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.

Cambodia Week 3

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

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

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"

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

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"