Submission to the Review of the Freedom
of Information Act, 1982 and the Australian Information Commissioner Act, 2010
Dr Rhonda Breit,
University of Queensland
Associate
Professor Paul Henman, University of Queensland
Dr Johan Lidberg,
Monash University
Associate
Professor Rick Snell, University of Tasmania
7 December 2012
Introduction
There
is a critical need to assess whether, and to what extent, Freedom of Information
regimes have delivered on their political and service delivery promises of
promoting open communication between governments and citizens.
FOI
and its impact, effectiveness and contributions to our democratic polity is an
under researched area both within Australia and internationally. This
submission is to inform the review of a proposed research project that, if
funded, will start from mid 2013.
We
have submitted an application for a 2013 Australian Research Council Linkage
grant scheme. The proposed project develops a framework for testing FOI demand
and functionality, without which Australia’s access to information laws could potentially remain ineffective paper
constructs. We intend to examine whether recent reforms have had
any impact on public access to government held information and investigate user experiences to identify whether
there is a practical difference in the demand
and functionality of government information across different FOI
jurisdictions to provide a report card
to governments, FOI administrators and the public. To achieve this aim our
study will track internal
and external actors’ experiences and practices.
This is a partnership with five
Australian Information Commissioners/Ombudsmen[1]
, and the project will provide a report
card on the actual operation of Freedom of Information (FOI) across different
jurisdictional contexts in Australia and the achievement of open government
objectives.
The study develops an internationally
innovative and replicable measurement methodology to critically assess the
practical impacts and achievements of FOI legal and service delivery reforms on
demand and functionality.
Public access to government held
information is one of the pillars of mature democracies. It goes to the core of
public participation in the political system and accountability for the elected
representatives. In theory, well functioning FOI systems can help build trust
between governments and the public (Lidberg, 2009), but actual operation of FOI
appears quite different (Timmins, 2012). Prior to recent FOI reforms many users
had given up on FOI as an information access tool (Lidberg, 2003; Snell, 2002;
2006). Administrators were critiqued as failing to deliver on the promise of
promoting open communication between governments and citizens both in terms of
the service delivery objectives of making information available, accessible and
usable, and the political objectives of promoting greater openness and
transparency of government (Yu and Robinson, 2012).
Since 2009 major legal reforms in several
jurisdictions have led to a dual system of FOI operating in Australia. The
Commonwealth, QLD, NSW, and Tasmanian jurisdictions have implemented “FOI 2.0”,
which requires all government agencies to release information pro-actively
unless contrary to public interest. This is also known as push model FOI, as government information is “pushed’ to the public
by pro-active disclosure. FOI 2.0 systems are reliant on digital technologies
and third parties to disseminate and reuse government information. All other
Australian jurisdictions follow the older “FOI 1.0” model, in which governments
are legally required to release information upon request from third parties.
This is also known as pull model FOI,
as information must be “pulled” from agencies via request.
These legal reforms have been accompanied
by improved digital technologies (especially internet, mobile and social media
technologies), which are transforming the way governments communicate with
citizens and how they secure, convert, store, protect, process, transmit, and
retrieve information (Eggers 2007; Lathrop & Ruma, 2010). Consequently,
members of the public have access to information and data in processes and formats
that expedite access, republication, analysis and reuse.
The FOI 2.0 laws and emerging digital
technologies have the potential to become potent political accountability
tools, with the capacity to dramatically improve the flow of reliable
information between governments and citizens (Roberts, 2006). It
is becoming increasingly important for FOI oversight agencies, such as
Information Commissioners, to develop repeatable methodologies and standardized
metrics to measure how the operation of these laws are contributing to the
political and service delivery objectives of open government. There is an
urgent need to understand how FOI is working in Australia across different
jurisdictional contexts.
