Open and Shut

How goes Victorian FOI Commissioner ?

2013-05-21T09:38:00.003+10:00

Hard to know almost six months after the Freedom of Information Commissioner opened for business on 1 December.

There is nothing on the website about what has happened since in terms of reviews and complaints received and their resolution. The Commissioner has 30 days to conduct a review (super quick by any standard) unless the applicant agrees to an extended period.

Budget documents published in early May help a little.

Budget Paper 3 includes the Departmental performance statement for the Department of Justice (pdf) (page 199) with $3.5 million allocated for the Freedom of Information Commissioner in 2013-14, and these (surprising) output measures:
                                   2012-13 Expected Outcome          2013-14

Reviews completed                 155                                       400
Complaints completed             150                                         96
Timelines met                          85%                                     100%

But how it's all working out in practice for agencies and applicants is unknown at this distance at least. Comments informed by experience most welcome.

An unusual feature of the Victorian system (Part 1B) is that the Minister (Attorney General) may develop professional standards for the conduct of agencies in performing functions and the administration and operation of the FOI act. Where issued, an agency must comply. All quiet on that potential new front as well.
(This was my take in December 2011 on the legislation establishing the commissioner's office.)

The portfolio statement (page 189) lists outputs for the separate Office of the Victorian Privacy Commissioner, allocated $2.3 million in 2013-14 compared to an expected current year final spend of $2.5 million.

Russia exits in OGP first

2013-05-20T15:11:00.001+10:00

Toby McIntosh in Washington reports Russia has withdrawn from the Open Government Partnership.

"An official communication that it would drop out was received May 17, although it had signaled its intention several months ago and did not attend the ministerial meeting in London last month, according to OGP-connected sources. Russia’s letter of intent to join is dated April 17, 2012, but is the only document on the OGP website. A draft national action plan was prepared, but was never completed or submitted. Most other members who joined around that time have completed their plans. Russia’s withdrawal brings OGP membership to 57 countries. Russia is the only country to join and then leave."

(Update: See this analysis of the up and downside by Alexander Howard published at Global integrity.)

There's still plenty of good company there folks.

Calling "damage to international relations", with mixed results

2013-05-20T12:25:00.003+10:00

Agencies other than Foreign Affairs and Trade get to try their hand from time to time at Section 33 of the Freedom of Information Act and whether disclosure would, or could reasonably be expected to, cause damage to the international relations of the Commonwealth. With contrasting results as seen in two recent review decisions by the Office of Australian Information Commissioner. The Australian Broadcasting Corporation, in the unusual position of being against disclosure, unsuccessfully argued that damage would result from release of information about a Solomon Islands media assistance project it manages for AusAID. The Bureau of Meteorology on the other hand provided enough evidence to convince the Acting Freedom of Information Commissioner to affirm its decision to refuse access to documents concerning a peer review undertaken of a NZ government research agency report on temperature changes.

In Wake and Australian Broadcasting Corporation [2013] AICmr 45 the applicant sought access to documents concerning the Solomon Islands Media Assistance Scheme including the program’s overall effectiveness, the number of consultants used, the number of people trained and any evaluation of its effectiveness. The Solomon Islands Government is a key stakeholder in SOLMAS and the ABC submitted that public disclosure of the documents could adversely affect its relations with the Solomon Islands Broadcasting Corporation and the Ministry of Communication and Aviation. Acting Commissioner Pirani was unimpressed:

I have read the twelve documents subject to this IC review. I do not consider that disclosure of these documents would, or could reasonably be expected to, damage the relationship between Australian and the Solomon Islands. The documents report on the activities and effectiveness of SOLMAS in strengthening the media sector in the Solomon Islands and cover the period from October 2008 until December 2010. The documents contain candid assessments of the strengths and weaknesses of individuals and media organisations in the Solomon Islands. Given the nature of the material, the aims of SOLMAS, and the collaborative nature of RAMSI, I do not consider that release of these documents would, or could, reasonably be expected to damage Australia’s relationship with the Solomon Islands Government.

The Acting Commissioner noted [21] some of the documents contain comments critical of identified individuals. "To the extent that these documents contain personal information which would be unreasonable to disclose and the release of which would be contrary to the public interest, I consider it is appropriate for this material to be edited before the documents are released to Ms Wake."

In AA' and Bureau of Meteorology [2013] AICmr 46 the documents in question were about a review conducted by the Bureau of the ‘Seven-station’ temperature series report prepared by the New Zealand National Institute of Water and Atmospheric Research Ltd (NIWA), a NZ government research and consultancy agency. In response to legal action initiated in New Zealand with respect to the accuracy of the temperature data series, NIWA asked the Bureau to undertake a review of the methodology and documentation of its report.

