FOI, open access rules need reversing

Information within government is the people’s information. The starting point for access rights and openness must be that the people are entitled to see and hear everything, with very limited exclusions. Currently, the reverse is true, certainly in WA, says Dr Johan Lidberg.

Information access in WA…an international embarrassment

By Dr Johan Lidberg*

Hypothetical scenario: you’re a reporter in a news room in WA. The phone rings. On the line is a public servant telling you she has information regarding a report into a certain gas pipeline explosion in the northwest of the state.

The report is not yet public and she has just been told by her boss that it probably never will be. She is upset by this as she thinks the public has a right to know about what’s in the report.  The information in the document is damning both for state and federal governments and the company that operates the gas processing plant.

The report shows that responsible government agencies have not been inspecting the pipeline to schedule which has allowed the company to neglect maintenance which led to the explosion.

The public servant is willing to supply the report to you provided she can remain anonymous. Would you grant anonymity to the source?

Of course you would. Otherwise you would not be doing your job. However, in doing this you must be prepared to both risk fines and/or spend some time behind bars.

If the government decides to pursue the leak under WA’s Criminal Code Act Section 81, that deals with disclosing official secrets, the reporter could be summoned to the court proceeding and asked to reveal the source. If he doesn’t he will be guilty of contempt of court.

On the other hand, if the reporter reveals the source the consequences could be very serious indeed. Section 81 reads:  ‘A person who, without lawful authority, makes an unauthorised disclosure is guilty of a crime and is liable to imprisonment for three years’. THREE YEARS behind bars for supplying a journalist with information that is clearly in the public interest. It would take a very brave public servant to risk this. Some have with great personal and financial suffering as a result. Instead of rewarding them for their integrity and bravery, the system has punished them.

To add to the information flow woes in WA, the Corruption and Crime Commission, CCC, have powers to threaten journalists with $60 000 fines and lengthy jail terms if they disclose that they have been called before the commission as a witness. The CCC was created to prevent repeats of the like of the WA Inc scandals, but does it also have to prevent journalists from doing their job? Surely it’s possible to deal with this in a less draconian way?

This is how the law currently stands in WA. It really is a national and international embarrassment to have laws that you would be more likely to find in totalitarian countries such as Zimbabwe or North Korea.

There are solutions: amend Section 81 of the Criminal Code with a public interest test regarding disclosure and pass shield laws for journalists giving them protection from contempt of court. NSW and federal shield laws are already enacted and although they are weak, it is at least a start. The Barnett government isn’t in the race at all.

The other side of information access equation is the Freedom of Information, FOI, regime. It’s time for WA to take the lead from Queensland, Tasmania and the Commonwealth governments and pass reforms that will deliver on the core promises of FOI: independent access to un-spun government information. FOI is supposed to work as an accountability tool that prevents mal administration and corruption and enhances public participation in the political process. Currently this is not the case. Rather than facilitating information access, in many cases WA government agencies are stalling access.

Another up-side to well functioning FOI is that journalists can use it to verify and check verbal leaks and hence protect their sources and enhance the factual quality in their reporting.

The journalists’ union, the Media Entertainment & Arts Alliance, academics and individuals have for years repeatedly tried to convince consecutive governments in WA, from both sides of politics, to address the information access debacle in WA.

Far reaching and easy access to government generated and held information is a clear and easily measured indicator of how serious a government is about governing in an open and transparent fashion – hallmarks of a mature liberal democracy. You would think this would be one of the core goals for any government.

After all – governments hold information on behalf of the public – right?

*   Dr Johan Lidberg is the Program Chair of Journalism at Murdoch University. His main research area is Freedom of Information. He is a CLA member. This article appeared first in The West Australian.

Print Friendly, PDF & Email