Thursday, December 21, 2006
The Annual Report of the NSW Administrative Decisions Tribunal whose jurisdiction includes review of freedom of information and privacy matters concerning state government agencies, and local councils, has just been made available. FOI cases have risen from 96 in the previous year to 125, and privacy cases dropped slightly from 34 to 30.
In what must rank as the gentlest of nudges, the President Judge Kevin O'Connor notes that the NSW Attorney General is "presently completing a review to determine whether the policy objectives of the (Administrative Decisions Tribunal) Act remain valid and whether the terms of the Act remain appropriate as required by Section 147 of the Act".
What he didn't say was that Section 147 required the Attorney General to undertake such a review "as soon as possible" after 5 years from the date of assent, and to table a report of the review within 12 months after the 5 year period.
The Act was assented to on 10 July 1997. Five years elapsed on 10 July 2002. The report was due to be tabled in Parliament no later than 10 July 2003. Parliament will not now sit until after the election in March.
I'm sure we'll see this report sometime. The Attorney General may attach a late note. It might even emerge with the statutory review of the NSW Privacy and Personal Information Protection Act - a similar provision in that Act required the Attorney General to table a review report by 30 November 2004. It's never been tabled but privacy has been shunted off to the NSW Law Reform Commission.
I don't know how many other statutory review requirements might similarly have never seen the light of day.
Former Victorian Privacy Commissioner Paul Chadwick, has been appointed to the new ABC position of Director of Editorial Policies. He will report to the Managing Director providing independent assessment of editorial performance. It's another feather in Chadwick's hat, after an outstanding 5 years as the first Privacy Commissioner in Victoria.
Chadwick previously was a journalist with the Age (a Walkley Award winner for Most Outstanding Contribution to Journalism in 1997), wrote a book on FOI in the 1980s. acquired a law degree along the way and also headed the Communications Law Centre in Melbourne.
He is a great appointment to what is likely to be another hot seat.
Wednesday, December 20, 2006
Hmmm, well as we were saying in the blog item below, there are plenty of critics of the trend towards greater government secrecy in the US. OpenTheGovernment.org has published its Secrecy Report Card 2006 (released in September) and given another run to this animation "Are we Safer in the Dark" (3.2 MB download).
The US has been a strong and consistent advocate for over 30 years of FOI as a key element in promoting democracy and public participation in the affairs of government around the world. Its efforts are to be applauded, despite the fact that there are plenty of critics of some aspects of US law and the way it is applied at home.
This speech last week by William Ferroggiaro, a Washington based writer and consultant to a webchat for developing countries organised by USINFO (the Government's international information arm), highlighted the benefits of FOI and its role in good governance.
Australia also spends large amounts of money in its government aid program administered by AUSAID in promoting governance reform, particularly in the Pacific and South East Asia. It's a task for another day to explore what message we actually put out there regarding FOI and what resources Australia devotes to encouraging positive take up amongst our neighbours.
The Federal Government's standing and credibility on access to information suffered this year, particularly in the light of its long drawn out and expensive efforts to head off access to 4 year old documents at the centre of a High Court challenge by Michael McKinnon of The Australian.
Tuesday, December 19, 2006
Privacy NSW has posted on its What's New page a note (see 5 December 2006) concerning local councils and the inclusion on websites of development applications and associated documents. Privacy NSW says that councils should obtain their own legal advice, but suggests it isn't prudent. In any event, Privacy NSW says, councils should remove or black out personal information such as signatures and names/addresses of third parties.
My guess is that legal advice will be to the effect that publication of any document on the web that includes personal information is not a breach of the NSW Privacy and Personal Information Protection Act, where the individual concerned is aware, or likely to be aware, that information of this kind will be included on the council's website. If councils ensure there are appropriate references to plans to pubish certain documents on the web, they are likely to have a defence to any claim of breach of privacy principles.
This doesn't mean that the caution from Privacy NSW regarding the inclusion of signatures in documents posted on the web shouldn't be taken seriously. The rise of identity theft means that councils (and others) may find it difficult to explain why this sort of detail should be disclosed to the world, even though technically it might not constitute a breach of privacy principles.
Posting on the web information about development applications clearly facilitates public access, and will be seen as a much more convenient opportunity for members of the public to follow what is happening in the neighbourhood. It should facilitate increased participation in local government affairs generally. It certainly is a big step forward from the minimum requirement in the Local Government Act and other laws concerning development control matters that state that council must make certain documents available for inspection at council premises during business hours.
