FOI

The Victorian Auditor-General has released a report that strongly criticises the operation of the state Freedom of Information regime, commenting that

The Victorian Ombudsman identified systemic problems in his 2006 review of FOI. These included a lack of timely responses, inconsistent application of the Act and lost or non‑existent documents. In his 2011 Annual Report the Ombudsman concluded that these problems still remained five years later.

The Auditor-General concurs with that conclusion, drawing on investigation of all 11 Victorian public sector departments and the Victoria Police. The report includes a detailed assessment of the effectiveness and efficiency of FOI processes in Victoria Police and the Department of Human Services, on the basis that they process 68% of the FOI requests received by the 12 bodies.

The report comments that

Victoria has gone from being at the forefront of FOI law and administration to one of the least progressive jurisdictions in Australia. Over time, apathy and resistance to scrutiny have adversely affected the operation of the Act, restricting the amount of information being released. As a result, agencies are not meeting the object of the Act, which is ‘to extend as far as possible the right of the community to access information’.

The public’s right to timely, comprehensive and accurate information is consequently being frustrated. The Victorian public sector’s systemic failure to support this right is a failure to deliver Parliament’s intent. The prevailing culture and lack of transparent processes allow principal officers—secretaries and chief executive officers of agencies—to avoid fulfilling their responsibilities.

The report criticises leadership by the Department of Justice regarding FOI, commenting that the Department "has not adequately promoted and modelled the intent of the Act and accepted better practice, either in its own department or across the public sector". The Department has not -

 developed a proactive release framework for agencies addressed its own or other agencies’ processing delays complied with the reporting or timeliness requirements of the Act, nor encouraged other agencies to do so complied with the five-day ministerial noting time frame before documents are released. 

The report goes on to comment that -

tolerance of these longstanding substandard practices, particularly with regard to proactive release, reflects an apathetic and obstructive culture. DOJ has acknowledged that it could have taken a stronger approach with agencies, but stated that its ability to address substandard practices is limited because it does not have adequate powers to mandate good practices. This lack of powers is not sufficient justification for DOJ to not exercise leadership. Further, there is no evidence that DOJ sought to extend its powers to address its inability to achieve an acceptable level of practice, consistent with the object of the legislation.

It suggests that -

Proactively releasing information is an effective means of disseminating the maximum possible amount of information. It is recognised as better practice and, accordingly, is the approach adopted in other jurisdictions. Although Victorian agencies are publishing information, this does not necessarily constitute proactive release unless they have properly assessed the information to determine whether it is of significant public interest, appropriate, accurate, accessible and easy to use. This, combined with the continued reliance on formal FOI applications, means Victoria is less progressive than other jurisdictions.

Unsurprisingly, it also notes that -

The apathy with regard to FOI is also evident in the reporting regime. The minister responsible for the Act relies on DOJ to collect, check and prepare data for inclusion in the FOI Annual Report to Parliament. However, DOJ is not reporting to the minister aspects of agencies’ performance as the letter and spirit of the Act requires. DOJ does not report on measures that are explicitly specified in the Act, including disciplinary action taken against officers in respect to the administration of the Act, such as a breach of duty or misconduct. ...

Parliament and the public have the right to know if agencies’ performance is unsatisfactory. DOJ’s lack of comprehensive and transparent reporting in relation to the minister’s annual report does not satisfy the community’s expectations of a public sector agency.

The report offers several recommendations -

 1 The Department of Justice should provide stronger leadership in acquitting its statutory obligations to Parliament by:

• reviewing the Freedom of Information Act 1982 to improve its currency and to champion the proactive release of information 
• overhauling the content and frequency of current reporting requirements
• providing detailed guidance on proactive disclosure for agencies 
• providing more comprehensive and tailored training. 

2 Principal officers of agencies should diligently discharge their responsibilities under the Freedom of Information Act 1982 

• improving the transparency of their processes 

• maximising the information made available to the public through a proactive release framework. 

3 Principal officers should: promote the appropriate ‘tone at the top’ with regard to the object of the Freedom of Information Act 1982 Freedom of Information Act 1982, the Attorney‑General’s 2009 Guidelines on the Responsibilities and Obligations of Principal Officers and Agencies and related policies and procedures, identify areas of underperformance or non-compliance and remedy any shortcomings 

Agencies should:

• seek to continually improve their processes to comply with the 45-day statutory time limit for processing freedom of information requests 

• routinely release information on day six of the ministerial noting period. 

