Associate Professor Rick Snell
University of Tasmania
7 December 2012
Dear Dr
Hawke,
The reforms made to Commonwealth FOI in 2010 represented
an amalgam of the long overdue implementation of a number of suggestions from
the 1996 ALRC/ARC Report on Open Government and a few selective ideas from the
far more wide sweeping and fundamental reforms generated in Queensland,
Tasmania and NSW, often referred to as the FOI 2.0 model.
The resultant construct, while a significant improvement
on the sclerotic system condemned by Prime Minister Rudd, was considered by
Minister of State Faulkner as merely the beginning of a long transformation
towards a more functional system of open government. Progress along that path to
reform over the last two years has been fragmented, highly variable between
agencies and limited.
The inconsistent and piecemeal approach taken to FOI
reform is reflected in both the terms of reference and the methodology used to
undertake this review.
The Commonwealth system of FOI needs to be reconsidered
from first principles (as it was in Queensland and Tasmania). It needs to be
designed to meet the contemporary needs
of the Australian government and citizens while also being forward thinking and
innovative enough to create an environment where FOI can make a functional and value adding contribution to
public policy development, scrutiny and accountability well into this century.
A key recommendation from the 2002 Canadian Access to
Information Review Task Force was that a systemic approach is required to
effectively review the operation of FOI. The Task Force recognised that access to
government information must be approached from a systems perspective, focusing
beyond legislation to concentrate on administrative practices, culture and
capacity as well as user demand, behaviour, expectation and needs.
The Solomon Report, subsequently adopted by the
Queensland Government, advocated that the management of government information
requires a whole of government approach. The creation of the Office of the
Australian Information Commissioner was a step in that direction but it is
clear that government agencies, the OAIC and others still view FOI largely in
isolation from open data, e-government, archives, records management and other
areas of public administration. The Australian Law Reform Report (and inquiry)
into secrecy is a classic demonstration of taking a single lens perspective
rather than a multi-lens and systemic approach to issues associated with open
government.
In addition to engaging with those individuals or agencies
who have made submissions to this
review by phone or face to face meetings, it would be helpful to hold several
round table forums, bringing together a range of stakeholders and experts to
generate new ideas and approaches to government information, including the role
and expectations of FOI legislation in the 21st century.
Given that FOI is part of a major democratic policy
program to enhance accountability and transparency in decision-making, an
objective of this review should be to adopt a more rigorous and extensive
assessment of the operation and evaluation of FOI. This is particularly important given the
amended objects section of the FOI Act now requires government information to
be managed for public purposes and as a national resource.
There are obviously unavoidable costs associated with this
process, however a narrow cost fixated approach to FOI (as set out in the Terms
of Reference for this review) is too simplistic. If costs are to be calculated they need to be
offset by determining the dividends and public benefit derived from the
operation of FOI. Any devaluing of that
public benefit by begrudging, indifferent or hostile oversight of FOI should be
carefully considered.
This review should reach some determination about how
effectively the new objects section of the FOI Act operates and agencies should
be required to account for how well and to what extent these legal objectives
are met. While acknowledging that by necessity the process will be difficult,
qualitative and often subjective, agencies should nevertheless attempt the
task.
A key undertaking
for this review must be to ask questions about the extent to which the supply,
demand, distribution, quality and availability of government information has
been improved since the reforms, evaluating and balancing the impact upon both
agencies and citizens. For example, any difficulties or increase in agency
costs associated with FOI should be offset against any significant outcomes
that may have been achieved (or could be achieved) under Section 3 (2) (a) and
(b) of the FOI Act namely;
(a)
increasing public participation in Government processes, with a view to
promoting better-informed decision-making;
(b)
increasing scrutiny, discussion, comment and review of the Government's
activities.
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 widened to include
all government agencies and functions.
· Emulation of the New Zealand approach to Cabinet
information.
· Switch from a focus on documents
to a focus on 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.