The focus of this research is the lived
experiences of FOI from different perspectives to help improve how FOI is
communicated internally within agencies and externally amongst re-users and the
broader public. We will identify and typify different FOI user roles; scope
user experiences, practices and attitudes; articulate a revised Functionality
Index and report findings; and develop resources and recommendations for the
use of the project partners and FOI users. The project will be managed in close
cooperation with the five institutional partners, who have had extensive input
into the final design of this research. The partners will provide the
infrastructure and the raw data from previous relevant FOI studies to aid our
data gathering activities. Their role in this project emphasises its
significance and timeliness because it links to their stated information
management objectives by:
1. Creating a comprehensive and
cross-jurisdictional database of FOI practices. This database will be hosted by
the partners as part of the Australian
Information Access Portal and form the basis of a sustainable web-based
repository housing resources to maximize community re-use of government
information and assist the project partners to promote greater information
disclosure, digital innovation and online engagement with public.
2. Formulating a revised set of
metrics applicable across different jurisdictional settings and formulating an index to evaluate FOI demand and
functionality (hereinafter referred to as the functionality index).
3. Making recommendations for the
implementation of a National FOI Action Plan to improve government information
management practices pursuant to the 2009 report of the Government 2.0
Taskforce (see OIAC, 2011, p. 2).
This project can play a significant role
in improving the communication
infrastructure (particularly use of digital technologies) underpinning FOI
in Australia by benchmarking experiences, standardising approaches to
evaluation, making recommendations for better information management in the
digital era and establishing resources to enhance public use and re-use of
government information.
Empirical significance and innovations
This study provides the first comparative benchmark data of
contemporary FOI practices in Australia, and
specifically comparing FOI 1.0 and 2.0 regime performance. Within Australia and
internationally, few comparative studies have been conducted to evaluate the
role of FOI in managing and bolstering governments’ information resources
(Dekkers et al, 2006). What prior studies have revealed
is that FOI laws on their own do not necessarily ensure greater access to
government information. Rather, FOI regimes worldwide typically display poor
functionality and Australia’s FOI performance particularly ranks poorly
(Lidberg, 2003, 2009; Snell 2007). Existing research suggests that the
Australian FOI regimes have failed to deliver on their promise of greater
government accessibility, transparency and accountability. While there is a
vast amount of literature on FOI 1.0 from different approaches and disciplines
(Stubbs, 2012), there is no independent evidence of an “increase in the quantity
and significance of disclosures” since the implementation of FOI (Timmins, 2012).
Moreover, the effects of legal and technological changes to FOI remain
untested. To ensure that FOI laws are more than a paper construct or a
democratic ‘showcase’, the functionality of the laws, particularly how they
work in practice, needs to be assessed. These and other findings (ALRC, 1996; Lidberg, 2003, 2006, 2009; Snell 2000, 2006,
2007) were one of the catalysts for several regimes moving from FOI 1.0 to FOI
2.0. This study fulfills the urgent need to examine the effects of this transition on information
sharing practices and experiences between governments and communities.
Methodological significance and innovations
This study develops an internationally innovative and repeatable
methodology based on a new set of standardised metrics with which to rigorously
and systematically assess, compare and benchmark the operation of FOI regimes,
nationally and internationally. Despite the
paradigmatic legal and technological changes arising from the transition to FOI
2.0, the question of FOI performance is routinely evaluated by quantitative
measures such as how many FOI requests are made, granted, refused, appealed or
are successful (see Hazel and Worthy, 2010, 354; Lidberg 2009; Breit, Snell
& Neal, 2011; Breit, Snell and Henman, 2012). But such traditional
evaluation methodologies cannot shed light on how effectively governments are communicating information and whether the
sharing of information by government with community has produced measureable
economic, social and democratic benefits (OAIC 2011, p. 1).