Acting Commissioner Pirani accepted there are scientific conventions of confidentiality and anonymity associated with peer review, that the Bureau’s review was a peer review, as understood in the scientific community, that assurances of confidentiality had been given, and that disclosure would be contrary to s 33:

I consider that damage to the relationship between the Bureau and NIWA, and between the Bureau and other international research organisations, is damage to the international relations of the Commonwealth. This view is consistent with Part 5.30 of the Guidelines.
I have considered the Bureau’s and NIWA’s submissions and have decided that if any information provided to the Bureau by NIWA, any information about the peer review, or any information revealing the identity of staff working on the peer review is disclosed, it could reasonably be expected to damage the relationship not only between the Bureau and NIWA, but also between the Bureau and other international research organisations. The damage that could reasonably be expected to result from disclosure is a loss of trust in the Bureau as the holder of confidential material which would have the effect of reducing the willingness of NIWA and other international organisations to consult with the Bureau.

Much ado, to no avail, about the records on "true heir to the throne of Iran."

2013-05-20T07:15:00.002+10:00

There is an angle but nothing of significant Freedom of Information interest in this Federal Court decision. However it is hard to go by Justice Gray's first sentence without a peek. The decision runs to 100 paragraphs.To cut to the chase, Ms Fard failed in her application and had costs awarded against her.

This is the strangest case I have encountered in almost 29 years as a judge. The applicant, Ms Fard, was born in Iran in 1947. In 1987, she fled to Turkey to avoid persecution of those of the Baha’i faith, of whom she is one. She was granted a visa to come to Australia. She arrived on 25 May 1988. She claims that the respondent, the Minister for Immigration and Citizenship (“the Minister”) holds documents that state falsely that Ms Fard is the mother of a man called Sohyle Lagheyefar or Sohail Laghaifar (or some variant of those spellings). She says that, in consequence of the existence of these false records, she has suffered various forms of harm and persecution in Australia. She wishes the Minister to cease to hold those records, or to correct them.

There is in Australia a man who has been known by the name Sohyle Lagheyefar or Sohail Laghaifar (or some variant thereof). He denies that Ms Fard is his mother and denies that that is his name. He claims to be his Imperial Majesty Soltan Qeumars Shah Qajar, the grandson of a Shah who was deposed in 1925, and the true heir to the throne of Iran. For convenience, I refer to him as Mr Qeumars in these reasons for judgment, as I did at the trial.

There are indeed many documents in the records held by the Department of Immigration and Citizenship (“the Department”) in which it is stated that Ms Fard is the mother of a son whose name is spelt in one or other of the ways referred to in [1] above, or some variant of either of those spellings. A number of those documents were tendered in evidence by pro bono counsel for Ms Fard, along with evidence intended to demonstrate the falsity of the documents to the extent that they represent that Ms Fard has a son who bears the name in question (and sometimes in other respects). The case put on behalf of Ms Fard appears to be that documents were falsified deliberately, in order that Mr Qeumars could be brought to Australia, given a false identity, and kept here.

No OGP joy in budget, all eyes on EITI in Sydney this week

2013-05-19T14:59:00.001+10:00

Nothing in the Portfolio Budget Statements for Attorney General's Department, Office of Australian Information Commissioner or Department of Foreign Affairs and Trade-the three likely suspects - to indicate that Australia will be moving into 2013-2014 with a funded initiative to take us into the Open Government Partnership.

Sigh.. But ever hopeful, maybe it means we are moving inexorably towards membership, thinking it won't cost a cracker, or nothing more than can be found within funds allocated for the normal course of business. Or something has been squirrelled away in that line item of $463 million for budgeted items yet to be announced?

However the OGP financial ground rules are changing.The minutes(pdf) of the meetings in London in April reveal that a request is coming in June for a voluntary financial pledge in 2013 by all members of at least $25k, with mandatory annual contributions from 2014. Members of the Steering Committee who always had to dig deep are to be asked for an annual contribution of between $100 and $300k.

The $25k would be no big deal but other costs are involved.The OAIC months back flagged it would need two extra staff if it was to be the lead agency, which may or may not prove to be adequate. Factor in as well the cost of doing something meaningful in developing a National Action Plan and reaching out to civil society to get there, and participating fully in international and regional activity and it means more will be needed than the key to the petty cash tin.

So here we are in late May 2013 with the Australian Government's intentions still unknown. Notwithstanding former Attorney General Roxon's proposal to ministerial colleagues in 2012 that we join, Senator Faulkner's conviction in February that the OGP was exactly the sort of thing Roxon's successor Mark Dreyfus stood for, Foreign Minister Carr's indication at that time of in principle support, and Australian Information Commissioner Professor McMillan's observation that Australian membership was "inevitable only a matter of time."