This statement would reflect similar approaches by
Presidents Clinton and Obama. See the Memorandum from President Obama in
January 2009 at http://www.whitehouse.gov/the_press_office/FreedomofInformationAct and the US Attorney General memo
March 2009 (attached).
Strong, direct leadership on FOI is vital.
2. Scope of FOI widened to
include all government agencies and functions.
In the
21st century there is no justification to entirely exclude any
agency or function 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
coverage of the Freedom of Information
Act 1982 should be extended to include any government or non-government body that carries out public functions or
receives substantial public funds and should automatically extend to include government
agencies created in the future, unless expressly (and by necessity) excluded.
FOI systems in many western
democracies have demonstrated a capacity to protect sensitive military,
security and economic information without resorting to the blunt and sweeping
mechanism that exclude entire operations or substantial functions of an agency
from the operations of the FOI Act. As Justice Kirby explained in the hearings
of the 2006 McKinnon case in the High Court, a small zone of secrecy is
necessary for the effective operation of government. However, the current scope
of the FOI Act and the extent of exclusions from its coverage clearly exceeds required
levels of confidentiality, security and protection and is not conducive to an
effective and sophisticated system of government information management
3. Emulation of 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 provided with my initial
submission), including the possibility of releasing such material before a
matter is considered or decided by Cabinet (See point 8 of the NZ Cabinet
Memo).
In the
last 30 years the entire nature and fundamentals of APS administration have
changed in response to new ideas generated to accommodate the changing needs of
governance and accountability. The nature of government and parliamentary
operations and processes have also evolved and in some cases been radically
transformed from what they were and how they operated in the mid 20th
century.
Yet in
the design of FOI we have, almost unthinkingly, stayed committed to an
antiquated and outmoded concept of Westminster government and Cabinet
operations. We need to reconsider the
system to ensure the vital elements and functions of Cabinet confidentiality continue
and are enhanced, while allowing a greater level of transparency and scrutiny
to occur. The NZ example demonstrates that effective government can continue
even with a greater degree of transparency throughout the cabinet
decision-making process.
Furthermore,
the approach taken by the Reserve Bank demonstrates how the adoption of 21st
century thinking in relation to information, scrutiny, accountability and
effectiveness can lead to a more open and informed decision-making process.
There is no evidence to show that the increasing level of openness surrounding
the operations of the Reserve Bank Board have diminished its effectiveness,
ability to reach decisions and respond
to crises or challenges. Indeed the evidence seems to indicate that a greater
level of openness has improved economic analysis generally, and enhanced
commentary and understanding about the Reserve Bank and its decisions
specifically.
Contrasting
the approach taken by the New Zealand Government and the Reserve bank, with the
speculation, guesswork and unsophisticated analysis that accompanies the
Cabinet decision-making process in Australia, it is clear we need to reconsider
our approach to Cabinet information.
4. Switch from a focus on
documents to a focus on information.
As
suggested by Mr Thomler in his 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 supply,
demand, distribution, quality and timing of availability of information held by
government agencies, rather than focussing on the excessive protection of
information regardless of harm.
In a
digital age, the goal should be to make information readily accessible to
people using a variety of platforms, serving both to promote government
transparency and accountability, while simultaneously reducing the burden on
agencies to manage cumbersome and outdated systems and processes associated
with meeting their obligations under FOI.
The AOIC
is embracing the Open Data movement/approach but doing so from a legislative
base and focus that drips with a world view set in the late 19th
century in terms of technology, governance and the relationship between citizen
and state and the capacity and resources of citizens. Whilst the digital age
does not empower or ensure equality for all citizens it does have the capacity
to transform those inequalities and power/knowledge imbalances. There is a
world of difference between an adversarial tussle over documents that, once
removed from their surroundings, lose a lot of meaning and insight, and a
process that encourages the creative supply of information to assist
understanding and capacity to engage in public policy development and scrutiny.
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 that possible disclosure has on the capacity of
public servants to be fully candid and frank in their dealings with Ministers. However, a minimum requirement for all public
officers accepting public money and gaining access to the public payroll, is an
expectation or requirement that they will give full and frank advice.