The limitations of these evaluation methodologies are recognised by
academics and governments alike (Hazel & Worthy 2010; Dekkers et al 2006,
OAIC 2011). For example, the Australian Government 2.0 Taskforce (Gruen, 2009)
called on the Office of the Australian Information Commissioner (OAIC) to develop a
methodology, a revised functionality index and a standardised set of metrics for reporting to government on the social, democratic and economic
value generated from published government information. Subsequently, the OAIC Issues Paper (2011) called for repeatable
methodologies to evaluate FOI’s contribution to open government. This proposed project’s development of a ‘functionality
index’, based on different actor experiences directly
addresses these concerns and calls. This index will evaluate FOI
functionality in terms of both the political
objective
of promoting transparency and accountability, and the service delivery objectives of promoting
innovative and meaningful uses of government information to produce economic
efficiencies and returns (Yu and Robinson, 2012). This
new index will be constructed by adapting evaluation frameworks used in international and Australian
studies (see Dekkers et al, 2006; OAIC, 2011). It will also be uniquely
informed by a cross-disciplinary research approach that investigates FOI
functionality across legal, administrative and communication policy settings
drawing on the CIs expertise in the fields of journalism and communication
(Breit and Lidberg), media and administrative law (Snell, Breit and Lidberg)
and e-governance, public policy and public administration (Henman).
Government
FOI administration significance and innovation
These
empirical and methodological contributions are expected to underpin innovation
in the policy, practice and administration of FOI policy, with enhancements in
open government, government accountability and performance. Data generated from
this study will directly inform recommendations for and the implementation of an
inaugural National FOI Action Plan for improving FOI performance. The project will identify the roles and key
concerns of FOI users, reusers and administrators and offer evidence-based
feedback to project partners on how to enhance service delivery and design of
FOI communication environments, thereby delivering incentives for all
governments to strive for greater openness and indirectly greater political
accountability.
In advancing knowledge and policy innovation, our
research will lead to the establishment and launch of a cross-Jurisdictional FOI
assessment/monitoring website, known as The
Australian Information Access Portal.
The portal will contain the FOI
Functionality Index and a comparative report card on FOI demand and
functionality in Australia. This portal will be managed by project partners to
provide a sustainable evaluation tool on FOI performance and data for the State
and Federal FOI Commissioners/Ombudsmen to use as part of public forums on FOI.
It will serve as a guide to users of FOI, such as investigative journalists and
the public, and will help maximize community re-use of government information
and assist project partners to promote greater information disclosure, digital delivery
innovation and online engagement with publics.
Conclusion
At the
heart of the project is the need to assess whether, and to what extent, FOI
regimes have delivered on their political and service delivery promises of
promoting open communication between governments and citizens. In order to do
this, this project develops a framework for testing FOI demand and
functionality, without which Australia’s access to information laws could potentially remain ineffective paper
constructs. We will examine whether recent reforms have had any
impact on public access to government held information and investigate user experiences to identify whether
there is a practical difference in the demand
and functionality of government information across different FOI
jurisdictions to provide a report card
to governments, FOI administrators and the public.
Reviews
of FOI systems are valuable as they collate quantitative user and
administration data such number of requests, how many was approved and rejected
and how many was appealed. However, reviews that do not include a functionality
assessment will provide an incomplete analysis and only provide a partial
response to the questions raised by the terms of reference for this review
issued by the Commonwealth Attorney General. To take the information access
systems in Australia to the next level where they could potentially become a
trust building exercise between governments and the public, qualitative
functionality tests of FOI have to be performed. It is our hope that the
proposal summarized in this submission will provide the missing link in FOI
assessment and functionality monitoring in Australia.
Dr
Rhonda Breit
Associate
Professor Paul Henman
Dr
Johan Lidberg
Associate
Professor Rick Snell
REFERENCES/BIBLIOGRAPHY
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Breit, R.,
Henman, P & Snell, R. (2012)
,Towards a Qualitative Approach to Evaluating Access to Information Legislation
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[1]
Office of the Australian Information Commissioner, Information and Privacy
Commission, NSW, Commonwealth Ombudsman, Ombudsman South Australia, Information
Commissioner, NT
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