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FREEEDOM OF INFORMATION Past, Present and Future FOI – THE PAST Powered By Docstoc
					                            FREEEDOM OF INFORMATION

                                    Past, Present and Future

     I know no safe depository of the ultimate powers of the society but the people
     themselves; and if we think them not enlightened enough to exercise their
     control with a wholesome discretion, the remedy is not to take it from them,
     but to inform their discretion. - Thomas Jefferson

Freedom of Information laws have their champions and their critics: FOI is promoted
by politicians, usually when they are in Opposition; supported by investigative bodies
such as Royal Commissions; championed by the media and enlightened social
commentators; resented by public servants and senior bureaucrats; criticised by
private sector bodies who wish to do business with government in secret; appreciated
by members of the public who actually get what they want; and soundly criticised by
those who don’t.

The principle of open government that is implicit in the concept of FOI is not an easy
one to accept. There are still the Sir Humphrey Appleby’s in public administration
who believe the truth of the cliché – You can be open, or you can govern, but you
can’t do both. Nevertheless, that begs the question: Why should a government be

Governments today have become the custodians of a cast amount of information upon
which decisions are based that can profoundly affect, for better or worse, the lives of
ordinary citizens. Government information is normally accessible to the public in a
number of ways including, the Parliamentary Committee system,1 through local
Members of Parliament, in the Annual Reports of agencies, and Government
publications. However, no society can consider itself truly democratic if its citizens
must be satisfied only with the information fed to them by their leaders.

FOI legislation is built around three principles. The first is concerned with human
rights and privacy. It enables people to gain access to information about themselves
and to correct that information if necessary. The second is the principle of
accountability and it seeks to open govern processes to public scrutiny to facilitate
efficiency and competency in decision-making. The third principle is that of
democratic participation to allow public participation in the policy process and in
government itself.

 See Report No 2, Part 2, Commission on Government, December 1995, pp 164-177 on the workings of such Committees in
Western Australia, and Recommendation to make the functioning of such Committees more effective.

File: HOBART.DOC / KB                                                                                         Page 1 of 8
To give effect to these principles, FOI laws create a framework around the concepts of
possession or control of existing documents. Agencies are required to publish certain
information about their operations and to disclose non-exempt documents, but may
refuse access when essential public interests need to be protected. As a result, a large
part of FOI legislation prescribes the procedures to be followed by agencies to
identify and locate documents and, where access is refused, to provide reasons for

The effectiveness of FOI legislation in meeting the goals of openness, accountability
and responsibility in public administration depends, in my view, on two things: the
public being prepared to use the legislation and to make applications to agencies; and
a framework for its implementation and administration that is practical in its
operation. On both those points, I suggest that existing FOI laws are failing to make
the grade. I think we are entitled to ask, therefore, why is it that a system based on an
enforceable legal right that seems to promise so much actually delivers so little?

Anyone who deals with FOI matters on a daily basis will tell you that there are no
simple answers. Official secrecy does have a necessary place in government;
information about national security, defence and criminal intelligence are obvious
examples where confidentiality should be paramount. Yet most FOI applications
concern access to personal information. Apart from possibly providing a check on the
arbitrary collection, use and distribution of private information about the lives of its
citizens, it is arguable that providing access to such information does not really make
government agencies accountable in the broad sense.

FOI legislation is expected to change the relationship between the government and its
citizens. However, the access regimes introduced under FOI, first by the
Commonwealth in 1982, and by each State since then have been, in the main,
designed by the bureaucrats for the bureaucrats. Is it any wonder then that those
frameworks actually introduce more “red-tape” to preserve and maintain the status
quo rather than to serve any other democratic ideals. Recent reports seem to confirm
what many users of FOI have been saying since day one; the systems are not working
the way they were intended.

The reason for the apparent failure of our FOI laws has been attributed to many
factors: high fees and charges, an enduring culture of secrecy, the number of
exemptions, the difficulties in interpretation, the practicalities of obtaining access; the
nature of external review; timeliness of obtaining access; usefulness of information
obtained; whether information can be obtained from other sources; and community
issues that only arise intermittently and do not result in any prolonged use of the
legislation; and a low level of interest in the community about what our governments
are actually doing and the decisions that are being made on our behalf.

