Associate Professor Rick Snell
University of Tasmania
4 December 2012
Dear Dr
Hawke,
Thank you for the limited
opportunity, given the submission deadline, to make this submission to your
review. My intention is to submit a set of key changes I consider necessary to
the Freedom of Information Act 1982
and the Australian Information
Commissioner Act 2010 and just as importantly changes needed in the
practice, administration and culture of open government at a federal level in
the 21st century.
My intention is to expand upon
these recommendations and points before Friday but I wanted to meet your
deadline and allow others a chance to comment on or respond to some of my
ideas. The approach you have adopted to this review severely limits
opportunities for discussion and the exchange of ideas. I will be available to
meet with you to expand upon the points below or to respond to submissions made
by others especially government agencies.
Terms of Reference
Impact of reforms to FOI laws including new structures and processes for
review of decisions and investigations of complaints under the FOI Act, on the
effectiveness of the FOI system and the effectiveness of the Office of the
Australian Information Commissioner. The effectiveness of the new two-tier
system of merits review of decisions to refuse access to documents and related
matters.
The reformulation of the exemptions in the FOI Act,
including the application of the new public interest test, including: (i) the
requirement to ensure the legitimate protection of sensitive government
documents including Cabinet documents; and (ii) the necessity for the
government to continue to obtain frank and fearless advice from agencies and
from third parties who deal with government.
The appropriateness of the range of agencies
covered, either in part or in whole, by the FOI Act.
The role of fees and charges on FOI, taking into
account the recommendations of the Information Commissioner’s review of the
current charging regime; and the desirability of minimising the regulatory and
administrative burden, including costs, on government agencies
Basic changes needed in the
operation of FOI at a national level
· Statement from the Prime Minister
on Freedom of Information and open government.
· Scope of FOI widen to include all
government agencies and functions.
· Emulate the New Zealand approach
to Cabinet information.
· Switch from focus on documents to
information.
· Instruction to public servants
that frankness and candour are requirements of public office.
· Public interest test to apply to
all exemptions.
· ALRC Report recommendations into
Secrecy Laws adopted.
· Simplified charging regime.
· Simplified review mechanism.
· Greater focus on changing culture
and practice within the public service.
· Australia to join the Open
Government Partnership.
1. Statement from the Prime
Minister on Freedom of Information and open government.
Since
Senator Faulkner no Minister responsible for FOI, or Prime Minister, has shown ongoing
and positive leadership, direction or commitment to ensuring the reforms made
in 2010 were effectively put into place. The Prime Minister should be advised
to make a public commitment to FOI and to instruct the federal public service
to avoid transparency only where it is absolutely in the public interest to do
so.
2. Scope of FOI widen to include
all government agencies and functions.
In the
21st century there is no justification to exclude any agency or
function entirely from the coverage of the FOI Act or the supervision of the
Information Commissioner. If the USA can operate with agencies like the FBI and
CIA covered by the Freedom of Information Act there is no justification or
necessity to exclude any Australian agency from the Freedom of Information Act 1982.
The Freedom of Information Act 1982 should
be extended to include any body,
government or non-government carrying out public functions; or receiving
substantial public funds and automatically extend to the creation of any future
government agencies unless specifically excluded.
3. Emulate the New Zealand
approach to Cabinet information.
Ministers
should be required to consider the appropriateness of publishing Cabinet
material and information under guidelines similar to those adopted in New
Zealand in 2009 (see attached NZ Cabinet Office Memo).
This
would also include the possibility of releasing such material where appropriate
before a matter is considered or decided by Cabinet (See point 8 of the NZ
Cabinet Memo).
4. Switch from focus on documents
to information.
As
suggested in Mr Thomler’s submission to this review there should be a shift to
a ‘right to information’ framework “where the format of the information is
de-emphasised in favour of a focus on the content.” The key policy objective of
the FOI Act should be devoted to the management of the supply, demand,
distribution, quality and timing of availability of information held by
government rather than the focus being on the excessive protection of
information regardless of harm.
5. Instruction to public servants
that frankness and candour are requirements of public office.
Much has
been made, generally in anecdotal comments as opposed to any solid evidence, about
the chilling effect of possible disclosure has on the capacity of public
servants to be fully candid and frank in their dealings with Ministers.
A
minimum requirement of accepting public money and their access to the public
payroll, for all public officers, is an expectation or requirement that they
will give full and frank advice.
6. Public interest test to apply
to all exemptions.
There
should be no absolute exemptions and all exemptions should be subjected to a
public interest test.
7. ALRC Report recommendations
into Secrecy Laws adopted.
The 61
recommendations contained in the Australian Law Reform
Commission: Secrecy Laws
and Open Government in Australia (ALRC Report 112) 2010 should be implemented.
It is
difficult to see how an open government system as envisaged under the 2010 reforms
can be achieved without adopting and implementing at least the majority of
changes recommended by the ALRC in relation to the management of secrecy laws
and provisions.
8. Simplified charging regime.
As Mr
Thomler points out in his submission the charging practices of federal agencies
are inconsistent and where applicants (and the public in general) are
penalisied because of the inadequacies of an agency’s document and data
management systems .
9. Simplified review mechanism.
All
review requests should go directly to the FOI Commissioner who must be staffed
and resourced to ensure that reviews are finalised promptly.
One
suggestion is that each agency should be required to transfer resources to the
Office of the Australian Information Commissioner based on FOI review workload
generated in the previous year by each agency.
10. Greater focus on changing
culture and practice within the public service.
Despite
the passage of two years since the reforms Mr Thomler can write:
“I have encountered a large number of public
servants responsible for the collection, holding and dissemination of
information who:
a.
Were unaware of their obligations under the amended FOI Act
b.
Had mistaken beliefs about their obligations under the amended FOI Act
c. Were actively conspiring to not record
information in ‘documents’ in order to avoid it being FOIed “
Variable
compliance and commitment to the reforms is inexcusable. I understand that the
Information Commissioner has worked hard to produce cultural change but clearly
far more needs to be done and achieved.
In particular
the counterproductive influence of many ministerial staffers upon the effective
operation of the objectives of the FOI Act need to be addressed.
11. Australia to join the Open
Government Partnership.
As Peter
Timmins has frequently commented on his blog Open and Shut the Australian
Government’s slowness to sign up to President Obama’s global initiative is both
unfathomable and sends a very negative message both domestically and
internationally about Australia’s commitment and capability to achieve open government.
Final Comments
I
apologise for the brevity and terseness of these suggestions but I have
sacrificed detail to enable my meeting of your deadline.
I found
it very helpful to have access to Mr Thomler’s submission. It would have been
helpful if your review process had offered ways of facilitating the exchange of
ideas and experiences.
Furthermore
given the staffing capacity, resources and experience of the Australian Public
Service it would have been helpful to have made agency submissions due by the 7th
of December 2012 and the public given an opportunity to consider and respond to
those submissions by the end of January.
I have
submitted an opinion piece to Public
Administration Today that will be published before your review is complete.
In that piece my main argument is that the APS has failed to embrace FOI and
open government as a policy program. I argue that the APS in general and its
leadership specifically have neglected (since 1983 and 2010) to seek the
benefits of greater openness and have focussed primarily on the negatives and
costs associated with FOI.
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