I
understand, as a former bureaucrat, board member and academic, the value and
necessity of the capacity to think/discuss/float ideas in private. However the
impact upon frankness and candour has been overplayed throughout the operation
of the FOI Act.
The NZ
public service has operated with a significantly higher level of openness
(including up to the Cabinet level) without frankness and candour being
severely diminished. It is only now,
after 30 years in operation, that disquiet about frankness and candour in New
Zealand has arisen and it should be noted that such concerns relate to an inner
core of decision-making far deeper than the outer fringes that are of concern
to Australian public servants.
As a
former head of agency, Mr Wood noted in his submission that staff should
operate on the basis that they should be prepared to publically, or before
parliamentary committees, stand by and justify advice they prepare for their
Secretary or Minister.
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 regarding 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, including where applicants (and the public in
general) are penalisied because of the inadequacies of an agency’s document and
data management system.
Application
fees should be kept to a minimum, not exceeding $20. There are alternative
methods for handling excessive numbers of applications, burdensome and
time-consuming applications and/or vexatious or troublesome applicants than by creating
prohibitive fee structures.
Processing
charges should be removed. As Ms Doyle and Mr Wood’s submissions reveal these
charges are applied inconsistently over time and between agencies. The majority
of Departments now have, or ought to have ICT and records management systems
that enable the inexpensive retrieval and/or creation of information in
response to requests. In many cases, information provided under a FOI request
will be reused by many others and therefore the original applicant should not
bear the cost. Additionally, if (via the Objects section) government
information is a national resource to be used to further inform and improve
policy debate and/or to scrutinise government activity, then processing costs
should not be recovered from those endeavouring to meet these objectives. Fees
should be reduced where the OAIC has determined there have been unnecessary,
unjustifiable or excessive delays in processing FOI applications.
The idea
of a limit/ceiling on processing time is a useful one. However, any limit
should be reviewable by the OAIC and applicants should not be disadvantaged by
slow, cumbersome and ineffective records management, OICT and processing
procedures used by agencies.
Digital
information should be free, with a small
charge for reproduction via other means (paper, sound etc). Greater use should
be made of government systems such as Slipstream,
as noted by Ms Doyle, to improve efficiency in processing, meeting and managing
of FOI requests.
I agree
with Ms Doyle and reject the indexing of fees and charges to the CPI. As Ms
Doyle states the FOI process is a legal right granted by parliament and is
intended to serve a number of important democratic and participatory purposes.
Any changes should only occur after consultation with the public.
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. As Ms Doyle notes
in her submission the handling of internal reviews is very much the luck of the
draw depending on which agency and which culture is in place regarding FOI.
One
suggestion is that each agency should be required to transfer resources to the
Office of the Australian Information Commissioner proportional to the FOI
review workload generated in the previous year.
10. Greater focus on changing
culture and practice within the public service.
Despite
the passage of two years since the reforms, Mr Thomler writes:
“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 “
The submissions
from Ms Doyle and Mr Wood as well as the OAIC Annual Report all reveal a degree
of variable and/or poor compliance in excess of what should be tolerated by a
well trained public service administering an FOI Act in accordance with the
clear objects set out in Section 3.
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. In particular, the counterproductive influence of
many ministerial staffers upon the effective operation of the objectives of the
FOI Act must 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
unfathomable and sends a very negative message both domestically and
internationally regarding Australia’s commitment and capacity to achieve open
government.
This
case is made very clearly in Senator John Faulkner’s extensive coverage of the
reasons and value to Australia in becoming a participating member of the OGP.
See http://www.senatorjohnfaulkner.com.au/file.php?file=/news/QCRMVHXKFO/index.html
Final Comments
I found
it very helpful to have access to Mr Thomler’s submission. It would have been
helpful if your review process had gone some way to 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 if agency submissions were due by the 7th
of December 2012, allowing the public the 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.
No comments:
Post a Comment