Privacy isn't the only issue that councils need to consider prior to posting documents on the web. There are also copyright issues, and the possibility, in publishing public comments received in response to a development application, without a vetting process, runs the risk of exposure to action for defamation in the event that a person's character or reputation could be affected.
There are practical answers to managing these risks, and the more information easily accessible about the conduct of council public functions the better. However councils need go into this type of exercise with eyes wide open, and to manage risks in an appropriate manner.
Thursday, December 14, 2006
We would like to wish you all a great holiday season and a special happy and safe New Year.....
We will be in summer holiday blog mode (relaxed) from now until the end of January with updates as time (and energy) permit....
Thanks to Chris Slane for this timely reminder about the surveillance society
Foreign Minister Downer, in a letter published earlier this week, indignantly dismissed the Sydney Morning Herald allegation that he and the Prime Minister had deliberately exaggerated the claim that white powder - that turned out to be flour - sent to the Indonesian Embassy last year, at the height of the Schapelle Corby drama, was a "biological agent".
Today, Matthew Moore Sydney Morning Herald FOI Editor, gives a full account of his attempts to access documents that provided the basis for public statements - including the Prime Minister's labelling the act as "murderous criminality". The post on his blogsite includes the text of emails between him and ministerial press officers during his inquiries about the matter over the last few weeks.
All could be resolved if the Government let the documents speak for themselves - so far it's the only one to see the crucial Protective Services Coordinating Committee briefing note.
The Privacy Legislation Amendment (Emergencies and Disasters) Bill creates a new Part of the Privacy Act that will apply to the handling of personal information during a declared emergency or disaster situation. The amendments follow evidence that was confusion and uncertainty about exchange of information, and disclosure during the 2004 Asian tsunami and other recent crises among government agencies and private sector bodies.
Some speakers during debate noted that the Federal Privacy Commissioner and the Australian Privacy Foundation both thought the issue was adequately covered by existing powers for the Commissioner to issue a public interest directive that would override the privacy principles. The Government claimed that new legislation was required to remove doubt and uncertainty.
The new legislation will apply to Federal Government agencies and private sector organisations covered by the Federal Privacy Act, but not to state government agencies in NSW, Victoria and Tasmania where separate state legislation applies. The original idea was to remove confusion and uncertainty, so this leg of the exercise might also require some attention if the objective is to be achieved.
The Anti Money Laundering and Counter-Terrorism Financing Bill (see earlier blog 30 November) also passed both Houses, the Government choosing to not act on recommendations from the Senate Legal and Constitutional Affairs Committee, or to pick up on many recommendations contained in the independent Privacy Impact Statement. The legislation extends existing reporting requirements and requires banks and other financial service providers, gambling organisations and others to take a "risk based approach" to identify and report to Austrac suspicious financial transactions. Some speakers highlighted concerns about the scope of the law, the extension of Austrac powers, privacy intrusions, and the possibility of discriminatory profiling of customers on race or ethnic grounds.
The Telecommunications Amendment (Integrated Public Number Database) Amendment Bill amends the Telecommunications Act following concern for some years about the potential misuse of data stored on the database by directory producers and directory assistance service providers. The database, maintained by Telstra includes unlisted and listed residential and business telephone numbers, and was established to act as a resource for emergency service and law enforcement use and for the provision of directory services. The Bill provides for access for the purposes of research in limited circumstances.
There wasn't much debate due to end of session timetabling, but the Bill was criticised for not going far enough and leaving directory service providers out of the loop.
Some privacy concerns and issues are addressed in the materials, but it will take some time for privacy advocates to consider the detail and respond.
In support of the Government's position that the card will not become a national identity card, the draft legislation includes penalties of 5 years jail and fines of up to $275,000 in the event a business requires its production for identity purposes. However there is nothing to prevent a card holder willingly providing the card for identity purposes.
Tuesday, December 12, 2006
We have mentioned this issue in previous posts but the Union has some interesting material concerning the practices of the major banks.
Key issues include whether the banks refer to the transfer of personal information in their privacy statements, and what recourse, if any, Australian customers have in the event of a failure in any overseas country to comply with generally accepted privacy standards.
Monday, December 11, 2006
We reported some weeks ago that the NSW Court of Appeal found that the ADT had erred in law in finding the Department of Education and Training was responsible for a breach of the disclosure principles in the NSW Privacy and Personal Information Protection Act when a teacher, acting for his own private purposes, disclosed information about a student (MT) to another organisation. See Department of Education and Training v MT (2006) NSWCA 270.
The Court of Appeal did not consider or overturn the Tribunal finding that the Department had, in allowing access to information by the teacher, breached the data security standard by failing to safeguard the information from unauthorised disclosure and misuse.
