Fixing Freedom of Information
By Alison Sandy
Freedom of Information is one of the cornerstones of democracy and even though many members of the public aren’t cognisant of just how important it is, they do respond unfavourably to government attempts to block scrutiny and accountability.
Cover-ups, particularly of corruption, can shift voter allegiance — just look at the Queensland Fitzgerald Inquiry.
And if you look around the world, it’s evident that media freedom directly correlates with personal freedom.
As journalists, we often rely on information from whistleblowers and close contacts, but we also have a responsibility to protect them. Freedom of Information (FoI) is one means to keep the public informed on issues they have right to know without implicating our sources.
However, FoI can be problematic if the laws aren’t robust enough, or administered properly. In Australia, the Commonwealth and each state and territory has its own legislation.
Let’s start with the worst. From my experience, and I lodge more than 600 applications a year, the older the legislation, the more obstructive. Part of that is because public servants know how to exploit all the loopholes so well by now and do so with such pride — like a peacock courting his mate.
The oldest FoI laws are in Victoria and the Commonwealth, both of which date back to 1982. The latter, at least has had some changes thanks to the Freedom of Information Amendment (Reform) Act in 2010. But for the most part, all that most FoI officers in those jurisdictions want to do is frustrate applicants so they give up. And they can do this successfully because of the time and money it takes to exhaust all avenues in the review process.
The first step to deter would-be applicants is to argue about the scope, no matter what it is, and give excuses as to why it’s not valid, e.g. too onerous to process, confusing etc. Then, once a scope is finally validated (bear in mind, sometimes, this may take intervention from the independent umpires, i.e. the Office of the Australian Information Commissioner (OAIC) or Office of the Victorian Information Commissioner (OVIC)), then FoI officers often try to take as much time as possible to process, either by asking for extensions, or just ignoring the timeframe altogether. In Victoria, the preference is to ignore it and hope it will go away.
When finally a decision is made, and this can take about a year, the officers provide a litany of exemptions, mostly applied incorrectly, so you can’t access anything worthwhile anyway. So then, it’s back to the OAIC or OVIC and if that doesn’t work, the Administrative Appeals Tribunal (AAT) or Victorian Civil and Administrative Tribunal (VCAT).
In the case of OVIC, it has very little power and none of the agencies respect the role it plays.
With the OAIC it’s the lack of resources and inability to process the external reviews in a timely manner. This is common across most jurisdictions though.
For example, an application to the Federal Department of Finance for documents relating to complaints made by ComCar chauffeurs in relation to clients, took two years.
Others where information was not forthcoming from the Commonwealth under FoI, and there are many, include just about anything about asylum seekers or refugees, code of conduct breaches, bullying complaints involving staff of Ministers, senior public servant performance bonuses and details as to whether decision-making has been made in the public interest’s or that of the decision maker.
But it’s worse in Victoria. There, the Office of the Premier no less, just ignored my application for documents relating to the pay rise of MPs for five months, before finally giving a decision after intervention from OVIC saying it was Cabinet in Confidence. That matter is still before OVIC.
As bad as the Premier’s office is, the worst department by far in that state, and perhaps even the nation, is Victoria’s Department of Transport. Regular disclosures under FoI are made from their interstate counterparts, but trying to get the same kind of information from them is next to impossible in that it would prove too laborious and expensive to fight. The application fee to the Victorian Civil and Administrative Tribunal is $663.50. By comparison, the NSW Civil and Administrative Tribunal (NCAT) is only $104.
The Western Australian FoI Act isn’t much better but it isn’t treated with as much contempt as it is federally and in Victoria. New South Wales and Queensland have the best FoI legislation in Australia — both circa 2009 — while SA’s FoI Act (1991) which isn’t nearly as good, is currently under review.
So what makes their FOI legislation better than the rest? First, both the Queensland Information Commissioner (OIC) and the NSW Information and Privacy Commissioner (IPC) have teeth. They regularly overturn agency decisions, and the legislation has a pro-disclosure bias in favour of the applicant.
Unlike Victoria, there are significantly less issues for their independent umpires to access documents from agencies so they can scrutinise them and their decisions are treated with respect.
But it works best in NSW and here’s why:
· At the end of the external review, the IPC just decides whether the agency has to make a new recommendation, and why. This is much quicker, because the IPC doesn’t have to defend its decision. If the agency rejects it, the applicant can then go to NCAT. In Queensland, the OIC has to defend it in QCAT which takes up much more time that they could be spending reviewing new application, of which they have an overwhelming supply.
· New South Wales is much less expensive. Its application fee is only $30 compared to $50.80 in Queensland which just keeps climbing. Also, processing is much cheaper. In Queensland, the bills often go over $1000.
As far as a blueprint for openness and accountability by way of effective FoI legislation, in my experience, the New South Wales’ Government Information Privacy Act (GIPA) is the best in the nation. But even it needs to move with the times in relation to audio-visual material such as closed-circuit television, and at least bring in amendments to clear up some of the Act’s ambiguities and if possible, include provisions as to how it’s administered.
They include:
1. Defining what “personal information” is in video footage, e.g. only something that clearly identifies the person such as their face or a distinctive tattoo. Not clothes, or build, or height. Personal information is exempt under FoI legislation and rightly so.
2. Clearly articulating what an agency is required to do with footage, e.g. If they don’t have the ability to blur faces or distinctive tattoos, acquire it. Many of them already have this ability in other areas, e.g. NSW Police in its media unit, but they will argue that’s not accessible to them and it refuses to get the same technology for its GIPA unit because they then would need to do it too. It’s ridiculous given video footage is defined as a document in the same way as a paper report. So if it ensures it has the correct technology to properly redact information from documents, then surely, the same should exist for audio-visual material.
3. Ensuring all agencies accept credit card. Why are they allowed to limit to cheque or money order for payment? Who has cheque books nowadays?
4. The Acts should all have a pro-disclosure bias and define a public interest test. The terms of what is accessible under the Act needs to be specific so there’s no room for misinterpretation.
5. External review agencies need to be adequately resourced.
6. Applications should be free. Fees should apply only when they are processed and only if they are processed on time (the latter already exists in NSW). This includes when an extension has been successfully sought.
7. The tribunals in which applicants are forced to go to when the legislation hasn’t been lawfully applied need to be cheap and easy to access.
8. All agencies and the tribunal should communicate via email if that’s the applicant’s preference. In Victoria, some agencies refuse and will only post their replies, even if an applicant insists on email.
9. Mandatory clear explanation by FOI officers as to what documents exactly are being captured and the searches they’ve undertaken when they claim an application is too onerous to process.
10. A schedule of documents should be provided with every estimated charge.
As far as overseas legislation goes, it’s difficult to pinpoint one we could emulate. I’ve received bad reviews from many users of the US and UK versions and have not used either.
However, if the NSW GIPA legislation could be implemented across the nation, and federally, with the inclusions above, Australia could arguably lay claim to being the most open and accountable democracy in the world.
Alison Sandy is the Seven Network’s FOI Editor
