[LINK] OT?: FOI: New Global Survey from PI

Fri Sep 22 07:19:26 AEST 2006

>At 11:01 PM 21/09/2006, Roger wrote:
>>  Privacy International Releases Global Freedom of Information Survey
>>  20 September 2006. Privacy International has released the Freedom of
>>  Information Around the World 2006 Global Survey of Access to Government
>>  Information Laws.  The Survey provides a comprehensive review of
>>  Freedom of Information Laws and practices in nearly 70 countries
>>  around the world.  http://www.privacyinternational.org/foi/survey
>
At 17:22 +0000 21/9/06, stephen at melbpc.org.au wrote:
>Thank you, Roger .. a comprehensive country by country survey
>regarding FOI.   Though many may agree an FOI Commissioner
>would be good, at heart Australia is quite well served apparently.

FOI in other countries may be vital to privacy protection.  But a 
report on FOI in Australia specifically from the privacy perspective 
seems to me to rather miss the point.

In Australia, FOI is no longer particularly critical to subject 
access rights to data about themselves, because that function has 
been transferred into privacy laws in the Clth, both Territories and 
3 of the 6 States.  (The other three States - SA, WA and Qld - have 
no privacy laws).

As regards access by members of the public to 
other-than-personal-data (including by the media and Opposition 
parties, who have always been major users), the situation is parlous.

FoI law was wrongly conceived at the outset, and is merely a limited 
and weak right of access to identifiable documents.  (I wrote that in 
my submission to the Senate Committee in 1976, so I feel justified in 
repeating it now).

There are vast exemptions, freeing many agencies completely, and 
providing those agencies and Ministers that are within-scope with a 
wide array of options, which they use mercilessly.  In NSW in 
particular, it would seem to be difficult to get anything under FOI 
any more, especially anything of any consequence.

It is open to agencies to charge ludicrous fees for access. 
Individuals and interest groups have to depend on agencies exercising 
their powers to not charge.  And if they do waive the costs, they 
frequently do so only quite late in the piece - which means that 
costs are used to chill requests.

The AAT and the courts have abjectly failed to apply the Clth Act's preamble:
http://www.austlii.edu.au/au/legis/cth/consol_act/foia1982222/s3.html
"It is the intention of the Parliament that the provisions of this 
Act shall be interpreted so as to further the object set out in 
subsection (1) and that any discretions conferred by this Act shall 
be exercised as far as possible so as to facilitate and promote, 
promptly and at the lowest reasonable cost, the disclosure of 
information."

Worse yet, on 6 Sep 06 (after this went to press), the High Court, in 
a split 3-2 judgement, agreed with the Clth Government that Ministers 
have the power to issue certificates that can't be challenged:
McKinnon v. Secretary Dept of Treasury [really against Costello]
http://www.austlii.edu.au//cgi-bin/disp.pl/au/cases/cth/HCA/2006/45.html?query=Freedom%20of%20Information%202006

I seldom blunder into the FOI scene, but when I do I don't like one 
bit what I see there.

Declaration:  I'm on the Advisory Board of PI, and had a meeting in 
PI's second office in London last month (i.e. I bought Simon, Gus and 
Dave a beer - gees, I'm name-dropping again);  but I didn't 
contribute at all to this project, and flicked the media release on 
to the list without reading the report.

>AUSTRALIA  (p42)
>
>. In 2004-2005, there were 508 requests made for internal review, of
>which 339 related to decisions regarding documents containing 'personal'
>information. 421 decisions were made on internal review ñ 56 percent
>upheld the agency decision and 44 percent resulted in the agency
>conceding additional materials.
>
>The Administrative Appeals Tribunal received 142 appeals and decided 130
>appeals. The Commonwealth Ombudsman received 275 complaints and finalised
>289 complaints about the way that Australian Government agencies handled
>requests under the FOI Act. (snip)
>
>More recently, in February 2006 the Ombudsman released a report on the
>Act which strongly recommended that the Government establish a FOI
>Commissioner, possibly as a specialized and separately funded unit in the
>office of the Commonwealth Ombudsman.
>
>The key was to ensure that an independent body would be tasked with
>monitoring and promoting the law. The Ombudsmanís report more generally
>found that requests were often not acknowledged and delayed and that
>there is still an uneven culture of support for FOI among government
>agencies, even 20 years after its enactment.
>
>It has been previously noted that budget cuts have severely restricted
>the capacity of the Attorney General's Department and the Ombudsman to
>support the Act and there is now little central direction, guidance or
>monitoring.
>
>Under the Archives Act, most documents are available after 30 years.
>Cabinet notebooks are closed for 50 years.
>
>The Crimes Act provides for punishment for the release of information
>without authorization.
>
>The National Security Information (Criminal Proceedings) Act 2004 was
>approved by Parliament in December 2004. It regulates the use of national
>security information in trials. The adoption followed the Australian Law
>Reform Commission report, "Keeping Secrets: The Protection of Classified
>and Security Sensitive Information" in June 2004.
>
>In 2005, the 'Intelligence Services Legislation Amendment Act' .. was
>passed .. which exempts the Defence Signals Directorate and the Defence
>Intelligence Organisation from the Act. Notably, the Australian Secret
>Intelligence Service (ASIO) and the Office of National Assessments (ONA)
>were already exempt.
>
>As noted above, Privacy Act requests for access to personal information
>are funneled through the FOI. The Privacy Amendment (Private Sector) Act
>2000 gives individuals the right to access records about themselves held
>by private parties.
>
>All six states and two territories now have freedom of information laws.
>There are also privacy acts in most states and territories.
>--
>
>Regards all ..
>Stephen Loosley
>Melbourne, Australia
>_______________________________________________
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-- 
Roger Clarke                  http://www.anu.edu.au/people/Roger.Clarke/

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Visiting Professor in Info Science & Eng  Australian National University
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