However the decision upheld the Department's arguments (on grounds that were only incidental to any argument put to the Tribunal) regarding breach of the disclosure principles, and following usual practice, the Court of Appeal awarded costs against MT.
The overall outcome was that the Court of Appeal found there was only a breach of one principle, not two. MT didn't contest the ADT Appeal Panel decision, but ended up on the wrong end of a cost order.
In this latest development in the long running saga, MT sought to vary the decision by going back to the Court of Appeal to seek deletion of the order for costs. The upshot was the Court of Appeal refused the application, decided that there were no grounds for varying usual Court rules, but agreed to the issue of a certificate to MT (if otherwise qualified) under the Suitors Fund Act. The effect of this is that her costs may be reimbursed, after another bureaucratic process, by the Director General of the Attorney General's Department.
So if a government agency isn't happy with an ADT Appeal Panel decision, takes the matter off to court on a question of law and wins, the court will order costs of those proceedings against the other party, even though the proceedings started off in a "no costs" jurisdiction, and through no fault of the applicant, end up in the courts. Of course, the court has discretion to grant a certificate that might, at the end of the day save the complainant/applicant from actually paying up.
In the MT case, I notice the Department of Education and Training told the Court of Appeal that it would not support a variation of the order for MT to pay costs, although it didn't oppose the granting of a certificate. Applicants - in this case, almost an innocent bystander, and a 21 year old with a disability - have to be grateful for small mercies
Its a tough game when you take on a government agency and end up in courts.
This decision resolves a matter on which members of the Tribunal have differed. Judicial Member Smith in Mangoplah Pastoral Company Pty Ltd v Great Southern Energy (1999) NSWADT 93 decided that the Tribunal had such a discretion but in that case, and others that followed, no member of the Tribunal considered it appropriate to exercise the discretion and order release.
President O’Connor in Neary v The Treasurer NSW (2002) NSWADT 261 decided that the Tribunal had no such powers. That decision, followed in the ADT in the University of NSW v McGuirk cases, has now been found to be wrong in law.
The Supreme Court is still to make orders in this case and much of the decision revolves around another procedural issue concerning the conduct of the case by the ADT.
However the findings regarding the existence of discretionary powers are important in that any FOI applicant is now in a position to make submissions in future ADT cases that an otherwise exempt document should ,in the circumstances, be disclosed. This could include instances where exempt matter could be innocuous, is already in the public domain, or where strong public interests justify disclosure, for example of a document that could be claimed exempt on legal professional privilege, or similar grounds.
Will we get an Australian version in 2007?
Thanks to David Fraser's Canadian Privacy Law Blog for the lead.
Friday, December 08, 2006
That's the claim by Sydney Morning Herald FOI Editor Matthew Moore, based on documents obtained under FOI from ACT Pathology and the Australian Federal Police. The Prime Minister in Parliament yesterday denied any wrongdoing and read a sentence from a briefing note which he claimed justified the description.
As Moore says in a follow up article today, the Prime Minister has refused to release the full advice he and other ministers relied on.
There is an easy way to clear this up - simply release all the documents.
Here's a good suggestion taken from the speech:
"If we were looking for steps that could be taken to improve working relationships (between ministers and public servants) and the understanding of accountabilities, I would offer the suggestion that newly appointed Ministers, and possibly aspiring back-benchers, perhaps even together with newly appointed Secretaries or agency heads, might be given the opportunity to attend workshops or seminars on the respective roles and responsibilities of Ministers, Secretaries and other departmental officers under our Westminster-with-Canberra characteristicsIts not just those in Canberra who should consider such a suggestion. I know from personal experience in NSW that ministers and departmental heads don't take up any formal opportunities to learn about such things as the FOI Act. Ministerial staffers are the same.
system. This would include addressing their respective roles and responsibilities under the Public Service Act, the (Financial Management and Accountability) Act, the FOI act, and other relevant legislation. It would also embrace the less formal conventions that support the Ministerial-Public Service relationship. Lest this be thought to be an unduly radical suggestion, I should hasten to say that something like it now runs in the UK".
In my consulting work on FOI since 1988, I can only recall one occasion when I was asked to provide a briefing to a group of ministers and staffers. It was organised by Bruce Hawker, then Chief of Staff to Premier Bob Carr and was a year or so after the election that brought Labor to office in 1995. No ministers turned up and only a few staffers.
To my knowledge, the exercise was never repeated.
