In the last three reporting years there has been a decline in the number of requests granted in full: from 71.0% in 2008–09, to 63.8% in 2009–10, to 60.9% in 2010–11. This pattern applies to requests both for personal and for other information. As agencies release more information outside the FOI process – personal information through other processes, and general information through the Information Publication Scheme – it is likely that a higher proportion of FOI requests will be for other (non-personal) information. Processing FOI requests for this other information is generally more complex, and more likely to result in access being refused or granted only in part. If this is the case, the decline in the proportion of requests granted in full can be expected to rise."

Appendices A and B provide more detail concerning applications for "other" (policy and government decision making) documents. 792 applications were on hand at 1 July 2010; 3980 applications out of the total of 23319 were received during the year; 2656 were determined, 839 granting access in full (31% down from 37% last year), 1127 in part (42% down from 46%), and 690 refused (25% up from 17%); 787 were withdrawn (compared to 619 last year)- as I speculated then, some may have baulked at the cost; and 1325 were on hand at 1 July 2011. (The percentage comparisons are mine drawn from last year's report.)

Use of the act

The Department of Immigration and Citizenship, the Department of Veterans’ Affairs, Centrelink, the Australian Taxation Office and the Department of Human Services remain firmly entrenched at the top of the list in terms of total applications. But some managed significant reductions:

"Centrelink received 3,780 requests in 2010–11: 743 (16.4%) fewer than in the previous year, and 6,495 (63.2%) fewer than in the year before that. This decline in request numbers can be at least partly attributed to Centrelink’s continuing policy commitment to providing customers access to their own personal information outside the processes of the FOI Act, where appropriate."

The following departments reported large increases in the number of requests for "other" documents compared to the previous year:
• Attorney-General’s Department (346% increase)
• Department of the Treasury (179% increase)
• Department of Foreign Affairs (178% increase)
• Australian Customs and Border Protection Service (160% increase)
• Australian Federal Police (148% increase)
• Australian Securities and Investments Commission (116% increase)
• Department of the Prime Minister and Cabinet (100% increase)

Response times

"Most requests (84.2%) were processed within the applicable statutory time period. The response time was significantly better when dealing with requests for personal information than when dealing with other requests."

The stand out (for the wrong reason) on time taken was the Department of Human Services-173 of 425 applications took longer than 90 days. Foreign Affairs and Trade struggled with time as well with 12 of 81 determinations taking this long.

"Over 90 days" is a broad category- further breakdowns of time and the longest time taken would be of interest.

Fees and charges

"Agencies notified a total of $3,207,827 in charges, but exercising their discretion under s 29 of the FOI Act, collected only $536,318 (16.7%) of those charges. Charges were notified in respect of 1,456 requests and the total amount of fees and charges collected was $608,554, an increase of 17.8% on the previous year total of $516,790.This increase of 17.8% in fees and charges collected contrasts with the increase of 9.3% in FOI requests over the same period. Presumably this reflects an increased complexity in requests for non-personal information which, as discussed above, were a greater proportion of all requests in 2010–11 than in 2009–10."

Charges are still an issue regarding use of the act.

Application fees were abolished from 1 November, and changes made to the charging regime. As mentioned previously and relevant to the review of charges currently underway, it would be fascinating to know the cost of all the work involved in charging- recording chargeable time, providing an estimate of charges, seeking advance deposits, processing requests for waiver, following up requests for payment and all the administrative steps in dealing with money. And how these costs compare with the returns. This aspect of costs isn't detailed in the report but..

Cost of administration

Agencies estimate FOI costs at $36,318,030 during the year. Agency efficiency in processing is an open question.

The average cost per request determined across all agencies was $1799 up from $1403 last year. But Appendix J includes some interesting departures from the norm. The Office of the Official Secretary to the Governor-General - $29812 per request averaged across two applications; the National Offshore Petroleum Safety Authority $19864 for 11; Department of the Environment, Water, Heritage and the Arts $15557 for 24; Treasurer $13173 for 4; Department of Broadband, Communications and the Digital Economy $12467 for 68; and
Wheat Exports Australia $12515 for one application.

Solicitors Fees for the year were $4,493,897 (up from $3,812,249 last year) and legal counsel fees were fairly steady at $497,759 ( $480,182). On the subject of legal costs Markus Mannheim in the Canberra Times reports:

The Commonwealth's information watchdog has warned public servants against hiring lawyers to try to keep documents secret. The Government's latest annual freedom-of-information report shows agencies spent $5million on FoI-related legal fees in 2010-11. The fees represented about $1 in every $7 agencies spent administering the FoI Act. Information Commissioner Professor John McMillan said yesterday the expenses concerned him, particularly after the Government's decision last week to cut departments' operating budgets by 4 per cent a year. He understood why bureaucrats sought external advice - ''they're dealing with very complex issues like legal professional privilege, the waiver of fees, and some have an overload of [FoI] requests'' - but said agencies needed to contain their legal bills. ''In terms of priorities, I think spending your open-government budget on legal fees does not sit well with open-government objectives.'' In some cases, agencies paid more for advice on whether to waive FoI fees than the fees were worth.

