Surveillance

'Humpty Dumpty Was Wrong - Consistency in Meaning Matters: Some Definitions of Privacy, Publicity, Secrecy, and Other Family Members' by Gary T Marx in (2016) 1(1) Secrecy and Society states 

“When I use a word,” Humpty Dumpty said in rather a scornful tone, “it means just what I choose it to mean — neither more nor less.”

“The question is,” said Alice, “whether you can make words mean so many different things.”

“The question is,” said Humpty Dumpty, “which is to be master – that’s all.”

- Lewis Carroll Through the Looking Glass

Humpty Dumpty was partially right. His words may mean what he chooses to have them mean, but that is just his story.  There is nothing inherent or eternal in the words (or what they represent). Granted that he has the power to say what he means, but others have the power to say what they mean, not to mention hearing what they choose to hear. Alice is the more interesting of the two when she wonders what the consequences are of making "words mean so many different things." For the understanding of secrecy and related phenomena those consequences are decidedly negative.

In the beginning there was the concept. And in beginning an inquiry into surveillance (Marx 2015), I argue that the failure to  adequately define and differentiate terms can cloud and contort ethical and empirical understanding and lead to unnecessary conflict and unwise policies. Consider surveillance and privacy, terms central to understanding secrecy. What "are" they really? (Or better what do people mean when they use the terms)?

In popular and academic dialogue surveillance is often wrongly seen to be only the opposite of privacy—the former is seen as bad and the latter good. For example, social psychologist Peter Kelvin (1973) emphasized privacy as a nullification mechanism for surveillance. But Kelvin’s assertion needs to be seen as only one of four basic empirical connections between privacy and surveillance. Surveillance is not necessarily the dark side of the social dimension of privacy.  Surveillance implies an agent who accesses personal data (whether through discovery tools, rules, or physical and logistical settings). Privacy, in contrast, involves a subject who can restrict access to personal data through related means. But both can be connected in a variety of ways.

Surveillance can obviously invade privacy—that’s what the fuss is all about (e.g., the employee in a lab testing for AIDS who sold information on positive results to a mortuary). Yet surveillance can also be the means of protecting privacy (biometric identification and audit trails, video cameras that film those with access to sensitive data). And privacy can also protect surveillance (undercover police who use fake IDs and call forwarding to protect their identity) just as it can nullify it (e.g., encryption, whispering, and disguises). Privacy for whom and surveillance of whom and by whom and for what reasons need to be specified.

Depending on how it is used, active surveillance can affect the presence of privacy and/or publicity. As nouns, the latter can be seen as polar ends of a continuum involving rules about withholding and disclosing, and seeking or not seeking, information. Thus, depending on the context and role played, individuals or groups may be required to engage, find it optional to engage, or be prohibited from engaging in these activities, whether as subjects or agents of surveillance and communication .

The rules applying to agents and subjects are in principle independent. When the rules specify that a surveillance agent is not to ask certain questions of (or about) a person and the subject has discretion about what to reveal, we can speak of privacy norms. When the rules specify that the subject must reveal the information or the agent must seek it, we can speak of publicity norms (or, better perhaps, disclosure norms). With publicity norms there is no right to personal privacy that tells the agent not to seek information, or that gives the subject discretion regarding revelation. Rather there is the reverse — the subject has an obligation to reveal and/or the agent to discover

Dignity and the Canon

'Human Dignity and Its Critics' by Jacob Weinrib in Gary Jacobsohn and Miguel Schor (eds) Comparative Constitutional Theory (Elgar, forthcoming) explores

four prominent objections to the overarching role that human dignity plays in constitutional and human rights law. In the eyes of its critics, human dignity is objectionable because it (1) is too variable to be captured by a coherent constitutional theory; (2) stands in opposition to a liberal vision of constitutional governance; (3) fails to offer guidance for resolving constitutional disputes; and (4) is incapable of justifying anything until it is itself justified. My aim is to unearth the presuppositions that generate these objections, explain why these presuppositions are controversial, and to formulate a set of plausible alternatives that do not give rise to these objections. Since the leading objections stem from presuppositions that need not be accepted, these objections do not preclude the formulation of a comparative constitutional theory of human dignity.

'The Gay Rights Canon and the Right to Nonmarriage' by (2017) 97 Boston University Law Review 425 comments 

In the line of cases from Romer v. Evans to Obergefell v. Hodges, lesbian, gay, bisexual, and transgender (“LGBT”) people went from outlaws to citizens entitled to dignity and equality. These decisions represent incredible successes for the LGBT rights movement. Some who support LGBT equality, however, argue that these victories came at a great cost: the gay rights canon, it is said, entrenches the supremacy of marriage and the marital family.

