Information and Access

Australian Cabinet Information - a retrograde approach in the 21st Century

2011-04-01T03:21:00.000-07:00

Matthew Moore’s story on the NSW Government’s resistance to releasing the “Blue Book” briefings for incoming Ministers highlights the continuing malaise in attitudes to FOI/Right to enforcement or access to government information in Australia.

See http://www.smh.com.au/nsw/onus-on-ofarrell-to-end-labors-state-secrecy-20110330-1cgdz.html

Australian governments, public officials and law reformers continue to display a narrow and outdated conception of how to handle cabinet confidentiality. The general approach of categorically exempting information tagged as “Cabinet documents” with no public interest test or excessively long periods of protection (and in my view 10 years is far too long and unjustified).

The one exception is Queensland where under the Right to Information Act 2009 the Premier has been proactively releasing a small but steady stream of Cabinet documents

http://www.premiers.qld.gov.au/right-to-info/published-info/our-decisions.aspx

In contrast is the New Zealand position where the release of Cabinet information has been taking place for many years and in contrast to Queensland is extended to even very important decisions and topics.

See for example

http://www.justice.govt.nz/publications/global-publications/c/civil-union-bill-relationships-statutory-references-bill/cabinet-policy-committee-minute-of-decision/?searchterm=cabinet

Anti-Money Laundering and Countering the Financing of Terrorism AML/CFT Bill: Approval for Introduction at
http://www.justice.govt.nz/policy/criminal-justice/aml-cft/publications-and-consultation/LEG-paper-to-introduce-AMLCFT-Bill-final.pdf/view?searchterm=cabinet

See briefing to new incoming Conservation Minister in 2008 http://www.doc.govt.nz/upload/documents/about-doc/role/policies-and-plans/briefing-to-new-minister-of-conservation-2008.pdf

http://norightturn.blogspot.com/search/label/OIA

Govt departments -

http://www.dia.govt.nz/Publications-and-reports

http://treasury.govt.nz/publications/informationreleases

Proactive publication is now so common in New Zealand there is a policy governing proactive release see CO Notice (09) 5 7 August 2009 Publishing Cabinet material on the web: approval process and publication requirements. See below

In fact Item 8 even allows for a New Zealand Minister to release documents before they have been considered by Cabinet.

The irony is that it took an Official Information Act request to access this Cabinet Notice.

We are told that our system of government in Australia would fall apart if this type of information was released after a Cabinet decision let alone beforehand. This dreadful fate is said to await even if you release Cabinet documents before 20 years has passed at a Commonwealth level. Strangely nothing seems to happen to the smooth running of our system of government when Premiers or Prime Ministers exclusively brief journalists on a Cabinet meeting, or a Minister leaks who was on what side of a Cabinet argument or when a former Minister reveals cabinet deliberations in their memoirs penned shortly after leaving office.

There seems an almost total incapacity by government officials and government ministers to understand how a structured means of access that uses the public interest as the key to determine the degree, timing and extent of release is a better fit for governance in the 21st century.

It probably was an inferior form of governance even in the 18th century.

New Zealand CO Notice (09) 5 7 August 2009 Publishing Cabinet material on the web: approval process and publication requirements

Summary

1 A Minister may decide that it is appropriate for Cabinet material to be published online, either proactively or following a request for the information made under the Official Information Act 1982.

2 The Cabinet Manual (at paragraph 8.4) provides guidance about the proactive release of Cabinet material. This notice sets out in further detail the processes and responsibilities that follow a Minister’s decision to publish Cabinet material on the web. It aims to support departments and staff in Ministers’ offices to publish Cabinet material online consistently and effectively so that it is easy to find. The notice covers:

• the approval process, including roles and responsibilities; • consideration of principles of the Official Information Act 1982 and other
relevant considerations; • content and presentation requirements; and • quality assurance.

3 “Cabinet material” means submissions that have been considered by Cabinet or a Cabinet committee, and Cabinet and Cabinet committee minutes. “Publisher” means the person in a department or a Minister’s office who is responsible for administering the publication of the Cabinet material on the web.

4 The notice relates only to Cabinet material of the current administration. The process for publicly releasing Cabinet material of a previous administration is set out in paragraphs 8.83 and 8.84 of the Cabinet Manual.

Approval to publish Cabinet material

5 Cabinet material may be published on the web only if the relevant portfolio Ministers(s) has approved the release of the material in that way. The publisher is responsible for obtaining the approval or for checking that approval has been obtained.

6 Approval can be obtained by:

• the publisher (ie a Minister’s office or department) seeking the portfolio Minister’s approval to publish a Cabinet paper/minute online;
• the portfolio Minister directing officials to publish a Cabinet paper/minute online; or • the Cabinet minute noting that the portfolio Minister will publish the information on the
web.

7 Before approving publication, the Minister should consider:

7.1 the application of the principles in the Official Information Act 1982, the Privacy Act 1993, and the Security in the Government Sector manual to the information;
7.2 whether the document contains any information that would have been withheld if the information had been requested under the Official Information Act 1982;
7.3 whether the document contains any information that must be withheld under the terms of any other legislation; and
7.4 whether, in the circumstances, publication on the web is the best means of public release.

8 If a Minister decides before the paper is considered by a Cabinet committee or by Cabinet that publication will be appropriate, the paper should contain a recommendation noting that intention:
note that the Minister intends to publish this paper and related Cabinet decisions online, subject to consideration of any deletions that would be justified if the information had been requested under the Official Information Act 1982.
Content and presentation

9 It is the publisher’s responsibility to ensure that only the final versions of Cabinet material are published on the web.

• Papers: the final version of a paper is that signed and dated by the Minister and considered by a Cabinet committee or Cabinet.
• Minutes: the final version of a minute is that issued by the Cabinet Office following a Cabinet or Cabinet committee meeting.

10 Cabinet committee minutes should not be published, however, until they have been confirmed by Cabinet.

11 Depending on their administrative arrangements with departments, Ministers’ offices may choose to review the finalised content before publication on the web.

12 Once Cabinet material is published on the web, the storage and handling requirements belonging to its original security classification (specified in the Security in the Government Sector manual and at http://www.security.govt.nz/sigs/index.html) may no longer apply. Unless some information has been withheld from the online version, departments may need to think about reviewing the security requirements of the original version stored on their document management systems.

13 Where possible, papers and relevant minutes should be published together so that readers have context for the decisions made by Cabinet. The Cabinet Office is able to provide electronic copies of minutes on request.

14 Where Cabinet material has been published on the web following a request under the Official Information Act, any deletions should be flagged in the body of the text at each deletion point. It is good practice to state the reasons for deleting information.

15 Do not publish:

• Cabinet Office summaries, which do not provide information additional to that contained in Cabinet papers and/or minutes;
• the distribution lists on Cabinet and Cabinet committee minutes, since their function is purely administrative for the distribution of hard copy documents;
• the names and signatures of Cabinet Office committee secretaries; or • CAB100 consultation forms accompanying Cabinet papers.

16 Cabinet material published on the web should conform with the current New Zealand Government Web Standards 2.0. At the time of writing this notice, this is version 2.0 (dated March 2009) and is available at http://webstandards.govt.nz/new-zealand-government-web- standards-2/

Quality assurance

17 It is the publisher’s responsibility to ensure the quality and accuracy of Cabinet material made available on the web.
18 The following points should be included in any quality assurance checklists used by publishers of Cabinet material:

• the Minister has approved the item for publication • it is the final signed version being published • if it is a Cabinet committee minute, that it has been confirmed by Cabinet • the title and other reference information (eg shoulder number) is accurate • the date on which the paper was signed has been included • any distribution lists have been removed • the Cabinet Office summary (including its distribution list) has been removed • the signatures of the Secretary of Cabinet and/or of Cabinet committee
secretaries have been removed • the related CAB100 consultation form has been removed • all related Cabinet material (paper, minute) is included.

Submission on the Disclosure Log Discussion Paper - Office of the Australian Information Commissioner

2011-03-28T03:47:00.000-07:00

Submission on the Disclosure Log Discussion Paper
By Rick Snell
Associate Professor
Law School
University of Tasmania
28 March 2011

http://www.oaic.gov.au/publications/papers.html

This submission contains no confidential material.

In general I am supportive of most of the suggestions made in this Discussion Paper but would like to focus my attention on some particular points.

Consultation questions

Q15. Should agencies and ministers adopt a practice of updating their disclosure log on a particular day each week or fortnight?

I see no need for agencies to be limited in this way.

Q16. What other steps should be adopted to ensure a consistent and suitable approach across government to disclosure log publication?

I listened with great interest to the comments made at the Information Law Conference by both agency personnel and journalists.

I have great sympathy for the case made by journalists, especially by Michael McKinnon, that the public interest in delaying general release by the Disclosure Log to enable requesting journalists to craft stories based on the released material, is relatively minor compared to the threat to the public interest in deterring or lessening the use by journalists of the Act.

In particular I note that a number of comments were made in side sessions, plenary events and in casual conversation as to how the 10 day discretion on disclosure logs would be deployed to the disadvantage of journalists by releasing the information very quickly.

I would suggest the Information Commissioner adopt a guideline whereby the applicant can make a request on whether any released information be delayed from general release up to the 10 day maximum period. The applicant making this request should justify where it is in the public interest for the Agency to delay updating the Log for this specified period.

Some applicants will be happy with immediate release, other applicants such as journalists, researchers or members of parliament or NGOs may have good reasons to have a period of exclusive access.

Where applicants do not specify a grace period then the Agency is free to publish at its discretion.

I would reject the suggestion that “Agencies and ministers could invite applicants to propose or negotiate the date of publication, provided this occurred within the ten working days stipulated in s 11C. The discretion would remain with the agency or minister to decide the actual date, but they would better understand any special concern of the applicant.” This option gives too much discretion to agencies and does nothing to prevent the manipulation of the timing to disadvantage particular applicants including, but not exclusively, journalists.

The alternative of allowing the applicant to nominate the grace period rewards and protects certain users and adds little extra burden or restrictions on agencies.

Q13. Is 12 months a reasonable period for agencies and ministers to make available, by website download or otherwise, information that is listed in a disclosure log register?

No this is far too short a time. For the initial period of the new reforms all Disclosure Logs should be available for a minimum of 2 years and then this issue should be re-examined in light of actual experience.

Q14. Should the disclosure log register indicate when information is likely to be removed from an agency’s or minister’s website, or the date on which information was in fact removed?

Yes.

Q12. What steps can be taken by agencies to make information in a disclosure log easily discoverable, understandable, machine-readable and accessible for members of the public?

At the minimum the information should be in searchable format.
Agencies should be required to index with searchable key terms.

Q7. Should all agencies and ministers adopt the same template for their disclosure log?

Yes.

Q8. Should a disclosure log contain the headings and information specified in the draft template annexed to this paper?

Yes

Q9. Should the disclosure log contain a summary of an FOI applicant’s request, whether the documents requested were provided in full or in part, and whether all information provided to the FOI applicant is made available under the disclosure log?

Yes

Q10. Should this information be provided in the disclosure log register or in some other manner (also see question 8 above)?

In the Disclosure Log or link to it.

Q11. Should it be open to an agency or minister to supplement a disclosure log entry with comment or explanation?

Yes

Evaluating FOI 2.0 performance - some initial thoughts

2011-03-07T03:31:00.000-08:00

Nick Howard Student Administrative Law 204 and Comparative Administrative Law 609 UTAS 2010

As part of my undergraduate degree in law at the University of Tasmania, I took Associate Professor Rick

Snell's unit in comparative administrative law. In consultation with Rick, I wrote two essays concerning the new Right to Information laws in Australia. In particular, I researched as to how best the new FoI 2.0 regime could be evaluated. This proved to be a challenging task.

In the past it has been easier to evaluate Australian FoI through, inter alia, comparative analysis. Moreover, comparative criteria such as information polity, asymmetry and compliance analysis have proved, for the most part, useful. However, I have argued that with the advent of FoI 2.0, these criteria are no longer a viable and effective mechanism for evaluation.

One of the key concerns with a 2.0 system is that there is nothing in place to safeguard the citizenry from the dumping of unordered, unstructured and superfluous information on government websites, in order to comply with Right to Information legislation. How is the citizenry to know whether or not what is broadcast by the government is quality information in the public interest? In addition, as suggested by Professor Alsadair Roberts in Blacked Out, there is also a problem of supply and demand. How are governments to tell how many people want the information and what exactly to supply? There is a possible solution.

In Wiki Democracy: How technology can make government better, democracy stronger, and citizens more powerful, Professor Beth Simone Noveck coined a revolutionary idea: ordinary people through open source technology could make government decision-making more expert and more democratic.[1] For Professor Noveck this is in the context of patents. Moreover, she argued that the public could assist in patent examination and 'collaborating groups of dedicated volunteers [could] help decide whether a particular patent should be granted'.[2] This thesis could be modified and in turn employed as a mechanism for the evaluation of a 2.0 system.

A website could be created for the purpose of public collaboration. Thereon, the citizenry could post comments on and rate disclosed information pertaining to its comprehensiveness; usability; accessibility; and comprehensibility, for example. This would provide feedback for government departments and in turn improve the quality of the proactively released information. Consequently, these comments and ratings could be used in comparative analysis between two countries, for example Australia and New Zealand, to thus evaluate an FOI 2.0 regime.

Rick Snell

After our discussions in Law 609 Nick and I continued to mull over this issue of trying to evaluate FOI 2.0 regimes. In part our thinking was influenced by the approach adopted in the Tasmanian Discussion Paper on FOI Strengthening Trust in Government: Everyone's Right to Know 2009 at page 12 that divided information into 4 categories that subsequently were incorporated in Section 12 of the Right to Information Act 2009 (Tas):

Required disclosures
Routine disclosures
Active disclosures
Assessed disclosures

These were defined in the Discussion Paper as:

Required Disclosure; that is the disclosures required by law or enforceable under an agreement, for instance annual reports, the Report on Government Services etc.

Routine Disclosure; that is the voluntary publishing of Government Information of interest to the public, for example the Department of Health and Human Services Health Progress Chart and the Department of Education Schools Improvement Report.

Active Disclosure; that is the voluntary release of information upon request. This includes the release of information which holds no broad public interest, but there is no public detriment in providing the information on request. A large amount of information is released on a day to day basis because someone makes a request and agencies disclose it without reference to FoI.

Assessed Disclosure; that is the release of information after it has been assessed against defined limitations, the onus is on release unless an agency can prove that the release would be detrimental to the public interest.

The idea has been to create a system that integrates the traditional FOI 1.0 approach into an integrated information management system geared towards increasing the availability of timely high quality information to citizens.

Yet few mechanisms, or much attention, has been devoted to evaluating whether this is taking place. The Office of the Australian Information Commissioner has put out a discussion paper about information principles (http://www.oaic.gov.au/publications/papers.html) but as Peter Timmins points out it is silent on how agencies establish their performance on achieving improved information access other than crude quantity measures (see http://foi-privacy.blogspot.com/2011/02/office-of-australian-information.html)

Currently, at UTAS and in collaboration with Dr Rhonda Breit from the School of Journalism at University of Queensland, we are looking at ways of utilizing the ideas of Beth Noveck and the initial work by Nick Howard to start this type of assessment.

One of my volunteers, Kat Burela, has developed an audit template to evaluate the ease of accessing information about the Right to Information Act on Tasmanian Government web sites.

We will ask reviewers to evaluate various Tasmanian government web sites in terms of accessibility of their information about Right to Information. The following categories have been used:

The access point discloses the link provided, and the number of subsequent links required gaining information (in the form of text, file or FAQs).

The target audience depicts the type of information provided (whether to inform the public of their rights or the departments of their duties and obligations.

The overall ranking each site has received is a personal ranking given against a prepared questionnaire.

Type of content

Accessibility of content

Search Option

We are developing a SurveyMonkey survey which will allow volunteers to both rank/audit the government web sites (in terms of FOI) and the survey mechanism we have developed.

We will then move onto the more difficult task of trying to evaluate whether post Right to Information there has been a qualitative information improvement in availability of government information.

[1] B Noveck, ‘Wiki-Government – how open source technology can make government deicison-making more expert and more democratic’, accessed at < www.democracyjournal.org/pdf/7/031-043.noveck.final.pdf >.

[2] Ibid.

Once We Were Sloths 2

2011-02-20T00:47:00.000-08:00

Four months on and it is about operating at newer fitness levels that seem to occur on a weekly basis.

In terms of weight I have hovered between 96 – 99 kg but now that weight is built around a newer and firmer body configuration. The inability to drop more weight has been extremely frustrating despite the more positive side which is that I have kept the 20+ kilos off I have lost since I started in late 2009.

I have offset the frustration in the weight department against the fitness gains and other positive changes.

My waist has gone from 104 cm to 102 cm and my pants size from 97cm to 95 cm.

Since the start of the new year I have increased exercise classes from 2 hours of circuit class a week with 1-3 hours of badminton to:

2 hours of circuit (done at higher levels of intensity and faster recovery)
1-2 hours of badminton
2 hours of Spin
1 hour of Body Combat
1 hour of Pump

A strong keenness to add more sessions but university semester is beginning and will only be able to do early morning classes and evening classes (which I haven’t tried yet).

The most noticeable change has been my flexibility (in Sloth 1 – the increase in flexibility had been noticeable but now it is at a whole other level). Each week there is a surprising but much appreciated moment (or several) when I do something and then realised that I couldn’t do that previously:

Rise from a low chair without using my hands.
Grab my ankle for a quad stretch.
Lay in bed and bring my knee up to my chest.
Do a squat and instead of meeting resistance within nano seconds I keep squatting lower and lower.
I can now twist my body almost 180 degrees.

In terms of fitness I find that not only do I have the capacity and energy for extra exercise sessions (sometimes 2 on the same day) but I am putting in more effort during those sessions.

An old reflection

2011-02-20T00:29:00.000-08:00

An old reflection

In my first newsletter to Introduction to Law students, in the last couple of years, I have included this reflection of an encounter with Justice Albie Sachs from South Africa.

I wrote the extract below in 2008 when I was overseas rather than teaching first week Introduction to Law. Last year during my 2010 work travels (10 countries, several conferences), I met the cousin of the judge who is the focus of my 2008 reflection – Justice Albie Sachs recently retired from the Constitutional Court of South Africa. His cousin, a sprightly elderly woman, described how she used to take food to Albie each day while he was in prison during the apartheid years in South Africa. She was very annoyed with me because I was leaving South Africa the next morning as she wanted me to visit Albie and would have taken me to see him. Three things struck me. First, how was I in this position to be offered the chance to meet a truly inspirational man (and being unable to take up opportunity)? Secondly, how deeply she was committed to her country despite the massive problems (in some areas 60-80% of population have aids, areas with high illiteracy 50% +, high unemployment). Third, Shirley and her husband Ben Rabinowitz are among the richest folk in Cape Town (and among the most significant contributors to charity, the arts, sports and scholarships) – were willing to give up their time to allow a complete stranger to meet their cousin. I met her whilst at a dinner with 50 odd lawyers, judges and former judges – many of them women. Many of them had played significant roles in keeping the worst ravages of apartheid at bay and in rebuilding their country. I hope some part of my teaching will be enriched by their example and experiences they shared with me.

The 2008 reflection
It has been strange to be away from Uni for the first week. As a co-ordinator of two subjects (Introduction to Law and Law 204 Administrative Law) I feel guilty or at least irresponsible for delegating my work to other people whilst I am travelling in the US.

In contrast I think that this trip has added enormously to my understanding of law, legal education and strengthen my desire to be an effective teacher. I have now seen and been involved in classes in 4 very different US law schools (New Mexico, Brandeis, Washington College of Law, Charlotte).

More importantly the after dinner speech last night in the exquisitely beautiful banquet room of the First National Reserve Bank of Atlanta would have been worth the last 20 days on the road, living out of a suitcase and putting up with extra security checks at every airport because I was a foreigner who had purchased his tickets outside the US.

Why did the dinner speech have such an impact?

It was not the large marbled hallways, the beautiful works of art, the boardroom table that probably cost a few hundred thousand dollars. It certainly was not the 18 hours of conference attendance over the last 3 days.

First the guest speaker was introduced by former President Jimmy Carter. Carter has redefined the role of former Presidents and the conference I have been at for the past 3 days at the Carter Centre perfectly illustrates this. 125 delegates (political leaders, activists, key donors and scholars) brought together to tackle a major issue see http://www.cartercenter.org/homepage.html

Yet the key moment was the speech of Justice Albie Sachs – a founding member of the Constitutional Court of South Africa see http://en.wikipedia.org/wiki/Albie_Sachs

This elderly gentleman quietly stood at the podium. In a gentle voice he asked us what was the moment in our life that most challenged us as individuals. Many, like me, were flickering through a catelogue of events that seemed unremarkable or not significant enough to air in this august forum.

Justice Sachs with a simple statement and movement then proceeded to hold us spellbound. He said

“It was not the bombing which left me with this (flaps around a stump where his right arm once was), a bombing authorised by the state of South Africa. No it was my cracking under the slow torture inflicted upon me in a South African police cell…” – he then proceeded in soft unemotional words to paint the picture of a proud lawyer driven pass the point of physical endurance who was forced to sign a confession to crimes and to implicate friends and others. Still clinging to the last vestiges of pride by starting his confession “I make this confession under duress, I have been tortured…” yet too weak and defeated to resist being forced to sign blank sheets of paper so that his “real confession” could be typed on it.