There is the opportunity this week for an announcement at the Extractive Industries Transparency Initiative Global Conference in Sydney with Minister Gray and Assistant Treasurer Bradbury scheduled to speak to the 1300 delegates. That will raise a cheer from where I'll be sitting and I'm sure I won't be alone.

Continued silence will mean that Senate Estimates commencing 27 May provide another opportunity for those senators interested to probe process, which DFAT Secretary Varghese assured in February would be speedy. Senator Faulkner left off then saying he would be watching. I'm sure officials are looking forward to Estimates as much as I am.

Federal Budget: OAIC down about $150k

2013-05-15T16:23:00.001+10:00

Could have been worse I guess.

As reading a Portfolio Budget Statement has never been my forte, I can only tell you after a little help that buried away in the statement for the Office of the Australian Information Commissioner [PDF 176KB] is an allocation of $10.604 million for 2013-14 compared to $10.764 million for the current year. Staff levels in the 80-85 range. Key performance indicators for timeliness remain unambitious, to use a term I've thrown around before, but you can only do what you can do. Adequate resourcing might make a difference.

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Program 1.1 key performance indicators • Australian Government agencies comply with the requirements of the Information Publication Scheme and disclosure logs. • Principles on open public sector information are promoted and understood across government. • OAIC merits review and complaint handling processes meet timeliness and quality benchmarks. • Information and education products on privacy, FOI and information policy meet stakeholder needs. • The Information Advisory Committee and Privacy Advisory Committee are supported in their role of providing advice to the OAIC.
	2012–13		2014–15	2015–16	2016–17
	Revised	2013–14	Forward	Forward	Forward
Key performance indicators	budget	Budget	year 1	year 2	year 3
Percentage of privacy complaints finalised within 12 months	80%	80%	80%	80%	80%
Percentage of FOI complaints finalised within 12 months	80%	80%	80%	80%	80%
Time taken from commencement to finalisation of audits/performance assessments	6 months	6 months	6 months	6 months	6 months
Percentage of Information Commissioner reviews completed in 12 months	80%	80%	80%	80%	80%

EFIC's blanket FOI exemptions under challenge

2013-05-15T12:46:00.003+10:00

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

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

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

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

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

EFIC could not satisfy the Productivity Commission on this score.

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

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

EFIC is the government provider of export credits, insurance, reinsurance and other financial services that support Australian exports and overseas investments. EFIC was established in its current form under the Export Finance and Insurance Corporation Act as an independent statutory corporation wholly owned by the government. The Schedule 2 exemption from the Freedom of Information Act is in relation to documents concerning anything done under Part 4 or 5 of the EFIC Act.

The Productivity Commission Report Australia's Export Credit Arrangements (among other recommendations) recommended (9.7) the removal of the exemption, noting that sensitive government and commercial information should continue to be protected by other general exemption provisions.

The Commission commented that the FoI Act exemption for EFIC reduced the ability of the public and the Australian Parliament to examine finance facilities for their environmental, social and human rights impacts, and that Dr Cephas Lumina, the UN Independent Expert on foreign debt and human rights, along with Greenpeace and Jubilee Australia had expressed concern about EFIC’s disclosure policies:

... the Independent Expert fully supports the view that the absence of transparency requirements raises serious questions about the agency’s accountability to taxpayers and to citizens of the developing countries where EFIC-supported projects are being implemented are matters of public concern. Consequently, he is of the view that EFIC should be required to publicly disclose information concerning its activities, including project assessment, decision-making and implementation and to undertake assessments of the human rights impact of its financing decisions (in addition to its environmental and social impact assessments). In particular, the Government of Australia should ensure that the activities of EFIC are fully compliant w ith Australia’s international human rights obligations.

The Australian Government Response in January 2013 to this recommendation was "Noted." Meaning, "not on your life."

As a Foreign Affairs official told Senate Estimates in February "that was not really a priority...we looked at why the exemption was there in the first place, and principally it is about the transactions that EFIC agrees to or becomes involved in—and the government as well, on that national interest account. So there are a number of issues of confidentiality around the commercial transactions that are involved. For that reason the exemption exists and ultimately the government agreed that it was appropriate for it to remain."

The bill to amend the EFIC act is currently with the Senate Foreign Relations Defence and Trade Legislation Committee.

MEAA on the State of Press Freedom

2013-05-14T08:13:00.002+10:00

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

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

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

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

Michael McKinnon of Seven Network on freedom of information writes

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

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

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

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

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

Too much tugging over who ministers meet

2013-05-10T10:35:00.001+10:00

Queensland is soon to publish lobbying contacts.

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

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

1904 Olympics{PD-US}

Back to the tug of war.