Marriage equality skeptics are right to be concerned about this possibility. Marriage is increasingly a marker of privilege. Individuals who marry and stay married are disproportionately likely to be white and more affluent. It is also important, however, not to overlook the more progressive potential of the gay rights canon.

This Article reclaims this potential. This Article offers two novel and important contributions. First, it identifies and gives substance to the constitutional principles of the gay rights canon. Second, this Article uses the principles of the gay rights canon to offer a rereading of Obergefell. This progressive rereading supports, rather than forecloses, the extension of constitutional protection to those living outside marriage.

Submerged States

'No Port, No Passport: Why Submerged States Can Have No Nationals' by Heather Alexander and Jonathan Simon in (2017) 26(2) Washington International Law Journal comments 

Territorial loss owing to sea level rise presents novel challenges to the international legal order. Nowhere is this clearer than in the case of small island states like the Maldives, Tuvalu and Kiribati, whose very existence is in jeopardy. In our recent article, Sinking Into Statelessness, we argue that the principle of presumption of continuity of state existence does not ensure that sinking states shall or may retain their legal statehood, because that principle cannot overrule the fact that territoriality is a constitutive feature of legal statehood. Here, we argue that even if, contra our previous conclusion, submerged states retain their legal statehood, territory is nevertheless necessary in order for a state to confer nationality in the sense of the 1954 Convention Relating to the Status of Stateless Persons: that is, for a state to consider someone a national under the operation of its law. In consequence, even granting that such a state could exist and have members, its members would need nationality in another state in order to avoid de jure statelessness. To establish this claim, we will argue that for a state to consider someone a national under the operation of its law, that state must be capable of complying with the duty to readmit nationals when requested to do so by another state.

Legal Practitioner Whistleblowing

'Lawyers, Confidentiality and Whistleblowing: Lessons from the McCabe Tobacco Litigation' by Christine Parker, Suzanne Le Mire and Anita Mackay in (2017) 40(3) Melbourne University Law Review 999 comments

 In 2006, Christopher Dale leaked information about Clayton Utz’s internal investigation into the events surrounding the destruction of documents that would have been relevant and damaging to their client, British American Tobacco, in the 2002 McCabe litigation. This article uses this case study to examine whether lawyers can and should act as whistleblowers against colleagues and clients who abuse the administration of justice. We argue that although lawyers must have strong obligations of confidentiality to clients and others, their role as gatekeepers of justice also demands that they be allowed to blow the whistle when they have information about clients or other lawyers using legal services to subvert the administration of justice, and be protected when they do so. The article evaluates the circumstances in which such whistleblowing is appropriate and makes suggestions about how the law should be reformed by reference to three touchstones: the nature of the relationship between the lawyer and the wrongdoer; the nature of the wrongdoing itself; and, the process used to disclose the wrongdoing.

The authors state

Readers of The Sunday Age on 29 October 2006 could hardly have missed the ‘exclusive’ with the headline: ‘Exposed: Dirty Tricks behind Top Lawyers’ Plot to Deny Justice to Cancer Victims’. A follow-up headline was also attentiongrabbing: ‘Justice Denied: How Lawyers Set Out to Defeat a Dying Woman’. The articles detailed the outcome of an internal Clayton Utz investigation highly critical of two senior lawyers in that firm who had represented the British American Tobacco Company Services Limited (‘BATAS’) in litigation. Documents relating to the investigation had been leaked by an unnamed source. The case in question was a lawsuit brought by Rolah McCabe, who was suffering through the final stages of smoking-related cancer. The source of the newspaper stories was ultimately revealed to be Christopher Dale, formerly a partner with Clayton Utz. Dale had helped to conduct the internal review.

Dale’s leak raised the question of whether lawyer whistleblowing to protect the administration of justice is, or should be, permissible. There has, however, been no authoritative resolution of the legal and ethical appropriateness of Dale’s whistleblowing. This article argues that it is appropriate for lawyers to whistleblow when the administration of justice is under threat, and that regulatory changes to facilitate this process are warranted.