It seems to me that the focus of FOI critics and commentators so far has been on the
apparent failure of the bureaucracy or the government to make FOI work. Whenever
FOI legislation is reviewed and changes are recommended ostensibly, to make it work
better, the recommendations appear as nothing more than mere tinkering with the
mechanics of the legislation. What is ignored, is that the form of our present FOI
laws is largely a design product of government in the USA in the 1960’s. It reflects a
state of public administration in Australia that has long since passed. Until recently

File: HOBART.DOC / KB                                                                  Page 2 of 8
however, no one has suggested that the fault might lie with the design principles of
the legislation of itself.

Over the past few years, my experience working with FOI legislation in Western
Australia has convinced me that we are probably nearing a FOI “watershed” in
Australia. I am not suggesting that access laws are an ineffective means of altering
the culture of secrecy in government agencies, or that they do not occasionally
produce desired outcomes. However, I am suggesting that the democratic ideals
served by FOI legislation may be better served by a different structure for giving
access, and I am suggesting that a major rethink of the basic design principles of
access laws is required.

An Information Commissioner’s “wish list” for the new millenium is the subject of
the third part of this paper. However, I would like to briefly describe the present state
of FOI in Western Australia.

The Information Commissioner model in Western Australia

In both Queensland and Western Australia, FOI legislation emerged from a public
crisis in confidence concerning actions of government and certain government
agencies in the 1980’s. Although the legislation in both States was enacted in the
early 1990’s, it is modelled on the earlier Commonwealth and Victorian FOI Acts.

Western Australia and Queensland are the only States to adopt the Information
Commissioner model of external review. However, there is a divergence between
those two jurisdictions with Queensland giving the function of external review to its
State Ombudsman. In Western Australia, the Information Commissioner is an
entirely separate statutory office to that of the State Ombudsman.

The Office of Information Commissioner in Western Australia is one without a prior
history. When I established the office and its infrastructure in 1993, I did so with the
FOI principles of openness, accountability and responsibility in mind, as well as the
expectations of the Parliament of Western Australia as expressed by its Members
during the debate on the FOI Bill. Those principles and expectations shaped the
culture in my office, my program structure, and the procedures adopted for the
resolution of complaints.

To my knowledge, Western Australia is the only jurisdiction that gives its FOI review
body, in this case, the Information Commissioner, two distinct statutory
responsibilities. My functions include dealing with complaints about decisions made
by agencies in respect of FOI applications, and educating and informing the public
and agencies in Western Australia about their respective rights and obligations under
the legislation.

My office is structured around these two responsibilities and uses the separate sub-
programs - Review and Complaint Resolution and Advice and Awareness - to ensure
that my dual responsibilities under the legislation are adequately executed, without the

File: HOBART.DOC / KB                                                                Page 3 of 8
advisory function adversely affecting the independence and integrity of the review
and complaint function.

The Review and Complaint Resolution sub-program deals with the resolution of
complaints lodged by access applicants and third parties. It is designed to be speedy,
accessible and informal as possible. I made a conscious policy decision at the
beginning of my appointment as Information Commissioner to avoid adopting a too
legalistic or technical approach to external review because Parliament clearly intended
that the Information Commissioner model of external review would be an efficient
means of dealing with complaints about the access decisions made by agencies.
However, I recognise that it is necessary for me to conform to statutory requirements,
principles of administrative law and acceptable standards for merit review.
Sometimes it is not easy to reconcile these competing requirements.

The Advice and Awareness sub-program assists applicants and agencies to exercise
their respective rights and obligations, and undertakes other functions including:

•    conducting training courses for agencies;
•    the development of targeted workshops and seminars;
•    providing assistance, briefings and advice to agencies on the processes required by
     the FOI act;
•    visiting country regions, agencies or applicants to resolve particular FOI issues
     that are creating difficulties;
•    answering inquiries and requests from the media
•    briefing community groups;
•    answering telephone and counter inquiries;
•    dealing with general correspondence; and
•    maintaining a statistical data base and other information to assist me to report to
     Parliament on the workings of the FOI Act.

