JMcMillan photoBY JOHN MCMILLAN

Two FOI certainties

Australia was an international leader in enacting a national Freedom of Information Act in 1982. The national initiative was quickly followed in all States and Territories. This is a proud heritage and underpins an acceptance that transparency and representative democracy are intertwined.

Therein lies the first of two FOI certainties: that FOI legislation will remain permanently on the Australian statute book. It is now part of the constitutional fabric.

Everyone in government agrees that, intrinsically, access to information legislation is a healthy and essential element of Australian democratic government. Or, at least, that is everyone’s public position. No-one attempts or is prepared to argue seriously that we would be better off without an FOI Act.

Probably too it would be an unachievable goal to wind the clock back. Government cannot function in the present age without a web presence and a customer service strategy. Releasing information and responding to information requests are central to both. Nor would it require much imagination for courts, tribunals and ombudsmen to weave disclosure requirements into public law doctrines such as natural justice, rationality and good administration.

And the second certainty? FOI legislation will be unpopular and contested in every phase of government. Few will say so publicly, but most bureaucrats and government ministers find FOI requests to be irritating, time-wasting, distracting and inhibiting to internal deliberations. While the easiest and least painful response will usually be to release documents that have been requested, FOI processes are frequently characterised by creative and passive resistance.

That is why all major parties go through a mood swing, depending on whether they are in opposition or government. In opposition they champion their commitment to transparent government, and sometimes follow through quickly when elected to office. But they quickly lose heart, as Labor did after introducing far-reaching FOI reforms in 2010 that included the creation of the Office of the Australian Information Commissioner (OAIC). Not long after, Labor’s enthusiasm for open government waned. Leadership messages advocating greater openness became scarce, access denials that lacked merit became more common, and there was a failure to engage in foreshadowed policy discussion about tweaking the FOI reforms.

Similarly, the Coalition parties, who were active users of the FOI Act while in opposition, acted quickly in government to play a different tune. An early signal was their decision to abolish the OAIC – predictably badged as a measure to improve efficiency in resolving access to information disputes. Twenty months later, when it is clear that Parliamentary support for abolition is lacking and the OAIC (a statutory office) has been left in limbo, there is a failure by government to engage in constructive review of the abolition decision.

The same mood shifts have occurred in other political systems. Every Information Commissioner office in Australia has encountered turmoil at some time or another – for example, through long periods in Queensland, Victoria and WA when there was only an Acting Commissioner in the role. Similarly, in Britain the Government’s displeasure with FOI is apparent in measures taken to review the FOI Act, even though the Prime Minister is an international champion of the Open Government Partnership and the open data revolution.

Why information custodians dislike FOI

Just as these mood swings are predictable, they are also understandable. The operation of the FOI Act is entangled with politics. It is readily apparent to any minister’s office that the unstated aim of many FOI requests is to pressure or embarrass the government. That is to be expected in a democracy, but it is equally to be expected that a government will resist its political opponents – and particularly when they are likely to use the tag line ‘secret documents freed under FOI’.

Bureaucrats, for different reasons, also have strong and understandable reservations about FOI. The premature public release of briefing documents for a minister can complicate the agency-minister relationship and instigate an unhelpful public debate that can delay or distort the political resolution of an issue. Equally, many internal documents are prepared with a particular recipient or purpose in mind and are styled in that way. Had public release of the document been intended it may have been written differently, though be of less value to the intended recipient.

Generally, too, government agencies are now more transparent, responsive and engaged. A great deal of information is available on government websites about programs and policies; senior agency personnel participate frequently in public forums; and many public servants reply helpfully on the phone or email when queried about a decision. It is understandable in that setting that agencies may regard FOI requests as unwelcome and time-wasting.

My own experience as Ombudsman and Information Commissioner illustrates that point. The FOI Act applied to me in both roles, and I received a steady number of requests. Many were for drafts of or email correspondence relating to my public reports and statements. In effect, the object of the requests was to place on the public record the thoughts that were unformed or that I had discarded. Open government objectives are better served by time invested in publishing or disclosing material that is definitive or revelatory about government administration. I add that I was more than happy to debate the document that was published, or to have a telephone conversation with the requester to explain the genesis of the document and why I had settled on the published final views.