The rest of the talk covered how he came back from this personal hell to be a key figure in restoring the rule of law in his beloved country.

Last night left me pondering what is it about the law that captures some people’s imaginations so deeply and becomes ingrained so completely with their souls that they can endure physical attack and cold, calculating torture? Endure it with enough faith to replant the seeds, after their own personal low point, for a better justice system.

What was it, and how was it passed on, in Justice Sach’s legal education, that allowed him, or committed him, so strongly to the rule of law? Can I, or will I ever, be able to pass this on to any of my students?

The other notable event yesterday was a quiet walk, in the Japanese Garden at the Carter Centre, with the head of Google Global Development and another scholar. The three of us talked about how Google could make accessible more of the necessary information that people at the bottom of the pyramid (the bottom 25% of the world’s population in terms of income, life expectancy, education etc) need. I probably was able to offer little new insight but it was an incredible opportunity to have just even a very brief input into an exciting enterprise. Certainly all those decades ago as a young first year law student, still with the rough edges of Queenstown on proud display, I never imagined that I would have experienced a day like yesterday. An experience that arose as a result of my continual legal education.

Yet I am annoyed with myself. The walk and the discussion was unexpected – so I wasn’t prepared. My input was therefore limited. A good lesson about being prepared for any circumstance including accidental opportunities.

Teaching as a Subversive Activity by Neil Postman and Charles Weingartner Penguin 1971

2011-01-25T02:21:00.001-08:00

In a previous blog I wrote about rediscovering a book I had read around 1980 which was already fairly dated by that time.

“Teaching as a Subversive Activity. It left a big impression on me but as I was thinking in the last 5 weeks about the influences/inputs into my teaching journey it didn’t come to mind. Yet when I went back and reread the book I was staggered by the extent to which my teaching fits onto their template. Any student taught by me who looks at the Wikipedia page on Inquiry Education http://en.wikipedia.org/wiki/Inquiry_education would say I simply replicated their methods. Yet at no time in the last 22 years have I relooked at the book. Yet most of the elements I have chosen – deep learning, constructive alignment, action learning, avoiding teaching inert or dead material – for my teaching from various authors fit almost as modules or snap lock parts to this central framework.”

The book came out in the US in the late 1960s and has all the hallmarks of being written at the height of the counter culture revolution and when radical or even complete change in society, institutions and power structures was seen not only as desirable but both possible and necessary. The first 40-50 pages had a profound influence on my thinking. The remaining 80 or so pages were devoted to advocating a complete, and often nonsensical, transformation of the educational system and the roles of teachers, administrators and students with little regard to how such a radical overall could occur. Whilst I could see how it’s critique of classroom teaching and the benefits to be gained from inquiry learning the suggestions for society wide change seemed both unworkable and unrealistic even by 1980.

From http://en.wikipedia.org/wiki/Inquiry_education

“The inquiry method is motivated by Postman and Weingartner's recognition that good learners and sound reasoners center their attention and activity on the dynamic process of inquiry itself, not merely on the end product of static knowledge. They write that certain characteristics are common to all good learners (Postman and Weingartner, 31–33), saying that all good learners have:

· Self-confidence in their learning ability
· Pleasure in problem solving
· A keen sense of relevance
· Reliance on their own judgment over other people's or society's
· No fear of being wrong
· No haste in answering
· Flexibility in point of view
· Respect for facts, and the ability to distinguish between fact and opinion
· No need for final answers to all questions, and comfort in not knowing an answer to difficult questions rather than settling for a simplistic answer”

At the time of my first reading of this book I was halfway through a combined arts/law degree and the critique of the traditional approach to study clicked with me and fitted with other readings I had encountered like Karl Popper (the concept of a searchlight – trial and error – approach to experiencing and observing to gain knowledge as opposed to a static collection of bits and pieces of knowledge – the bucket approach) along with other inquiry orientated writers such as Pirsig’s Zen and the Art of Motorcycle Maintenance, Zen and the Art of Archery and Richard Bach’s books Jonathan Livingston Seagull, Illusions: The Adventures of a Reluctant Messiah. The film and TV series Paper Chase had also raised critical questions for me about what was taught in Law Schools and its applicability to life.

Postman and Weingartner contrasted the rate and type of change taking place in the world outside the classroom, touching on and making many similar points to Alvin Toffler’s book Future Shock (published around the same time), with the rearview mirror approach of education where most of the teaching was aimed at preserving the status quo and the business of teaching was largely information dissemination and transmission of cultural heritage [at 15-16].

Postman and Weingartner argued that [14-15]

“Our sociological theories, our political philosophy, our practical maxims of business, our political economy, and our doctrine of education are derived from an unbroken tradition of great thinkers and of practical examples from the age of Plato ...to the end of the last century. The whole of this tradition is warped by the vicious assumption that each generation will substantially live amid the conditions governing the lives of its fathers and will transmit those conditions to mould with equal force the lives of its children. We are living in the first period of human history for which this assumption is false.”

If anything the rate, type and impact of change in 2011 is a quantum leap from what Postman and Weingartner were responding to in the late 1960s. The transferability of content information taught in University classes often will not survive past a student’s graduation. Yet, despite the expansion of formative and continuous assessment in law schools, summative assessment still dominates and whilst deep learning (the work of Gibbs and Ramsden) and constructive alignment (Biggs) gain ground the majority of students still appear to be collecting pieces of content to fill up their buckets to be poured out in a final exam. Content gathers who reflect back what has been communicated to them will generally be successful. Inquirers need to deliver back the content but are rewarded for the layer of insight and originality they add to their recollection efforts. Most effort is spent trying to guess what will please the lecturer.

Postman and Weingartner felt that the primary focus of education was content orientated, or driven, and that the method used was largely a secondary or minor consideration. A position that remains unchanged within most law schools – most accreditation schemes whether like those in the US or especially like the hold of the “Priestly 11” in Australia - focus first and primarily on content. Postman and Weingartner [at 19] argue:

“To our knowledge, all schools of education and teacher training institutions in the United States are organized around the idea that content and method are separate in the manner we have described. Perhaps the most important message thus communicated to teachers in training is that this separation is real useful and urgent, and that it ought to be maintained in the schools. A secondary message is that, while the 'content' and 'method' are separate, they are not equal. Everyone knows that the 'real' courses are the content courses…”

Therefore the type of teaching style or methodology that is adopted is secondary to the measurement or assessment of how accurately students have their ability to recall content whether this be the facts of a case or more often in law schools the ‘rules’ and ‘principles’ derived from a case or particular judgment. Teachers who fail to engage, who bore their students or simply read out their old lecture notes or passages from textbooks rarely face censure and as content acquisition is the student’s responsibility can rarely be found wanting. Whereas a bored or unengaged student who fails to play the content game easily demonstrates their inadequacies by what they produce, or fail to replicate, in a 60%+final exam. Law Schools, driven by the complementary missions of accreditation protection and delivering employment ready graduates,

Postman and Weingartner argued that students become comfortable with, or gravitate towards, sitting and listening – passive learning. Questions of teachers tend to be more about administrative and technical details (how long, word count etc? will this be on the exam?) rather than substantive or inquiry type questions. Teachers tend to ask “convergent questions” of the ‘Guess what I am thinking’ type and await the ‘right answer’ [20-21] to appear. When the lecturer asks “What did the High Court decide?” there is a limited array of responses.

The learning process is largely a case of passive learning, where a smart student learns to predict, and replicate, the narrative of the teacher and the teacher’s role becomes primarily one of judging how close the student comes to replicating the ‘answer’ or the story known or accepted by the teacher.

The structures of the course both intellectual (syllabus, course synopsis, source of the questions) and physical (design of the classroom or seating arrangement – tiered lecture theatres or tutor standing at front of a room) inherently favour a passive or ‘wait and respond’ style of learning. Postman and Weingartner write [at 27-28]

“… the passive reception of someone else's story. Of course, the school syllabus is exactly the latter: someone else's story. And most traditional learning environments are arranged to facilitate the sending and receiving of various story lines. That is why teachers regard it as desirable for students to pay attention, face front, sit up in their seats, and be quiet."

In many law schools the majority of students and lecturers find it difficult not to drift into, and remain bogged, in their respective roles of passive listeners and note takers (albeit now with some distraction via Facebook) and information transmitters. The difficulty largely stems from the fixed structures of the lecture theatres – fixed rows of tiered seating, all eyes centered to the front and a pool of faces often in the dimmed lights required for a powerpoint presentation. The art of reading out lecture notes is now tweeked with the repeating of stripped down dot points on the screen.

For Postman and Weingartner the constant changes and challenges in modern society requires an ability to construct and seek new knowledge.

“Knowledge is produced in response to questions. And new knowledge results from the asking of new questions; quite often new questions about old questions. Here is the point: once you have learned how to ask questions - relevant and appropriate and substantial questions- you have leaned how to learn and no one can keep you from learning whatever you want or need to know.”

A process of inquiry learning will help students cope with a society and environment whereby story lines are created by a multiplicity of information flows – sequential, episodic, alternative, visual, and where broken continuity is inferred [at 27]

Whilst Postman and Weingartner were early, and radical proponents, of the now common student engagement/student centered approach to learning they were almost recklessly indifferent to the role or contributions of the teacher to this process. Indeed in many of their examples the model teacher is the one who slides into the background as a facilitator. They do offer a few interesting categories of different approaches within the traditional teaching approach they critique:

Lamplighter
Gardener
Personnel Manager
Muscle Builder
Bucket Filler

In the end what I took away, very deep in my subconscious, from this little book was a desire to create a student centered learning environment where the mission was to enhance students to be independent learners and questioners. Content is subordinate to how it helps students understand and engage with current and future issues and problems.

Working on a Memoir

2011-01-20T01:41:00.000-08:00

Working Title: Postcards from the Past to the Future – Snapshots from an unfinished journey

Cover art: with kind permission of Rachel-Ireland-Meyers (see http://www.redbubble.com/people/grace4)

It will be the painting titled Blue Echo

After some encouragement from Professor Gary Meyers, who teaches Introduction to Law with me, I have started to write a memoir.

My recent promotion to Associate Professor was the final release moment of something I had been struggling with for a while ie what am I doing in a place like a law school (given my roots, erratic track record as a student, a stop and start progress in the lowest echelons of the public service) teaching law? My economics/law graduate son puts it a little more starkly when he asks “How did you smuggle an Arts subject (the way and what I teach in Administrative Law) into the law school”? What is a young boy who grew up in a mining town, with an underwhelming secondary school record, doing engaging in public debate and tussles with elected officials? How did I gain an international profile in FOI yet have no, or no orthodox, traditional publication or research foundation and especially as after matriculation college I was ready to give away any further education and head back to work in the mines?

Gary’s proposal was simple

“You have an interesting story to tell – tell it”.

In part I think his aim was to provide a point of reference for a growing cohort of students that Australian government policy is sweeping into Universities – namely first in family and more students from lower socio-economic backgrounds and/or from regional areas. First, they have few reference points to relate their experiences to and secondly there are only a few places/authors that are able to share their sense of loss and even feelings betrayal of the family, friends and community you abandon on a higher education journey.

Furthermore after being awarded the Australasian Law Teacher of the Year Award in 2009 (and given my age - early 50s) I started to think of what could I leave as a legacy in terms of my approach/skills as a teacher that is something other than the "me"? Was there something in the method and process of my teaching, that clearly strikes a chord with many students and committees overseeing teaching awards, that could be useful to other teachers?

I only started writing in December, so very early formative stages, but have written 25,000 words and more are impatiently lining up. I have decided to adopt Richard Delgado’s motto, shared with me in an email, of

“write fast, edit slowly”.

I have yet to work out a structure, a real conception of an audience or readership (and at the moment it is more simply for me and family/friends although the “in-house” readership is growing). In the first few words, and before it became clear it was to be a memoir, the writing project had rammed me up against a number of unresolved issues about who I was and my past. Exposure to an early draft of Humeirah Fasq by Sabah Carrim
(http://www.authonomy.com/books/28188/humeirah-fasq-edited-and-updated-/) encouraged me to tackle my own relationship to my past.

A reader, of an early draft, noted some similarity to Obama's Dreams from My Father which I had not read until three weeks ago. A great book. Like Obama, the search/construction of my story then sets up other actions (travelling home to talk with my mother about my birth father. A subject I had not raised for the last 48 years).

In part the effort has been (and still is) to find my voice/tune, to recall/reconstruct fragments and like Obama deal with unknown/uncertain family history. As I write I have also started to read more and very different memoirs including Hemingway’s A Movable Feast, Bob Ellis Goodbye Jerusalem: Night thoughts of a Labour Outsider. Patricia William’s The Alchemy of Race and Rights, Helene Chung’s Ching Chong China Girl and recall other ones I have previously read like Clive James Unreliable Memoirs and Dylan’s masterpiece Chronicles: Volume 1.

Now I am starting to explore in more depth, and tease out, some of the themes - academic as activist and my engagement with the law as an outsider. The other major theme I want to tackle is my journey as a university lecturer and the style of teaching that gives the subjects I teach a hallmark among UTAS law students as “a Rick subject”. The hallmark indicates, for those in the know, that this subject will be a far different experience than most of their other law subjects and indeed most of their UTAS learning experiences.

In the back of my mind the format I would like to try and emulate, to a degree, is The Rough Guide series ie like The Rough Guide to Bob Dylan (http://www.penguin.com.au/products/9781843537182/rough-guide-bob-dylan) in terms of the storytelling, the use of colour, boxes and photographs (or drawings). At the moment the writing is simply text but I have been collecting old photographs and often writing segments with a photo in mind to accompany the final text.

I have also started to reread, especially Richard Delgado (http://www.law.seattleu.edu/Faculty/Faculty_Profiles/Richard_Delgado.xml), about the use, and/or application, of narrative and the personal experience in law scholarship. Patricia Williams has been heavily criticised for both of these approaches and as a consequence she finds many of her articles rejected by law reviews because they rely too heavily on her first hand accounts. Richard had sparked my interest in weaving personal narrative into my scholarship during a very brief visit he and Jean Stefancic (http://www.law.seattleu.edu/Faculty/Faculty_Profiles/Jean_Stefancic.xml) had made to Tasmania in December 1995 after a short series of lectures in Melbourne. In preparation for his visit I had read some of his work including “Storytelling for Oppositions and Others: A Plea for Narrative”, 87 Michigan Law Review 2411 (1987). We had a brief conversation about writing from the perspective of difference or the outsider in law (gender, race, ethnicity) and I had speculated whether the voice of a marginal/regional/working class perspective could also be an approach. From about that period a more personal and polemic tone started to appear in my academic writings.

A theme in the memoir will be the exploration of my feeling/concept of being an outsider to the LAW and the paradox of being a respected and award winning teacher of the law. At the moment this theme is implicit and has only just started to bubble to the surface - still raw and rambling in its appearance – in the writing or more accurately in the writing waiting to be done in the next few days.

In part, until my promotion, I felt that a lot of my activity including my teaching approach, written scholarship and public engagement in law reform, policy debates and discussion was in some sense illegitimate/unorthodox or of lesser value/respectability or status than the more traditional activities of my peers. A friend, now a Law School Dean, emailed me on hearing of the promotion and stated “You must feel incredibly validated for all your hard work over the years”. This was an eureka moment/comment for me. Yes I did. I had lodged an application, with the extremely strong backing of my new Dean, that asked for my efforts to be judged against the normal criteria but not in reference to the usual benchmarks (A1 refereed journals, competitive research grants, formal university teaching surveys). Another colleague wrote

“You are a star! One of the few real teachers that made it in the research encrusted world - so not only congratulations on a promotion so very well earned, but thanks from the rest of us for whom teaching is the goal.”

This memoir owes part of its existence to my recent long and slow slog back to better levels of health and fitness. Not only do I feel much better with myself, more comfortable in the world around me but I also have the energy to divert to this activity.

I have started to try and tell a story about some of my journey that has meaning not only for me but for those who I have encountered on the way. I have already discovered that a memoir and a personal narrative can have a deep impact on others and that ‘my story’ is also in parts a story of other people who may not want any version of that story told.

I haven’t decided wherever to, or when, post excerpts from the memoir on this blog. In the short term probably not and may restrict it to unwanted reflections or by-products of the process (the next proposed blog entry on the book Teaching as a Subversive Activity is an example of this – a piece too long and/or out of tune with the project).

I remember seeing on an ABC Book Club segment a discussion about the Great Gatsby. Someone commented how Fitzgerald had developed a deep and multilayered background for every character, event, relationship but had pared it all down to a minimalist presence on the actual page. In A Movable Feast Hemmingway wrote about a crowd scene a poet had worked on for a year to reduce down to a sparse few words. At the moment I am just trying to capture events, memories, flashbacks and to explore feelings and reactions by just letting the words flow out.

One thing I am discovering is how fragile and unreliable memories can be. One example around 1980 I read a second hand copy of Teaching as a Subversive Activity. It left a big impression on me but as I was thinking in the last 5 weeks about the influences/inputs into my teaching journey it didn’t come to mind. Yet when I went back and reread the book I was staggered by the extent to which my teaching fits onto their template. Any student taught by me who looks at the Wikipedia page on Inquiry Education http://en.wikipedia.org/wiki/Inquiry_education would say I simply replicated their methods. Yet at no time in the last 22 years have I looked again at the book. Yet most of the elements I have chosen – deep learning, constructive alignment, action learning, avoiding teaching inert or dead material – for my teaching from various authors fit almost as modules or snap lock parts to this central framework.

Whether this memoir is finally published or in what form who knows but already I have reaped dividends in my family and personal relationships, in my sense of self and in my understanding of my teaching. At the very least it has provided enough renewed passion to get me through at least one more semester of teaching.

Creating and preserving an Exam Free State

2010-11-03T04:59:00.000-07:00

Creating and preserving an Exam Free State

Scrap our archaic exams, says top academic By Lucy Hood From: Adelaide Now October 26, 2010

“University of Adelaide executive dean, faculty of sciences Professor Bob Hill says mid and final-year written exams should be abolished in the sciences and be reviewed in other disciplines.”

I spent my undergraduate years losing 20-40% of my marks between research essay performance and final results due to exams.

As a new casual tutor in Political Science I watched two of my best contributing first year students in tutorials being bell curved downwards against exam performance. Their internal work was ‘too high’ compared to their exam performance. As I had looked at drafts of all my students work (if they wanted) my students had received an ‘unfair’ advantage against other students whose tutors behaved more sensibly and even handedly.

As a starting law lecturer I watched property law students let the subject drift by because 80% of marks were based on the final exam. In acts of desperation they tried to grasp the intricacies of Torrens, common law and equity in a couple of days by trying to cherry pick topics. A future scholarship student saw me after the property exam pointing out he had read no cases, a bit of text book and used his mates notes to cram to pull off the highest mark in the subject.

In my first years of tutoring administrative law I marked exam after exam seeing barely anything to raise my pulse or to indicate that I had conveyed anything interesting about the subject.

In a 1997 book I outlined my anti-exam feelings and explained why in Administrative Law I had created an exam free zone.
See

"Not Just Another Brick in the Wall: Rick Snell" Chapter 42 in Ballantyne, Roy et al Reflecting on University Teaching: Academics' Stories DEETYA 1997.

This was a Committee for University Teaching and Staff Development project. Professor Ballantyne asked every Australian University to nominate exemplary teachers. Those nominated then submitted a short profile and outline of their teaching practices and nominated students who could be approached for comment. A final list of 44 academics were chosen to be interviewed. The interview allowed the academics the opportunity to tell their teaching story. The writing team then tried to capture the full story of the teaching practices in a way that could be accessible to other academics (using a variety of theme sections) interested in teaching and learning.

Nomination did wonders for my own self-belief but more importantly the telling, albeit fairly crudely, of my story was my first opportunity to engage in both subjective and objective reflection about my teaching ideas and practices.

In 1999 I took over first year law. I added, over the next decade, more internal assessment but kept 30-40% of assessment based on exams. Despite my anti-exam feelings I kept the exams mostly on the rationale that my students would confront exams throughout their law degree so I might as well prepare them in advance. A little like a war weary gunny Sergeant in a marine boot camp.

This year I finally killed the exam and replaced it with a presentation. As a learning opportunity the majority of students performed exceptionally well. Instead of enduring the trudge and loathing of marking poorly handwritten crammed efforts the teaching staff had the joy of watching prepared, albeit nervous, bright youngsters presenting arguments.

Meanwhile for the last 17 years as my colleagues bemoaned the 70-90% of sub standard performances in exams (sub standard in regards to the student’s potential and the academic’s expectation) at assessment stage I would be celebrating the research, arguments, understanding and often expressed interest in a notoriously ‘dull and boring subject known as administrative law.
This blog entry inspired by the following discussion on Facebook provoked by a discussion about the article “Invasion of aca-zombies” by Joseph Gora and Andrew Whelan From: The Australian November 03, 2010
http://www.theaustralian.com.au/higher-education/opinion-analysis/invasion-of-aca-zombies/story-e6frgcko-1225946869706

Student A - Presumably this means that the undergrads are all lifeless goal-pursuing zombies? ;)

Rick Snell
They often give this illusion but deep down we know they have good hearts and intent. A few of us academics might fail a pick the zombie and the undergrad student contest. Although a lot of us have inflicted so much mental angst and tedium we would qualify as true Zombie Masters.