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

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

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

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

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

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

A reference in this Act to government information held by an agency is, when the agency is a Minister, a reference to government information held by the Minister in the course of the exercise of official functions in, or for any official purpose of, or for the official use of, the office of Minister of the Crown.

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

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

2013-05-08T09:49:00.000+10:00

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

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

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

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

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

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

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

Ah dear, back to the current main game:

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

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

Mr BARRY O'FARRELL: I thank you, Madam Speaker, as the member representing the city of Nowra, and the member for Kiama for his interest last Friday in what was a ridiculous decision by the Administrative Decisions Tribunal. It is ironic that that decision came on the same day that 202 officers graduated from the Police Academy, 14 of whom till go into the southern region, which of course includes the Shoalhaven. On the very day that the State Government is trying to improve the number of police across the State and the number of police in the Shoalhaven, the Administrative Decisions Tribunal has made a decision to, in one fell swoop, turn off closed-circuit television cameras in the city of Nowra—closed-circuit television cameras that have an impact in Nowra and elsewhere in driving down crime.

It was a terrible decision. It was a terrible decision because it was based on a complaint from one individual. One individual was put ahead of the concerns and interests of an entire community, and I will always argue that that is unacceptable. I do not drive on the right-hand side of the road because the law says I should drive on the left, and that law is there for good reason. It is there to protect the broader public interest. So, too, were the laws in relation to closed-circuit television cameras.

Following contact from the member for Kiama I sought advice from the State's Attorney General on what was the best option to ensure that the use of closed-circuit television cameras by councils across the State could indeed be assured. We understand that privacy considerations are important but public safety has to be paramount. Today the Attorney General advised me that the decision on Friday exposed a loophole in the State's privacy legislation, and today I can announce that that loophole will be fixed.

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

However, councils will still be subject to other requirements under the privacy legislation to ensure that the use of closed-circuit television cameras is not unregulated, and that they comply with requirements such as the security of information and how the use and disclosure of information is handled. It is anticipated that this regulation will be in place by the end of next week. That should mean that Jo Gash, the Mayor of Shoalhaven, can turn those cameras back on, something that I know will be welcomed by the community of Nowra.

We were never going to stand by and allow this ridiculous decision to deny police in this State a tool that they use to combat crime. We are never going to stand by and allow the use of closed-circuit television cameras by local councils to be extinguished. I applaud Shoalhaven and other councils for putting in place such cameras to try to ensure that we drive down crime. One does not have to look too far to find examples of the importance of these cameras. They are important in identifying those who perpetrated the bombings at the Boston Marathon. [Extension of time granted.]

They were important, albeit privately owned, in the context of identifying the rapist and murderer of ABC employee Jill Meagher in Melbourne, and they were also used in the investigation of the tragic death of Thomas Kelly at Kings Cross last year. I congratulate the Attorney General on his action. I highlight the ridiculous nature of this decision, which I have read. We know that closed-circuit television cameras under the current regulations can only be accessed by council staff or police under appropriate orders. The Administrative Decisions Tribunal decision on Friday made clear "there was no evidence that any of the police officers in fact viewed the applicant's image". This is the applicant who was concerned about his privacy. It went on to say, "There is no evidence to suggest that the applicant's personal information has been accessed or used in any way", except to fulfil the Government Information (Public Access) Act—the freedom of information Act—as advanced by the applicant to bring this case forward.

If that does not take the cake: the bloke no long lives in the Shoalhaven. This was a ridiculous decision. It was a decision that concerns me because it struck me that the tribunal was trying to make policy. This Parliament is the place that will make policy. Whichever party is sitting on the Government side of this place will initiate policy. I will never stand by and allow those who sit on our tribunals or courts to dictate policy.

OAIC on a treadmill

2013-05-07T16:39:00.001+10:00

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

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

In the March quarter:

101 review applications were completed,109 came in;

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

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

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

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

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

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

2013-05-06T08:14:00.002+10:00

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Reasonable security safeguards

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

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

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

The orders are:

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

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

Queensland lobbying rules require public disclosure of contacts

2013-05-03T16:11:00.002+10:00

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

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

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

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

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

Apart from important changes to the RTI act, the act amended the Integrity Act extending the application of the lobbying provisions of the Act to the opposition leadership; clarifying the meaning of “third party client” of a lobbyist to limit regulated lobbying activity to lobbying services for a client for a fee or other reward agreed before the services are provided; and making it clear that the Lobbyists’ Code of Conduct may specify that lobbyists report to the Integrity Commissioner on their lobbying activity.

(Explanatory Notes here)

The Integrity Commissioner Dr David Solomon subsequently issued a new Lobbyists' Code that took effect from 1 May 2013. Lobbyists must provide the Integrity Commissioner with information about lobbying activities carried out by them. The information will be made public by the Integrity Commissioner by publishing it on the Integrity Commissioner’s website.

