Time to turn the lights on in Parliament
May 19, 2009
The MPs’ expenses scandal rages on in Britain. MPs have expenses, you understand. Quite rightly, they can recover those that are “wholly, exclusively and necessarily incurred for the performance of a Member’s parliamentary duties.” And what MP could effectively and conscientiously perform his or her duties without spending 2000 pounds to replace a leaking pipe under a tennis court, 600 pounds for hanging baskets and pot plants, 100 pounds to replace 25 lightbulbs, 3419 pounds installing a new plumbing system because the old one was “too hot”, 25000 pounds on security patrols, thousands of pounds furnishing second houses, and more thousands for reimbursement of mortgages that have already been repaid? At the other end of the scale, even the richest cabinet minister must have his yoghurt (expense claim: 38p).
Still and all: doesn’t this show us once again the value of transparency? Why not follow former Speaker Margaret Wilson’s suggestion that we should bring Parliament under the rubric of the Official Information Act?
Are we really so confident of the probity of our own MPs? Their skeletal expense revelations are hardly enough to provide reassurance that they aren’t committing their own rorts here. We should be entitled to know and evaluate for ourselves which MPs are thrifty and frugal with taxpayers’ money, which are squeezing out every cent they can, and which are crossing the line.
I suppose I should note that the UK Freedom of Information Act does include MPs’ expenses, but the little sods have been shamelessly fighting to hold back this information for years, arguing against release before the Information Commissioner, proposing special legislative exceptions, and taking the case to the High Court. All to no avail, though. The courts have forced them to release it.
But even after that, they were cleaning it all up for mass release on July 1, no doubt with some of the juicier bits withheld. It took a leak of the entire raw stinking pile for the whole story to become public, and for the MPs to be held accountable. (Of course, the politicians then expressed outrage at the “theft” and called in the police to sniff out the leaker… sound familiar?)
Topics: Official Information Act | Comments Off on Time to turn the lights on in Parliament
Normal service resumes
May 19, 2009
I’ve been off on holiday and doing some marking and some barristering. Meanwhile, media law issues have been piling up. I’ll tackle some over the next few days.
Topics: General | Comments Off on Normal service resumes
Prostating himself
April 14, 2009
Veteran journo and journalism teacher Jim Tucker has a blog about his experiences battling prostate cancer.
It’s in a good cause: encouraging blokes to get their doctors to poke them up the bum from time to time to check for cancer. It’s an interesting and worthy use of a blog (he’s got a more conventional one about journalism here).
There’s even a happy ending: Jim’s prognosis is good.
Topics: General | Comments Off on Prostating himself
Disappointing commentary
April 7, 2009
When a batsman gets out, I think most of us can figure out how he’s feeling. Do we really need to be told, almost every single time, “he’ll be disappointed with that”?
Oh, and when did “average” and “ordinary” become synonyms for “awful”?
Topics: General, Media ethics | Comments Off on Disappointing commentary
“Stop the romp”
April 3, 2009
The beautiful and talented Claudia Geiringer debuts in the blogosphere with a plea to the Nats to take seriously their own Attorney-General’s legal advice about Bill of Rights problems with their legislation – and not railroad their dodgy bills through Parliament without allowing a decent chance to debate them.
[Update: Dean Knight weighs in here, making the important point that if Parliament expects the courts to defer to its evaluation of what limits on rights are demonstrably justified, it should, um, actually conduct that evaluation seriously. David Farrer also expresses concern that the Select Committee was bypassed.]
Topics: NZ Bill of Rights Act | Comments Off on “Stop the romp”
Bain call
March 25, 2009
Can’t say I understand why Justice Pankhurst refused to allow the media to broadcast David Bain’s telephone call from the day of all the killings. We could hear reporters describing what he said. The jurors can’t be prejudiced by a repetition of evidence they’ve already heard. I can accept that there are problems allowing live streaming of the whole trial if particular witnesses to be called later are not supposed to hear the evidence of earlier witnesses (so that their evidence will be independent) … but that doesn’t seem to apply here.