Thursday, December 07, 2006
The Commonwealth Ombudsman yesterday released the latest report of his investigations into the 247 cases of mishandling people suspected of unlawful residence in Australia by the Department of Immigration and Multicultural Affairs. These reports concern 20 people, including 10 children. It turns out all but 2 were lawful residents at the time of their detention, including 8 of the 10 children.
In the interests of balance, here is the Minister's Press release and a link to the Department's responses.
These cases were referred to the Ombudsman following the Palmer Report, the unlawful detention of Cornelia Rau and the unlawful deportation of Vivian Alvarez.
The Minister for Immigration, Senator Vanstone, when interviewed by Kerry O'Brien on ABC's 7.30 Report, claimed that the whole exercise was proof of the Government's commitment to openness and transparency. This is spin that even Shane Warne could'nt match, but Kerry O'Brien knows spin when he sees it coming:
AMANDA VANSTONE: I think a minister's job as soon as a problem is highlighted is not to say "I'll fix this problem" and wait for others to come, but to lift up the rug and say, let�s go and find if there are any others. I don't think you can nominate a Government elsewhere in Australia and certainly not in the time I've been in Parliament where a Government has been so open and transparent and said, "Look, there are a few problems here. There could be more. Let's go and find them. Let's send them to an independent arbitrator to make a good and independent report and do a wholesale, lock, stock and barrel fix on this Department". You can't name a Government that's been that open and transparent and sought out the problems in order to fix them.
KERRY O'BRIEN: Senator Vanstone -AMANDA VANSTONE: Kerry, that's a minister's job.
KERRY O'BRIEN: Can we please continue the interview. The rug was actually lifted by the media.
AMANDA VANSTONE: I was wanting to continue my answer, if I might say -
KERRY O'BRIEN: Well, how long is it going to be?
AMANDA VANSTONE: Well, I've just finished. I wanted to make the point. I was only wanting to finish my answer.
KERRY O'BRIEN: Well, I will now make the point that the rug was actually lifted by the media. You were acting in response to scandalous cases revealed by the media.
Freedom of Information Amendment (Open Government - Disclosure of Contracts) Act 2006 No 115
The Act applies to any agency subject to the NSW FOI Act except State Owned Corporations, and until the making of a regulation, local councils. In effect, the legislation creates new publishing requirements under Section 15 of the FOI Act, and amends the business affairs exemption by adding a new limited "commercial in confidence" provision.
As previously indicated here, the Act will require an agency to publish on a central government website within 60 days, contracts for more than $5million, and details of other contracts for more than $150.000. Material variations of any contract must also be published.
Some types of information may be excluded if they come within "commercial in confidence" as defined in the Act - the contractors financing arrangements, cost structure, profit margins, full base case financial model, intellectual property, matter the disclosure of which would place the contractor at a substantial commercial disadvantage.
While these publishing obligations are not entirely new for large government departments and authorities, they will involve a whole new ball game for some organisations such as universities and other bodies subject to the FOI Act, but not normally seen to be part of the NSW government system.
The central government website mentioned in the Act currently seems geared to provide information to prospective tenderers. If the new Act is to provide a useful accountability mechanism, whatever website is used will need to have some additional search capabilities, for example to enable access to information about all contracts entered into by a particular agency, and to details of all contracts awarded to a particular contractor.
Wednesday, December 06, 2006
The Tribunal in an earlier finding, ruled that the disclosure of information in a psychiatric report about the medical practitioner had been forwarded by the Board to the Pharmaceutical Services Branch of the NSW Department of Health, in breach of the disclosure principles in Sections 18 and 19 of the Act.
In this case the Tribunal accepted that the practitioner had suffered financial loss and psychological harm as a result of the disclosure.
Other cases involving award of damages by the ADT include RD v Department of Education and Training (2005) NSWADT 195, where the Tribunal awarded damages of $2000 for a breach of privacy that occurred when the Department sent health information about the applicant to a wrong address.
In two other cases in which the Tribunal found it lacked jurisdiction, it said that it would have awarded $40,000 for a breach involving disclosure of letters about a neighbour sent to the mayor of a local council (NV v Randwick City Council (2005) NSWADT 45) and $15,000 to an applicant who an agency employee described as a "well known trouble maker" to a radio program producer (GR v Department of Housing (No.2) (2005) NSWADT51).
The JD v NSW Medical Board case is the 5th ADT case involving alleged breaches of privacy by the Board or the Department of Health arising from an investigation of a complaint about the medical practitioner and the self administering of drugs.
Wheels and justice move slowly - JD's original complaint about a breach of privacy was made in April 2003.