Student A
Abolish exams and the zombies might awaken - seriously, I think they are one of the least effective means of testing a student's overall understanding and engagement with a topic, yet still the most widely utilised!
·
Rick Snell
You preaching to the converted. I wouldn't have last as long as I had as a uni teacher if the Law School hadn't allowed me the latitude to offer different assessment regimes.

Student A
'Exactly - admin is such a welcome change from the assessment structure used in torts and contract (which I think is a bit too full on for the second years and is more of an examination of their ability to write under pressure than their ability to understand and apply the law)'

Rick Snell
for my thoughts on exams - almost unchanged - there is a chapter on my web site under teaching - teaching style and preferences called "Another Brick in the Wall"
good/great students can do both - and therefore in the eyes of former good/great students this validates the process.

Student A
'exactly but even though I can handle both, assessment structures such as yours really got the best out of me! Some students are so bright but their academic records don't reflect that level of understanding because the exam assessment structure doesn't suit them - why should the assessment structure be designed for the few who are going to do well regardless?'

Student B
Yep, they really are just a test of who can regurgitate the most information in as little time. Too bad if you are a slow writer or need more time to actually think through what you are writing.

Moots are my personal favourite. Although they do mean that you may not cover as wide an area of the course as you would in preparing for the mixed bag of an exam they require you to be able to focus on a specific area and then learn, understand and apply it verbally - a vital skill for almost any employment path.

Even if it means you may have slightly less surface knowledge of other areas of the course by virtue of it being so focussed it teaches the vital skills of being able to take on any specific area of the course and being able to master it. A skill far more valuable than being able to mindlessly regurgitate and a skill you won't forget down the track unlike the reams of information you have to cover.

Student A
Exactly. And it's so hit and miss - it's actually a game of chance how well you do in an exam, it all depends upon the questions asked. There is no real life equivalent of the exam situation - so what are we testing?! Plus, it's so easy to resort to mindless regurgitation bordering on plagiarism in an exam, whereas in an essay/oral presentation you actually have to use intelligence!

It always comes down to laziness - it takes energy, dedication and passion to bring out the best in students!!!

Hopefully at some point in my career I will be a lecturer and I will pour all my energy in to it!!!

Well keep fighting the good fight rick and never let them force you to use exams! Students really like the flexible assessment approach!

Rick Snell
Just reread the Another Brick chapter I think it still resonates even though I do things in very different ways now.

See the testimonials on my web site to understand how students like Student A as well as those tarred as poor performers (due to their exam performances)respond to a different learning environment.

Running for UTAS University Council 2010

2010-11-01T03:28:00.000-07:00

Running for UTAS University Council 2010

Why I am standing for election
The role of an elected council member
Difficulties of being a council member
Sitting Fees

Why I am standing for election
After careful consideration I have decided to contest this year’s UTAS Council Elections.

All the senior positions of the University Executive (Vice-Chancellor, the two Deputy Vice Chancellors and the Executive Director Finance) have only been recently filled. Whilst this new leadership team offers significant opportunities for renewal and invigoration it also requires a University Council with a full range of experience and capabilities.

I was a member of the University of Tasmania Council from 2003-2006. Reflecting upon that four year period I now have a better awareness of what the role of a Council member entails (especially during the initial period of a new Vice Chancellor) and would like the opportunity to contribute to the leadership of UTAS over the next 2 years.

My first period on Council was marked by a willingness to ask critical questions and to ensure that proper procedures and planning had been undertaken before final Council approval.

My academic speciality, the successful completion of the AICD Company Directors Course and interest in transparency and accountability equip me with a set of valuable skills to deal with issues of governance and oversight of the University Executive.

The role of an elected council member

The University of Tasmania Act Section 8 (3) states “A member of the Council is responsible and accountable to the Council rather than to any constituent body by which he or she was appointed or elected.”

This makes it difficult to campaign for election or to offer any particular platform because once elected I cannot represent any particular constituency.

What I did between 2003-2006 and can do even more effectively after that experience, is to play the role of an informed and critical participant. This involves a willingness to ask difficult and hard questions of management and sometimes simply ensuring that proper processes have been followed.

Difficulties of being a council member

Elected members face a degree of difficultly in performing this role.
The non-elected members are appointed for 4 years, and often reappointed, so their insider and corporate knowledge is generally more extensive than elected members.
Elected members don’t tend to be appointed to the major committees so their involvement in council activity is limited to the immediate period before the next Council meeting.

Generally the papers for a Council meeting only arrive 7 days before the meeting. These are a few centimeters thick and there is a tendency to present members with a variety of updates and extra papers (sometimes unimportant but often crucial) at the start of each meeting.

Most of the key members of Council have been involved in the preparation of key matters and decisions leading up to the meeting. This leaves elected members in the difficult position of having to master a wide variety of information quickly and often having their queries met with ‘that was discussed in the last Finance Committee meeting and that Committee was reassured….”

Often interventions or questions raised by elected members are placed in the context of “this decision needs to be made urgently and this …. (your question/concern) will cause (insert appropriate word – delay, terminate, cause unnecessary concern or yes a good point which we will ensure happens next time)….”

Most of the decisions by Council, associated paperwork and information, are confidential (especially prior to the meeting). See http://www.utas.edu.au/university-council/about-the-university-council/governance-policies This imposes extra difficulties on elected members (and to a lesser degree appointed members) to work out what questions to ask and to determine whether the proposals are the best options or whether more information etc is needed.

During the period 2003-2006 the processes, procedures and information flow of Council improved dramatically. It is my understanding that these have further improved since that time. However the decision about sitting fees for Council Members (discussed below) is an example of why further improvement is needed.

I am ready and keen to once again be an effective member of the UTAS Council.

Sitting Fees

If elected my Dean has offered to direct any sitting fees to the University Foundation to support bursaries and/or scholarships.

I recently asked UTAS Legal and Governance about sitting fees for Council. The reply was:

“Yes there are payments to Council members now - but for the elected staff Council members the amount (2010 amounts are $12000 for members who are not on any committees, $18K if on a committee, cpi'd for 2011 onwards) is directed back to the budget centre from which the member comes, the idea being that it is compensation for the time for which Council duties take the staff member away from normal duties within the budget centre.

I understand that some staff members have managed to do deals with their budget centre as to where the money will be directed (eg Foundation) but that is up to the individuals.”

I asked the question because a NTEU FOI request, during the EBA process, revealed that in it’s December 2009 meeting the UTAS Council, after receiving a report from its Remuneration Committee, approved the payment of sitting fees. The existence and level of these fees (nor the accompanying report) has not been made public by the Council or by UTAS.

In my view it would have been better for the Council to ask for its legislation to be amended to allow the payment, and determine the level, of sitting fees.

The Remuneration Committee report (or discussion paper) and the decision of Council (and the level of fees) should have been made public.

Once we were sloths – a tale of slow conversion

2010-09-21T00:09:00.000-07:00

Once we were sloths – a tale of slow conversion

“You once had a body of an athlete” said Serge from Uni Massage.

He had hit the nail on the head.

Once.

Once being several decades ago. I now had a body and fitness system that had slowly deteriorated like Neil Young’s “Rust Never Sleeps”. I went from a non-stop stream of activity (sports, walking/running as my main transportation means and long nights living on coffee but little food) in my mid 20s to a largely sedentary work environment and sitting at the computer at home for long stretches.

All the time I thought I was simply a few steps away from complete fitness recovery.

Each decade saw the return of some activity (indoor cricket for a while, badminton on and off, a couple of seasons of heavy duty gardening) but each time less vigorous and for shorter periods.

Since 1999 there has been the travelling for work (averaging 2-3 months a year) and where most of my time (outside of the family) was largely about work.

In late December 2006 that world spun out of control. All my life I have been healthy (in the last 3 decades I have been ill for less than a handful of days – usually just 1 day at a time) and rarely saw doctors and cuts/bruises would heal quickly. In late 2006 I had an infection that I couldn’t dislodge. Finally (after several weeks) went to a GP, Dr Susan Hodgman (one of the best decisions in my life) she ordered blood tests.

All the warning signs were there.

· Late 40s.

· Weight over 100 (110+) kg

· Body Mass Index in the obese/morbid obese range

· Big spare tire.

· All my photos showed a big guy.

· I had started talking about myself as a big guy.

· Diminished healing capacity.

· Thirsty all the time.

· Avoided gyms – as being places only for the fit and slim.

· High stress both at home and at work (heavy teaching load, on University Council, lots of travelling, pressure to publish).

On Christmas Eve 2006 got a phone call could I urgently return and see Dr Hodgman.

Prognosis – diabetes Type 2.

Blood sugars in the 14-17 range. Cholesterol through the roof. Very high Triglycerides.

When asked “How are you feeling” and my response was “good” Dr Hodgman simply replied “That is surprising”.

Needed to start on medication. Needed to lose weight.

Next day, Christmas Day, was spent trying to minimise intake of sweets (a very primitive understanding of diabetes at that point).

The next few months were a whir of information overload about diabetes Type 2, weekly visits to the GP, frequent blood tests and a constant increasing list of medications and ailments – high blood pressure, kidney and gall stone problems. I started to rake up frequent buyer points at my pharmacy (I now had a ‘pharmacy’ for the first time in my life). It was like my little lifeboat had sprung several major leaks and several storms had appeared. Every visit to the GP seemed to result in a new additional medication and upping of the dosage of existing medication.

The increasing long line of medical professionals all had the same story – it was a question of when rather than if I would encounter major problems. Extremely dark period for me.

Then I discovered that I wasn’t a few steps away from fitness recovery I was light years away.

Months of trying to increase physical activity (while still focussing on work and travelling), changing eating habits etc saw small gains. I dropped a few kgs and with medication got my blood sugars below double figures (but still in the 9s and with a blood pressure often above 150/90+). Then a temporary breakthrough. 8 weeks working in Cambodia saw the +ve impact of minimising processed foods and my blood sugars dropped to the 7-8 range..

By early 2008 I had plugged most of the holes in my little lifeboat. I was managing my diabetes (just), struggling with losing weight but still getting it down (if you can call 108-110 kg down) and had dealt with the kidney problem. So for a year or so I kept a very tenuous balance.

I then learned a painful lesson. You don’t get cured and it is all about constant vigilance. The weight started to pour back on and long term blood sugar levels started to drift higher and medication started to be increased. I had walked straight into a danger zone - too much to do so the increased walking kept on being put off, badminton sessions missed due to work and travel, no time for the garden and always I would promise myself to do more tomorrow or next week.

Another round of frustrating efforts to increase activity, control food intake etc.

By October 2009 I was fighting a rearguard action but slowly losing ground.

Then my wife and daughter threw me a lifeline.

I had been reading up about Dicko’s Jenny Craig diet effort see http://www.jen4men.com.au/home/ I was impressed but I made a simple comment “Yeah easy for him he had his own personal coach.” My daughter and wife looked at each other and said “right”.

Within a couple of days I had an email from my wife setting up a meeting with Helen, who co-ordinated personal coaches, from the Unigym. Reluctantly I went to the meeting.

One look at me and Helen said ‘You need to start slowly – you are too unfit for a personal coach. We are starting a new early morning class for people like you – looking to return to exercise. It’s not bootcamp despite being run by an army guy. It is self-paced but you will be pushed to your limit. Concentrate on the fitness first and worry about the diet later. One big challenge at a time”.

I turned up to my first 6.45 am session – nervous and apprehensive (first time in a gym other than to play badminton, squash etc) and very much out of my comfort zone. I confronted the harsh reality of my condition (or lack thereof). The class was self-paced but Jim Armstrong, the instructor, gently pushed the buttons to re-ignite my own motivation. Yet I was confronted by a rusted and completely useless body. See my performance table below. I could hardly do anything I was asked to do. This from a cricketer who terrified opening batsmen and who had once played badminton like a whirling dervish. There was not a fragment of that person left except in my mind. I had never felt such despair.

Fortunately there was a 7 day break to the next class (because of Hobart Show Day) and my tired muscles and shattered ego could slowly recover. Over the next few weeks I learnt time and time again in my Tuesday and Thursday sessions - how unfit I was. I certainly learnt humility as I tumbled and stumbled at the end of our group even on warm up runs. I dreaded the warm up runs, I loathed running on the crash mat and simply failed at skipping. But Jim Armstrong and Daryll Miller (who took over from Jim who went in January to the Sinai for a 6 month peacekeeping mission) persisted with gentle encouragement.

Started to do faltering runs on the Pipeline Track at Fern Tree (to be brutally honest these runs were a few metres before I went through terrifying periods of struggling to catch a breath) and small exercise routines (x number of push ups during the week, crunches etc) outside of the morning sessions so as to be better prepared for the Warm-up/Wake-up classes. I was desperate to just survive those sessions.

A blessing was that every session was new and different. Each morning we turn up half dreading what combination of activities Jim and/or Daryll have chosen for us but walking away proud but exhausted at the end of the hour that we had stumbled through their challenge.

It has now got to the stage that I look forward to each challenge whether a Tabata routine or a savage combination of weights, spin and shuttles. I still often find myself struggling at the end of the line (dropping out early in the beep tests etc) but other times I find myself keeping up.

Along with the gradual increase in fitness and flexibility came some good weight loss. However from Feb 2010-late July 2010 I hit a weight plateau where my weight stayed in the 102-105 range. Partly due to 3 extensive overseas trips. I took Daryll’s Hotel Room exercise guide with me and tried to replicate the morning sessions. Incredibly difficult to skip in many hotel rooms (low ceilings). During my month long trip in July I was doing mini-Tabata sessions – timed with an I-Phone app - of 3-5 sets most mornings. I also set myself the task of doing at least 1 short morning run in each country I visited ( total of 6 countries) which I did except in New York.

On my return despite maximum efforts in the morning classes, regular sessions of badminton, the use of food replacement satchels and increased exercises between classes the weight was hardly shifting. I then went through the confronting experience of consulting a dietician and outlining my eating habits. Favourite food – white bread sandwiches and cheese/vegemite, amount in a snack – 2-3 double sandwiches. I could see the disbelief in her eyes and the thought process “and he is wondering why he isn’t losing weight”. She encouraged me to buy the Calorie King software - http://www.calorieking.com.au/ (a fantastic purchase) and over the past month by increasing exercise, changing foods and controlling food intake I have managed to drop to below 98kgs. Simultaneously my performance in the exercise classes has reached new levels.

As the performance Table below shows I have come a long way but have got a long way to go and there is always the potential problems of injury or loss of motivation awaiting me.

	End October 2009	Middle September 2010

Weight	116-118 kg+	97.5 kg
Blood sugar average	8 + drifting higher	5-6
Blood pressure range	130-150/90+	99-140/ 71-90+
Waist	115cm +	104cm
Pants	107 cm no belt	97cm with belt
Running capacity	50-70 metres severe breath shortage 30 lengths of badminton court – knackered in 3 mins	15 mins non-stop hill (gentle) and step (steep) running 40 lengths of badminton court in 3 mins still ready for more
Skipping	1-2 slow stumbling hops	30 skips on toes very quick
Push ups	<> less than 5 poor form	Sets of 30-40 in good form
Bench Dips	Legs in less than 10 <>	50-100 legs out
Prone/plank	less than 10 <>	90 secs +
Side prone	<> Less than 5 secs	20 secs +
Crunches	<> less than 5 head returning to ground	50-100 keeping head off ground
Weights	Light – very slow	Heavy – good pace and form
Warm up before class	none	Lap of oval
Beep test	<5	6.5

Weekly exercise totals	None	Crunches – 1000+
		Push ups 1300+
		Bench Dips 1300+
		Presses against kitchen counter 2000+
		Burpees 28
Badminton	1 hour every couple of weeks	3 hours per week

Walking	20 mins once a week	20 mins + most days

Gardening	neglected	Tarting to get back into

Throughout this period I have used my Facebook status to keep up a steady log of my journey. The public sharing kept me accountable and was often one of the things that kept me going when I stumbled or felt like maybe taking a break. Since discovered that my efforts have motivated a couple of people and that makes me feel good.

Recently I was contacted by a former student who is struggling with weight and health problems – 135 kgs at 23 years old. During a facebook chat session he said that he had given up but reading what I had done at my age he felt like he could also do it at 23. Sensibly he has opted for a medically supervised approach to his diet and a very gentle return to exercise/activity. He asked what I did – below is an edited version of our chat. It is not professional advice but rather just bits and pieces and ideas that seem to have worked for me.

Advice to a former student

Start slow.

Have a lot of mini goals - fitness, weight, health -- so if you are blocked/derailed on some you still get some runs on board.

1. Never too late to start.

2. Don't try too much at once.

3. Small but constant changes to diet.

4. Get the Calorie King Diet software (about $40 aus) - I have only had this in last 3 weeks but it has been extremely helpful. Managed to lose 6 kgs after several weeks of no loss.

5. Use a Wii with Exercise Plus - start slow. Advantages are that it is self-pace, it keeps track and there are a wide variety of tasks and activities.

7. Take full measurements now - (by a professional/gp - weight, height, waist arms etc and do a full blood test (another lot of incentives to work on ). Always helpful later when you are struggling to find +ve signs of progress/change.

8. Find a gym class that does circuit or cross training and allows you to start at your own pace. Look for maybe older trainers who have experienced themselves or seen their friends etc struggle with age, weight etc.

9. Learn to accept that everyone else in a fitness class can run quicker, harder, longer - do more push ups etc - but one day you will find yourself near the front.

10. Learn the proper form of the exercise rather than aim to do lots of repetitions quickly.

11. When I started I could only run a few metres before I felt like I would never breath again (can now run at least 1 lap of oval at fair pace). It takes time to recover running capacity, flexibility etc but it happens.

12. Change diet very slowly – this is where a software program like Calorie King can work very well.

13. The big factor for me was a great exercise class 2 mornings a week for an hour each. Any class will do to get the ball rolling but keep looking for the right atmosphere/support for you. Cross training is the best option rather than concentrate just on running or weights.

14. I found it very helpful to start to build a lot of little extras into my non- circuit class time - extra badminton, a little more walking, the Wii (esp yoga).

15. Small steps and remember there will be days when you slide backwards (weight gain, less push ups than the previous day etc).

16. Share with friends your journey – it has been a real positive to share with my friends on Facebook.

17. Start small but start to add increments to each exercise. When I started I was lucky to do 2 push ups or two very slow skips in a row - I can now do 30-40 push ups in a set or make skipping rope whir for 10 secs (not a lot) but I never thought I would hear the sound.

18. In terms of diet - start drinking more water, start to reduce diary foods. Add fresh fruits and vege for snacks.

19. Get fitted for good running shoes - even if not running much -- one reason for starting slow is to minimise or avoid injury.

20. Book in for regular massage sessions to help body recover and to prevent or detect start of injuries.

21. Start with short, medium and long term targets ie 134kg to 133.5 kg (initially just to get there even if slide back - but then aim to keep below that new maximum for a few days), then 132.5 kg etc.

22. Work with GP and dietician and try and find good gym class and or personal coach you are happy with.

A follow up chat a few days later -

4.26 former student

sigh...i could only do 15 minutes of brisk walk unfortunately...but it's a start i guess?

4:27pmMe

better than just a start

given your weight etc you might be trying too much but great to push yourself without being too over the top

better to start slow and low (in terms of numbers, repetitions, etc

4:29pm former student

i'll try walking in blocks of 15 minutes

not more right now :)

4:30pmMe

1 step a day for a 1000 days is better than 900 steps in a day and then no more

4:30pmf ormer student

wow thats awesome

i'll remember that

4:30pmMe

use little yardsticks ie a couple of more metres each day in the same time or feeling slightly less winded etc or quicker recovery

4:32pmMe

or 1 push up today, 2 push ups tomorrow, 3 on the third day, 30 at the end of the month it soon builds up

My coaches tell me “do what you did yesterday + 5% today”. That 5% is the killer.

Postscript

The insight for me reading back on all the above is that health/fitness recovery is not just a question of flicking the switch from off to on or turning the key in the ignition.

It is a major investment in time, energy, emotion, finances and the returns only dribble in one drop at a time.

Plus as you sink into slothdom you have no idea of what it will take to recover a better level of fitness and health.

Back before December 2006 I am not sure what my reaction would have been if a delivery truck turned up and I was presented with the following:

· A booking for 20+ blood tests

· 30+ GP appoints over next 4 years

· 10+ specialist appointments

· A blood pressure monitor

· A blood sugar monitor

· Gym membership

· New fitted running shoes

· Calorie King software

· A Wii and Fitness Plus

· 2 hours of circuit class each week

· 3 hours of badminton a week

· 5+ hours of other exercise activity a week

· Daryll and Jim suggesting I should give everything 5% extra effort.

I am not sure if I have added anything to my life capacity or length but I certainly have improved the way I will enjoy and live for the remainder of my life.

I have the feeling that the easy gains have been made and the next 12 months will be more about very small increments and dealing with the inevitable set backs.