In my view, there are distinct advantages to this dual structure. Experience has
convinced me that problems between agencies and applicants can often be resolved
informally by the intervention of staff from my Advice and Awareness sub-program
before a matter comes within the formal review process as a complaint. In my
experience, agencies tend to deal with the public “at arms length”.

Too often I hear comments along the line that the personal contact with my officers is
the first time that anyone from a government agency has bothered to meet the
particular individual in person to discuss his or her concerns. In many cases the
problem proves to have been one of communication, or lack of communication, and,
once the person’s particular concern is ascertained, matters can be more readily
resolved, if not through FOI, then usually by some other means.

Even when the more formal review processes are activated, conciliation remains my
primary goal and considerable effort is directed towards resolving complaints in a
way that is satisfactory to both agencies and applicants. Our present rate of
conciliation is around 80% and has increased steadily over the years.

File: HOBART.DOC / KB                                                               Page 4 of 8
When an applicant applies to me for a review of an agency’s decision, my function is
to review the agency’s decision on its merits. In most cases, I require the agency
concerned to produce the disputed document for my inspection, together with its FOI
file relating to the particular access application. This requirement serves three
purposes. Firstly, it enables my officers to understand the history of the particular
application and how the agency deals with FOI requests, generally. If problems are
detected, the matter may be referred to staff from the Advice and Awareness sub-
program for follow-up.

Secondly, early inspection of the disputed document and a consideration of the
reasons given by an agency for refusing access and the steps taken to deal with the
application, enables me to form a preliminary view of the complaint. It also allows
my office to put those views to the parties early in the process and, during
conciliation, concessions can and frequently are made by both parties.

Thirdly, discussions with and between the parties and my office also often identify
other issues of substance and procedure that may be in contention between the parties.
It is not unusual for misunderstandings that frequently arise in the administration of
the Act, or in the process of dealing with an access application, to be satisfactorily
explained and corrected by the intervention of my office.

The question of whether the objects of FOI legislation are being achieved is not an
easy one to answer. In my first report to the Parliament of Western Australia, I
highlighted the lack of empirical data relative to that question. The difficulty arises
because the benefits of FOI are largely intangible, not susceptible to measurement,
nor quantifiable in mere monetary terms.

However, meaningful performance data can be gleaned from such indicators as the
number of applications lodged with agencies, the time taken to deal with requests, the
rate of access and refusal, and the exemptions relied upon, and the amounts of fees
and charges collected, waived or reduced. Other indicators include the effectiveness
of internal review and external review and the number of appeals to the Supreme

Because of the lack of empirical data in Western Australia and elsewhere, my office
gathers data from a variety of sources to enable a qualitative assessment to be made.
Sources of information include post-review questionnaires submitted to agencies and
applicants after external review (80% satisfied with the external review process); the
annual survey of agencies conducted by my office (98% satisfied with the advice and
assistance provided by my office); anecdotal material; media reports; and the statistics
provided annually by agencies to my office.

I am pleased to say that FOI in Western Australia has not suffered the fate that
frequently befalls this type of legislation. There has been no increases in fees and
charges in Western Australia since the enactment of the legislation and my office
often finds instances where agencies do not impose charges on applicants that they are
legally entitled to impose. More recently, the Government has signalled its intention
to extend the operation of the FOI Act (and other accountability agencies) to include
private contractors responsible for the management of a private prison in this State,
the transportation of prisoners and court security.

File: HOBART.DOC / KB                                                               Page 5 of 8
I believe there is an assumption, implicit in legislation of this type, that agencies will
“do the right thing”. Regrettably, some do not. Whilst I do not consider that, in
normal circumstances, penalties should be applied against agencies who are slow to
accept the challenge offered by our access laws, applicants should not have to bear the
consequences of such tardiness. In my view, it is time to shift the balance away from
agencies and more towards applicants who are clearly at a disadvantage from the
beginning of the process.

