FOI under threat, reaches crunch time

PryorFOI is under threat in most Australian jurisdictions. In WA, it’s crunch time for new FOI legislation, writes Murdoch University academic Dr John Lidberg in this article which first appeared in the West Australian. Meanwhile, in Victoria, Premier Brumby is sending mixed FOI messages, as The Australian reports.

FOI goes West, as government chips away at transparency

‘Why shouldn’t the public know more about what’s going on?’

By Dr Johan Lidberg”*

It’s crunch time for Freedom of Information (FOI) in Western Austraia.  The current proposed changes and amendments to the FOI Act are watering down an already cumbersome piece of legislation. In a way it’s also crunch time for the government’s trust in the public to handle information that is arguably held on its behalf by the government.

The core justifications and promises of FOI laws are to prevent corruption and maladministration and increase the public’s participation in politics via extensive access to un-spun, quality, government-held information.

The theory is that our elected representatives and the public servants will be kept “honest” because they know that sooner or later someone will find out any “dodgy dealings” by using FOI.

To promise FOI is easy, to make it work in practice is harder, because in the end it’s all about political will and the culture of governance. Consider the following from the BBC series ‘Yes Minister’:

Scene: The Civil Servants Club Westminster, London. The Permanent Secretary to the British Prime Minister, Sir Arnold (SA), has just been served a cognac. Joining him is Sir Humphrey (SH), the Permanent Secretary to the newly appointed Minister for Administrative Affairs. As they discuss what the new Minister is like, the minister’s private secretary Bernard (B) joins them. Sir Humphrey’s main concern is that the new Minister wants ‘open government’ reform.

SH: As long as we can head him off from this open government nonsense.
B: But I thought we were calling the white paper Open Government?
SH: Yes, well, always dispose of the difficult bits in the title. Does less harm there than in the text.
SA: The less you intend to do something, the more you need to keep talking about it.
B: But, I mean, what’s wrong with open government? Why shouldn’t the public know more about what’s going on?
SA: Are you serious?
B: Well, yes Sir, it is the minister’s policy after all.
SA: But, my dear boy, it’s a contradiction in terms. You can be open, or you can have government.
B: But surely the citizens of a democracy have a right to know?
SH: No, they have a right to be ignorant. Knowledge only means complicity and guilt, ignorance has a certain…dignity.
B: But if the minister wants open government….
SH: You just don’t give people what they want if it’s not good for them. Do you give brandy to an alcoholic?
SA: If people don’t know what you’re doing, they don’t know what you’re doing wrong.
B: Well, I’m…I’m sorry, Sir Humphrey, but I am the minister’s private secretary, and if that’s what he wants…

SH: My dear fellow, you will not be serving your minister by helping him make a fool of himself. Of the ministers we’ve had, every one of them would have been a laughingstock in three months had it not been for the most rigid and impenetrable secrecy of what they were up to.
B: What do you propose to do about it?
SH: Can you keep a secret?
B: Of course
SH: So, can I.

This time the minister lost. Sir Humphrey outmanoeuvred him and the white paper on open government withered and died.

Although the above dialog is satirical in nature, it still goes to the core of how well a FOI regime works in practice. It also illustrates the governance mindset still dominant in Australia.

WA and Queensland used to be the most functional FOI regimes in Australia. Queensland still is; WA is slipping. It’s the FOI Commissioners that make the two states stand out. They have proved to be the key to FOI functionality. An independent and integrity-strong Commissioner with real powers of investigation and decision-making powers is a must to deliver on the FOI promises.

The suggested amendments and changes to the WA FOI Act will strip the Commissioner of decision-making powers and transfer them to the State Administrative Tribunal. The federal version of FOI has since 1982 shown that this system does not work. Time and time again frustrated users of federal FOI have been bogged down in the time consuming and very expensive appeals process starting with the federal Administrative Appeals Tribunal.

This was illustrated in 2006. The federal Act was proven completely dysfunctional after the High Court ruled in favour of the Treasury regarding access to documents outlining tax bracket creep sought by the then FOI editor of The Australian. The cost to the paper to drive the appeal was several hundreds of thousands of dollars. This may be the road WA is heading down with the suggested changes to the WA Act.

To make matters more complex, the Carpenter government seem to view The West Australian and FOI as one in WA. Like any publication The West Australian is not perfect and makes mistakes and some of the government’s criticism of the paper is justified, but this does not give it the right to water down the FOI regime to a state of dysfunctionality. What about the rest of the media and public that is not affiliated with the paper? Why are we dragged into the current feud between the state government and The West Australian? Why is our information access right sacrificed in this no-win battle?

In the best of worlds an extensive FOI regime is a win-win. The public gets access to quality information held by governments on behalf of the people and governments’ credibility and public support are increased by a will to be more accountable. For this to happen, Australian governments need to rid themselves of the ‘you can be open, or you can have government’ doctrine.

 * Dr Johan Lidberg is Lecturer in Journalism at Murdoch University in WA. His key research areas are Freedom of Information and whistleblowing.

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