Where I started from - see this video filmed early September 2009 http://www.youtube.com/watch?v=2bVUNN4pjVk between 1.12-2.54 mins - is still only a few weeks of neglect or inactivity away.

Tasmania's proposed Integrity Commission

2009-10-29T23:02:00.000-07:00

These notes made prior to doing a Stateline interview on the proposed Integrity Commission.

Integrity Commission some possible discussion points

Key Overview Points

Independent

· Appointment

· Operational decisions

· Review (3 yearly and of its determinations)

· Referral of determinations of misconduct

· Reporting

Adds to and improves substantially the current accountability/integrity arrangements

· Parliament

· Police

· DPP

· Ombudsman

· Auditor-General

· Right to Information bill

· Public Interest Disclosures

Multi-faceted and multi-tasked organisation

Allows for maximum co-ordination among key agencies

Avoids the default standard for behaviour being “if not criminal/corrupt then acceptable”

Joint Standing Committee

Tri-partisan lower house – raises issue again of parliamentary numbers

Independent – Committee chooses its Chair

Integrity Tribunal

Flexible composition

Right to counsel and cross examination

Range of inquiry types – full public hearing to full in private inquiry

Police misconduct – and supervision , monitoring of police complaints

Own motion capacity

Budget

2.5 million +

costs of inquiries, legal costs, compensation direct charge on Consolidated Fund.

Parliamentary Standards Commissioner

Conduct, ethics, conflicts of interest etc of members of parliament.

Contrast to UK Commissioner for Parliamentary Standards – set up by House of Commons, an Officer of Parliament.

Whether should be appointed by Chief Commissioner or by Joint Standing Committee Parliamentary Integrity Committee.

Powers

Extensive

· Enter public offices without warrant

· Search warrants

· Full range of powers while on premises (search, seize, operate)

· Surveillance/tracking devices (extended to commissions of inquiry)

Other benefits

· More robust oversight of police conduct

· Commissions of Inquiry Act improved

o Witnesses in prison, Ashley, Mental impairment act can be accessed

o Surveillance devices

Allows unlimited retrospectivity - but highly unlikely unless new evidence/witnesses, information.

Safeguards

1. composition of Board

a. Ombudsman, Auditor General,State Services Commissioner, member local gov experience/expertise, member law enforcement experience, public member with expertise public administration, law

2. Appointment – Minister must consult Joint Committee

3. Joint Committee

a. Review after 3 years

4. Appeal to Supreme Court on finding of misconduct

5. Other entities have to put into operation determinations of misconduct

6. Approval needed for warrants, surveillance devices

7. Major focus of IC is on Integrity, education/prevention, tirage

Potential problems

· Damage to reputation

· Tribunal able to set its own procedures

· No rules on type/time of notice etc (need to accord procedural fairness)

What not done – at issue

Proclamation date

Appointment of Ombudsman, State Services Commissioner (consultation with Joint Committee) - this proposal not adopted. Would improve Ombudsman selection process.

Judicial misconduct

Test against previous problems

Integrity Commission would have addressed many of the major issues arising in previous sagas -

Major decision-making process political at times of greatest political/public controversy/heat

Carter Royal Commission

· Delay in calling

· Surveillance issues

· Recall of witnesses

· Issue of representation and costs

· Involvement of ministers/premier

Tas Compliance Corporation

· Appointment of party members, former MPs etc

· Deleted emails etc

· Concerns within agency

Shreddergate

· Administrative processes

· Appointment processes

· Recordkeeping activities

Gilewicz Inquiry

Delay in investigating (10 years)

My Introduction to Pakistan

2008-07-10T05:08:00.000-07:00

A note to my Introduction to Law Students sent from Islamabad

I received an invitation from the World Bank, at very short notice, to be involved in a workshop on Freedom of Information in Islamabad, Pakistan. So I packed my bags full of the remaining journals and a heap of exams and set off.

At the moment I am sitting in a 5 star hotel in Islamabad surrounded by massive levels of security – packing my bags to return home – and declining the opportunity to sightsee on my final day to keep on top of the marking. As so many of you have shared your reflections with me I have decided to return the favour (but there is no need to read on).

Reflections on Islamabad, revolting lawyers, 15 minute presentations and working World Bank style.

Islamabad
20 June 2008

The invitation arrived late on Friday afternoon on the eve of the long weekend. Was I interested in travelling at short notice to present at a World Bank workshop in Islamabad on my topic area of Freedom of Information?

The short answer was “Yes”. Despite the obvious risks (over 2 pages of travel warnings on the DFAT website, the rise in anti-US (and allied) sentiment after the killing of 15 Pakistani soldiers), and travel time (there and back about 70 hours in planes, airports etc).

I am always keen to be involved in these events because:
Opportunity to meet passionate and inspiring people
A brief and very constrained, but always staggering, exposure to another culture (my great loves are politics, history, culture and ideas)
To link my research and teaching to reality
To share my experiences and insights (developed over 18 years with taxpayer money, previous experiences funded by USAID, AUSAID, Article 19 and various governments and institutions)
To make my limited contribution to good governance in the world

Problems –

Pile of marking (solution take with me and mark on planes etc)
Approval (UTAS not keen to have staff members wandering the streets of Islamabad)
Visa (had 24 hours to get visa from Pakistan High Commission in Canberra after final approval from UTAS. In the end visa arrived 2 hours before my domestic flight to Sydney was leaving).
Family – we now have a routine which everyone just slips into.

The biggest problem was more of an ethical dilemma.

The World Bank wanted me to speak for 15 minutes. In order to get me there and in a state ready to perform they were flying me business class from Sydney-Bangkok-Abu Dhabi-Islamabad and return, accommodating me in a 5 star hotel (room rates $500 US + a night). All other expenses covered (ground transport, food).

A massive expenditure for a short performance. The equivalent of the average per capita income of 20 people in Pakistan. Felt unsure whether I could return value for money.

A little like doing a 300 word briefing paper but one which someone has invested a sizable amount on. Short, to the point but packed with the results of a lot of analysis/thinking but high expectations.

In the end the presentation was well received by a room full of government officials, human rights activists, journalists (very passionate, very forthright, demanding and given their precarious position incredibly brave) and policy analysts. The Information Minster was scheduled to deliver a speech that was going to be broadcast on national TV but a phone call from the Prime Minister’s office led to her cancelling.

I also got the following tick of approval from one of the most outspoken activists there (imagine Sushila, Sanjeev's grandmother from the Kumar’s at No.42 with attitude and fire in her belly) she wrote:

“Your presentation was right up there, and you very astutely picked up on our most pressing issues (accuracy/reliability/credibility/utility, etc.) - ref my points about the politicization and expediency-oriented manipulation of govt. data & info - and not just the run-of-the-mill gripes about "access" and the cost-of-retrieval issues of minor documents!!!”

On reflection I could understand the World Bank’s strategy. The 3 international experts (from India, Mexico and Australia) draw more attention to the workshop and a higher level of interest from NGOs and government. I spent the day before the workshop meeting with NGOs and individuals briefing them on international experiences and some of the key issues. Pleasing to see during workshop many of these groups and individuals debating the points we had discussed the day before.

A number of these groups, individuals and officials will stay in touch so there will be hopefully a long term return on the World Bank’s investment.

The papers are full of stories of attacks, explosions throughout Pakistan. The streets are lined with barricades, armed guards, and military trucks.

The most fascinating topic, for a law teacher, has been the continual struggle and protests by lawyers seeking a restoration of the rule of laws and the sacked Supreme Court judges. Just before my arrival the Lawyers Long March had just taken place (where thousands of lawyers and others, spent 4 days marching on Islamabad – some have claimed it as the largest mass demonstration in Islamabad). The daily papers have numerous items, opinion pieces and letters to the editors about various aspects of the protest actions of the lawyers. I wonder how many Australian lawyers would take to the streets to preserve or restore the rule of law and the independence of the judiciary?

Another fascinating glimpse is on the gender relationship in this strongly Islamic country. The Islamic and secular overlays in Pakistan result in numerous incongruous episodes.
See http://www.adb.org/Documents/Books/Country_Briefing_Papers/Women_in_Pakistan/default.asp

This report states” Gender is one of the organizing principles of Pakistani society. Patriarchal values embedded in local traditions and culture predetermine the social value of gender.” Yet the constitution has 4 specific provisions ensuring equality of gender and equal treatment.

Even in my couple of days here I could fill several pages full of examples of how this plays out in every day life. Yet I have met and been impressed with talented activists who make it clear that Benazir Bhutto was not a rarity in Pakistan politics or life. Yet in a quick moment I have seen these same women quickly slip into a deferring role. Class, education and fierce determination seem to create spaces within this so-called – patriarchal hierarchy – for some women but it seems to be an uneasy space, precarious and a struggle to achieve and maintain.

So at the end of this short trip I have developed my presentation skills a little further, been inspired to try to improve them more (a number of the presentations were very impressive) and seen a little more of the interaction of macro policy (World Bank, UNESCO) with micro engagement (locals who now the context, the reality and have to put the ideas into operation once the jet-setting international experts are long gone).

After finishing writing the above I gave into temptation and have just back from a shopping expedition (clothes for my daughter and wife) and an afternoon spent in the National Heritage Museum.

Enjoy your holidays

Rick

Tasmania's New Premier Keeping Options Open on FOI

2008-05-28T02:17:00.000-07:00

Hansard 28 May 2008

Mr BARTLETT - I am clearly on the record as saying that I am open to looking at anything we can do as a new government to strengthen our democracy and strengthen trust in that democracy. I have already had some conversations with academics about the FOI laws in this State. I have been watching the debate closely in other States as well. I will be taking further advice about the act as it currently stands, its sense of longevity and how it might improved in the future.

I will have to chase these mysterious academics down to find out what they have been discussing. Although I do have a rain check to meet with the then Deputy Premier (now Premier) at some uncertain time in the future.

Have always been bemused at the Tasmanian Government's reluctance (both Liberal and ALP governments)to sit down and talk about FOI. The only time I got to make any direct representations was with Peter Patmore over lunch at the Vietnamese Kitchen in June 1999.

“Mr GROOM - Two years ago you said you were looking at a two-paged paper from Rick Snell and you said you were preparing legislation. That was in the Estimates of 1999. I have a little marker here. It was an interesting discussion then. You said you had had the meeting with Rick Snell from the university last week - this is in June 1999 - and you asked him what he thought might be appropriate. Funnily enough, he had it all typed out - two pages of it. You took it from him and 'that is going to be the subject of a discussion brief from my department'. You had had an expert, you said, saying where you should go with FOI and you indicated you were proceeding with that and would be making a public statement when you were in a position to give a considered response.

Dr PATMORE - Yes.

Mr GROOM - Are you able to give a considered response now, two years later?

Dr PATMORE - I think I have had sufficient time to give a considered response, yes. The major change was of course the conclusive certificates; we identified that before the election as one of the major issues. We have provided the Ombudsman with an additional $100 000 to assist. On administrative law, we expanded the Ombudsman's role and there is a plan for the creation of a new administrative appeals tribunal, a division of the Magistrates Court, so that is part of the Ombudsman's role, not necessarily with FOI, and I am currently looking at some aspects of FOI….. Tuesday June 5 Estimates Committee B (Patmore) Part 1 Pages 1-69.

In the end Dr Patmore got annoyed when the Greens introduced a private member's bill on conclusive certificates which the Government supported but which ended any more interest in FOI reform.

Since that time I have been engaged in giving advice and being sought for input from everywhere except 15 Murray Street Hobart.

Stateline Interview 23 May 2008

2008-05-26T03:11:00.000-07:00

In a Stateline interview on the 23 May 2008 see transcript the Tasmanian Ombudsman, Simon Allston, and the Australia’s Right To Know Coalition spokesperson Lucinda Duckett supported a review and updating of Tasmania’s Freedom of Information laws.

The Tasmanian Ombudsman announced that it was only his limited resources that had prevented him from undertaking a similar review as the one announced by the NSW Ombudsman.

It was pleasing to see the ARTK making a very positive contribution to the debate.

The Tasmanian Government refused to comment on air but in a background document it took the line that there was little need to reform the Act because it was roughly similar to other state Acts.

However with the sudden resignation of the Premier Paul Lennon on 26th May the new Premier David Bartlett may decide to embrace a series of possible reforms. It would be certainly a major boost to Australian reform efforts if the Bligh reform program was not the only one being seriously considered. Indeed it might cause the WA and Victorian governments to reconsider both their proposals and approaches to reform.

Freedom of Information Reform in Tasmania - Some Initial Ideas

2008-05-14T02:40:00.000-07:00

FoI Reforms in Tasmania

The 17 year old Freedom of Information Act was conceived and based upon ideas about government information that stretch back to the 1960s. Furthermore the original design and intent of the legislation was heavily modified before being accepted by the major political parties. It was then trimmed further prior to its commencement in late 1992 by the Liberal Government. Throughout the 1990s it was starved of funds and just managed to survive an attempt at a massive reduction in its scope and operation in the mid 1990s. At other times it was targeted by secret plans to subject it to a sunset clause after 2 years.

The Bacon and Lennon governments have co-existed with the legislation but have never been overly supportive or keen to reinvigorate the legislation.

Due largely to staffing restrictions the various Tasmanian Ombudsman since the mid 1990s have taken a very low keyed approach to both the interpretation and application of the Act and in taking any wider supervisory or quality control activity.

This restricted approach seems to be slowly changing under the current Ombudsman, Simon Allston.

What is needed?

A 3 month (maximum review) by the Tasmanian Law Reform Institute and/or the Tasmanian Administrative Review Advisory Committee:

The review could build upon the work and ideas of:

Queensland Independent Review Panel
• Discussion Paper January 2008
• Final Report (early June 2008)
Australian Law Reform Commission
• 1996 Report and current review
NSW Ombudsman review (current)
Changes made in WA, Vic and the Northern Territory Information Act

Developments in New Zealand, Canada, UK and USA

Some initial proposals

Information Commissioner created (could be Ombudsman) to cover FOI, Privacy and state records.

Information Commissioner to have ability to release exempt information in the public interest.

Information Commissioner to have the ability to order release of information.

Information Commissioner to carry out supervisory, advisory and training functions.

Information Commissioner and Ombudsman to be approved by both Houses of Parliament.

Freedom of information to be funded and administered as any other policy program.

Time period for Information Commissioner reviews to remain at 30 days.

Maximum time limits on applications to be progressively decreased from 30 days to”:
• 20 days
• 15 days
• 10 days

A once-off request for extension up to a maximum of 15 days

Agencies be required to process 50% of requests within 50% of the maximum deadline.

Cabinet documents to be more accessible.

Automatic release of cabinet documents after 10 years unless covered by another exemption.

Internal working documents to be automatically released after 5 years.

All exemptions subject to a public interest test.

Information released under FOI be made publically available on Agency websites.

The government to republish FOI Handbook.

Information Commissioner tpo publish determinations of FOI reviews.

Limits on vexatious applications.

Changing Objects section to include increased openness and progressive release of information as a specific aim of the Act.

Parliamentary oversight of FOI including a “dedicated focus on information as a dimension of all government activity”. Creation of a joint Accountability Committee.

A shift to pro-active or push model of release so that there is routine and active dissemination of information.

Optional internal review.

Internal review timeframe reduced from 14 days to 7 days.

Decisions by gazetted FOI officers under s.21 shall not be subject to any Agency approval process unless that process has been approved by the joint Accountability Committee.

Most importantly a cultural change that sees government transparency made an essential modus operandi of government and that there is an attitude to harvest the dividends of transparency.

FOI Reform in Australia - The current state of play

2008-05-12T14:02:00.001-07:00

To listen to an interview conducted with Adrian Middeldorp, 3rd year B.Media student (University of Adelaide)Program MediaRites Radio Adelaide 101.5 FM Broadcast date: 13 May 2008 3:05pm (approx) on the current state of FOI reform at the Commonwealth level see www.ricksnell.com.au/resources.html

I have also written an opinion piece in The Australian on 25 April largely focusing on the NSW Ombudsman review but referring to the Commonwealth reform process.

Peter Timmins blog Open and Shut has been providing the best coverage of this issue.

My principle concern is not that Kevin Rudd will not deliver - his many statements in the last couple of weeks gives him no option. My concern is how he will deliver and the final size and nature of the package.

Prime Minister Rudd and his Special Minister of State John Faulkner have left the Australian Law Reform Commission review into FOI floundering with limited terms of reference granted to it by the previous Attorney-General. Whilst the President of the ALRC has indicated a willingness to exploit "the any other matter" clause in Ruddock's terms of reference clearly the ALRC wants a green light from the new government.

Therefore if the Prime Minister sticks to his timetable (end of 2008 or at the latest the 1st day of sitting in February 2009) it will be without the updated input of the ALRC,and to the best of my knowledge, with no input from anyone outside the ALP or the federal bureaucracy. Some like Michael McKinnon, the FOI Editor for the Seven Network, is hoping that the federal government is simply waiting for the Solomon Report for FOI Reform in Queeensland to be delivered (maybe by early June).

At least in Queensland Premier Anna Bligh has started to put into operation some of the possible changes that could emerge from the Solomon Report. The Queensland Whole-of-Government Response to Solomon's discussion paper indicated that, since Anna Bligh has become Premier, Cabinet documents ( about 500 pages) have been released on at least 3 occasions - 2 in response to FOI requests and 1 without the need for an FOI request.

It would be refreshing if the Rudd Government had shown the same willingness to dip their toes into the waters of greater transparency.

I find it difficult to understand why Senator Faulkner or any representatives of the government appear totally reluctant to engage in any dialogue about the shape,depth and design of any proposed reforms. Whilst the public service and Ministers are key stakeholders so are citizens. A lack of consultation may have had some merit if in the first days of the Rudd Government an FOI amendment bill had hit the floor of parliament and new FOI policy instructions had governed the way the first FOI requests of 2008 had been dealt with.

Looking at the Political Economy of Transparency

2008-02-23T17:08:00.000-08:00

The Political Economy of Transparency: What Makes Disclosure Policies Effective?

Archon Fung, David Weil Mary Graham Elena Fagotto , December 2004,Ash Institute for Democratic Governance and Innovation, John F. Kennedy School of Government, Harvard University

The authors present a very targeted approach to evaluate the effectiveness of various transparency systems. Whilst the authors only mention FOI, or access to information schemes, in passing nevertheless their analysis raises many important questions about the effectiveness of current FOI or likely FOI schemes.

In particular their analysis challenges the assumed or intuitive benefits of a transparency scheme like FOI simply delivering automatic public benefits. The authors detail several critical junctures or relationships that can play a determinative or influential role in the delivery of these benefits. The focus of the analysis is both on the design and the dynamics of these systems. The authors contend that there are a number of difficult to satisfy conditions for any transparency system to be considered effective:

“Our analysis suggests that transparency systems must meet two challenging conditions in order to be effective. First, they must embed information into the ordinary decision-making and action processes of information users and disclosers. Second, the responses of both users and disclosers must ultimately be congruent with policy objectives.” [at 29]

A particular benefit of this analysis is that the authors focus on users, disclosers and the functioning of public policy. Many attempts at evaluating or critiquing FOI schemes tend to do so predominately from one focus, generally users, and almost never about the impact upon policy. Furthermore, less explicit in this paper compared to earlier versions, the authors examine the dynamics of the transparency process including the moves towards and away from effectiveness.

“Transparency is effective regulation only if it influences the performance of targeted organizations in the direction of a specified policy goal. Improvements in quality, scope, and use are necessary, though not sufficient, pre-conditions for effectiveness. Systems that do not keep pace with changing markets and public priorities can become counter-productive. “

Another benefit is that this analysis can be used in conjunction with Stiglitz’s information asymmetry, Terrill’s individualism and structuralism, compliance analysis and has a capacity to be easily used as comparative tool with other transparency systems and/or between transparency systems in different countries or over time. It also can be used in conjunction with Taylor’s concept of information polity and information mapping.

The authors challenge the assumption that:

“A single idea unites these otherwise disparate systems. It is that public intervention to require the disclosure of factual information by companies, government agencies, and other organizations can create economic and political incentives that advance specific policy objectives. “ [1]

The contention is that this process is much more complicated and dependent on a higher number of variables than normally considered. In terms of FOI the authors analysis turns our focus away from the mechanics of the delivery process (application processes, fees, reviews, release rates etc), as important as these are, and turns our questioning to the achievement of the policy outcomes associated with FOI. Whilst these policy outcomes or purposes have multiplied over the last 15 years their achievement is still the justification for the cost of FOI schemes and the foundation of demands for reform or refinements to existing arrangements.

The authors point out the diversity of users in any transparency system can be problematic “journalists, representatives of consumer groups, and competitors often have countervailing interests in ferreting out some of this missing information and making it widely available in news stories, rating systems, and advertising.” [1] That diversity problem is compounded by FOI because it is so reliant on individual applicants, rarely acting in concert or with shared purpose, to attempt to trigger the release of information.

