Freedom of Information Reform in Tasmania - Some Initial Ideas

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

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

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

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

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

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

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.