Part II of this article briefly summarises the facts of Dale’s leak5 and its significance for the administration of justice. In Part III, we explain the ethical and regulatory significance of whistleblowing, its characteristics, and the issues it raises for lawyers specifically. We argue that lawyers are justified, and indeed obligated, in whistleblowing where they have information about clients or other lawyers using legal services to subvert the administration of justice. We contend that whistleblowing should be permitted in circumstances where courts or regulatory authorities would refuse to uphold client legal privilege due to conduct that would fall into the fraud exception. We go on to suggest, based on the literature on whistleblowing, that there are three relevant elements in considering the appropriateness of whistleblowing, and apply these to lawyer whistleblowing: the nature of the relationship between the lawyer and the wrongdoer; the nature of the wrongdoing itself; and the process that the lawyer whistleblower uses to address and ultimately disclose the wrongdoing. Parts IV, V and VI of the article consider each of these three key elements in turn using Dale’s case to illustrate the legal, ethical and practical difficulties for lawyers considering whistleblowing to protect the administration of justice. On the basis of this analysis, we suggest changes to the professional conduct rules to allow and protect gatekeepers of justice whistleblowing.

They conclude

The disclosure of wrongdoing is controversial since the lawyers’ obligation to keep secret confidences is so intertwined with the lawyer’s identity as to be its ‘defining, paradigmatic feature’. This article has argued by contrast that lawyers are justified, and indeed obligated, to whistleblow where they have information about clients or other lawyers using legal services to subvert the administration of justice. This is an essential element of the lawyer’s duty to the administration of justice and role as a gatekeeper of justice. It also accords with current approaches to regulatory policy and democratic control in which the possibility of leaks and whistleblowing is an essential aspect of the way in which both public and private institutions are subject to democratic control and accountability. Yet, as we have shown, lawyers are largely unprotected by the legislation introduced to encourage appropriate whistleblowing and are thus vulnerable to reprisal including professional discipline if they do whistleblow. Moreover, lawyers lack guidance from professional conduct regulation and education as to when it is and isn’t appropriate to whistleblow. The case of Dale’s leak of internal law firm information regarding whether his own law firm colleagues had assisted their tobacco company lawyer to conceal documents and mislead the court about the extent of their concealment illustrates the difficulties faced by potential gatekeeper of justice whistleblowers, and the complexity of navigating the legal rules around confidentiality and privilege when whistleblowing.

Generally, where officers and employees of organisational clients engage in wrongful and harmful conduct, lawyers should have little ethical difficulty in fulfilling their obligations to justice and to the client by internal whistleblowing; reporting up the organisational hierarchy until something is done to correct the situation. The challenge comes when lawyers are asked to assist their organisational clients to avoid the scrutiny of the justice system or where they discover that their colleagues, clients or lawyers on the other side, or other lawyers that they come into contact with, have breached their duty to the administration of justice.

We have argued that the position in general law under the iniquity rule exception to breach of confidentiality actions, the public policy exception to breach of contract, and the crime–fraud exception to privilege generally allows whistleblowing in such situations, provided an appropriate process is followed. It is, however, difficult, uncertain and probably unreasonable to expect potential lawyer whistleblowers to navigate and rely on the complex and sparse case law in the area. Professional conduct rules recognise no exception for gatekeeper of justice whistleblowing (except for a vague reference to the general law of confidentiality) and provide no guidance as to an appropriate process to follow for any would be whistleblower. Existing legislative whistleblower protections for public servants and corporate employees provide only partial protection and guidance for lawyers. The PID Act does not protect lawyers not contracted to a government agency and the Corporations Act whistleblower protections apply only to corporate employees and in relation to wrongdoing that breaches the Corporations Legislation. We have, therefore, argued that the professional conduct rules should be changed to provide for a gatekeeper of justice whistleblowing exception. This might be most simply done by explicitly introducing an exception to confidentiality in the conduct rules where the crime–fraud exception to privilege or the iniquity rule exception to breach of confidence would apply. We also suggest that professional conduct rules and regulation should provide protection to lawyer whistleblowers that mirrors the type of protection offered by the PID Act, along with guidance as to the appropriate process for whistleblowing that also mirrors the PID Act and observations in the case law concerning the iniquity rule. Finally, we suggest that legal services regulators and/or legal professional bodies should introduce mechanisms by which whistleblower reports concerning breaches to the duty to the administration of justice can be received and investigated in a confidential and effective way so that lawyers do not have to resort to the media.