In an earlier study the authors focused much more on the effectiveness of information intermediaries (journalists, members of parliaments, citizen organizations) as key contributors to or influences upon the effectiveness of transparency schemes. The authors argued that “disclosure policies are likely to be more sustainable where advocacy groups or entrepreneurial politicians representing user interests are able to continue to participate in the policy-making environment. “[38] The authors presented this example:

“National environmental and right-to-know groups translated complex data concerning toxic releases into a Web-based system that made possible searches by community, chemical, company, and facility. Absent such organized political activity and groups to interpret information and put it to use on the behalf of users, the expected political dynamic will return, and disclosure policies will stagnate or erode[38]”

Furthermore all of these information users face the further difficulty of combating or offsetting information asymmetry, in contrast to the government, in that they cannot compel disclosure. [1] Schemes like FOI do allow for forced release, subject to legislative exceptions and variable compliance. However FOI schemes differ from the normal type of government disclosure schemes outlined by the authors in that they cannot “require comparable metrics, format, and timing”. [1]

The authors differentiate between policy effects and policy effectiveness and recognize various levels of effectiveness along a continuum from ineffective to highly effective [1]. (for the purposes of their study they settle on 3 categories at [18] including moderately effective)

“Transparency systems may have effects without being effective. They have effects when they alter choices of information users and disclosers in observable ways. They are effective, however, only when they alter choices in ways that significantly further policy objectives.” [1]

The authors argue that

“Transparency systems are highly effective when they change the choices of information users and disclosers in ways that significantly advance policy objectives. Such systems are moderately effective when they alter the choices in less significant ways that nevertheless advance such objectives.” [2]

The authors seeks to explain that some transparency regulations “(i) lack effects while others (ii) have effects yet fail to advance policy objectives, while still others (iii) are effective.” [7]

The authors use the concept of action cycles to argue that a transparency system’s effectiveness is dependent on the degree (and direction) to which it contributes to an action cycle in public policy. The authors recognize that “transparency systems introduce new information into existing complex patterns of decision-making by buyers and sellers, community residents and institutions, voters and candidates, and other participants in market or collective action processes.” [2] Most FOI literature tends to ignore or assign little importance to these existing complex patterns of decision-making. Once the decision has been made to release the information or the narrative of a losing fight against an obstinate bureaucracy is finished then the FOI literature turns away from the story.

Another feature of the authors’ analysis is their focus on exactly what changes in the behaviour of users, disclosers and policymaking with the release/nonrelease of information under FOI schemes:

“when transparency systems provide highly relevant and accessible information that users incorporate into the considerations that determine their actions, we say that information becomes embedded in users’ decision-making processes. When such systems produce user responses that disclosers incorporate into management decisions, we say that those responses become [4] embedded in organizations’ decision-making processes.” [5]

The authors maintain that there are differences between standard-based, market-based, and transparency-based regulatory systems which are captured in their Figure 1 below [at 7]:

FOI seems to fall into the third category, transparency based, where there are ambiguous signals by users and disclosers and there is a large amount of discretionary responses left to individual government agencies.

The authors analysis offers the chance to pursue the FOI process into more meaningful territory as these two quotes illustrate:

“Our central claim is that the best way to understand why some transparency policies work and others do not is to assess whether and how the information produced by those policies becomes integrated into decision-making routines and consequent actions of information users and disclosers. Ours is an inductive, backward-mapped approach that begins not with the perspective of policy makers but with the perspective of information users and disclosers (Elmore, 1979).”[8]

“Our analysis of cases suggests, however, that simply placing information in the public domain does not mean that it will be used, or used wisely. In practice, information cannot be separated from its social context. Individuals and organizations simply ignore information that is costly to acquire or that lacks salience for decisions.” [8]

A transparency system has “effects when the information that it produces enters the calculus of users and they consequently change their actions and when information disclosers notice and respond to user actions. It is effective when discloser responses

significantly advance policy aims.”[8]

As the authors note “This description suggests multiple points at which information can fail to spur action and at which action can fail to spur reaction or can provoke perverse responses.” [8]

The authors contend that information must have value for the users, be compatible with users’ decision-making routines [11] and ’even if information is valuable and compatible with routines, it is unlikely to become embedded in users’ everyday choices unless it is also comprehensible to them. [12]

This analysis when applied to an FOI system pinpoints some of the problems that have arisen. First whilst often the information will have value – the process relies on wide and often blind net casting and will regular return excessive amounts of redundant information. Secondly, there is no connection to the users decision-making routines. The fit is better with some users ie journalists and other information intermediaries. Thirdly the access granted is to raw and direct information often divorced from its context and surrounding relevant information

The authors argue that “disclosers are more likely to incorporate user responses into their decisions if those responses have value in relation to disclosers' goals, are compatible with the way they make decisions, and prove comprehensible.“ [13] The literature about agencies perceptions of users, their motivations and the utility of their requests seem to militate against disclosers working towards making the FOI system more effective.

A lack of congruence in goals and actions and misinterpretations of new information can reduce the effectiveness of transparency systems, even if information becomes embedded in routines. [18]

The authors analysis add some interesting extensions on existing FOI analyses. It will also draw more attention to the implementation and evaluation of FOI schemes.

See “Clarifying Transparency” by Mary Graham and David Weil, April 23, 2002 Reprinted from the Financial Times http://www.ksg.harvard.edu/news/opeds/2002/graham_transparency_ft_042302.htm

The Political Economy of Transparency. What Makes Disclosure Policies Sustainable? By Archon Fung, Mary Graham, and David Weil , October 2003 Institute for Government Innovation, Occasional Paper, Fall 2002. http://ksgnotes1.harvard.edu/Research/wpaper.nsf/rwp/RWP03-039/$File/rwp03_039_fung.pdf.

Cambodian Update

2008-02-23T16:53:00.000-08:00

The final weeks in Cambodia was a blur of activity. When I left at the end of the first week of August progress looked promising. The Ministers of Defense and Interior had signaled no objections to the draft policy.

On the 21st of August the drafting team approved a version to send to the Minister for MoNASRI. Since that time there has been an unfortunate silence from within MoNASRI as to the progress of the policy.

I returned in mid November to carry out more consultations and attempted without luck to find out more from MoNASRI. I participated in briefings to the 5th Commission of the National Assembly and in another two day National Workshop for NGOs and civil society.

3 months on still no movement. I had to turn down an opportunity to return to Cambodia last week to participate in a conference at the National Assembly. By all accounts the conference went well but no advance on why the draft policy has not been forwarded for review to the Council of Ministers.

Week 6 in Phnom Penh – Milestones, workshops and the haunting sadness of Toul Sleng

2007-07-31T18:21:00.000-07:00

A major milestone was reached in the development of an Access to Information Act or FOI law in Cambodia – a week after Nepal passed its FOI law.

The first government-held workshop was held at the Phnom Penh Hotel on the 25th July 2007 with over 130 attendees from government, civil society and international donors and NGOs.

The workshop was convened to review the status and solicit comments on the draft policy of the Royal Government of Cambodia to pass legislation guaranteeing rights of access to Government information by the citizens of Cambodia. The participants were urged to provide written comments and feedback to the drafting team before the 20th August.

In her Opening Address by H.E. Men Sam An, Senior Minister, Minister of National Assembly Senate Relations and Inspection noted that the Ministry was committed to moving the right to information policy into law. The Minister said that transparent information creates trust, and contributes to democracy and good governance.

Joan Silvers, the USAID representative, praised the rapid progress and indicated a willingness on behalf of USAID to fund future work towards a draft law if requested.

The next day a workshop was held at the same hotel for 50 civil society representatives who were given a copy of the draft policy. The workshop focused on how civil society could make their campaign for an FOI law more effective both in the short term and long term if a law is finally implemented.

The key elements of the policy presented at the workshops included:

• Legal right of Cambodians to access government-held information

• Access to Information law part of a wider Royal Government of Cambodia Information Policy

• Ensuring a simple and effective process to seek and determine access to government-held information

• Balancing access with necessary protections

o Using a harm test or public interest test. Interests to be protected by using a harm test include:

National security, international relations, national economy
Defense
Development of government policy
Law enforcement and investigations
Health and safety
Commercial
Privacy

• Fees to be kept to a minimum

• The creation of an Information Commissioner

• Information to be provided within 20 working days

The draft policy still faces a long and difficult road before the passage of any future law. First the current draft needs to be approved by MoNASRI’s Minister and submitted to the Council of Ministers. The Draft Policy Paper will then be considered by the Council’s normal review mechanisms before submission to the Council of Ministers Session:

• The Draft Policy Paper will be reviewed by the Council of Jurists.
• If approved by the Council of Jurists the Draft Policy Paper will be reviewed by OCES.
• If approved the Draft Policy Paper will be reviewed by the Inter-ministerial Meeting.
• If approved the Policy Paper will be sent to the next Council of Ministers Session

The Draft Policy Paper suggests that an inter-ministerial drafting team be established, with support from donors. The paper also suggests an international conference be held to call upon the assistance of international experts and that a target of a draft law by June 2008 be set.

The Draft Policy Paper concludes that:

“The road from a closed information society, where secrecy dominates, to one that embraces openness is a long and difficult one. An Access to Information law will assist in the completion of a significant part of the journey but by itself is not sufficient to complete the journey. "

The Commonwealth Human Rights Initiative in Implementing Access to Information Laws: A Practical Guide for Operationalising Freedom of Information Laws 2006 argues that strong ‘bureaucratic cultures, inconsistent legislation, process and systems constraints and lack of understanding of the law by officials are all hurdles which will need to be overcome. The key issues that need to be addressed include:

Creating information leadership – Information Commissioner and Access to Information officials
Training
Developing resources to assist Access to Information officials
Improved records management
Effective delivery of information to those who most need it

Many of these initiatives will require long term efforts (training, records management improvement) and assistance from Development Partners. These efforts and assistance could be commenced even before the drafting of the law is commenced.”

My involvement in this process is now nearing a formal conclusion. I leave Cambodia on the 5th of August and hand in my final report on the 20th August. I will be working with the Drafting Team by email and phone till that date.

At the Civil Society Workshop on the 26th July I stressed the need for groups and individuals (within Cambodia and external bodies like the World Bank) to keep the momentum for Access to Information but to critically review the current draft policy and any future version of the policy or drafts of the proposed law. As experience elsewhere shows often good draft policies quickly get modified or converted into very weak and ineffectual legislation.

My visit to Toul Sleng or S-21

On Sunday morning I went by moto (an interesting experience) to visit Tuol Sleng S-21 (see www.tuolsleng.com or
en.wikipedia.org/wiki/Tuol_Sleng_Genocide_Museum) and I remained unfocused, and distracted, for rest of the day.

S-21 was the, or most famous, torture centre in Phnom Penh - mostly for those connected with the Khmer Rouge. At the end of his last interrogation session one person stated “I am not a human being I am an animal”. A thought stuck me just as I was reflecting on this morning’s visit about how “administrative” we can make death – the numbers, the pictures, the rules for interrogations at S-21, the documented confessions and the orderly processes for arrest, interrogation, torture and disposal.

Throughout the day and later as I sleep the images from S-21 keep reforming and touching most things I do. A couple of images keep coming back – one of a mother in a torture chair (straight back chair used for photographing and torture – head contraption holds head in place for photographs but also can deliver, by an angled wire, an electric shock) holding her young child. Death quick or drawn out - for mother and child? There because of a family connection, because someone who had previously sat in chair gave her name to ease their own torture?

The other is a picture of an Australian. Probably Ronald Keith Dean of Wollongong – an Australian yachtsman travelling to Thailand who confessed to being a CIA spy. A small number of westerners (mostly yachtsman) perished at S-21 and Thais and Vietnamese. Including 2 Australians.

Go looking for information and like most of the Cambodian victims there is often little about them. Found the following on the web - See http://cambodianewsonline.wordpress.com/2006/11/28/11-westerners-executed-in-tuol-sleng -prison/# Tom Farrell Says: April 23rd, 2007 at 8:53 pm

“Peter…I interviewed two Tuol Sleng survivors (Cambodian) and a relative of one of the American prisoners. Ronald Keith Dean (of Wollongong NSW) and David Lloyd Scott were picked up in early November 1978 while sailing their ketch ‘The Sanuk’ from Singapore to Sattaheap in Thailand. After torture, both wrote long, fictitious accounts of their ‘careers’ as CIA agents who had been bribed into using their yachting as a cover for photographing the Cambodian coastline. Then they were executed. I don’t know if family members of either man have come forward. The sister of English victim John Dewhirst now works as a lawyer in Cumbria and told a local newspaper she can’t even think of her brother’s fate without crying…28 years on. The kid brother New Zealand victim, Kerry Hamil is a champion rower and also said the circumstances of his brother’s death wrecked their family. The American relative I spoke to wept as he described seeing Tuol Sleng for the first time…he suffered PTSD afterwards. The Cambodians I spoke to remembers seeing tall bearded white men in nearby cells, but little else. Perhaps it’s better we don’t know how they died.”

Yale Genocide Project Record for Ronald Keith Dean
ID YO6373
http://research.yale.edu:8084/cgp/cbio/cbiorecorddetail.jsp?record_id=18598

Record for David Lloyd Scott
ID YO6374
http://research.yale.edu:8084/cgp/cbio/cbiorecorddetail.jsp?record_id=18597

Most of my time in the early part of the week is devoted to preparing for the 2 workshops on Wednesday and Thursday. Busy printing off and finishing Wednesday’s effort whilst needing to write and prepare Thursday’s presentation so it can be translated. A fairly stressful time as having to switch from one presentation to the other.

Thoughts of S-21 have been intruding on my dreams for these two days. A general feeling of melancholy.

Emails from various Law 609 students – late enrollers (including a transfer from Monash), sick and just returned students. A couple of enrolled students tell me that they are not doing the subject this year (timetable clashes etc). Numbers have risen to about 30 – far more than I expected or planned for. Idea for 15 minute weekly consultations will now take just over a day a week rather than 4 hours.

On the day of the big workshop I am picked up at 7am. A wedding party is being held down the road from the Goldiana. A lot of wedding parties take place on the street (seem to be held at anytime – local consultant went to one last night). Large stall structures – 1 to 2 lanes wide are constructed in the street in front of houses. Usually 2-3 structures. 1 for feeding guests and 1 for cooking the food. Another wedding on Saturday blocks the street a block away from the hotel).

On Thursday picked up to go to the civil society workshop. Pick up the AusAid youth intern on the way. We drive past one of the ministries. Curled up against the lock gate – no one in sight – is a young child, boy I think, who is fast asleep at 7.30am as traffic streams by. Most likely one of the street children and certainly 1 of the official 31% who are illiterate. Struck by sight and think how hopeless life – or more poignantly - how hard life is for such a child in Cambodia.

Same hotel as yesterday. Same feeling of large marbled entry and foray. Antiseptically clean, and airconditioned cold – a cocoon from the heat, smells and sights of the streets a small stone throw away.

A number of morning presentations. Certainly the civil society speakers are passionate, committed although still struggling with exactly what an access to information act would deliver.

My turn to present. Previous session had gone over time by 20 minutes leaving me with 40 minutes (including time allocated for questions), the staff can’t get the powerpoint to work – had been working first thing in morning. Asked to proceed without presentation – okay for first few minutes but then hit the part where I am totally dependent on slides. Go into my Dr Phil mode – and walk about stage with hand held mike taking questions from audience – have to try and guess whether question will be in khmer or English – if khmer I need to put on head phones for translation. If I guess wrong I miss the first part of questions. Eventually they get slides working.

Continue after lunch. Powerpoint once again hit troubles – so need to do the first 20 minutes free style again. Get a number of questions. A good session. The conference goes to well past 5 (numbers slowly drop off during afternoon but about 30 left at the end).

Friday 27 July 2007

Collected at 8am. Have meeting with Drafting Team. Decision to reduce proposed 2 day meeting of drafting team next week to just 1 day. We run through paper and attachments.

Spend day tidying up draft whilst local consultant makes translation changes. While I had been at the civil society workshop on Thursday he had worked through changes with one of Monasri’s under Secretaries of State. Send Pact my interim report (over due but have given several verbal briefings).

Friday night go to Denise’s (LA artist) 50th birthday at top of Khmer Surin. Jock (John from New Zealand goes as well) and about a dozen of the workers from her painting project – young Khmers in their late teens and early 20s. We have a lot of fun – great laughter and lots of jokes. Denise is shouting everyone but at end of night they will not take her card (ATM reader down). So I pay. Denise pays me back when we get to Goldiana – hotel staff amused as I hold her armful of flowers in the foyer. The cost for about 16 people (2 courses plus drinks) = $100 US with tip.

Day 41 Saturday 28th July 2007

A fairly relaxed day. Work on policy paper and then I read Law 609 article summaries. In contrast to most days more relaxed.

Day 42 Sunday 29th July 2007

Have breakfast with Imelda and Denise. Jock has gone to Bangkok to meet his wife who is joining him for the last part of his contract. Denise talks about working with some of the people who were very young children at the start of the Killing Fields. One person is now a monk – who needs to avoid watching TV or other sources of conflict. He travelled with others for 2 years to get to Thai border. At one stage they had to lay submerged in a river using water lily stems to breathe through for several hours. He and his companions ate pellets of river clay to fill their stomachs.

Denise and I then go to Russian Market in a Tuk Tuk. Negotiations on price for ride long and hard – drivers outside hotel organisied and take turns. Avoid undercutting each other. We establish - given Denise’s costs of getting to her work - a base travel rate and negotiate return fare (including a 1 hour wait) to $4 down from the $6 for a 1 way fare we were first presented with. Russian Market got its name during the days of Vietnamese Occupation.

Spend an hour wandering the market, endless haggling, stall after stall of similar stock (organised in groupings of products), as morning advances temperature gets hotter and hotter. I walk away from countless negotiations despite often getting price down to 50-60% of first quote. Have time and heap of stalls. Eventually start getting better bargains by asking for other items to be added. End up with a couple of tablecloths, scarves, a small Buddha and a couple of prints. Work out that prices at Hotel are actually fairly reasonable especially if you deduct tuk tuk fee and haggling time.

So second last week in Phnom Penh ends. Draft Policy Paper has been well received. 2 major public presentations and a Sunday morning of haggling. Later hear Radio Asia is critical of policy – no pleasing some people. They must have missed the first part of the policy and the Information Commissioner and went straight for the exemption and fees section.

Week 5 in Phnom Penh – Another step – and thoughts start to ponder leaving

2007-07-21T03:47:00.000-07:00

Sees the farewell to Jeff (returning to Tamworth) Giedre (returning to London before doing a Masters course in Lithuania) and Marco back to Netherlands for 3 weeks so will miss him on his return. This group of long stayers at the Goldiana are rapidly diminishing. Will soon be replaced by a new bunch of consultants, volunteers, travellers and odd sods.

Another small step towards Cambodia having a FOI law or Access to Information legislation occurred this week. On Wednesday afternoon 18th July the MoNASRI Drafting Team including the inter-ministerial members (Defense, Interior, Information and Justice) accepted the contents of the draft policy paper with a few suggested changes. The chair has given members to 10 am on 23rd of July to give further feedback before we print the copies for the national workshop on Wednesday 25th July. 130 people from Ministries, civil society and donors have been invited to attend the workshop. There will then be about 3 weeks for further feedback and input to occur before the final draft is presented for approval to the Minister and then given to the Council of Ministers.

After that date it will be up to the Council of Ministers, ministries and civil society as to what happens with this proposal. I tend to swing between optimism and pessimism. Certainly the talk and written documents like the Royal Government of Cambodia’s Rectangular Strategy, Governance Action Plan 2 and particular programs like the Defense White Paper are very strong on improving/increasing transparency.

Yet Cambodia has a multitude of problems in terms of the capacity of its civil service – ranging from salaries, training, resources and political affiliation playing an important role in many appointments (or possibly determining who doesn’t get promoted etc). The general response both within and without Cambodia when I initially tell people what I am working on – incredulous, shakes of the head or simply humorous disbelief. It has taken 10 years for the Anti-Corruption law not to yet get to the parliament but I have no reference point for estimating if this policy paper will have a shorter and less problematic journey.

Day 28 Phnom Penh July 14 Saturday

Denise, the LA artist and school teacher, and I meet with her friend, a young French journalist working for Cambodge Soir a French-Khmer newspaper. Journalists have all resigned enmasse from the publication. A long complicated history. We go to a small café – 3 teas and 1 breakfast ends up costing me $2 US.

The journalist fills me in about the complications, difficulties and ways of getting information. She also confirms (a not unfamiliar practice in some African countries) that some investigative journalists offer to pull stories for the right price. She has a little electric scooter (cost $250 US) top speed 20km, silent running. Ideal for Phnom Penh traffic. Denise tells us about her high school which has a classroom for the more difficult students – called the dungeon, down below the auditorium, no windows, teacher – unqualified – with walkie talkie – class mostly African American.

On our return to Hotel Goldiana Denise and I find Imelda, Giedre and John have continued breakfast in foyer. We are later joined by Jeff. We get a few snaps of us together. Say goodbye to Jeff – who had not met John before (Jeff early breakfast eater and John late one so had never overlapped at our table). They have a lot in common.