Lobbyists must file, no later than 15 days after the end of every month, information for a register of lobbyists, contact with Government and Opposition representatives, reporting on each and every lobbying contact by them during that month with a government or Opposition representative.

The information that is to be provided for each such lobbying contact is:

(a) the name of the registered lobbyist;

(b) whether in arranging the contact, the lobbyist complied with the requirements of 3.2 of the Lobbyists Code of Conduct and, if relevant, 3.3;

(d) the client of the lobbyist;

(e) the title and /or name of the government or Opposition representatives present;

(f) the purpose of contact:

making or amendment of legislation;

development or amendment of a government policy or program,

awarding of government contract or grant allocation of funding;

making a decision about planning or giving of a development approval under the Sustainable Planning Act 2009,

commercial-in - confidence; or

other

The commissioner has highlighted that an action is 'lobbying' under the Integrity Act if it is "contact with a government representative in an effort to influence ... decision-making" and provided a list of activities that are within or outside this definition and some Q and A's.

An interesting Background Briefing on ABC Radio National, if you have the time and interest.

Other jurisdictions remain a long way behind.

For example, three years ago the NSW Independent Commission Against Corruption identified the lobbying rules as a major corruption risk.

Despite shock horror stories in recent times its recommendations have not been acted upon. They include widening the registration requirement to cover all third party lobbyists and "Lobbying Entities" including industry associations, trade unions, employer groups, religious and charitable organisations, and corporations that employ staff or have board members who lobby on their behalf; requiring those in government who are lobbied to create records of the lobbying activity, and for those records to then be accessible to the public as "open access information" under the GIPA act, for which there is no overriding public interest against disclosure; and a new role for an independent government entity, such as the NSW Information Commissioner to monitor the scheme and impose sanctions on lobbyists where necessary.

Privacy Awareness Week

2013-05-01T16:15:00.003+10:00

I'll bet you were aware anyway.

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

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

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

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

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

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

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

On this subject the Attorney General said:

"While on the issue of information security, I can say that the Government remains committed to providing a robust and transparent privacy law framework that protects against and deters data breaches.

I believe that government agencies or companies that suffer a data breach should provide timely advice to those who have had, or could have, their privacy infringed.
This would seem to be the view of many Australians as well. A recent study undertaken by the Centre for Internet Safety at the University of Canberra, found that 85% of Australians supported notification where their personal information has been breached.
Notification of data breaches empowers individuals to take corrective or remedial action to change or resecure the personal information.
The simple act of cancelling a credit card or changing a password gives that individual the opportunity to limit the possibility of identity theft or fraud.
We currently have a voluntary system in Australia. I know that many of you have systems in place to conform with the voluntary system, and some have notified the OAIC and affected individuals where appropriate.
Whether that system is adequate is still a question we need to consider. If there continues to be underreporting of data breaches, or we continue to find out about them only through media reports, some would argue that there is strong case to move to a mandatory scheme.
Large scale data breaches continue to occur, and every incident that is reported in the media continues to raise community concerns about the need for a mandatory scheme.
As recently as February this year, the Australian Broadcasting Corporation (ABC) revealed that the personal details of almost 50,000 internet users had been exposed online after the ABC's main website was hacked. This followed large scale breaches in recent years at Telstra, Medvet and Sony Playstation. While I am an optimist, I do not anticipate that we have seen the end of these types of breaches.
A mandatory notification requirement may also act as an incentive to the holders of personal information to adequately secure that information, leading to an overall improvement in information security practices.
A mandatory data breach notification scheme would also provide better information to government and the public on the scope and frequency of data breaches. That could be vital in the development of measures to combat the frequency and severity of data breaches.
As many of you are aware, the Government released a discussion paper on mandatory data breach notification in late 2012. We received a number of useful responses raising a range of issues.
As part of the normal process of policy development, we have followed up with some stakeholders to seek more detailed information, including about how a mandatory scheme might impact on businesses.
The Government will carefully consider this ongoing consultation before deciding on which option to pursue."

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

2013-04-30T18:24:00.005+10:00

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

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

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

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

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

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

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

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

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

Roll on June...

Integrity awards-parliamentarians step forward

2013-04-30T09:23:00.000+10:00

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

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

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

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

Your thoughts this time?

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

The criteria for both awards are the same:

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

Supporting the principles and practice of transparent and accountable government

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

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

Protecting peoples’ political and civil rights

Transparency silos not unique to Australian CSOs

2013-04-29T14:59:00.001+10:00

Infrogmation

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

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

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

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

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

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

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

2013-04-29T13:07:00.002+10:00

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

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

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

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

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

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

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

The report summarises the RTI problem thus:

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

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

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

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

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

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

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

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

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

This part of the report concludes

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

Really?