Where’s the harm? More to the point, where’s the demonstrable justification for limiting freedom of expression?
Topics: General, Suppression orders | Comments Off on Bain call
Googling jurors again
March 25, 2009
A Florida drugs trial had to be abandoned this month because no fewer than nine of the jurors had been conducting their own research online, despite a warning from the judge not to. In NZ Judge David Harvey has been warning about this for ages. Is anyone listening? It’s becoming clear that we can’t rely on stern instructions from judges.
I can’t see any alternative to having someone sitting down as particular trials are looming (and periodically during the trials), conducting the obvious Google searches (eg the defendant’s name), seeing whether any of the accessible material on the first few Google screens is prejudicial, and contacting those hosting the material to have it taken down temporarily. (Has anyone done this with the Bain case, I wonder?) It really needs to start happening now. Developing a protocol with news organisations about their archives would be a good start.
In most cases, any prejudicial material is likely to be hosted in NZ (who else cares?). No doubt, some people receiving such a warning would take delight in ensuring that the material appeared on an overseas site where it couldn’t be touched. We need to be ready for that, too. If the material can’t be removed, and is likely to be looked up and believed by jurors, I think it will have to be brought up explicitly at the trial, no matter how prejudicial it is. The judge would need to explain the reasons why it’s dangerous and unfair to place any weight on it. I don’t think we can any longer act on the assumption that jurors won’t know it. It’s either that or start sequestering them in such cases (in which case, they’ll probably realise there’s prejudicial material that’s being kept from them and there’s still no guarantee they won’t already know it, or find out somehow).
Another possibility is questioning jurors about what they know before the trial. It has happened in the UK, and our Court of Appeal has said it could be done here in exceptional cases. But that wouldn’t get around the problem of jurors Googling during the trial.
Topics: Contempt of Court | Comments Off on Googling jurors again
NYT enforces copyright over bloggers
March 20, 2009
I’ve noted before that lots of bloggers routinely flout copyright. One of the ways they do so is by lifting photos from others’ websites. This will rarely be protected by a defence of fair dealing. The US “fair use” defence is wider, but not that much wider. The New York Times has apparently gotten fed up with bloggers ripping off their photos and has written some dirty letters telling them to take them down.
Cue debate in blogosphere. Is this stupid and counter-productive, creating a disincentive to link to NYT’s website? Or is it a sensible attempt to protect their intellectual property rights? Or should copyright laws be changed to allow this sort of copying?
Topics: Copyright | Comments Off on NYT enforces copyright over bloggers
Should agencies be punished for breaching the OIA?
March 20, 2009
Stephen Franks makes an interesting comment in response to my post below, where I argued that the Department of Corrections breached the Official Information Act. Should agencies be punished for wilful breaches? (There are no sanctions for breach of the OIA, except criticism from the Ombudsmen). Are we becoming increasingly disdainful of laws that can’t or won’t be properly enforced?
Taking the second question first: I agree with Stephen that there are laws that seem to work by not working. Another example is some of the possession offences in our censorship legislation. After a decision in 1997, for instance, it was an offence to be in possession of a particular edition of New Truth and TV Extra, which ended up being banned for some advertisements it contained. But nobody got prosecuted for having a copy in a pile in the garage.
Still, I don’t think the OIA is one of those laws. My research (and Nicola White’s book Free and Frank: Making the Official Information Act 1982 Work Better) showed that it works well most of the time, and that it’s had a useful effect in improving the quality of advice officials are providing (and probably making sure that the edgier stuff is never written down).
We also both concluded that most breaches of the OIA aren’t really wilful: they’re based on a misunderstanding of the OIA or the pressure of competing priorities for officials’ time and resources.
Still, there are plainly occasions in which agencies or Ministers deliberately flout the law to avoid releasing embarrassing information. They stonewall, even after complaints are made to the Ombudsmen. They adopt ridiculously wide interpretations of the withholding provisions. They don’t conduct a good-faith balance of the public interest that may be served by releasing information. They impose obstructive charges to deter requests. Should there be punishment for this?