Nor, I add, do governments, oppositions and bureaucrats stand alone in being disingenuous about their commitment to open government. Academics tend to be strong open government advocates, but not necessarily when an FOI request is made for their research inventory or for records relating to internal academic wrangles. Journalists are another open government constituency, but are not as forthcoming when access requests are made for details of their salary and consultancy payments.

In summary, the open government debate is not clear-cut. Participants are not neatly divided between saints who believe in maximum transparency and tyrants who are addicted to needless secrecy. There can be traces of self-interest, inconsistency and, indeed, hubris in all quarters in the debate. Frequently there is neither a clear-cut answer nor a shared view as to where the boundary between openness and confidentiality should be drawn. But, as that suggests, the boundary can generally be shifted towards a bit more openness, up to a point.

The picture is all the more confusing in the modern age because of the rise of a new industry, the message managers. In a world of 24/7 electronic communication and social media, there is competition in the public space to control the message. While the trend in society and government is towards greater openness, this is accompanied by a stronger contest to control how the message is presented or understood. Message control is an acute dimension of modern politics.

Can FOI be made to work?

This takes us full circle to the conundrum stated earlier: an FOI Act will remain a dynamic entry on the statute book, but it will be unpopular with those in government who are responsible for implementing it.

How is that tension to be resolved? The short answer is that the tension will never go away. I say that with a heavy heart, having taken the job of Information Commissioner in 2010 with the knowledge that the success of the OAIC and FOI reform depended on acknowledging and adroitly addressing the underlying tension. It was not my expectation that the response of government and the Attorney-General’s Department would be to abolish the office and attempt to wind back the clock as far as possible.

It is nevertheless an enduring challenge, to ensure that open government practice is guided by pragmatism and settled principles. I will set out four points that I think are important, going forward.

1. Independent oversight of FOI administration

An independent statutory oversight body – such as an information commissioner’s office – can play an effective role in making FOI work better. Three big challenges in FOI administration are: making it easy for members of the public to make an FOI request and question an adverse agency response; ensuring enlightened and consistent practice across potentially hundreds of different government agencies in how they handle FOI requests; and forging a sensible conversation between applicants and agencies about what information is being requested and what an agency is prepared to release and in what form.

An information commission can address those challenges in numerous ways – through a telephone advisory service; publishing guidelines and request and decision making templates; investigating complaints about agency delay or obstruction; making an informed contribution to public forums and agency seminars; brokering a compromise between applicants and agencies when that is practicable; and reviewing agency denial decisions and building a body of precedent in the process.

The Information Commissioner’s office in Queensland – which is now the longest standing office in Australia – has been successful across all those fronts. The OAIC, despite turbulent times, also demonstrated considerable success in this endeavour. The cost to agencies of administering FOI requests dropped as request numbers (formal and informal) increased. Applicants and applicants now refer extensively to OAIC guidelines in their correspondence and decisions. The OAIC was able to undertake both a survey of all agencies on their information management practices, and two own motion investigations into systemic problems in FOI administration in two large agencies.

The resolution of disputed decisions has also climbed steadily, even though staff numbers in the FOI team have reduced by over half following the Government’s abolition decision. In the 2014/15 year the OAIC received 373 merit review applications and finalised 482, and published 128 decisions (up from 98 the previous year). The explanation lies in the refinement over time of a streamlined review process, the build-up of precedents that makes it easier to resolve new disputes, and the increased willingness of applicants and agencies to reach agreement in access to information disputes.

2. Administrative access

The FOI Act should operate alongside administrative procedures that facilitate access to information outside the formal processes of the FOI Act. An example is to provide individuals with access to their own personal information without the need to make an FOI request. This may be done informally, through an access procedure that is explained on an agency’s website, or through an online portal that enables clients to access and update their personal information.