For the third year in a row the amount paid for applicants' litigation costs came in at zero, -an illustration of the difficulty in getting a payment for costs even where an applicant succeeds in the Administrative Appeals Tribunal.

Review of decisions
The statistics show that it often pays to seek review of a determination to refuse access.

In 2010–11, agencies made 367 decisions on internal review — the same number as in 2009–10. Of these, 170 (46.3%, an increase of 8.3% on the previous year) affirmed the original decision, 54 (14.7%) were granted in full and 143 (39.0%) resulted in some concession by agencies to applicants. Nine applications for internal review were withdrawn.

In the period 1 November 2010 to 30 June 2011, the Information Commissioner received 176 applications for IC Review raising over 250 review issues. Immigration and Citizenship, Australian Securities and Investment Commission, Centrelink, Australian Taxation Office and Australian Federal Police led the list of agencies involved. Twenty-nine of the applications were finalised by 30 June 2011. Four of these were concluded through a published decision of the Freedom of Information Commissioner, affirming the agency decision in two cases and setting aside the agency decision and making a substituted decision in the other two. Eighteen IC review requests were identified as invalid-usually because thet related to applications that pre-dated 1 November.

82 applications for review were lodged with the Administrative Appeals Tribunal, the lowest number since 1992-93, no doubt because of the free and mandatory requirement (from 1 November) to go to the Information Commissioner first. Overall AAT applicants didn't do too badly: 25 agency decisions were set aside by consent or AAT decision, three varied, 20 affirmed and 10 dismissed. As to the story behind Dismissed by Consent (four) or Withdrawn (37) we don't know whether the applicant was satisfied with the result nonetheless.

Next year?

Last year I commented on room for improvement in agency reporting beyond the raw statistics. I'd say the same this year:

"For starters, whether each (agency) has a plan to promote open government, and performance information regarding the achievement of the government's stated objectives; indicators of agency culture and change over time; initiatives taken to publish information of general interest to the community; the extent to which agencies are providing access to information informally; and who-politicians, journalists, NGOs, lawyers and individuals-are using the act."

Your photocopier may be a treasure trove of personal information

2011-12-05T14:46:00.001+11:00

Wikimedia commons Juan de Vojníkov

Oh brother-no free advertisement or aspersions intended.

Since CBS (US) News broadcast a wake up call in April 2010 about the stored information in digital photocopiers and the data security dangers when photocopiers are sold or discarded with images on the integrated hard drive intact, regulators and others have been flagging this as an important issue that deserves attention. The Australian Privacy Commissioner draws attention to the privacy principles regarding disclosure of personal information. In addition, because digital photocopiers and multi function printers save and store scanned images created in the process of making copies, scanning documents, emailing or sending faxes, businesses that offer photocopying or scanning services may be inadvertently collecting large amounts of personal information from their clients and any agency or organisation whose employees use office facilities to scan or copy personal information may be inadvertently accumulating and storing that information:

"Agencies and organisations that collect personal information, deliberately or inadvertently, may be subject to obligations under the Privacy Act in respect of the handling of that information."

Annual report lost in transmission-two years in a row.

2011-12-05T12:44:00.001+11:00

Last year the Attorney General tabled his annual report on the operation of the Queensland Freedom of Information Act for the year ending 30 June 2009 on 23 August 2010 (no, not a misprint). You wouldn't think Premier Anna Bligh, responsible for the replacement Right to Information Act, could do worse. Think again. She tabled her annual report on the RTI act and Information Privacy Act for the year ending 30 June 2010-the first year of operation for both-on 2 December 2011. There is no indication of when the Premier signed off on the report.

The report is here (pdf) through a link on the Tabled Papers Register (6125) and will no doubt appear in due course on the Premier's department and Information Commissioner's websites. Nothing will change the fact it will still be a snapshot of the picture 18 months ago, and largely of historical interest. Pity because the report contains a lot of information particularly about use of the act and agency initiatives on the disclosure front that go beyond mandatory requirements.

This practice of release 14-18 months after the event must be a great morale booster for those in agencies who put together the statistical reports that form the basis for the annual report!

Well spotted by a Queensland reader-thanks.

Victorian FOI reform to inch forward

2011-12-04T15:23:00.001+11:00

Reform worth the name will take more than just the welcome appointment of a freedom of information commissioner. Both these reports over the weekend could be true:

Victoria to legislate for FOI commissioner this week according to The Age.

FOI in Victoria hits a brick wall according to the Herald Sun.