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

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

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

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

Recommendation 10 in the review report reads:

The Right to Information Act ought to be amended to restrict Departments and agencies (including the Information Commissioner) from being required to give reasons for refusal to produce documents, the restriction to remain in place for 9 months. Reasons should only be obligatory if and when the complaint results in criminal proceedings or proceedings in QCAT; or, the subject or subjects of a complaint, authorise in writing the publication or disclosure of the complaint. The exception to this would be if the Supreme Court earlier determines there to be a compelling public interest in the disclosure of the reasons. We have selected 9 months on the basis that by then the CMC should have completed any investigation it undertakes. The excuse from the requirement to give reasons must be general because if it is confined to reasons in respect of a CMC investigation, then not giving reasons would immediately identify that the matter was under investigation by the CMC and defeat the purpose of the provision. We recognise that this is a far-reaching provision but cannot see any other solution that would prevent leakage of information about the existence, content or subject of a current complaint or investigation. The severity of the provision is tempered by two important qualifications that we recommend apply, namely that the embargo is limited to a 9 month period, and that it be subject to contrary order by the Supreme Court in situations of compelling public interest. Similar amendments will be required to the Ombudsman Act to restrain the Ombudsman from giving reasons for declining to intervene in a matter.

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

2013-04-27T16:30:00.006+10:00

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

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

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

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

Who knows, maybe Australia will make that one?

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

2013-04-24T13:11:00.004+10:00

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

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

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

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

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

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

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

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

An action statement to this audience, would, more than words, lift our standing as a country committed to high standards of transparency and accountability at home, and prepared to put shoulder to the wheel for this cause abroad.

So if you have their ear, a word or a message advocating this is the way to go to Minister Carr, Attorney General Dreyfus, Assistant Treasurer Bradbury and any others close to the seat of power might give things a nudge in the right direction.

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

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

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

The EITI is a coalition of governments, companies and civil society organisations promoting a global standard for revenue transparency generated from extraction of natural resources. Companies publish what they pay and governments publish what they receive in an EITI Report.

Australia and the EITI
AusAID promotes EITI abroad through the aid program and the Government provides funding for EITI implementation support.

Australia is yet to sign up to implement the EITI in domestic law. A report from a Multi-Stakeholder Group is expected towards the end of the year. This Update from the Department of Resources, Energy and Tourism outlines where things stand with an Australian pilot. In this area (and others!) our federal system raises complexities, hence the involvement of some state governments in the MSG, and loads of technical issues that need to be addressed jointly.

The need for revenue transparency in the exploitation of extractive industries was the subject of a UN resolution co-sponsored by Australia in 2008. The G8 and G20 urge support for the EITI. Australia will be in the G20 chair from September this year.

EITI and OGP
Analysis by Global Integrity of the national action plans submitted by OGP member countries, shows 14 including the US list the EITI as a priority issue.

Australia and transparency activism
However joining the dots, or joining the transparency, open government and other related causes seems a bigger challenge for us than elsewhere, a point made here last year. I know all NGOs are stretched and have to make choices about engagement but there's scope for improved dialogue and maybe maximising effect. To illustrate..

Publish What You Pay (PWYP) is one of the main international civil society players promoting the EITI. PWYP is a global network of 650 civil society organisations. One is listed in the Membership list under Australia, Jubilee Australia. (I hadn't heard of Jubilee Australia but that's only because I lead a sheltered life...)

PWYP has an Australian chapter:

"PWYP Australia was launched in June 2011. The coalition is made up of a wide range of organisations – human rights, aid, faith-based, anti-corruption and environmental among others – that all see revenue transparency as central to their objectives."

Members aren't listed on the website but appear at the foot of this letter. I had heard of most (not so sheltered after all) but Transparency International is the only one of 28 that has been part of the discussion and debate about broader transparency and accountability issues including freedom of information and the OGP cause.

PWYP Australia says it is funded by Oxfam America and the (US) Revenue Watch Institute, and one Australian body, the Construction, Forestry, Mining and Energy Union (CFMEU).
(The union movement hasn't figured in the wider good government/transparency debate since the sixties and seventies when it was an important player in the push for a freedom of information act.)

Last piece of the jigsaw: Claire Spoors of Oxfam Australia is the National PWYP Coordinator. I've made contact with her this week about the OGP. To date it's not been an issue high on their list.

The general lament is that despite the shared interest in transparency, we have few links here between those advocating for

revenue transparency through the EITI at home and abroad;

the OGP;

open government/open data;

anti-corruption measures and improved democratic practice such as whistleblower protection, full disclosure of political donations and better disclosure of lobbying activity; and

freedom of information law and practice and related issues including pro-active publication of government information.