Finish off polished journal for Week 4 and add to blog after sending to Esther – last I communicate with my wife directly during the week. Our schedules and work patterns meant we kept on missing each other. Miss her heaps and our chats online. Watch Geelong beat Collingwood. Have a very late lunch at Garden Centre. Debate between virtual team members continue. Potter on first lectures for Law 609 Comparative Administrative Law,. Take computer to dinner again to work on this journal. Jun joins me and we talk about music – he likes classical music and Australian wines. Watch a war movie before sleep,

Day 29 Phnom Penh Sunday

Another sightseeing day postponed. I work on comparative administrative law all day. Typing up first set of lectures, finding more readings – including a French-Lithuanian one that pleases Giedre. Notice a slight expansion in the topic area – especially in Holland and in the area of globalisation and administrative law – a very strong US influence..

Think about the rise of the theme globalisation and (insert area of law) and the rise of the global law schools. Also a good excuse for administrative judges to hold conferences etc in places like Tuscany in the summertime. The very large regulatory focus or role of US admin law catches most Australians by surprise.

Collect a series of articles and other material for students,

Email Jeff Lubbers who allows me to use his excellent powerpoint slides on US system and a very useful article on comparative Chinese administrative law. Jeff taught me in his January course at ANU on Comparative US and Australian administrative law. Course probably brought home to me how little I really understand US system. Certainly a little more after 5 intensive days. Would really to jointly teach a comparative course with Jeff.

Very pleasant to spend a day on the course and thinking about admin law in general rather than FOI day in and night out. Looking forward to teaching this course.

Days 30-32 Monday – Wednesday 2pm

This time spent polishing the draft paper - and it really benefits. Much tighter, better presented and more consistent. PACT have all gone (except about 3 staff) on a retreat for the week. So local consultant and I working in solitude. Rumours of a female ghost on our floor. As in Malaysia - the stories and presence of ghosts and spirits taken very seriously. Maybe one day I will talk about the Spirit Dogs of Penang.

Giedre departs for London.

Drafting Team meeting on Wednesday afternoon

Draft policy paper for national workshop on 25yh July largely approved. Members have to 10am on 23rd to provide further comment.

Thursday and Friday Days 33-34

A bit of a come down after build up to the meeting. Local consultant and I working alone in PACT building. Claire the volunteer arrives back on Thursday afternoon. We work on polishing paper, powerpoint presentation for next Wednesday and catch up with documentation.

I mention that on weekend I may go to S21 – Toul Sleng Genocide Museum and/or The Killing Fields. He looked strangely at me. He then talks about visiting the Killing Fields a couple of months after the end of Pol Pot’s regime in 1979, talks about the all prevailing stench. You can see in his eyes the repulsion and the lack of desire to ever return.

Have dinner with Jun on Friday night. He surveys the rice production of 4 farms every day (in this heat exhausting), eats tea at Hotel and then spends rest of evening inputting his data. A treasure trove about farm incomes, farming practices etc. Then stay up to past midnight to watch Geelong beat the Bulldogs.

On Thursday and Friday receive the first week reading notes from Law 609 students. Students had to summarise at least 2 articles on comparative law. A number of original enrolments have dropped but picked up a heap more – numbers now about 25 and may get to 30. A lot more than I was planning for. The briefing notes on the readings are generally very good and most of the students seemed to have really engaged with some of the key points.

Interesting experience teaching the first few weeks at a distance.

Since I have been here 2 floors have been added to the building next door (whilst back at the Law School the room renovations are running behind schedule). Buildings springing up all over the city. The Cambodian lunch place we often eat at – Snack Anarna(?) is being renovated but serves lunch and dinner (renovations occur over night – packed up and meals ready to be served next day). Every day you go in - there is a new change, addition, windows missing, walls disappearing – has about 200+ customers for lunch.

Still find the traffic fascinating. Was told that in Vietnam footpaths are not treated as such ie seen as belonging to the property they are in front of ie for parking, food stalls, shop items (strange to see box after box of large flat screen tvs out front of a shop – and think about what they do when it pours – rush out and drag inside?) and pedestrians belong on street. Exactly the same here in Phnom Penh. The new traffic laws mandating helmets for bikes (not consistently enforced but more and more helmeted riders appearing) is understandable from a safety perspective (not from a heat perspective) but reduces the relax feel of girls sitting side saddle on bikes, resting their heads on the shoulders in front of them – kind of a 1940s/1950s French film feel – especially with girls in white dresses riding old style bicycles.

Cambodia Week 4 - Generals, Ministers, Businessmen and Volunteer Girls and words turning Khmer – a few more days in Phnom Penh

2007-07-20T07:34:00.000-07:00

I got to Thursday afternoon and the last few days lost in a blur. Little time to keep journal updated on a daily basis. A constant routine of very early mornings (usually 4 am recently 2am to 3 am) working on policy paper – first draft due at midday on Friday – A range of meeting ranging from those with a 4 star general and later a Minister of Information to mini-meetings – trying to write the paper whilst discussions held in Khmer.

The previous Sunday is a far distant blur to me. Vaguely recall having breakfast and dinner at the Garden Centre but little in between.

Spend a lot of the time during the week discussing how my awkward English terms can be turned into passable Khmer. Has rammed home to me both the power of translation and the severe limitations. Impressed by the number of volunteers working in Cambodia – Two of the young women I have encountered Giedre and Clare are intelligent, committed and sharp.

I think the prospect, eventually, of a FOI or access to information act for Cambodia took a couple of small steps forward this week. Workshop with NGOs advanced awareness and the consultations with key Ministries has at least put the topic on the agenda. Late on Friday afternoon a draft policy paper was doing the rounds of Ministry corridors (hopefully can be read by early next week). The first few days of next week will allow us to catch up with notes and preparation for national workshop on 25th July. The first government sponsored FOI workshop in Cambodia.

Day 23 Monday 9th July.

The meeting shuffle

Monday morning we get to work early only to discover that the two morning meetings have been rescheduled for Wednesday – stuffing up today’s arrangement re cars/interpreter but also now filling up Wednesday with meetings. Only time to really work on paper is early morning. Tend to be too zonked to do this at night.

Monday afternoon we go to the Ministry of National Defense and Ministry of Interior at different ends of town – 15-20 minutes to get between each meeting – no leeway in schedule.

An almost surreal experience. We arrive at Ministry of National Defense. Go up sweeping staircases. Shepherded pass several helmeted armed guards with an increasing larger amount of braid and insignia as we get closer to meeting.

Into large airy room. Double the size of the University Council Room. Long tables like at Peace Accords – could fit 12-15 on each side – with rows of chairs and desks behind – very wide room. The six of us sitting across from 8 generals and colonels plus a civilian Secretary of State. A 4 star general is acting Minister of Defence. Full uniforms and caps. Wish I had been able to take photo. Our request for an appointment had caught them unaware. The timeframes for this project have really accelerated the normal process. All of them had their pocket Cambodian constitutions that they flicked through after reading my briefing notes (translated into Khmer) about how Sections 31,35 and 41 can be read together to establish a constitutional basis to the right to access information… A fairly powerful argument. In particular we are arguing that Article 35 imposes a duty or expectation on citizens to advise the organs of the state –

“Article 35 - Khmer citizens of either sex shall have the right to participate actively in the political, economic, social, and cultural life of the nation. Any suggestions from the people shall be given full consideration by the organs of the State."

A function/duty that requires an ability to access and use government-held information so that the suggestions are informed and more relevant and accurate.

Made it clear that they had lots of information they needed to protect – including actual number of soldiers (controversial issue at moment – army is meant to be demobilising) and under impression that any soldier might be required to release information contrary to their military legislation. Haven’t been able to convince them that all access legislation provides for important defense information – especially related to combat or combat preparedness – to be protected. The issue will come down to whether we can persuade them that 1. The proposed harm test will provide sufficient protection and that 2. they need to start from the principles of the policy.

Hard to convince, in any jurisdiction, those use to blanket restrictions and sweeping use of confidential, secret and top secret classifications that they can function in a slightly more transparent regime. The start is to have Ministries start to think about what information they could release with no or little harm.

At end of meeting we asked for a copy of the legislation they had kept referring to and they told us - they couldn't give to us – FOI off to a good start. Although the next week we were provided with the legislation. Another small step. People keep telling me small steps, small steps.

Given the recent history of Cambodia and the universal nature of defense forces it is not a surprise that the concern is about discipline (the mistaken idea that an access to information act would allow any solider to release information as opposed to authorised Access to Information Officers), adherence to existing legislation and procedures (not yet thinking about if the two FOI and the existing legislation can work together) and reactive (little time to absorb the reasoning of the policy).

The following week I get time to read the entire Defense White Paper and learn about Ghost Soliders, the high number of officers (77% of Defense force), problems of promotion and nepotism, I then come across the section on transparency.

Defending the Kingdom of Cambodia 2006 Security Development and International Co-operation : Defense Policy of the Kingdom of Cambodia 2006 pages 87-88

“Good governance, the Royal Government’s fundamental objective, needs transparency. All strategic objectives written in the Defense White Paper depend completely on the strengthening of transparency for implementation. Another main support for transparency is a military law system. The need for further strengthening laws as described in chapter 4 not only aligns with international norms but it is also necessary for every soldier. “

Then off to the Ministry of Interior. Classical French colonial architecture – large verandas – open hall ways to allow breeze and air circulation. Met by cameras (digital and video) to record our arrival. Secretary of State well informed and sounded fairly relaxed with the concept of allowing a little more access specially if a clearer set of guidelines put in place.

For each meeting my presentation more focused – then in the meetings last week - on the concerns and issues for each Ministry. Interpreter excellent – simultaneous interpretation. Yet gets hard to concentrate when – apart from my questions/comments the meetings tend to be replays of each other.

In spare time during Monday got ready for the two seminars on Tuesday – I think I did that on Sunday as well. But just can’t recall.

The consultancy is being undertaken at a much faster pace and intensity than I expected, intended or am prepared for in terms of capacity and energy. Little time for reflection or time just to contemplate before having to make decisions. Countless decisions being made on the run – whether it be hiring extra translators, content of draft or response to any problems. However progress being made and slowly becoming a joint work product.

Tuesday 10th July Day 24

Civil Society Seminar in the morning started at 8.30 to about 30-40 representatives from NGOs. I do a 30-40 minute presentation. An hour or so of questions.

Afternoon session with donors. No chance to work on policy during the day. Deadline fast approaching.

Go downstairs for tea with computer – a sad commentary on this consultancy life. Having a MacBook as my preferred dining companion. Do a bit and then join Jun for a meal. Japanese agronomist – here for 5 weeks – already been here for 2 weeks. Has 2 soccer keen boys (10 and 12) at home. He is studying rice yields and climate change. Works in the field each day. Tends to be stuffed when he returns to the Goldiana. His English is halting but accessible.

Wednesday 11th July Day 25

Up very early about 3am. Get a lot done. Full crowd at breakfast. Suppose to be 8 am start but local consultant so wrapped up in translating does not arrive till almost 8.30. After that we tend to be out of sync all day. He has been up since 4 am translating. We are only surviving by burning the candle at both ends.

Meeting in morning with Ministry of Justice. Female under-secretary of state, judge – trained in Russia. Courts and laws a complete mixture. A lot of staff trained in various countries including Japan. So laws are often Khmer/French (Penal Code) or Khmer/Japanese etc. Cambodia has project to put Civil verdicts and cases online and then eventually their legislation.

Afternoon meeting is at the Ministry of Information. Meet Minister. He was jailed by Hun Sen late 1980s for forming an opposition party. When released from jail went to work with Hun Sen. – now Information Minister. Meeting went well, the Minister was well informed and detailed the operations of the Press Law (which has a mini-FOI process for journalists that hasn’t worked). Ministry of Information in a run down compound – from French colonial times – most signs in Khmer and French. One building - large old Cambodian style (curved roof, sweeping rafters) has completely collapsed at one end but staff are still using offices at the other end. Compound overgrown, everything looks neglected. Yet where we meet has been set up almost as a broadcast area, met by several tv cameras, photographers that cover opening part of meeting.

Wednesday night have dinner and work at Garden Center with my normal companion - computer.

Thursday 12th July Day 26

Up at 2am to work on policy till 6 am. Enjoyable breakfast with the usual suspects except Denise the teacher/artist from LA. I arrange for Giedre and Elise ----, my 15 year old daughter who is in London on the way home (long way) from a 5 month student exchange just outside Madrid --- to try and catch up in London after Giedre’s return. Although only about a 30 hour overlap in their time together in London. I think they would enjoy meeting each other.

Drafting Team leader wants 8 o’clock meeting to go over schedule of national workshop to be held on 25th of July– now being opened by MoNASRI’s minister. I spend a lot of the meeting – that is conducted mostly in Khmer – working on policy paper, stopping occasionally to answer questions. Meeting goes for about 90 minutes – manage to finish last section of paper. Local consultant begs me to stop so he can complete translation. So paper has new deadline – ie today. Use spare time to catch up with journal and finally think about the policy paper and the progress of the project to date.

Spend afternoon winding down, catching up with paperwork and electronic filing. Local consultant has mishap and loses about 2 hours of translating. His back ups hadn’t worked for some reason.

Catch up with Denise who is off to another art opening. Also see Giedre and we talk for a while. Have dinner with Jun the agronomist and we talk about Japanese history and culture (my studies from 20 years ago paying off) impress him by having read all Misihma Yukio’s works. He gives me a beautiful, in his faltering English, account of Buddhist belief in reincarnation and how deeply ingrain it is in the Japanese. Short power failure. This is a richer neighbourhood so power failures less frequent and of shorter duration then compared to other parts of Phnom Penh. Spent a while during the day on MSN to Elise, Lance and Esther. Esther snowed under as 1 eBay buyer buys several books as we chat.

Also generated extensive series of discussions with my virtual expert group on Fees and FOI. Very extensive contributions by everyone – included Paul Hubbard who started the discussion with me in the network.

When this consultancy finishes will try to do a summary of the key points from these discussions.

I spend some time outside with the geckos contemplating the night skyline of Phnom Penh.

Friday 13th July Day 27

Up about 4 am. Decide I should at least add a short executive summary (dot point) to policy paper. Also need to check that I have specifically mentioned an exemption for defense matters that are in the public interest. Defense called yesterday wanting early copies of the draft. Keep on imaging generals turning up at my door wanting to know “you want access to what!”

Jeff is leaving tomorrow (farmer/consultant from Tamworth – originally Moree), a banking consultant joins us from Bangladesh. Imelda worried re passport and visa. Joined later by John and Giedre. Giedre and I spend about 20 minutes chatting after the others have left. Her mum runs a small restaurant near Latvian border – her father worked for an oil company. Their home business also has a 200 year old windmill and 3 new wind turbines – they sell power to the power grid. We have a discussion about the interrelationship between NGOS and civil service and rates of power. Local consultant late again so I work on executive summary in lobby. Denise talks to me about one of the 17 journalists who resigned from a French-Khmer newspaper here. Arrange to meet Denise and her French friend sometime on Saturday.

Spend morning tidying up, printing out the printable English version of the policy paper and doing this journal whilst waiting for the translation to be completed. The power outrage in local consultant’s neighbourhood was over an hour so has thrown him way behind his schedule.

Finally get the English and Khmer versions of the policy paper to Ministry by 3.30 pm. – 3 hours late. No Khmer executive summary Spend rest of afternoon tidying up files.

Catch my first Tuk Tuk to the Hotel Cambodiana. About 40 attend Aaron’s talk. Aaron presenting PACT’s clean business campaign. Talk to doctor – in country for 14 years started as a VSO volunteer (UK equivalent to Volunteers Aboard), became increasingly disillusioned with the corruption in the UN , then other NGOs – believes the legal system is corrupt from the top down – many lawyer friends and he services the prison. Argues that everyone from witnesses to judges are open to payment. 80% of population have no birth records so in prosecution cases for underage sex etc – the age of the victim simply changes depending whether you pay or not. After killing fields only 10 lawyers or so left in country. So majority of judges still are not legally trained. If they are trained could be trained anywhere – France, Russia, Vietnam, Japan, US and to a lesser degree UK and Australia.

Sit next to Claire at the dinner, a volunteer at PACT, originally from Chicago, studied on West Coast and worked there, now enrolled in law school at Boston. Been in Cambodia 3 months heading to law school in a month. Short, dark hair, very interesting person – sharp mind. We have a long discussion with the CEO Asia-Pacific Business Coalition on HIV/AIDS a former British and Australian (since 1995). Clarie is also doing food reviews (not paid but free food), will get some recommendations from here.

At end of night Regional Director for PACT – runs me through a major debrief of project – SWOT analysis, looking at project from several perspectives. An interesting and educative experience especially late at night – we head out along a corridor of bright yellow/gold tube lighting which could be from any sci-fi set of the 70s or a Jane Fonda movie of the 1960s – imagine a long star trek corridor that every 3 metres has a strip of this lighting up walls and across roof – and runs for about 30-40 metres. Meanwhile in the bar next door someone is murdering a Tom Jones song at full throttle.

Come back to a vigorous discussion on email from the Virtual Team about whether the policy paper should decrease/cut mention of NGOs and push positive development argument – keep the rights focus and one member in the middle. I am also in the middle keen to push both rights and pro-development aspects.

Just another Friday night in Phnom Penh.

Cambodia Week 3

2007-07-08T15:09:00.001-07:00

Week 3 – A crescendo of work, people and politics

A week that started quietly but just gradually built up into an intense round of experiences, ups and downs and little time to reflect on my island home so far away. Far away in terms of flight hours, culture, interaction and landscape. Most days steamy, with a tropical downpour that pours down for about 20-40 minutes.

Worked on the Saturday at PACT. The Tuk Tuk drivers despair of ever seeing one of my crumpled US dollars. Have almost worked my way through the menus of the Goldiana and my 2 favourite near by eating places the Khmer Surim and the Garden Centre – contrasts in food, light, feel and clientele.

Sunday is a relatively quiet day I work on Law 609 Comparative Administrative Law so I can email off the adjusted course outline so students can decide whether they want to remain enrolled. Esther emails about our new dog Sophie’s lame efforts at dog training.

Monday up at 4am to email off Law 609 material and answer emails from my two virtual teams for the project. A Formal Team that consists of an expert from India, a senior World Bank official, Article 19’s key person on FOI – Toby Mendel and Al Roberts from the US. My informal team - friends and contacts who I can bounce much more undeveloped ideas off – consists of an archivist from Botswana, Paul Hubbard (UTAS graduate now Fulbright scholar – doing a summer internship in Washington DC), a friend working for UNDP in Fiji, an official from NZ Ombudsman office and Weibing (postgraduate student). Later in week I hire Weibing to undertake some research for project.

Monday morning starts the process of bringing my various breakfast companions together. By week’s end we are a very interactive and friendly breakfast club. But this morning I dine with Imelda (age possibly post 50s – Irish descent but born in London but can’t tolerate living there), who has crammed several lifetimes of experiences in PNG, South Pacific, Australia and now Cambodia. Every day like a rose she unfurls that little more – and another layer of stories and wild experiences are added.

Jeff, a retired farmer from Moree (12,000 hectares) and who now works in Cambodia and Bangladesh as an agricultural consultant (has an ag-sci degree). Big, partially deaf, so speaks loudly and the type of no nonsense farmer who doesn’t hesitate to speak his mind. Pops by table to give me details of a reliable travel agent who can get me to Angkor Wat if I get a 2 day window.

Today is the first day for us (local consultant and myself) to be based at the Ministry. We are given the large meeting room to sit in. Nothing else but a large table and twenty empty chairs (plastic wraps still on some). Spend morning working whilst local consultant tries to translate my writing into Khmer. Spend remainder of day organising workshops for the following week.

Eat at the local food place – still the only European who eats there.

In the far end of the Ministry car park – within the walled compound – I notice a car with flat tires and a clothes rack next to it. Closer inspection shows a family living in car. I assume the father may work as a cleaner within ministry. Later in week I noticed on the building site next door that as each storey completed the family of the workers move in and live in the completed sections – explains to me the large number of children around site late at night.

Notice a few school age kids in the rundown areas who clearly do not attend school.

On outskirts of slum area (where demonstrations held about land clearance on Friday and Saturday) are cart pushers who look like they sleep in and/or under their carts during the day.

Tuesday

Up around 5 am work on policy paper. Have breakfast with Imelda and John from New Zealand (who in spare time is a pilot and building an ultralight aircraft in NZ) working on agricultural financing in Cambodia including looking at micro-financing with AusAID. Would love to have Lance here to listening to some of these people and to see applied economics – political economy in action.

After breakfast get some feedback from my informal group on part of the paper. Go to PACT (the NGO supporting us) to do printing, chaseup next week’s meetings, arrange cars etc. Finally my local consultant can sign his contract (after working for 7 days and payment still a week or so away).

Saw a truckload of monks and an old black and white (a la Blues Brothers) police car. Someone at breakfast pointed out that since new road laws the amount of corrupt activity by police has increased.

Get back to Hotel Goldiana and chill out for an hour or so. Go exploring the neighbourhood (large double block). Eat at Khmer Surim again, Joined by Denise an American artist , mural painter , about 50, glasses, blonde tied back hair, has been to Cambodia several times, she also travels regularly to Korea. Has invested in several rental properties in LA, teaches in Long Reach. Had a sculpture exhibition last week – contemporary. She is working on a mural project with young art students. Very bright. Teaches me the polite form of bowing and the Cambodian for thankyou. The bowing lesson reaps enormous dividends over next few days.