4 The Department of Justice should drive continuous improvement by, in the longer term, giving consideration to adjusting the statutory time frame in line with other Australian jurisdictions. 

5 The Department of Human Services should: 

• improve its record management practices to minimise loss of documents and enhance access to information 

• cease its practice of using section 22(6) for clients who have little or no money and are seeking their own records  

• include community service organisations’ records when processing freedom of information applications 

• improve its method of prioritising freedom of information requests. 

Agencies should review the findings relating to the Department of Human Services and apply lessons where necessary in their own organisation. 

6 Victoria Police should: 

• improve its record management practices to minimise loss of documents and enhance access to information 
• improve its responsiveness by reviewing its work practices in the first instance, and then, if necessary, considering the resources of its freedom of information unit appropriately scope freedom of information requests 
• inform freedom of information applicants of their review rights. 

Agencies should review the findings relating to Victoria Police and apply lessons where necessary in their own organisation.

 Those recommendations reflect a recognition that "timeliness of response is a good indicator of senior management’s attitude towards the importance of FOI".

Only two of the audited agencies met both the 45-day time limit and the five-day ministerial noting period; only four (Department of Education & Early Childhood Development, Department of Transport, Department of Primary Industries and Department of Treasury & Finance) had average request processing times that met the 45-day statutory limit in 2010­–11.

Victoria’s underperformance against its legislative target is even more concerning when compared with other states. Other states have better processing completion rates against shorter or similar standard time limits. Extensions to these time limits may be granted, in certain circumstances. ...  

When agencies do not respect the FOI Guidelines, this not only compounds the delays in processing FOI requests but also contributes to the public perception that there is political interference in the FOI process, particularly when there is repeated consultation between an agency and a minister’s office on requests. ...  DHS and Victoria Police, the two agencies reviewed in more detail, have significant deficiencies in these areas. As a consequence, the public is being denied access to information. 

 In condemning "unacceptable practice" the report comments that

DHS and Victoria Police need to address deficiencies in their record keeping practices as a priority. Records are being lost, disposed of incorrectly or rendered inaccessible.

Body Parts

'Intellectual Property Rights and Detached Human Body Parts' by Justine Pila in (2012)  Journal of Medical Ethics considers -

 whether the IP regime suggests an appropriate model for protecting interests in detached human body parts. It begins by outlining the extent of existing IP protection for body parts in Europe, and the relevant strengths and weaknesses of the patent system in that regard. It then considers two further species of IP right of less obvious relevance. The first are the statutory rights of ownership conferred by domestic UK law in respect of employee inventions, and the second are the economic and moral rights recognized by European and international law in respect of authorial works. In the argument made, both of these species of IP right suggest more appropriate models of sui generis protection for detached human body parts than patent rights because of their capacity better to accommodate the relevant public and private interests in respect of the same.

She notes that -

Detached human body parts have substantial commercial value and will therefore be exploited, whether legally or not. For this reason alone one might argue that there exists a need to regulate their exploitation, and that statutory rights of property such as those conferred by the intellectual property (IP) regime are a mechanism well suited to that end because of their ability to accommodate a range of private and public interests. The question which then arises is whether any aspect of the IP regime in particular suggests an appropriate model for protection. 

The European IP regime covers a diversity of rights, each with its own juridical and theoretical basis, making it preferable to focus on specific IP rights rather than the IP regime in general when answering this question. The relevance of such rights can then be determined having regard to the specific interests which it is sought to protect, and to the aim of legal protection in general. 

The IP rights of most obvious relevance are those conferred by the patent system, which already protects detached human body parts in most developed jurisdictions. In this paper I start by considering the extent of that protection in Europe, and the relevant strengths and weaknesses of the European patent system. I then consider two further species of IP right of less obvious relevance. The first are the statutory rights of ownership conferred by domestic United Kingdom law in respect of employee inventions, and the second are the economic and moral rights recognised by European and international law in respect of authorial works. In the argument made, both of these species of IP right suggest more appropriate models of sui generis protection for detached human body parts than patent rights because of their capacity better to facilitate the law’s recognition and accommodation of the different public and private interests in respect of the same. This is consistent with my suggestion elsewhere that while patents ought to be available for subject matter involving elements of the human body, they are not appropriate for the protection of such elements as products per se.