(Afterthought, sorry: and all those involved in pushing transparency boundaries in speciific fields across the entire spectrum at all levels of government - environment, health, welfare to mention just a few.)

OGP membership and some ambitious thinking about Australia's national action plan and how to engage with civil society in such an exercise might just do the trick.

Comments and observations welcome as usual.

Decade old SA cabinet documents published, in an unexciting first

2013-04-22T10:07:00.002+10:00

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

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

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

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

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

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

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

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

Australian democracy in good shape says Economist IU

2013-04-18T16:45:00.006+10:00

Ahh, perspective, perspective.

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

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

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

Our scores in the five categories were:

electoral process and pluralism (10/10);

functioning of government (8.93);

political participation (7.78);

political culture (9.38); and

civil liberties (10-and that's without much in the way of constitutional protections... hmm).

Global democracy in 2012

"..was at a standstill in the sense that there was neither significant progress nor regression in democracy in that year. Average regional scores in 2012 were very similar to scores in 2011."

At the top of the tree, Norway, Sweden (Mr Assange presumably not reassured), Iceland and Denmark.

Canada is 8, UK 16, US 21. In the Flawed Democracy category, Indonesia 53, PNG 67, and most countries in the Asian region.The report notes

"..the past couple of decades have seen the spread of democracy in the region overall. Over the past decade, some 20 Asian countries have held elections, and many have undergone peaceful transitions in government... Yet even in the democratic countries, there are often significant problems in the functioning of political systems.Democratic political cultures in Asia are often underdeveloped and shallow, even in the countries that have democratised. In only nine countries in the region do we rate elections as being both free and fair. Even in parts of the region that are not authoritarian there is often pressure on the independent media. In many countries, Asian Barometer polls show that more citizens believe that the nations’ recent democratic transitions had brought no improvement to their lives than believe that the changes have been positive."

Thirty six countries are in the Hybrid regimes category; 50 are listed as Authoritarian including the single Pacific island nation rated, Fiji.

Open Gov convoluted at ABS

2013-04-17T16:21:00.003+10:00

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

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

OAIC in overdrive

2013-04-10T16:31:00.001+10:00

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

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

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

Business information
Third party objectors feature prominently, in a number of cases failing to convince the OAIC that information should be withheld.

A third party, objecting to disclosure of information needs to do more than assert to the OAIC that disclosure may affect it adversely in respect of its lawful business, commercial or financial affairs.The specific harm that might reasonably be expected to flow from disclosure must be identified. In this case the claim failed. (K and Australian Securities and Investments Commission [2013] AICmr 22 at 10-13).
...
A claim by a third party that its business, although not specifically identified, would be harmed by release of a report because it could be identified through 'a process of deduction' by the applicant or by other parties who obtain the document was rejected on the grounds that the liklihood of this was low. The claim failed to satisfy the "would be, or could reasonably be expected to be" harmed test in s 55D. "I view the applicant's claim that it might be identified from the report and thereby become the subject of negative media commentary to be, in the words of the Guidelines, a 'mere assertion or speculative possibility.' (L and Department of Agriculture Fisheries and Forestry [2013]AICmr 23 at 19).

The third party objector only has a right to be heard on contentions relating to the relevant exemption/s in the FOI act on which it was consulted not on other exemption grounds it considers should justify non-disclosure ( L at 22).
...
The first five paragraphs of a letter from the TGA to an applicant proposing a medical devicetfor inclusion on the Register of Therapeutic Goods, summarising parts of of a publicly available report, and setting out the agency's regulatory functions and powers, and five requests for information would not, or could not reasonably be expected to, adversely affect the applicant in the conduct of its business. The sixth question contained information that could if disclosed reasonably be expected to prejudice its competitive commercial activities. The material reveals information that would only be known by TGA and the applicant and arises because of the regulatory relationship between the TGA and the applicant. While conditionally exempt under s 47G(1)(a), disclosure of this information on balance would not be contrary to the public interest:

In deciding whether disclosure of the document would be contrary to the public interest I am required to balance the public interest in making information available to the public about a matter of public importance, that is, public health as well as how the TGA deals with the sponsors of medical devices when problems are reported with the medical device, with the private interests of the applicant in preserving its competitive commercial activities, professional reputation and profitability.
On balance, I consider the factors favouring access outweigh those that do not. The applicant has not discharged the onus on it to establish that access to the document should be refused.