Furthermore, detailed work to define precisely how our proposed reforms to conduct rules and regulation to allow and protect whistleblowing will work may be necessary. But this should not detract from the urgency of introducing whistleblower exceptions to confidentiality and protections to enable lawyers to act as gatekeepers of justice in relation to their colleagues and organisational clients. In this time of constantly threatening financial, environmental and social crisis, it is absolutely urgent that we do everything we can to enhance the democratic control and just accountability of large and powerful organisations in our society.

'Secrecy, Confidentiality and "Dirty Work": The Case of Public Relations' by Sue Curry Jansen in (2016) 1(1) Secrecy and Society comments 

The prominent midcentury American sociologist Everett C. Hughes wrote a ground-breaking essay on the “dirty work’”that is part of every society. He begins his argument with a discussion of extreme cases - genocide in Nazi Germany, segregation maintained by lynching in the American South and apartheid in South Africa - but then asserts that these extremes point to “a phenomenon common to all societies”:

Almost every group which has a specialized social function to perform is in some measure a secret society, with a body of rules developed and enforced by the members and with some power to save its members from outside punishment.

Viewing this enforcement power as a paradox of social bonding, Hughes maintains that, “A society without smaller, rule-making and disciplining powers would be no society at all.” Hughes further contends that “good people” generally do not want to know what the enforcers who do a society’s dirty work actually do. They look away, keep silent or repress knowledge that “would threaten the group’s conception of itself” if subjected to open discussion.

To break the silence is to betray the group. This is why whistleblowers - no matter how honorable their motives - are usually ostracized by their former compatriots and generally treated with suspicion even by those whose values and interests they are trying to defend.

The conspiracy of silence around societal dirty work allows history to be laundered and salutary myths to prevail. While democracies formally abhor government censorship and value transparency and publicity as essential to creating an informed citizenry, they also countenance various forms of censorship during wartime and other national emergencies. All of the advanced democracies also now routinely exercise forms of information control during peace time in the name of national security, broadly conceived – whether through regimens of classified information, intelligence agencies, surveillance or other stratagems.

Government agencies and businesses, which do society’s dirty work, frequently develop jargons of evasion, which cover their efforts with a veneer of normalcy that renders them less visible. Bureaucracies institutionalize these euphemisms. Nowhere is this more apparent than in military and intelligent agencies. The U.S. military, for example, has developed an elaborate vocabulary of evasion to cover up the dirty work that is part of every war. Words such as “collateral damage” (civilian casualties), “soft targets” (cities), drone warfare (killing people by remote control) shield good people from having to acknowledge their complicity in morally contentious policies and actions.

While democracies have to stretch language and logic to paper over the dirty work that, according to Hughes’ argument, is necessary to their survival, corporations operate under different rules. They are private enterprises, accountable primarily to their shareholders, while subject to various forms of government oversight and regulation, depending upon their locations and reach of their operations. Secrecy is, however, assumed to be an integral part of the corporate modus operandi. It is considered essential to protect trade secrets, negotiate deals and maintain competitive advantage. Like governments, corporations also have their disciplinarians and enforcers who do their dirty work.

This article briefly examines the origins and development of the dirty work that is done by some forms of corporate PR. It focuses primarily on the U.S., which invented corporate PR and exported it to the rest of the world where in recent decades its resources have been mobilized and deployed in the service of neoliberal globalization.

Bioprinting

'3D bioprinting – An Ethical, Legal and Social Aspects (ELSA) framework' by S. Vijayavenkataraman, W.F. Lu and J.Y.H. Fuh in (2016) 1-2 Biprinting 11–21 comments

3D printing is one of the most innovative technologies in the current era, while 3D bioprinting is revolutionizing the medical technology industry. Bioprinting technology could help overcome the limitations of the current tissue engineering methods, including the problem of longer waiting times for treatment (especially with organ transplants). While fighting infectious diseases had been the main focus of medicine in the past, dealing with the consequences of a predominantly ageing population will be the priority in the future and bioprinting is a promising technology to tackle this challenge effectively. Bioprinting will not only cater the needs of ageing population but also in the field of paediatrics, where the bioprinted tissue or organ should possess the capability to grow with the patient. As researchers around the world are working on 3D bioprinting of tissues and organs, companies are burgeoning all over, making and marketing new bioprinters. While the research and commercialization are moving at such a rapid pace, the issues surrounding the technology, in terms of ethics, policies, regulations and social acceptance, are not addressed in commensurate. Identifying the ELSA (Ethical Legal and Social Aspects) concerns of this technology at an early stage is not only part of our social responsibility but also in the interest of the future of the technology itself. This paper reviews and foresees these challenges with pragmatism, thereby creating awareness to the researchers and policy makers and to urge a positive course of action in the foreseeable future. The significance of this work will be to address a broad audience, associated with this technology, from scientists to businessmen, engineers to clinicians, laymen to lawmakers. A ‘complete’ policy approach for this technology is recommended rather than a ‘piecemeal’ approach of the various constituents of this technology. An effective course of action will be to setup a multi-disciplinary international panel to work on the policy framework, which will look in to both ‘hard’ and ‘soft’ impacts of 3D bioprinting, the associated ethical challenges, legal measures including patenting and effective controls to prevent the misuse, as well as the social aspects encompassing the cultural and religious differences which accounts for the success of this technology. Setting up national level panels to assess the risk-benefit analysis, taking into consideration the cultural and religious view of its population and other legal and social aspects, might be a good starting point.