Which particular design principles of access laws are at fault? The first appears to me
to be the title of the legislation itself – Freedom of Information. It sends out all the
wrong messages. Obtaining access under FOI laws is rarely free. There are fees and
charges to applicants and costs to public administration. Further, the right of access in
the legislation is a right to documents, not information.

Some alternative titles might be: Official Information Act, Data Access and
Protection, or my favourite, Uniform Information Practices Act.

Secondly, while FOI laws appear to be about access, they deal more with non-access.
Consider the following: In the WA legislation there are 15 exemption clauses,
containing 51 subclauses that provide grounds for refusing access, and there are
alternatives within some of those subclauses that I have not even counted.

Thirdly, FOI legislation is about means, not ends; about processes, not outcomes. As
an exercise I considered the substantive parts of the WA Act and found the following:
Excluding the preliminary sections, there are around 28 sections prescribing
procedures to be followed and only 5 that I thought might be outcome-focussed, that
is, sections directed at achieving access.

Fourthly, it is backward-looking legislation that is focussed on form, not content. FOI
is about documents – describing them, searching for them, collating them, editing
them, copying them. In the global village of the future where data can be moved
around the globe without regard for national boundaries, where it can be collected and
manipulated with relative ease, the question of form is irrelevant. If access is to exist
as a right, it needs to be a right of access to information or data, without regard for the
form in which the data is held or stored at a given time.

Fifthly, the time-frames between the date an application is made and the date a
decision on internal review is made (60 days maximum in WA) allow an agency to
effectively delay disclosure, sometimes on rather dubious grounds. When the time for
appeals to external bodies such as Information Commissioners, tribunals or courts is
factored into the equation, disclosure can take months, or years.

Sixthly, the number and range of exemption provisions apparently designed to cover
all of the accepted grounds of non-disclosure based on public interest immunity
permit overlapping, duplication, different tests of harm, and “class claims” by

File: HOBART.DOC / KB                                                                  Page 6 of 8
Model Access Laws – a prescription for the future?

Governments today require their public sector agencies to be outcome-focussed, not
process-driven. That requirement should also be reflected in access legislation that
confers rights on citizens.

1.        Access laws should commence with a declaration of intent:

          The formation and conduct of public policy (including discussions,
          decisions, deliberations and actions of government agencies) shall be
          conducted as openly as possible, except where issues of privacy arise.

2.        That policy statement would be reflected in the legislation by affirming that
          Parliament requires the law to be applied and interpreted according to its
          underlying purposes and policies.

3.        The legislation would also affirm that all records are open to public inspection
          unless access is restricted or prohibited by law.

4.        It would require agencies to disclose certain classes of documents including:

          •    rules of procedure, policy and interpretation;
          •    government purchasing information;
          •    results of environmental tests;
          •    minutes of meetings required to be held in public;
          •    contracts of hire and for consultancies, including the contract itself, its
               duration, objectives and amount payable;
          •    information collected and maintained for the purpose of making
               information available to the public;
          •    information contained in or compiled from proceedings open to the public;
          •    successful tenders and contracts; and
          •    facts and analysis behind policy decisions.

5.        Its focus would be on content, that is, on information or data rather than
          documents or records.

6.        It would replace specific exemptions with a single test based on a requirement
          that information may only be withheld if disclosure would cause substantial
          harm to the public interest.

7.        It would require disclosure when there is a threat to public safety, public
          health, the environment or when accountability issues arise. Business interests
          of third parties would be subservient to the public interest in those

File: HOBART.DOC / KB                                                                 Page 7 of 8
8.        The legislation would require a waiver of fees in the public interest when:

          •    the information relates to the operation or activities of an agency;
          •    the information is not readily available in the public domain; and
          •    the requester has the primary intention and ability to widely disseminate
               information to the public at large.

9.        The substantive provisions would be in the main Act with details, as
          necessary, in regulations.

10.       An independent external body would exist with determinative powers and
          responsibility for monitoring and reviewing the information practices of
          agencies and reporting to Parliament about such matters.



File: HOBART.DOC / KB                                                                   Page 8 of 8

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