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FOI in Oz handicapped by two-speed approach
In a major annual review of FOI in Australia, Dr Johan Lidberg says we're suffering from a two-speed approach with more than half the jurisdictions lagging. He points out the nation ranks as a middling muddler in how information publicly gathered and paid for is made available to the citizens who really own it – all of it, not just the bits the bureaucrats and pollies want released to suit their own spin.
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State of access to information in Australia 2011/12
Freedom of Information/Right to Information – Australia
By Dr Johan Lidberg*
Last year, 2011, saw improvements in some FOI systems when it comes to access to government-held information in Australia….but, unfortunately, a two-speed situation has developed for 2012 and beyond.
Queensland, NSW, Tasmania and the Commonwealth are undertaking major reforms and amendments to their laws. The reforms have brought these systems closer to international best practice, which has seen FOI renamed as RTI – Right To Information – reflecting the move toward pro-active disclosure of information by government agencies. RTI is at times also referred to as the ‘push model’, where government-created and -held information should be considered public by default and made available either via self publication on government agency web sites or via so called ‘administrative access’ which is a simplified way of accessing information.
The Queensland and NSW information commissioners strongly promote the pro-active disclosure provisions in their respective laws. There are some indications that this has translated into better practical access to information in Queensland, but it is too early to say if this is a temporary or permanent change.
The changes to the Commonwealth FOI Act came into force in November 2010. During the reform process several improvements were made. These included dropping the application fee for FOI requests, cancelling the papal-like ‘conclusive certificate’ powers granted to ministers that gave them the right to decide what information was in the public interest to release. However, as with Queensland and NSW, the jury is still out how much impact the reforms have had on practical information access.
Need for a report card
Pending funding, a comprehensive assessment of FOI/RTI covering all jurisdictions will be undertaken 2013-2015. This would provide a report card on the practical functionality of the new laws.
The latest major development in federal FOI is that the Australian Information Commissioner, Professor John McMillan, released his review into fees and charges which previously had been used by some agencies to block information requests. The report made it clear that the current fee structure was confusing and inconsistent but that, nonetheless, some sort of fee system was needed to hold off so-called vexatious (unjustified and annoying) requests. Similar to his Queensland and NSW colleagues, Professor McMillan sees FOI/RTI requests as a last resort. Most information should be accessed via the proactive disclosure of information or via what he terms ‘administrative access’. Put simply, you pick up the phone or email an agency and ask for the information bypassing the formal request process. If this works it is clearly a win-win situation. It is cheaper to process and the requestor gets close to instant access.
Tasmania has also passed a new RTI law, but the proactive disclosure provisions are weaker compared to the other reformed laws.
The pro-active disclosure and administrative access models hinge on a major culture change in terms of attitudes to information ownership among chief public servants and ministers. There are some signs in Queensland that there has been a shift away from the view that the government owns the information toward its holding the information on behalf of the public. However, it is too early to judge the extent of the shift. Facilitating this culture change has been and remains the biggest challenge in information access reform in Australia. This is long-term work and will most likely take at least a decade.
Reform lags in many jurisdictions
The FOI laws in Victoria, SA, WA, the NT and the ACT are lagging far behind the reformed systems mentioned above. This is why it is important to assess the new systems. If it can be shown that the reformed laws provide greater access, this fact can be used to argue for the need for reforms in the FOI systems in these states and territories. Victoria is in the process of passing a bill creating a FOI commissioner, but the bill does not include major reforms to the outdated Victorian FOI law, severly hampering the actions of any future commissioner. The problem again illustrates that promising extensive FOI reform is easy in opposition but much harder to deliver when you are in government.
Another disappointing example of this is US President Obama. During his first day in office, he issued a memo on transparency and open government that was supposed to fix the broken US access to information system. Nearing the end of Obama’s first term, US federal FOI is still broken.
In a 2011 international comparison of the 89 current FOI/RTI laws globally, Australia’s Commonwealth Act came in as number 39 – the middle of the pack. Although the comparative legal methodology was seen as sound, the rating was criticized for being incomplete, as it did not include a component assessing how the laws deliver information access in practice. Until this is done the rating should be seen as an indication only.
It is somewhat disappointing that a newly reformed system like Australia’s federal FOI law did not rank higher. The limitations of Australian law was found in the categories ‘scope’ and ‘exemptions and refusals’. The rating found that – compared to international best practice – Australian law had too many blanket exemptions for agencies holding sensitive information. The prime example is the Australian Security Intelligence Organisation. In best practice laws, such as in the US and Sweden, there are no blanket exemptions. It is not very likely that journalists using FOI will get any information from the CIA or the Swedish equivalent, but it is symbolically important that no government agencies are exempt from the goal of openness and transparency. The exclusion of cabinet notebooks is another example that brings down the Australian score.
Corporate access is the elephant in the (board) room
In the most challenging areas of independent information access – corporate information – 2011 saw no movement at all. This is noteworthy as actions of big corporations arguably have as much influence (at times more) over our daily lives as do governments. Access to corporate information remains the final frontier in the information access battle. However, it is probably safe to assume that, until access to government held information is satisfactory, focus will not be on access to corporate information. This is problematic, as our current economic system requires market actors to have independent access to quality corporate information to make informed decisions.
The other side of the information access equation is protection of whistleblowers and journalistic sources. 2011 saw some improvements with a federal shield law passed. We have not yet seen the NSW and Commonwealth shield laws used in practice; hence it is too early to judge their effectiveness. A bill with shield law properties is currently before parliament in WA and will probably pass during 2012. The bill does improve the situation for both journalists and their sources, but does not deal with s 81 of the WA Criminal Code, which is similar to s 70 of the federal Crimes Act that states:
‘Disclosure of information by Commonwealth officers
(1) A person who, being a Commonwealth officer, publishes or communicates, except to some person to whom he or she is authorized to publish or communicate it, any fact or document which comes to his or her knowledge, or into his or her possession, by virtue of being a Commonwealth officer, and which it is his or her duty not to disclose, shall be guilty of an offence.
(2) A person who, having been a Commonwealth officer, publishes or communicates, without lawful authority or excuse (proof whereof shall lie upon him or her), any fact or document which came to his or her knowledge, or into his or her possession, by virtue of having been a Commonwealth officer, and which, at the time when he or she ceased to be a Commonwealth officer, it was his or her duty not to disclose, shall be guilty of an offence.
Penalty: Imprisonment for 2 years. ‘
These laws are outdated, draconian and internationally embarrassing; they allow government agencies to hunt down whistleblowers who in most cases sought to expose maladministration and corruption. As long as these laws are in force whistleblowers who chose to collaborate with journalists would be well advised to ask for anonymity, make sure they work with a journalist covered by one of the two existing shield laws and hope that the laws will deliver source protection in practice.
* Dr Johan Lidberg is a CLA member and a Senior Lecturer in the School of Journalism, Australian and Indigenous Studies at Monash University.
He blogs at: http://artsonline.arts.monash.edu.au/johan-lidberg/ and tweets @johanBalance
A shorter version of this article appeared first in the Media, Entertainment and Arts Alliance’s State of the Media 2012 Press Freedom Report, ‘Kicking at the Cornerstone of Democracy’: http://issuu.com/meaa/docs/press_freedom_2012
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