Misery

‘Mental disorders among college students in the World Health Organization World Mental Health Surveys’ by R. P. Auerbach, J. Alonso, W. G. Axinn, P. Cuijpers, D. D. Ebert, J. G. Green, I. Hwang11,R. C. Kessler, H. Liu, P. Mortier, M. K. Nock, S. Pinder-Amaker, N. A. Sampson,S. Aguilar-Gaxiola, A. Al-Hamzawi, L. H. Andrade, C. Benjet, J. M. Caldas-de-Almeida, K. Demyttenaere, S. Florescu, G. de Girolamo, O. Gureje, J. M. Haro, E. G. Karam, A. Kiejna, V. Kovess-Masfety, S. Lee, J. J. McGrath, S.O’Neill, B.-E. Pennell, K. Scott, M. ten Have, Y. Torres, A. M. Zaslavsky, Z. Zarkov and R. Bruffaerts in (2016) 46 Psychological Medicine 2955–2970 comments

Although mental disorders are significant predictors of educational attainment throughout the entire educational career, most research on mental disorders among students has focused on the primary and secondary school years. The World Health Organization World Mental Health Surveys were used to examine the associations of mental disorders with college entry and attrition by comparing college students (n= 1572) and non-students in the same age range(18–22 years; n= 4178), including non-students who recently left college without graduating (n= 702) based on surveys in 21countries (four low/lower-middle income, five upper-middle-income, one lower-middle or upper-middle at the times of two different surveys, and 11 high income). Lifetime and 12-month prevalence and age-of-onset of DSM-IV anxiety, mood, behavioral and substance disorders were assessed with the Composite International Diagnostic Interview (CIDI). One-fifth (20.3%) of college students had 12-month DSM-IV/CIDI disorders; 83.1% of these cases had pre-matriculation onsets. Disorders with pre-matriculation onsets were more important than those with post-matriculation onsets in predicting subsequent college attrition, with substance disorders and, among women, major depression the most important such disorders. Only 16.4% of students with 12-month disorders received any 12-month healthcare treatment for their mental disorders. Mental disorders are common among college students, have onsets that mostly occur prior to college entry, in the case of pre-matriculation disorders are associated with college attrition, and are typically untreated. Detection and effective treatment of these disorders early in the college career might reduce attrition and improve educational and psychosocial functioning.

 The authors state that

Although prevalence (Costello et al.2005; Merikangas et al. 2009) and treatment (Fazel et al. 2014a,b) of mental disorders among elementary and secondary school students has been the subject of considerable attention, less is known about mental disorder prevalence or treatment among college students other than in the USA (Eisenberg et al. 2007; Blancoet al. 2008; Choet al. 2015; Kendler et al. 2015; Mojtabaiet al. 2015). We know somewhat more about the associations of early-onset mental disorders with significant reductions in subsequent educational attainment (Kessler et al.1995; Fergusson & Horwood,1998; Johnson et al.1999;Miechet al.1999; Woodward & Fergusson, 2001; Fergusson & Woodward,2002; Fletcher,2008; Lee et al. 2009; Mojtabai et al.2015), but this work is limited by either being based on small restricted samples or by being subject to long-term recall bias. Given the importance of an educated workforce for the human capital potential of a country, it would be valuable to know more about five questions. First, what is the prevalence of mental disorders among college students? Second, what proportion of those disorders had onsets prior to college entry? Third, to what extent are disorders with pre-matriculation onsets associated with college entry? Fourth, what is the relative importance of disorder with pre-matriculation and post-matriculation onsets in predicting college attrition? Fifth, what proportion of college students with mental disorders receives treatment? We address these five questions using data from community epidemiological surveys carried out in 21different countries in the World Health Organization (WHO) World Mental Health (WMH) Survey Initiative.