Wednesday

Meeting at 8.30 at Ministry with Drafting team lasts all morning.

Thursday

Breakfast was a linking up of various long termers I had met at hotel and introducing them to each other. I was dressed in my suit because leaving at 7.30 for the VIP meetings.

So at table, at various times was Imelda, Jeff (from Tamworth), Marco (a Dutch Engineer working with Mekong River Commission on flood prevention/control) Denise the mural artist from LA and Giedre from Lithuania – blonde, tall, speaks Russian, Spanish and flawless English, graduate in Russian politics,

Picked up at 7.30 (Marko concerned with quality of my tie). Met the interpreter.

Each meeting was conducted much the same – formal greetings (in Senate, Assembly, Council of Ministers), sitting across the table from each other. A formal opening by our side, a response, then my turn to brief, then questions and usually one of our team doing the last sales pitch then formal goodbyes.

Venues very different. National Assembly building in new parliament – meeting room lavish, one of the most beautiful tables I have seen in my travels. Lots of cars with blacked out windows entering and exiting the National Assembly compound.

The Senate is some distance away from the national assembly in a large compound, beautiful landscapes. Probably a large French influence.

The Council of Ministers (last 2 meetings) is based in the Russian Friendship Building. Probably built early Vietnamese occupation but feels more like Stalin’s Russia. Very run down building. Being replaced by a new $8 million US building (Chinese Aid) being built next door – will be massive – just looking at foundations. Series of minor officials at all meetings.

Had to postpone 1 till tomorrow with Chairman of Administrative Reform Council. (This turns out to be a very interesting experience)

Had meetings with several people including:

Chairman of NA 5th Commission H.E. Son Chhay, MP
Chairman of Senate 5th Commission H.E. Mrs. Ty Borasy, Senator
H.E. Sam Sophal Vice-Chair of Legal and Judicial Council

All meetings went well in particular the last meeting. Exhausted at the end of the day.

Got another series of talks with key departments and 1 deputy
Prime Minister on Monday. The Defense Department meeting will be with 2 secretaries of state, 3 secretary-generals and a couple more. The Ministry has just announced its member for our team – a General. Then 2 briefing workshops on Tuesday (civil society and donors, international institutions).

So falling behind on draft production - but I think the meetings are
gathering a good set of inputs and concerns and paving the way for the policy paper to the Council of Ministers.

Had lunch at the Sweet Restaurant just around corner from PACT – first time I have seen cigarettes on a menu. Have noticed few Cambodians smoke (or smoke a lot). Told very expensive 50 cents US for 1 cigarette.

Have dinner by myself at Khmer Surim and an apple crumble at Garden Centre. Have an epiphany about how to respond to some of the concerns raised during the Senate meeting.

In bed by 10pm.

Friday

Up at 4 am. Send out plea for help with policy to my informal network and hire Weibing to work on rough draft of one section.

The full breakfast crew - Imelda, Jeff (from Tamworth), Marco (the Dutch Engineer) Denise the mural artist from LA and Giedre and John (the banker from New Zealand) share the table at some stage. Giedre doing a policy/planning paper for a network of 27 groups. Working as a volunteer in the area of child prostitution.

Check about my visa extension later at PACT but forgot to bring 2 photos. Must do on Monday. Around 10 we head off for our meeting with Secretary General for Council for Administrative Reform.

Several advisors present. We receive a very long lecture on the 10-15 reasons why Cambodia doesn’t need an FOI Act anytime in foreseeable future if at all. Receive a history lesson about the Khmer Rouge and aftermath.

Go back to PACT work on minutes and plan for workshops on Tuesday. Have lunch at the Japanese Restaurant near work.

One of my companions had 8 brothers and 1 sister. Lost 3 brothers, sister and mother to the Killing Fields. He is No. 1 son, father is now an 88 year old monk. He makes food for his father each day. His remaining brothers have done very well, youngest is ambassador to Japan, another has 3 PhDs, the others all have Phds.

Have dinner in hotel restaurant work on draft of section 3 over my green chicken curry. Get a rough draft to send to Charmaine and Paul in my informal network. Watch Cats play Essendon, - so up late but worth it. talk to Lance on MSN – finishing his room – the family and Amy down with flu. Esther has week off.

Paul comes back with a revised version of a draft – “a bit of a hack”. In truth by some rearranging and a few well chosen words he has transformed it. So with a Cats victory and a great draft of a section of the policy paper I am very happy.

Saturday

Up early working on drafts of various sections and trying to get a powerpoint presentation together for the two seminars on Tuesday. Monday is completely filled with meetings with various ministries and 1 Deputy Prime Minister so will have no other time to get ready.

Normal crew at breakfast, Marco off to work in Indonesia for 7 days. Geidre into her last week.

Go back to room and work solidly throughout morning. Entrapped by the breakfast girls - Imelda, Denise and Giedre to join them for lunch at the Garden Centre. Lasted 3 hours (needed the break and their company). Then back to work.

Later that night I have a long briefing over dinner with the World Bank senior official who is part of formal virtual team. He is fairly critical (not of paper but of timeframe and process that is being used).

Reflections on last 3 weeks

Seems like an eternity since I was freezing at Salamanca Market and said goodbye to Esther on the corner of Salamanca Place.

Project

Still on track but high potential for it to stall or fall over.
Optimistic will produce a draft Policy Paper. The meetings next week and the National Workshop the week after will be critical tests.

Project has been much more complex, more critical and more dependent on a couple of people than I had contemplated. Certainly my role has extended from simply being a consultant working to a team. Support from PACT has been critical.

The Public Service in Cambodia

Everything I had read prior to my trip has been confirmed. To say that it lacks capacity is a gross understatement. Reactive and poor resources (of all kinds including intellectual – drained off by Council of Ministers , NGOS or private sector). Standards and capacity several grades below the internationally supported NGOS. Extremely politicisied to most levels.

Legal System

A complex amalgam of Cambodian (Buddhist), monarchy, French, German – various shades of Communist and now influence of major donors like USA.

Politics

Plays out at all levels. National versus donor. Factions, changing alliances, operation of family links and obligations, patronage politics practiced to an art form. History a big influence even prior to Year 0 but especially since.

Cambodians I work with

• Middle class and upper class
• Friendly
• Wicked sense of humour
• Impact of Killing Fields
• Hard working
• The importance of and strength of networks

Poverty

Signs of it everywhere but less than I expected or experienced by others who visited a few years back. Occasional beggar but mostly I have not been out of main city area.

Lots of activity buildings, stalls, small businesses, growing middle class. On one of the boulevards motorbikes on sale in front of each shop for several blocks.

Corruption major, but largely unseen, hand on almost everything from building permits, traffic to positions in public service (many brought).

Orphans

The numbers 500,000+ stagger me. The hotel has several families staying here who are going through the process of adoption (a number of Italian families). Some very strong moral and development arguments here but the sheer joy and love of the adopting families hard to ignore.

Hotel is Kid Safe as are Tuk Tuk drivers in the area – to prevent child prostitutes or abuse of young children. Hard to comprehend the level of child prostitution outline by Giedre – partly triggered by levels of poverty, orphans and corruption (known areas where it takes place ie like near Russian Market).

Cambodia - Weeks 1-2

2007-07-08T14:47:00.000-07:00

Apologies and caveats

My apologies for being off-air for so long. Heavy teaching load first semester. My general operating principle is to allocate my time to family, teaching, research, gardening and then projects like this. With 2 courses and 600+ students on 3 campuses the last 2 items have got minimal attention in last few months.

These Cambodian enteries are simply a rough journal of my time working in Phnom Penh on a FOI project. Written more for family and students. Restricted, mostly by my choice, about what I can and should say about the actual project. Although it will be clear from comments that the challenges of helping to design an access for information scheme for a country like Cambodia are both many and often confronting.

Background to FOI or Access to Information in Cambodia

Cambodian Government has signed up with Development Partners ( Donor Countries and bodies like World Bank) to develop a clear policy framework on Access to Information (why I have been hired).

The Cambodian Parliament and civil society have also been active in promoting and encouraging greater transparency - with support from Article 19, UNESCO and World Bank.

In late 2002 the 5th Committee of the Senate initiated a bill on Freedom of Information.

In 2003 local and international NGOs began to advocate for a national Freedom of Information Law. In January 2005 a formal Freedom of Information Working Group was formed. A number of important and well attended conferences have been held that have informed Cambodians about Access to Information laws and best practices. These conferences included:

2004 – Workshop on Freedom of Information 23 June 2004 Phnom Penh
90 participants from 58 organisations.

2005 – Workshop on International Best Practices and Standards of Freedom of Information. 6-7 June 2004 Phnom Penh
112 participants.

2005 – Seminar on Access to Information 14-16 September 2005 Sihanouk Ville
38 participants

2006 - Seminar “New Trends on Freedom of Information and Access to Information in Cambodia” 4-5 April 2006 Phnom Penh

2006 – Seminar “Public Access to Information in Cambodia” 24 November MoNASRI Phnom Penh

A draft law has also been drawn up by the NGO ADHOC.

First Two Weeks in Cambodia

I have been engaged on a seven week consultancy by USAID through PACT Cambodia (a capacity building NGO) to assist MoNASRI (The Ministry for National Assembly Senate Relations and Inspections) to help draft a Policy Paper on Freedom of Information.

See US Embassy write up and picture of Formal Signing Ceremony at http://phnompenh.usembassy.gov/usaid_monasri_mou.html
After the 2006 Consultative Group meeting, the Ministry of National Assembly, Senate Relations and Inspections was given the mandate by the Council of Ministers to develop a government Policy Paper on Access to Information prior to the development of a Access to Information Law and that this Policy Paper be approved by the Council of Ministers. The Policy Paper will set out the framework for the government’s strategy on increasing access to information. It will define access to information, the role of government agencies and other stakeholders in promoting access to government information, fundamental principles to be included in the draft law, timeframe for its passage and designated agency responsible for the development of the draft law. This policy paper will provide guidance to the government’s commitment for promoting access to government information.

I am working with a local consultant and a drafting team of about 17 representatives from MoNASRI and other ministries. Usually just 3 of us on a day to day basis..

I have been in Cambodia for just over 2 weeks and deadlines for first drafts etc of the Policy Paper are fast approaching.

Many who I meet – both Cambodian and foreigners – try to diminish my expectations by pointing out that any progress at all on this issue in 7 weeks will be a welcome success.

Have been having lots of discussions with my various networks about whether FOI is possible in Countries in Transit or not.

I spend most of my time working so get to see few of the sights. But I do see the extremes of poverty (despite Cambodia having 8-10% growth each year) and wealth ie small unclothed children scrambling in rubbish piles at the edge of the road and a block further along a new Lamborghini outside a nightclub.

The traffic and its informality and flexible patterns and rules are a constant source of bewilderment and puzzlement to me. This is an extract from my diary about day 1 on the way from the airport to Hotel Goldiana

Entry into real Cambodian traffic - Sunday morning and roads very busy.
Series of little scenes stay in mind -

Traffic flows freely but slowly - we do about 30-40km for most of trip. The reason for this becomes slowly apparent.

Whilst traffic sticks to left and right (Cambodia is a left hand driving country) your position in that lane(s) is fairly flexible. If cars, bikes, tuk tuks (motor bikes with cart with roof on it) come too close or you intend to move up close to a motor bike rider who is busy applying her makeup you beep your horn.

A lot of driving is a slow delicate weaving in and out whether bus, bike or car

Most intersections appear to be unregulated - traffic, pedestrians just seem to glide through each other - never stopping but slowing to assist timing - all seems to be a question of fine timing. Watched as a young woman on a push bike who seemed to travelling at a constant speed just glided through a busy intersection.

Range of vehicles but most common small 50-150cc motor bikes -
occasional bike ridden by one person but generally two. If second person a woman or girl they tend to sit side saddle.

Often there are three on a 100cc bike - passed two bikes with 4 priests in yellow/orange robes and 2 drivers.

Occasionally you will see 4 men or women riding on the same bike. So you can imagine how many people there might be in a tarago van (lost count at about 12).

Having slight apprehension about walking anywhere - have doubts about my capacity to glide across intersections.

All the hallmarks of poverty abound - lots of small foodstalls, vendors with mats on grounds selling shoes (sometimes not in pairs). Lots of building rubble - every second building seems to be being built, repaired or tumbling down. Mounds of rubbish on corners. At same time paradox of endless small communication shops.

The Hotel Goldiana, is in the twilight of its golden years but clean and fairly well located especially in getting to PACT and MoNASRI. Every morning I keep of thinking about the lyrics of Hotel California.

The guests gather for breakfast (included in most room charges) the normal array of eggs, dried bacon, sad small sausages, an array of fruit, ceral and drinks. An interesting mixture of people – consultants (some on quick 2 day hit and runs and others like me here for a couple of months), visiting school groups, German and French backpackers, NGO workers and spare characters left over from a Graham Greene or Albert Camus novel.

The consultants are generally older than me – usually retired. They have great stories to tell and I have learnt a lot especially about agriculture and the frustrations of working with Cambodian bureaucracy.

I try and make a point of inviting myself to join an occupied table at breakfast so I can meet more of this ever changing cast of characters.

Strangely few, and on many nights no one, eat at the hotel in the evenings. I have eaten there a few nights and food is good and comparable to any of the other places you can eat within walking distance. And price the same. So not sure why no one eats there. The more westernisied, and costly, places are down alongside the Mekong – a 5 minute bike or tuk tuk journey away.

I am inhabiting a weird netherworld between the NGO PACT and the government officials in MoNASRI. I work with both, report to both and get caught up in all the agendas. Furthermore the outside surface and calm is interrupted by a starker and more troublesome reality. Report on internet that a Cambodian journalist has fled to Bangkok after death threats due to his reporting on forest clearing and ripoffs. On the weekend a large trade union has taken out a full page ad seeking justice for 3 leading union leaders they claim were assassinated over last 3 years (and in Australia we worry over unionists whose language is a bit blue or aggressive). Yet here am I sitting in the bowels of the Cambodian public service working on an Access to Information policy paper. Certainly not the heart – MoNASRI doesn’t carry that much weight – although on Thursday and the following Monday I am meeting with a series of senior government officials and parliamentary leaders. Suit days – being escorted by several senior MoNASRI officials.

It is hard to comprehend the wage levels here. The national average wage is 65 US cents a day. A low level public servant will earn about $25 - $40 US a month (my daily hotel bill costs more). A senior bureaucrat between $300 to $400 US a month. A waitress at the hotel between $1 to $3 a day.

There are 650,000 orphans in a country of just 14 million people. The official illiteracy rate is about 30%.

The currency is Riel but $US is the de facto currency.

Many of the senior civil servants I am working with have survived 4 regime changes since Pol Pot’s Year Zero in 1975. Many I work with have their stories of the Killing Fields and time spent working in the countryside. Many are supporting extended families on 1 salary until recent times when their older children, nieces and nephews have started to earn incomes.

Recent Readings 1

2007-02-07T03:55:00.000-08:00

Ideas from recent readings

I want to use the blog to also develop and evolve my thinking and to share reflections of recent readings. These pieces are not meant to be comprehensive reviews of articles or books but more the ideas or bits and pieces that have struck a chord with me.

1. Herbert Kubicek “Third-generation Freedom of Information in the Context of E-Government: The Case of Bremen, Germany” The End Users’ View 275-286 in G. Aichholzer & H. Burkert (Eds.), Public Sector Information in the Digital Age: Between Markets, Public Management and Citizens’ Rights. Edward Elgar Publishing Limited, Cheltenham. 2004

Kubicek ponders why it is difficult to implement appropriate FOI procedures despite recognition of the value or merits of a basic right to freedom of information. (275)

Arguments against FOI implementation are generally focused on conflict with privacy and administration and other costs. He argues that the ‘pros and cons have been exchanged for more than 10 years. And the discussion moves in circles.” (276) A change in paradigm is needed to overcome objections to FOI and avoid “circular discussions and to keep up with changes in society and public administration in light of the information/knowledge society and e-government.” (276)

Writing from a computer science perspective Kubicek adds an interesting layer of analysis to FOI.

Kubicek discusses the issue of fees but contrasts the charges for an indeterminate ‘fishing’ or searching exercise and the appropriate fees in a well organisied system where users are assisted to target requests (along lines of the Australian Law Reform Commission and Administrative Review Council Report No. 77 in 1996 recommendations on fees) (277)

“All second-generation FOI legislation implicitly supposes that the citizens know exactly which document or file they want to access and that they are able to articulate this in the terminology of the administration.’ (277)

[The concept of waves of FOI development – see Al Roberts' Black Box or versions of development -and my software analogy of Australian FOI design ie versions 1.0 to 1.(?) in “Freedom of Information: The experience of the Australian states - an epiphany?” Federal Law Review Vol 29, 2001 , 343-358) is an interesting one].

“Access to information requires orienting or meta-information.” (277)

Role traditionally played by journalists, librarians and other information specialists. [a point made by Robert Hazel – article title escapes me]. In many jurisdictions this role is either explicitly, or implicitly, allocated to FOI officers who are left with the task of (if they are willing, resourced, applicant orientated or trained to act as an information guide. However many FOi systems enter a downward spiral (often due to under resourcing – a key point from the Canadian Access to Information Task Force Report) where information orientation is withdrawn and consequently requests become more time consuming and occasionally become a little more than a “guess what is in my hand” game.

Paradoxically the world wide web has seen the development of Google, other search engines and services (Wikipedia etc) that support or supply this information access infrastructure/capacity ((277).

“Original FOI legislation followed a pull model of information provision.” (279) that requires an interested citizen to make the effort to request (needing appropriate meta-information or access infrastructure) – very costly, disruptive (a theme addressed in the Canadian Access to Information Task Force Report 2002 and my Spin article - "Freedom of Information and the delivery of diminishing returns or how spin doctors and journalists have mistreated a volatile reform," in The Drawing Board: An Australian Review of Public Affairs, Volume 3, Number 2: March 2002, 187–207.)

A push strategy reduces cost, helps target information, tries to ensure or improve information quality. This would avoid the Harry Arthurs critique of ‘fishing for fragments of information’ or the Geoffrey Palmer observation that the documentary trail/record only tells part of the story. In a pull environment the best you can hope for is a partial (or at times) unhindered access to the documentary record whereas in a push environment that original documentary record should be supplemented by reflection, commentary or subsequent knowledge.

Kubicek argues that we need to try and re-conceive our idea of FOI to help realise the promise or potential of an information society. He suggests a trajectory for 3rd generation FOI (with an interesting diagram) which would proceed from pull to push, and from dispersed listings (or nonlistings) to comprehensive user-centred indexing. (280)

This analysis of non-user-centered FOI highlights one of the key weaknesses or deficiencies of FOI. Indeed a lot of e-government activity is very much motivated aby and designed to be government-centric.

In the last part of the article Kubicek explores the impediment, or dragging effect of trying to manage/implement e-government purely from the perspective or focus of internal users/stakeholders. He advocates ‘back-office integration’ to integrate internet and intranet operations. (284-285) He argues that “using filters, the same databases can be open for access by citizens.” (285) A position Al Roberts explores in his chapter Liquid Paper in Blacked Out: Government Secrecy in the Information Age.

Kubicek argues rather than constructing an intra-government version of e-government where we subsequently attempt to place a FOI/access regime over the top “the access of citizens should be included as one of the knowledge objectives within the knowledge management cycle.” (285)

The concept of a knowledge management cycle is an interesting one – definition of knowledge objectives, identification of relevant knowledge areas and elements then “acquisition, structuring and indexing are followed by distribution, monitoring and evaluation of usage, maintenance and revision of objectives,” (285)

Most FOI schemes would be considered poor or dysfunctional knowledge management systems, This was a critique of the FOI process in Canada by the Access to Information Review Task Force that FOI failed to be conceived of or used as a learning tool.

In Kubicek’s view a knowledge management perspective puts a dynamic view on data and information. (285)

This argument has a lot of resonance with the insights of the Canadian Access to Information Task Force derived from their system(s) analysis of FOI.

I remember once getting a phone call from a South Australian economics academic (after I had appeared on a local radio show) asking what were the measurable benefits or gains – or how do we assess – the impact of FOI. A recent study commenced by the Constitutional Unit at University College London on evaluating the impact of an FOI Act may help give us a response to this question.

Kubicek’s article links to another set of recent reading

2. John Taylor – The Information Polity in William H Dutton (ed) Society on the Line: Information Politics in the Digital Age, Oxford University Press 1999, 197-199.

This brief overview of Taylor’s concept explores the impact/relationship of ICT on public administration.

Taylor states “As the governments of many countries come to redefine their governance processes through the intensive application of ICTs, so we are provided with opportunities to explore the characteristics of the emergent ‘information polity’.

In an earlier article Taylor and Bellamy (1997) explained that five sets of relationships lie at the heart of the information polity –

Taylor makes the point that whilst theoretically new computer networks, systems and processes pose challenges to “long-standing organizational arrangements with the machinery of government …Organizational arrangements establish powerful interests which both shape and resist change, however, and outcomes are shaped from the mutual adjustments made with them.” (197)

At their most benign these system legacies are a major drag on new developments whether in the ICT area (Taylor’s focus) or FOI. Therefore Taylor sees the need to focus not just on the new system’s, processes but to analysis the ‘evolutionary nature of the political system, or polity.” (198).