Rick Snell of the University of Tasmania, in "We can handle the truth" picks up on a theme close to our hearts - the need for strong, consistent and continuing advocacy through a professional and highly visible organisation, to promote open government principles, and FOI laws that work as a means of achieving them.
Snell refers to US, UK and Canadian models that could provide a basis for what should happen here.
The Council's Executive Secretary, Jack Herman says the publication of the articles is a "first step towards reform of FOI law and practice" in Australia. I'm sure he knows it will need a lot more than this.
My view is that the Council, in conjunction with like minded partners, needs to dip into its pocket to fund and develop a national advocacy group designed to hold government's feet to the fire on this issue.
Tuesday, December 05, 2006
It's generally standard "bureaucratese" with most recommendations "noted". Hardly what you would call a positive response. Many of the matters canvassed in the reports are now part of the Australian Law Reform Commission review of privacy laws.
The Government has rejected recommendations that would extend the Privacy Act to small business either entirely (as recommended by the Senate Committee) or to a greater degree (the Privacy Commissioner recommended it should apply to any company that employs more than 20 people).
No one the Government included - seems to be too fussed that Australias current legislation has not to date satisfied the EU adequacy test, but the Government agrees negotiations should continue.
Although the Privacy Commissioner has welcomed the responses, they are hardly anything to get excited about, although the additional $8million in funding for the Commission in this years budget is an important step towards adequately resourcing the privacy regulator and improving public awareness of privacy issues.
Of course all governments do this but it doesn’t justify the blatant misuse of public money for political promotion. We can expect plenty of Federal Government messages to also come our way before that election late next year.
Sunday, December 03, 2006
Those of you in local councils in NSW will be interested in the presentation by Department of Local Government investigator Angus Broad, and a paper on the role of an in house ombudsman.
Thanks to Steve Wood's UK FOI blog for the lead.
Friday, December 01, 2006
- when government is more open to public scrutiny it becomes more accountable
- if people are adequately informed and have access to information, there is likely to be more public participation in the policy-making process and in government itself
- groups and individuals who are affected by government decisions should know the criteria applied in making those decisions
- every individual has a right:
- to know what information is held in government records about him or her personally subject to certain exemptions to protect essential public interests
- to inspect files held about or relating to him or her
- to have inaccurate material on file corrected.
Readers will recall his now famous September rant to the Government Lawyers Conference. Two items in that speech were his strong and unqualified defence of the sacrosanct nature of legal professional privilege, and criticism of those who didn't understand that the administration of justice depended on it; and secondly his strong words about the media, particularly the "disgraceful treatment of former Justice Marcus Einfeld".
Yesterday, Attorney General Phillip Ruddock asked the Australian Law Reform Commission to conduct a review of legal professional privilege, following one of the recommendations from the Cole Royal Commission. The Attorney General said that while privilege was an important entitlement to enable people to talk openly and honestly with their legal advisers, it was important to get the balance right, as it was clear that in some instances, privilege had been inappropriately used to frustrate investigations.
Law Reform Commission President David Weisbrot said the Commission had been asked to determine if there were circumstances in which legal privilege should "bend" to the broader public interest.
(Incidentally, Deputy NSW Ombudsman Chris Wheeler, in the latest edition of the Australian Institute of Administrative Law Forum - not yet available online - has an article questioning why legal advice should be treated in the public sector in any different way to advice on other matters).
Then last night, Michael Beach and Viva Goldner of the Daily Telegraph received a Walkley Award for the best news report for their original story about Mr. Einfeld and uncovering his attempts to avoid traffic fines.
Not happy Ian?
Piers should defer in this area to someone with a bit more expertise about the way government works or should work, someone like Verona Burgess who writes "Government business" in the Australian Financial Review each Friday. Her column to-day includes the following:
"DFAT in disgrace". The Department of Foreign Affairs and Trade's so-called "post box" defence in the AWB affair may have been accepted by Commissioner Terence Cole within his view of what constituted "actual knowledge" of the Commonwealth, but there is no doubt about where it stands in the court of public opinion, including senior public service opinion. The long litany of sins of omission on the part of DFAT and the Wheat Export Authority are widely being read as yet another disgraceful chapter in the story of Prime Minister John Howard's public service.Just another of the usual suspects Piers?
"Worth Special Recognition". One colleague suggests that DFAT merits a special "state of the service" award for its ability to: ignore 35 separate indications of wrong doing and report that all's well; to keep an entire cabinet so completely in the dark that they even blink convincingly under a spot light; and to face with equanimity the shredding of its reputation, apparently in order to keep intact the cover of its ministers"