Telco Access

The Commonwealth Ombudsman's report Telecommunications (Interception and Access) Act 1979 — Commonwealth Ombudsman’s monitoring of agency access to stored communications and telecommunications data—Report for 2015-16 presents the results of inspections conducted by the Commonwealth Ombudsman under s 186B of the Telecommunications (Interception and Access) Act 1979 (Cth) from 1 July 2015 to 30 June 2016.

Under the Act, 20 specified law enforcement agencies are able to lawfully access individual’s telecommunications data and/or stored communications when investigating certain offences.

The report states

Telecommunications data, or ‘metadata’, is information about a communication. Metadata does not include the contents of a communication. In the example of a phone call, metadata may include the phone numbers of the two parties to the conversation, the duration, date and time of that phone call but not what was said. Any of the 20 specified agencies have the power to authorise access to this information. If, however, an agency wishes to access metadata that will identify a journalist’s information source, the agency must apply to an external issuing authority for a warrant.

Stored communications are communications that have already occurred and are stored on a carrier’s systems. An example of this would be a Short Messaging Service (SMS) that has been sent to or from a person’s mobile phone, and would include the contents of that message. An agency must apply to an external issuing authority for a warrant to access stored communications.

Before a warrant is issued, however, an agency may authorise the ‘preservation’ of a stored communication, to prevent a carrier from destroying the communication before it can be accessed under a warrant.

These are covert and intrusive powers, given to agencies for the purposes of combating crime and protecting our community.

The fact that these powers are exercised covertly is the reason why oversight is so important. A person who has been subject to the powers will not be aware of the fact, and therefore, will not be in a position to make a complaint. Instead, the Ombudsman provides independent oversight by conducting inspections at each agency that has exercised these powers. At these inspections, we assess whether agencies are compliant with legislation and whether they have used these powers in line with the spirit of the legislation.

The purpose of oversight is to provide assurance to Parliament and the wider public that agencies are using these powers as Parliament intended. That is, that these powers are not being abused and that agencies are being held accountable for their use. We report our findings to agencies and the Commonwealth Attorney General, who must then make the report public.

It is reassuring to note that overall, agencies are appropriately exercising their powers to access stored communications and have frameworks in place to ensure appropriate access to metadata. It was evident that agencies are committed to compliance and want to ‘get it right’.

During an inspection, there may be a range of issues identified, including minor administrative errors, instances of serious non-compliance and systemic issues. The Ombudsman may make suggestions for improvement or may make formal recommendations in instances where an issue has not been addressed by the agency, or if it is sufficiently serious. Of the 36 inspections conducted under the Act during 2015-16, only three recommendations were made. Ultimately, all agencies have been responsive to the Ombudsman’s findings.

Access to metadata

Overseeing access to metadata is a new function for the Ombudsman. Agencies have accessed metadata for a number of years without external oversight, which means that each agency already had policies and procedures in place.

As this was the first time agencies would be scrutinised on how they managed and used this power, during 2015-16 the Ombudsman focused on understanding the policies and procedures already in place at each agency. Due to the varying size, structure, nature and complexity of each agency, processes varied. In taking all of this into account, we were able to work with each agency to identify individual strengths and risks for non-compliance with the Act.

As a result of our 2015-16 inspections, we found that agencies had mostly sound policies and procedures in place for accessing metadata. Although each agency faced its own challenges, we identified some common areas of risk for all agencies, including:

ï‚· the level of involvement and support from senior leadership

ï‚· the timeliness and comprehensiveness of training given to those exercising metadata powers

ï‚· the effectiveness of internal communications within an agency to raise awareness of relevant changes and share best practices.

Overall, agencies demonstrated a strong commitment to comply with the Act. Agencies were open to feedback and willing to improve their processes. This was particularly evident in the lead-up to inspections, with significant engagement from most agencies with the Ombudsman.

Access to stored communications

The Ombudsman has performed an oversight role in relation to access to stored communications since 2006. This is the Ombudsman’s first public report on the results of these inspections.

As a result of the 2015-16 inspections, most agencies were compliant with the Act. However, we identified non-compliances in relation to various record keeping provisions and adherence to warrant conditions and restrictions. All agencies were ultimately receptive to our current and previous findings and best practice suggestions.