We should be able to see George Brandis' metadata

There is a major difference between law-enforcement agencies and media accessing metadata, but arguably that changes when it comes to politicians using taxpayer-funded phones.
Written by Josh Taylor, Contributor

Australians should be able to know who Australia's highest law maker is speaking to on his taxpayer-funded phone.

The initial reason for requesting Attorney-General George Brandis' metadata several months ago was a bid to see whether the Attorney-General's Department had some working definition of metadata that was not clear.

Brandis himself had stumbled quite spectacularly when asked to define metadata on television, so it was worth discovering if his own department had a definition.

I fully expected the diligent Freedom of Information officers within the department to push me to personally define what data set I was seeking, but to my surprise they accepted my request at face value.

There was also the second aspect to my request: Advocates for mandatory data retention, like Liberal Senator Ian Macdonald, have frequently said that if people have nothing to hide, then they have nothing to worry about with mandatory data retention. Surely the same rule should apply to our politicians?

I completely understand that there is a major difference between a journalist getting a minister's metadata through FOI and law-enforcement agencies accessing citizens' metadata for investigation. Law-enforcement agencies aren't going to get your phone records and then go and write stories about the metadata and publish private details; what they are using metadata for is the investigation of crime.

The current laws allow numerous agencies, local councils, the RSPCA, and others to access this data, and although the new legislation narrows down the number of agencies to just law-enforcement agencies, it also allows the attorney-general of the day to add other agencies in to the list at their will, without needing to pass new legislation.

There is also the constant meme that metadata is somehow less private than the content of communications. This request did not seek to discover the content of Brandis' communications, which is frequently obtained under Freedom of Information in the form of emails.

Surely knowing who the attorney-general is speaking to is something that is not too private for publication, then? It is not the content of the conversations, after all.

It was surprising that any data was handed over at all. For starters, it is the telecommunications companies, not the government, that hold customer data. It would have been more likely that those companies, which are outside of the scope of Freedom of Information laws, would hold all the data.

To receive an entirely censored Telstra bill as I did was amusing, but what surprised me was Brandis' chief of staff Paul O'Sullivan's reasoning for censoring out the metadata. It showed that the attorney-general believes his own metadata is not that useful, compared to the breach of privacy imposed in disclosing the data.

"Disclosure of the personal information in the document is unreasonable," O'Sullivan said.

"I am not persuaded that the personal information is of any demonstrable relevance to the affairs of government. Indeed, I contend disclosure of the personal information may cause stress or harm to a number of third parties."

Wait one second, who the highest law maker in Australia is speaking to on a regular basis is not relevant to the affairs of government? Who the attorney-general speaks to is the affairs of government.

"I consider that personal information from an individual minister's telephone bill is unlikely to contribute significantly to promotion of Australia's representative democracy," O'Sullivan added.

Arguably, the people who the minister is speaking to, be they lobby groups such as the Australian Screen Association calling for a crackdown on online copyright infringement, will directly have an impact on the legislation that is put to the parliament, and ultimately Australia's representative democracy.

His office could have censored out the phone numbers and instead provided a list of the names of the callers, the times of the calls, and the duration of those calls. But the third parties were not consulted at all as part of this request.

That would be one extra layer of privacy added over a typical metadata request, too. Someone who has had their records accessed by law-enforcement agencies doesn't know that they've had their data accessed, let alone the people who that person has spoken to.

Also, let's be clear: This is not Brandis' personal phone. This is the phone provided to him by the department for use for government affairs. Taxpayers are footing the bill for his calls, so surely we have a right to know what he is using that phone for?

I made these arguments in my review request to the Office of the Australian Information Commissioner. It's unclear at this stage whether my case will be investigated, because the government is shutting down the Office of the Australian Information Commissioner in a month's time as part of an overhaul of Freedom of Information laws.

Those changes will probably make it much harder to make a request of this kind in the future.

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