Administrative access can provide information more quickly, flexibly and inexpensively. As importantly, administrative access embodies the notion that information access should be a routine activity in government that does not ordinarily require the formal exercise of FOI legal rights of access.

To encourage acceptance of this notion, the OAIC proposed that the FOI Act be amended to state that an agency, upon receiving an FOI request, could suspend formal FOI processing for a designated period of two weeks to enable discussion between the agency and the applicant as to how the request can be met outside formal FOI Act procedures. They could discuss matters such as the scope of the request and whether a more suitable option would be to release information assembled by the agency rather than particular documents specified by the applicant. The applicant would still have the right at the expiration of that period to insist that the request be processed as one for specified documents, and to appeal against any failure of the agency to comply with FOI Act requirements.

When the FOI Act commenced in 1982 it was understandably framed as an Act to provide access to documents. That is how information was then recorded. Understandably too the FOI Act was framed on the premise that an agency may be reluctant to provide access to documents, and that a formal procedure was required for making and processing requests and review of agency decisions.

That premise still holds in some instances. But as commonly the information a person seeks is not in documentary form. And an agency may be more willing to satisfy a person’s information request, but not necessarily by the arduous route of searching for and analysing all documents that may record information of the type requested.

Some agencies call ‘time out’ when receiving an FOI request by the (at times) doubtful expedient of saying that the request does not comply with the formal FOI Act requirement to give a reasonable description of the documents requested. That is, the agency unilaterally stops the FOI Act processing clock, to enable an informal discussion with the applicant.

It would be better if an administrative access option was built into the FOI Act so that the practice and the principle were mainstream. This would enable a better up-front discussion between an agency and an applicant about the scope of the request, the processing impact on the agency, and the options for satisfying the applicant’s desire for information. This could provide more effective and quicker access in many instances.

This would also reposition the FOI Act as the bundle of legal rights that an applicant can invoke when rebuffed by an agency. A downside of the current FOI Act process is that a request is apt to be treated by an agency as the first stage of a potential legal dispute that should be handled by the agency’s legal team. Generally speaking, information access requests are better handled by agency officers who have expertise in information management or customer relations.

3. Balancing the interests of applicants and agencies

The FOI Act could strike a better balance between assisting the public to seek out government information and controlling the administrative burden that agencies can face in dealing with requests. The 2010 FOI Act reforms introduced an imbalance that should be corrected.

At present, there is no application fee for an FOI request; no processing charge for personal information requests; a processing charge of between $15-20 per hour for other requests; no charge if an agency does not make a decision within the FOI time limits; and an agency may refuse a request on the opaque ground that it ‘would substantially and unreasonably divert the resources of the agency from its other operations’.

In a report to government in 2012, Review of charges under the Freedom of Information Act 1982, the OAIC noted that an agency is better placed under this framework if it moves early into a formal processing mode and refuses the request before the processing deadline is reached. Nor is there any strong incentive for an applicant to engage in discussion about the scope of the request or alternative forms of access, particularly if the request is for personal information or for information that may attract a public interest fee waiver.

The alternative scheme proposed by the OAIC had the following elements: no charge to make an FOI request or for the first 5 hours of processing; a flat charge of $50 for the next 5 hours of processing (whether 6 or 9 hours); $30 per hour for processing after the first 10 hours; after consultation with the applicant, a 40-hour ceiling on an agency’s obligation to process a request; a narrower public interest fee waiver test that would require that release of the documents requested be of ‘special benefit’ to the public; an ability to defer formal processing for a defined period to enable an administrative access discussion with the applicant; and a fee reduction scale for delayed FOI processing that would have 25-50-75-100 per cent weekly fee reduction steps.

This alternative scheme attracted some criticism, as expected. It would, however, be an easier scheme to administer than the current FOI Act provisions. The scheme would provide a strong incentive for applicants to discuss upfront how a request could be scoped at less than 10 hours, and an incentive for agencies to waive the $50 charge if there is an agreement to that effect. The 40-hour ceiling cap was contentious, but in practical terms represents more than one week of a public servant’s time being allocated to processing an individual request: a proportionate ceiling, in my view. The OAIC could investigate any complaint that an agency’s 40-hour estimate was unrealistic.