For Taylor this focus on the relationships of an information polity has a powerful explanatory power.

For me the concept of an information polity or information polities is very interesting because it encourages (as with Stiglitz’s information asymmetry) to ask what was the nature of the information polity (or what type of information asymmetry existed in jurisdiction X) before FOI was introduced and 5, 10, 20 years on what has happen to that information polity or the level and degree of information asymmetry. There would be some interesting single country and comparative research studies that could be developed from applying this analysis.

3. Taylor applied the concept of information polity and analysis in John Taylor, Miriam Lips and Joe Organ , “Freedom with Information: Electronic Government, Information Intensity and Challenges to Citizenship” in Richard Chapman and Michael Hunt (ed) Open Government in a Theoretical and Practical Context, Ashgate 2006

This article explores how “new forms of citizen identification in electronic government may be enabling governments to reshape their relationship to citizens” (125) . The article focuses on UK but has wider applicability.

This article defines an information polity as a “political system made comprehensible by the information that flows, or fails to flow, around its constituent parts. The relationship between departments of government, between government and other agencies including voluntary and private sector bodies, between administrators and politicians the governmental system and the citizen, are essentially informational.” (136)

Taylor et al argue that the adoption of an information polity analysis allows or encourages “an x-ray understanding of the body politic.” (136) The authors conclude that using an information polity analysis leads to a number of more interesting research questions in particular “What is actually happening to the information asymmetries that exist between government and the citizen? Are they becoming narrower or wider in a contemporary polity characterised by both freedom with and freedom of information?” (136) They also suggest that this analysis concentrates our research into understanding information flows, variable intensity and changes in informational relationships. This fits well with a number of themes in Kubicek’s article and my recent work (Freedom of Information Practices and the forthcoming work with Peter Sebina – Information Flows).

Taylor et al argue that this intensity and recourse to new levels and types of citizen identification and information access has occurred simultaneously with the introduction of FOI in the UK. So using Taylor’s information polity concept the information networks, relationships etc have undergone a profound change.

Taylor et al argue that there has developed an electronic mixed economy (greater recourse to private entities and non0-government organizations to deliver/administer services – requiring different types and levels of access to government e-information. The authors wonder “does the virtual relationship, based as it is upon new flows of data, supervene and thereby over-ride the nominal, expressed relationship that assumes independence?” (129)

Taylor et al argue that projects such as “Gateway” (a single entry portal to government services – over 5 million users, 50 government services in 2004) that relies on a variable trust profile will create in this particular information polity a ‘layering of citizenship’ (129-130). “The most trusted layers of citizens on the top and the least trusted at the bottom, with as many percentage layers in between as governments chooses to assign. Those citizens with the highest trust ratings will find on-line service transactions with government easier to navigate and conclude than those from lower ratings.” (130)

Taylor et al track how the expansion of the capacity, and the application of personalized service provision in e-government (accumulating browsing information and other data) not only reduces information asymmetries between service providers and citizens but also creates a new informational relationship with governments. (131-132) They argue that on-line personalization and modification of services delivered to citizens, at the moment, is more about changes to service delivery as a consequence of government collecting more information ( due to responses to security threats, technological capacity etc) on users than it is about “empowerment of citizen groups to devise public policy solutions.” (132)

In the terms of Kubicek there is a move towards a more sophisticated “push” of information to targeted audiences but absent a citizen centered focus. Taylor et al accept this as a citizen-centric approach but I would still lean towards describing it as government-centric (the drivers, focus and efficiencies are more government orientated and initiated whilst the citizen enhancements/benefits are welcomed by-products).

For Taylor et al this information gathering – in order to tailor services – allows for and facilitates the sorting of citizens by types (whether postcode, service use, region or level and type of engagement with government). They then argue that “the layering of citizenship, and the typing and sorting of citizens, can thus be seen to work with each other to produce complex matrices of citizen groupings” (133) For example the vertical column may be organised by social sorting (postcode, service use) and the rows of the ‘the matrix are formed from layering of trust profiles.” (133)

So returning to Taylor’s earlier concept of an information polity it becomes important to ask what type of ‘information citizen’ is someone. A receiver, a user, a converter/go-between (journalist etc) and how does the flow, use, connectiveness of each information citizen type vary/intensify/change over time,

So what Taylor et al describe as the drive ‘for citizen identification, whether undertaken for conventional e-government services or for security reasons” (134) produces changes in the nature and relationships of the information polity (which will vary from country to country).

Most of our FOI literature and thinking is based or rests upon a fairly static conception of information. Government collects, creates and uses ‘public information’ and FOI provides some degree of limited access to that information. Whilst the slowness and adequacy of that access is seen as a problem it remains a fairly unchanged problem. Yet Taylor et als analysis is depicting an information environment that is rapidly changing and where the concept (and actuality) of citizenship may be significantly recast.

The authors argue for a change in researchers (e-government, public administration etc) approach to these issues. The concern is that current approaches in those fields (if not others as well) is based on an “inherent technological approach by which it remains charaterized. This is thinking that, unsurprisingly, has given rise to the adoption of the prefix ‘e’ in the languages of so many societies, capturing as it does, in simple form the cpmmonplace mind set of technological determinism – begin with the electronic and all else follows. The prefix ‘I’ (for information) would lead to thinking in a different, altogether more complex direction, yet it is only by understanding new information resources, policy making and citizenship, and plan for them.” (135-136)

Some follow up thoughts arising from these articles

FOI’s capacity as a catalyst for better governance seems dependent/determined by a number of variables including;

The type of legislative architecture or policy program adopted ie

Whether front-end (Sweden, New Zealand) or rear end focused
Push or pull approach to information distribution
Evolutionary or revolutionary

Nature of the information environment (level and type of information asymmetry/ies)

Type of information polity

Whether implemented and/or administered as a program or simply launced as a once-off stand alone initative

Role or performance of information intermediaries/converters/brokers

Whether designed and operated as a knowledge system

The way different citizens/groups operate (ie role of civic society, the type of 4th estate etc)

I agree with Taylor that a focus on the “I” – concentrating on information flows, intensity or non-flows etc allows us to construct a different and better understanding about FOI and information management within and between different countries and eras.

An interesting research project would be to determine a profile of an information environment/information polity pre FOI (ie Tasmania prior to 1993) and post FOI.

Next on my reading list is Taylor’s “Information as X-ray: What is Public Administration for the Information Age? In I Th. M. Snellen and WBHJ van de Donk – Public Administration in an Information Age: A Handbook, IOS Press, Amsterdam 1998.

Work in Progress - "Information Flows"

2007-02-05T12:08:00.000-08:00

Work in progress - ‘Information Flows – the real art of information management and freedom of information’

One of the purposes for this Blog is to allow me to reflect upon and share the work I have in progress – from almost completed articles to those articles or ideas that are still in the early stages of conception – after a chance meeting or the tangential spin off from someone’s comment.

The article closest to completion is a joint collaboration with Peter Sebina, ‘Information Flows – the real art of information management and freedom of information’ which is being prepared for the May edition of Archives and Manuscripts.

The article is an attempt to examine the interrelationship and interplay between FOI and records management. We apply a corporate governance model to government to address information asymmetries between state and citizens and argue that the capacity of FOI, coupled with good records management can be an agent of significant cultural change.

The genesis of the paper goes back to 1993. One of the first major papers I did was on the relationship between FOI and Records management written for the 10th Records Management Conference that was held in Hobart in 1993. One of my, if not my first major public presentation. The piece was a very rushed and limited report of a short survey conducted by my students and myself that looked at what was written about records management and FOI in the literature and what actually took place in the early months of implementation (Tasmania Jan-Aug 1993). My conclusion was that there was a relationship but it was not the cause and effect – FOI leads to better record keeping – that appeared in most of the literature. My analysis suggested that there were +ve and –ve impacts, strong and weak effects, and other developments (software, increasing professionalism etc) that had little direct linkage with FOI.

My thoughts turned to other areas and I never did come back and carry out a more major and comparative study (a point Peter Sebina critisied me for in his PhD thesis. In early 2003 I was invited to speak at the 23rd Records Management Conference. I expressed my concern about being booked so far in advance (my recordkeeping system didn’t extend 3 years into the future). 18 months out from the conference I provided a title and abstract. 15 months out from the conference I met Peter Sebina in London, through Gervase Hood at the UK Department of Constitutional Affairs and over a lovely lunch in a small café in Tufnell Park (on the Northern Line) we introduced each other to our respective expertise (Peter archives and records management , me FOI, Stiglitz etc). An archvist/academic from Botswana and a Tasmanian law academic exchanging information face-to-face in a low tech café.

Over the next 15 months Peter would send me drafts of his thesis and I would pass back suggestions and reflections on ideas generated while reading his drafts. Peter would then convert those reflections into more considered sections of his thesis and a kind of action research cycle continued.

When I came to prepare my conference paper I discovered that I was having great difficulty in distinguishing my ideas from work in Peter’s thesis or whether I had taken one of Peter’s insights and then further refined. At another meeting in London, June 2006 Peter suggested that we should collaborate on several articles. So the conference paper became a joint effort.

Currently the paper’s introduction reads

In this paper we put forward some ideas about trying to take access to information from where it currently is - a few painful, costly and hard fought steps from its strongly resisted implementation - towards where it should be in an information age and an age of information. The current state of play in Australia after 20+ years of experience is barely measurable. The comments in this paper are focused on the capacity of citizens to access non-personal affairs information on a routine and relatively unproblematic basis. If in other areas of the information revolution we had accepted the same minimal results as we have with FOI then the internet, laptop computers, I-pods and Blackberries would have all remained unbelievable elements of speculative science fiction.

We explore some of the key paradoxes and riddles of the information management and Freedom of Information relationship. Joseph Stiglitz’s ideas of information economics are applied to demonstrate why records management and FOI are not only compatible but essential partners in an information age. The way institutions and society manage the access to, and protection of, information is a critical catalyst in the creation of good governance and a deliberative democracy. Information managers can provide important insights for those concerned with increasing transparency and accountability. In an age of information it should be of little surprise to find that the rapid uptake of laws like FOI has been phenomenal. In the last decade the number of countries with some type of FOI legislation has increased from a small handful to over 70 countries. Yet this outbreak of transparency is bound to disappoint unless records management, FOI, privacy and archives are understood as an interplay between several different information systems. The direction, timing and quality of information flows becomes the key issue and the avoidance of stagnancy an important objective.

We need to develop better theories and consequently better tools of analysis so as to finally arrive at what our parliaments thought they were achieving with a stroke of the pen two decades ago. This critique is not meant to underplay the achievements of access legislation. Information on an hourly basis is entering the public domain via access requests lodged around the world. A recounting of successful cases can be an inspiring experience. Reading the first chapter of Alasdair Robert’s new book Blacked Out: Government Secrecy in the Information Age is such an experience. Yet as the rest of the chapters in his book, and indeed the title, suggests those highlights are often more the exception than the rule. Especially for those wanting to use access to information regimes to engage on an informed basis in public policy debate, discussion, formulation, implementation and evaluation.

We conclude

Conclusion

This paper has only concentrated on one key facet of the complex and dynamic relationship between FOI and records management. We have suggested that the operating rationale of the corporate governance model can be applied to the public sector to address the problem identified by Stiglitz of significant information asymmetries between state and citizens. When coupled to a sound and dynamic records management system FOI has a significant cultural change capacity. We have approached public sector information management from a generally static perspective and usually with a frame of reference limited or isolated to a single perspective such as FOI, privacy, archives etc.

Our attention should be redirected to managing information flows. Whilst Chadwick’s 19 word mantra is simplistic it does provide us – whether as records managers, citizens, information custodians or an inquiring 4th estate – with a rough ready reckoner. Adapting the corporate sector model of governance to a public sector environment provides a citizen-centric framework that is focussed on information flows rather than the alternative of an ad hoc and patchwork government information environment that focuses on warehousing information.

The paper has now been accepted by Archives and Manuscripts and Peter is just finishing off some of the suggestions by the referees. Interestingly those review comments sparked a debate about whether the article was better suited for a readership outside of the Archives and Manuscripts audience. Precisely why I decided to follow Al Robert’s example and make the dissemination of my material more user friendly and accessible via my new web site and this blog.

Another example of this disciplinary/field restriction on the flow of information is the fairly slow impact of Stiglitz’s work on information asymmetry and FOI. Whilst Stiglitz’s work is widely available (through his books and his own website see http://www2.gsb.columbia.edu/faculty/jstiglitz/papers.cfm) and his work on information asymmetry and FOI went through several reiterations from 1998-2002 the most useful rendition is Chapter 2 in The Right to Tell: The Role of Mass Media in Economic Development published by the World Bank in 2002 (see www.worldbank.org/wbi/RighttoTell/righttotellOverview.pdf)

Hopefully over the next year or so Peter and I will be able to write a couple more articles teasing out these ideas and more fully exploring the FOI – Records Management relationship.

Peter and I would like to thank Peter Timmins, Alasdair Roberts, Paul Hubbard and Ron Fraser for feedback on earlier drafts and/or ideas that informed our thinking.

Peatling and Department of Employment and Workplace Relations

2007-02-03T16:46:00.000-08:00

The decision by Deputy President GD Walker in Peatling and Department of Employment and Workplace Relations [2007] AATA 1011 (12 January 2007) is one that needs to be fiercely contested. As Matthew Moore indicated in his column “Public Interest Comes Second Again” if Professor Walker’s reasoning is allowed to go unchallenged then many journalists (unless they are from Professor Walker’s mythical country radio station that is only intending to use the FOI Act for a single request on a very narrow and local public interest issue) are going to be stymied by large fee estimations.

The result in Peatling, 15 months after the initial application, means that any major Australian media organization that takes a professional approach to FOI – appointing an FOI Editor, making several requests a week, producing stories that use any information released under FOI – will not qualify for any fee waiver no matter how compelling the public interest arguments supporting the release of the information.

In Deputy President’s Walker’s words at para 114 “where the request for access is made in the ordinary course of the media organisation’s business and there is no evidence that it could not proceed with the request if the charges were not waived or reduced” then all prospects of a fee waiver in the public interest are removed. Deputy President Walker in para 116 struggles to find two possible (and very unlikely) exceptions to his new sweeping “media organization” test for interpreting Section 29. In a rare feat the Deputy President is able to use de Tocqueville and Thomas Jefferson as stepping stones to his final position.

Deputy President Walker using a handful of tribunal decisions (most decided within the last few years) and the words from Paragraph 81 of Attorney-General’s Department Memorandum 29: Fees and Charges referring to “a commercial or other benefit” (Deputy President Walker’s emphasis) has now effectively barred the major media organizations in Australia from receiving fee relief and exposed journalists such as Matthew Moore and Michael McKinnon to the constant operational difficulty of going cap in hand to their bean counters for every major federal FOI request.

The Australian Law Reform Commission and Administrative Review Council Report in 1996 specifically rejected a ‘multiple track’ (para 14.13) approach to federal FOI fees. Indeed the ALRC/ARC preferred position was to charge according to the amount released.

Deputy President Walker’s decision ought to be challenged by The Sydney Morning Herald but the cost factor and the result in McKinnon’s case will most likely deter Fairfax. The challenge would be vigourously defended by the government, who according to Moore have spent over $200,000 already on this case. As McKinnon’s case demonstrated the Commonwealth government is more than willingly to rack up multi-million dollar legal bills.

There is no doubt that at a federal level the efforts of Michael McKinnon, and more recently Matthew Moore, have started to annoy Ministers and senior bureaucrats. The use of fees as a “shield” therefore has become a more attractive option. In the Peatling case , the department had rolled out several novel, and to use a moderate word , inventive arguments for refusing to waive a fairly excessive fee estimation. Matthew Moore and SMH’s lawyer Mark Polden managed to counter and win on every ground except two. Importantly they persuaded Deputy President Walker to follow the High Court’s lead in McKinnon and dismiss the credibility of the argument that information might be potentially misleading or confusing.

Unfortunately Deputy President Walker, quoting Justices Heydon and Callinan from McKinnon, gave further legs to the argument that the public interest is not well served by releasing information where material parts have been overtaken by events and are out-of-date. In doing so Deputy President Walker accepted that the argument was ‘rational’ and therefore acceptable. He ignored the particular circumstances of McKinnon (the interpretation of the specific and isolated requirements of Section 55) and failed to weigh that argument against arguments for release. In Peatling his approach made little difference because he combined all the arguments to find that Fairfax had on balance demonstrated that it would be in the public interest to waive fees if not for his new ‘media organization” test. However it is likely that we will see many more claims that information should not be released because it is outdated or redundant – an argument, in my view, resoundingly and convincingly rejected by Justice Ruth McColl in General Manager, WorkCover Authority of NSW v Law Society of NSW [2006] NSWCA 84.

Other points from this case

The hiring of a senior partner in a major law firm to personally examine 2600 pages of documents – Tactic 12 in “How to undermine a FOI Request”

The switching of arguments for non-release between the internal review decision and the AAT hearing imposed a heavy burden on Matthew and Mark. Some of my students had carried out research for the earlier arguments which became redunant with the switch in the department's position.

The majority of the 2900 pages of documents were kept in various folders marked “Cabinet-In-Confidence” or “In-Confidence” and secured in locked filing cabinets. The documents included policy deliberations, printed out emails, spreadsheets, summaries etc of which only some were “developed specifically to produce information for use in a cabinet submission.” (Para 23)

Deputy President Walker at paras 62-63, seemed to indicate that the simple marking of documents “Cabinet-in-Confidence” gave them a strong prima facie entitlement to exemption.

From an information/record management perspective it begs the question about how efficient, or effective, is the practice of both physically and intellectually locking such a wealth of policy development information in restricted filing cabinets and under highly restricted classification access?

Australian courts and tribunals (especially legal members) seem to give an automatic deference to claims for sensitivity as a theoretical starting point rather than requiring a demonstration of the actual sensitivity of the documents in question. The tone of Deputy President Walker’s comments suggested that merely having these labels on the files was sufficient for him to decide against allowing access.

One observor has noted to me that " My only comment on the Peatling – DEWR decision is that Walker DP seems to have misconceived the public interest test in that he is saying the documents would be exempt so there is no public interest in their disclosure. The correct test in section 29 is whether, if the documents were released (even if they are never released), would that release be in the public interest? You will notice that Stephen Gaegler is very careful in his submissions not to take the approach that Walker has done. Clearly, Stephen understands the correct test. "

Harry Hammitt a US FOI commentrator outlines the position in the US

Media requests have always been presumed to have a higher public interest potential than the average request since reporters are generally pursuing something newsworthy and have a greater capacity to disseminate information publicly than does the average requester.

However, the press has never been identified as a group in FOIA until the 1986 amendments. At that time, the fee provisions were substantially overhauled and Congress created three separate categories of requesters. The most preferential of these categories was for "a representative of the news media" and also included an educational or scientific institution.

This category, encompassing these two discrete groups, can not be charged search time for locating records and can only be charged for duplication after 100 free pages. The public interest fee waiver standard (agencies can waive all or part of fees) was also changed from "generally benefiting the public" to "contributing significantly to public understanding of the operations or activities of government." Although OMB was given the job of writing guidance for the new fee provisions, the Justice Department immediately jumped in with an Assistant Attorney General's Memo interpreting the public interest fee waiver language as narrowly as possible. DOJ then proceeded to ram its language down the throats of most other agencies so that most agency regulations reflect DOJ's multi-factor analysis that makes it more difficult to get a fee waiver rather than easier. OMB finally provided guidance on the rest of the fee provisions and defined "representative of the news media" as someone who was involved in gathering and disseminating information of current interest to a discernible segment of the public.

When there was doubt, media requesters had to show the agency that they had some kind of track record that would suggest they could publish or disseminate information. This has always made it somewhat more difficultfor free-lancers, particularly ones who are just starting their careers. In a case involving the National Security Archive in 1987, the D.C. Circuit ruled that they were a representative of the news media because they collected, analyzed, and published information. This ruling has been challenged a couple of times but has never been overturned. The bill that was sponsored in the last Congress by Sen. Cornyn (R-TX) and Leahy (D-VT) includes a provision that would recognize bloggers and internet journalists as representatives of the news media. The bill passed the Senate but only got of committee in the House so it has to be taken up again assuming that happens.

Peter Timmins also offers some interesting and informative comparisons between Australia - if the Peatling decision is allowed to stand - and the US position. See " Media shouldn't cop this lying down"

Welcome

2007-01-30T18:27:00.001-08:00

Hi. I have been impressed by blog sites like those of Matthew Moore, Steve Woods and Peter Timmins and decided to try add my voice and ideas to their contributions.

I have also created a web site to try and improve the access to my articles and other FOI and access resources. The website trys to link my various activities and interests. See http://ricksnell.com.au/

I see this blog as a means of developing ideas and engaging in dialogue with other people interested in access and information. Based in Tasmania has limited my engagement with the wider network of academics, advocates and others interested in these issues. Being a one finger typist restricts my ability to use email easily for free flowing discussion especially with more than one correspondent at the same time. So hpefully this blog can be used to reach out to a wider network.

Till now I have used my articles and talks to generate this conversation but I am keen to add a more informal and collaborative layer to this discussion.