There’s a good case for it, I think. Where the Ombudsmen find that agencies have been unjustifiably obstructive, the agency could be forced to reimburse the Ombudsmen’s office for its investigation time, say at the same rate that agencies can charge requesters to retrieve the information. (Is this just shuffling money from one government agency to another? Perhaps, but most are concerned enough about their budgets that this may provide some disincentive).
Even more effective, though, would be prompt and public denunciation by the Ombudsmen. The media would be happy to print it. Along with that, I think that the Ombudsmen should write to any agency that is spinning out the process unjustifiably, give them a deadline, and say that if no response is received they will automatically uphold the complaint and order the release of the information (or at least determine the complaint in the absence of the department’s response).
I gather some Australian FOI regimes have criminal penalties for obstructive behaviour. I’d be interested in how those have worked out…
Topics: Official Information Act | Comments Off on Should agencies be punished for breaching the OIA?
OIA and the Department of Corrections
March 18, 2009
You might have seen me on One News last Friday, commenting on the Department of Corrections’ response to TVNZ’s Official Information Act request. I was pretty critical of the department, who had provided minimal information. Either they genuinely didn’t know the answers, which was mind-boggling, I said, or they were lying about it.
TVNZ used my raciest quote, and I guess that’s to be expected. But here’s a fuller version of my comments.
Lisa Owen from TVNZ had asked Corrections a range of fairly specific questions, including things like:
- the number of drugs, weapons and cellphones seized at Auckland prison since the beginning of the year;
- the number of positive drug tests at Auckland prison in the last year; and
- the number of visitor prohibition orders issued at Auckland prison in the last year.
These are admirably specific requests, and the prison ought to have been able to cope with them easily. Instead, Corrections replied in each case that responding would require “substantial collation and research”, and suggesting she consider refining her questions still further. Now, I’ve seen some extremely wide OIA requests. But this wasn’t one of them – or at least, the questions I’ve noted above weren’t. They are precisely tailored – aimed at one prison, over relatively short time periods, seeking clearly particularised and not extensive information. If Corrections couldn’t readily answer that request, they are surely breaching the Public Records Act, which requires them to create and maintain full and accurate records of their affairs, in accorance with normal, prudent business practice, in an accessible form so as to be able to be used for subsequent reference.
It seems to me that Corrections were also in breach of the new rules about invoking the “substantial collation and research” exception – they are supposed to first consider extending the timeframe, imposing a charge or consulting with the requester about narrowing the request. There’s no evidence that they did.
Corrections did make an interesting point. Owen had asked for her request to be treated with urgency. The material couldn’t be assembled, they said, within “the urgent period you specified”. In fact, Owen hadn’t specified any particular time-period. Requests for urgency can be made under the OIA and reasons for urgency should be given (Owen didn’t give any). As there are no consequences under the OIA for agencies who don’t treat a request with urgency even when asked, most usually ignore the urgency request. At least, I haven’t seen any evidence that anyone processes any such requests more quickly. But neither have I seen any that use such a request as Corrections did here: as an excuse for not providing the information.
Let me cut Corrections a small amount of slack. I don’t think they were lying. I suspect their record-keeping practices are a large part of the problem, and that comes through in their response to Owen. They are probably not resourced to dig out this sort of information. They did provide some specific information in response to some parts of Owen’s request. And parts of her request were pretty broad (she asked a total of 16 questions, and at the end of the request sought all documents relevant to them).
But I don’t think Corrections worked very hard to give her the information she asked for. I find it hard to believe that they couldn’t put their fingers on at least some information that fell within the terms of her requests (have they not briefed the Minister on drug tests or weapons seizures, for instance?). I think they were applying the OIA in an obstructive way because they didn’t want to release the information, and (like many other departments) they conveniently ignore the Ombudsmen’s frequent reminders that processing these requests is part of their core function. I think there’s an unhealthy culture of secrecy at Corrections, which only makes proper compliance with the OIA all the more important.
Topics: Official Information Act | Comments Off on OIA and the Department of Corrections
« Previous Entries Next Entries »