(Q and Department of Health and Ageing [2013] AICmr 29.)
.....
A decision to withhold information about funding for Mission Australia under a government jobs program was upheld in large part on business affairs (and deliberative process) grounds. Some documents that simply recorded the actual decision were not part of the thinking/deliberative process.
(Dreamsafe Recycling and Department of Education, Employment and Workplace Relations [2013]AICmr 34)
.....
While substantially affirming a decision by Foreign Affairs and Trade, Acting Commissioner Pirani decided there was some overreach in a business affairs exemption claim for information concerning communication with Qantas about two employees who had been detained in Vietnam."The information itself is not particularly sensitive.. I am not satisfied that the harm claimed by the Department offsets the public interest in giving access to the information." (O'Sullivan and Department of Foreign Affairs and Trade [2013]AICmr36 (at 43-47.)

Charges
The time of officers in the agency whom the decision maker consults in the course of making a decision, including meetings to discuss the matter, is not chargeable (M and Department of Agriculture Fisheries and Forests [2013] AICmr 24 (at 24-26.)

Substantial and unreasonable diversion of resources
ASIC's broad and generous estimate of the time that would be involved in retrieving files and processing an application came in for close attention by Acting Commissioner Pirani. And didn't withstand scrutiny. It turns out ASIC does not have dedicated FOI officers with responsibility for handling FOI requests and making FOI decisions so others carry the load (35). But when the OAIC checked out the claims, even assumptions used in the fabled 'charges calculator" they weren't close to reality. Worth noting:

I turn now to the other activities necessary to finalise a decision on this request. As noted above, ASIC’s estimate of how long it would take to decide whether to grant access to the requested files was based on an estimate that approximately 2000 pages would need to be considered for the applicant’s request, and an assumption that each of those pages would take five minutes to read and make a decision on. This results in an estimated decision-making time of ‘approximately 166 hours of consideration and assessment’.
It is common practice for agencies to use a ‘charges calculator’ tool to estimate processing times for the purpose of issuing preliminary assessments of charges under s 29 of the FOI Act. The charges calculator is a Microsoft Excel document that is circulated amongst Commonwealth agencies and used to generate estimates of how long FOI decision making will take. It has as its parameters a number of assumptions about how long an FOI request should take to process. The calculator varies in its exact form from agency to agency, but as one of its parameters commonly uses five minutes per page as an estimate of how much time will be required to examine documents for decision-making purposes, with additional time allocated for the consideration of exempt material. While such rough estimates may be a sufficient approximation for a preliminary assessment of charges made under s 29(1) of the FOI Act, in my opinion a more rigorous approach will generally be required before a decision to refuse access on the basis that a practical refusal reason exists. ASIC declined to provide any additional justification for its estimate in response to the OAIC’s inquiries.
To verify ASIC’s estimated processing time, two OAIC officers attended ASIC premises and inspected three of the five files covered by the applicant’s request. These three files contained approximately 1300 pages. A significant proportion of the documents on the three files were publicly available material (such as press releases, transcripts, news clippings and legislation) to which no exemption would apply. That material would take very little time to assess for release.
The OAIC officers then took a sample of the not publicly available pages within the files and considered what exemptions might apply to those documents. The officers sampled approximately 600 pages from the files.
The OAIC officers compiled a handwritten schedule listing the title of each document and identified exemptions that were likely to apply to each document. Reviewing the 600 sample pages and preparing this handwritten schedule took an average time of approximately 30 staff-seconds per page. This relatively quick time was possible because many of the documents spanned multiple pages or were clearly exempt in full.
Of course, I do not think that 30 seconds per page is a realistic estimate for how long this request would take to process. Additional time would be required to finalise a decision beyond this initial assessment. For example, it would be necessary to finalise a decision on precisely what exemptions applied to the documents or parts of documents, to type a schedule, prepare edited copies of documents for partial release pursuant to s 22, and to write a statement of reasons. Some additional time would also be required to consult third parties. ASIC provided an estimate of ‘four weeks’ to consult 11 third parties. Again, it is unclear whether this refers to staff-days or to the total time that will pass while ASIC consults those third parties (including time waiting for responses to correspondence sent to the third parties). How this figure was arrived at was not explained by ASIC and for that reason I place little weight on it.
While processing this request would take a significant amount of time, I think that ASIC’s estimate is too high. On the basis of the inspection of the documents completed by the OAIC officers, I believe that the total time to process this request would be around 50 staff-hours or less, rather than the estimate of more than 166 hours provided by ASIC.

(T and Australian Securities and Investments Commission [2013]AICmr 33)

International relations and foreign government communication
Paul Watson of all those tussles with japanese whaling vessels, failed in a bid to access information supplied to the Australian Federal Police by an unnamed foreign government (no prizes) "provided informally by the foreign authority on the basis that it would be used for investigative purposes and not disseminated further unless its use in legal proceedings was later approved. The Acting Commissioner upheld the decision to refuse access both on damage to international relations and information supplied in confidence by a foreign government grounds. (Watson and Australian Federal Police ([2013] AICmr 32)

C U Thursday, maybe?

2013-04-09T14:00:00.001+10:00

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