This proposal is still on the table. Shortly stated, there has been no Government response. My feeling was that governments do not like to instigate public debate about restricting information access rights, even when the proposal comes from the independent Information Commissioner.

4. Disclosure by design

Just as privacy law is invigorated by the concept of ‘privacy by design’, a matching concept of ‘disclosure by design’ could be strengthened in FOI administration. This can be done both directly and indirectly.

A direct approach can be adopted under the Information Publication Scheme (IPS) in Part II of the FOI Act. The IPS lists categories of documents that must be published by agencies (such as the organisation chart, consultation arrangements, and internal decision-making manuals). Agencies must also publish an Agency Plan that explains what other information the agency proposes to publish and the expected audience for that information. The OAIC had an IPS monitoring role, and had invested considerable planning and resources on this task prior to its foreshadowed abolition. Proactive publication and open data are the most promising open government mechanisms in a digital age.

An indirect approach to disclosure by design (noted above) is to confine the public interest fee waiver power to disclosure being of ‘special benefit’ to the public. In theory, all disclosure of non-personal government information is a matter of public interest, but not necessarily of special benefit. For example, the public interest may not be as strong or special if the documents in question are drafts of documents that have been published by an agency.

Rewriting the public interest fee waiver power in this way would provide an incentive for agencies to publish or proactively release more information. An agency would then be on stronger ground to argue that additional draft or peripheral documents sought by an applicant can be released but do not warrant a public interest fee waiver.

I made the same point, as Information Commissioner, in a decision upholding a claim that it would substantially and unreasonably interfere with the performance of the Prime Minister’s functions to prepare an edited version of the Prime Minister’s appointments diary for release to the FOI applicant. I went on to say that it would be better if Ministers prepared a version of their appointments diary for regular website publication. If this was done, a Minister would be on stronger ground to argue that a request for the internal back-up diary does not attract a public interest fee waiver or that the request can be refused on workload processing grounds. (My advice was seemingly ignored, and predictably there is now an expensive and drawn-out legal wrangle in the Administrative Appeals Tribunal and the Full Federal Court over an access request by the Shadow Attorney-General to the Attorney-General’s appointments diary.)

Another indirect ‘disclosure by design’ approach is adopted in the Queensland Right to Information Act 2009. It provides that documents such as incoming government briefs are exempt from the operation of the Act for a period of 10 years after creation. While a brief may warrant partial exemption on content grounds when it comes under the operation of the Act (for example, personal information), the expectation is that the brief would substantially be released at that stage.

The policy rationale for this approach is that incoming government briefs are a unique species of document that warrant special exemption at the time of creation, but not when the Government’s term has expired and a new Government is formed (indeed, I would argue for a shorter FOI exclusion period than 10 years). The practical rationale for this approach is that an enormous amount of effort is devoted in FOI administration and review to dealing with requests for incoming government briefs that are largely destined to fail. A predictable disclosure rule would be better all round.

Conclusion

The FOI Act is far too important either to languish or to go through periodic upheaval as it has for more than 30 years. Interestingly, the Act is listed on the Comlaw website as one of 30 or so ‘Key resources’ on the Commonwealth statute book (along with the Archives Act 1983, Privacy Act 1988 and the Australian Information Commissioner Act 2010, constituting the OAIC). Political and government practice does not accord that respect or importance to the FOI Act.

The FOI Act is a cornerstone of democracy. There must be a commitment both in and outside government to making it work better. This is not an overwhelming challenge in a technological era that provides both a firmer platform for and a stronger expectation of transparent and responsive government.

Emeritus Professor John McMillan was the inaugural Australian Information Commissioner (2010-15). He is currently Acting NSW Ombudsman.

Suggested citation: John McMillan, ‘FOI in Australia: building on a turbulent past’ on AUSPUBLAW (29 January 2016) <https://auspublaw.org/2016/1/foi-in-Australia/>