Time to Deliver on FOI

Time to Deliver on FOI

published in Public Administration Today Edition 33 Jan-Mar 2013, 16-18.

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The APS has a long track record of being unable to manage the appropriate balance between secrecy, providing information as a service to citizens, and the public’s right to know.

Arguably, this stems from a reluctance to embrace access to government information as a right with limited protections. Moreover, there seems little motivation for the APS to give high priority to ensure the provision of reliable and timely information as an elementary service to citizens.

The general attitude, and particularly at the highest echelons, seems to be a continuation of an outmoded attitude of excessive caution and fear of the ‘chilling effect’ of FOI. Furthermore, the primary objective in managing FOI is to avoid the potential sensitivities that could be touched on by disclosure of some information.

Cornall in his report on FOI practices in the Department of Immigration and Citizenship wrote “ the Department presently seems to have more of an attitude of resistance to disclosure.” Timmins wrote in relation to the release of documents concerning car subsidies “Excessive secrecy and an abundance of caution still mark the response to some requests for access to information…” (Peter Timmins, “It’s clear FOI simply isn’t working properly.” (Australian Financial Review, 27 September 2012).

The 1983 FOI reforms ended in what then opposition leader Rudd described as a sclerotic information system. The cautious 2010 reforms have made improvements on the margins but were always going to be problematic if there was no political leadership to counter the APS’s inclinations and preference for high levels of secrecy.

Whilst it is a struggle to find Departmental Secretaries speaking favourably about FOI it is not too difficult to find the reverse. Former Treasury Secretary Ted Evans noted how Treasury had not been happy with the introduction of FOI because it might undermine fearless and frank advice. (Sid Maher and David Crowe, “Treasury ‘tainted’ by Swan leak,” The Australian 7 November 2012). Whilst he was Treasury secretary Dr Ken Henry continually warned of the adverse impact of FOI and the threat to good public policy and frank advice from the bureaucracy. (Brett Clegg and Jennifer Hewett, “Treasury Swamped by Demands: Ken Henry” The Australian 9 December 2010)

The shortness of John Faulkner’s tenure overseeing the 2010 FOI reforms was a major blow. Australian Information Commissioner, John McMillan decision to opt for a low key incremental approach to achieving the necessary cultural change in the APS underestimated the potency of the elements that drive the APS’s resistance to the idea of a more open government. These elements include:

·      The role of blame avoidance

·      Increasing and problematic impact of ministerial offices

·      The comfort offered by a veil of secrecy

·      Absence of any value adding by FOI in an era of extreme budget restrictions

 A review announced at the end of October, led by former senior bureaucrat Dr Allan Hawke, promises to continue a program of cautious change that will fail to offset the APS’s lukewarm response, at best, to FOI and the more common hostility and distaste shown by areas like Treasury and Immigration interestingly other areas like the Department of Defence have a good track record with FOI.

The Cornall review into the FOI practices of the Department of Immigration and Citizenship, in September 2012, concluded that there was a lack of a whole-of-department approach to effective FOI management.

Two years after the 2010 FOI reforms, the Cornall review is a damning indictment.

Yet, in reality there is a whole of APS approach to FOI management - to treat it as an unwanted imposition and subservient to protecting Ministers from embarrassment.

Strong, unstinting political leadership on FOI is rare in the annals of Australian history.

 John Cain and Anna Bligh both had to lead from the front and alone in delivering on FOI reform. There is little doubt that John Faulkner was probably a lone voice in Cabinet after the 2007 election in supporting the translation of the ALP’s commitment to open government in opposition into effective practice and legislation.

 Since Faulkner, the Rudd and Gillard ministers responsible for FOI have been noticeable for their lack of FOI leadership.

In part outsiders to the APS are to blame for underestimating and not understanding the factors contributing to the APS’s lethargic response to the 1983 FOI reforms and the small and begrudging improvements since 2010.

In his 2010 book The Blame Game: Spin, Bureaucracy and Self-preservation in Government UK author Christopher Hood argues that the major operating principle in Ministerial offices and at all levels of the bureaucracy is to avoid blame.

Hood argues that risk management is primarily geared towards the management of blame risk and that this “so often shapes the organization and operation of modern executive government, producing its own curious logic of administrative architecture and policy operation.”

If Hood’s thesis has any degree of accuracy, then FOI is a counter-intuitive and highly threatening government policy let alone legal requirement for the APS. As an accountability tool FOI, is the most problematic for blame avoiders because it restricts the options for blame avoidance, and even more troublesome, it increases the risk of direct blame attribution.

In the absence of the strongest and clearest leadership FOI will therefore be worked around, sidelined or avoided.

The rise of the influence, interference and shaping of public policy by ministerial advisers exacerbates the adverse impact of blame avoidance in the area of FOI. Terry Moran, former Secretary of the Department of the Prime Minister and Cabinet,  describes this new and growing layer of Australian government as an “accountability black hole”. (Terry Moran, “Political Staffers an accountability black hole” Australian Financial Review 26 September 2012)

Ministerial advisers now play an increasing role in how advice and policies are formulated by the APS and how they are communicated, managed and recorded.  Particularly, however, the decisions of advisers are primarily filtered through the lens of political opportunity or outcomes in contrast to the values and requirements of an apolitical APS.

FOI is anathema to these relatively new kids of Australian public policy and explains why in many areas of the APS there is now a requirement or practice to channel FOI requests, at some stage, through  ministerial advisers as revealed in the Cornall review.

APS staff working on policy development or briefing Ministers will often be constructing that advice to minimise potential future blame on them, from ministerial advisors and to their Ministers.  A more effective FOI regime would shatter the comforting veil of secrecy now utilised by the APS and exploited for political opportunism by ministerial staffers.

Justice Michael Kirby, during the hearing of the 2006 McKinnon case in the High Court, argued that there should be small but necessary zones of secrecy for the APS. However as an outsider, and idealist, Justice Kirby failed to realise that the APS operates with small, narrow and limited zones of openness that are always on the verge of potential closure.

Most policy development begins in a zone of secrecy and the possibility of that policy entering an ‘open’ zone is a rare and unexpected phenomenon. The default state of play is a zone of secrecy. In the APS it is openness that needs to be justified and fought hard for on most occasions.

As former senior bureaucrat and Public Service Commissioner Andrew Podger has acknowledged, the primary motivation of many in the APS is not ensuring legal rights of access and high levels of information service delivery but to avoid embarrassing their Minister. (Marcus Priest and Alex Boxsell “Combet ‘not involved’, Australian Financial Review, 25 September 2012, 7)

Instead of being information stewards ensuring the best and most timely use of information the senior echelons of the APS loom like sullen non-trusting guardians of an unwanted  legal responsibility. Finding APS champions for FOI is difficult, finding less than enthusiastic implementers is relatively easy.

Many outsider advocates for FOI fail to understand the need for the APS to have space to develop policy in-house and to engage in full and frank exchange of ideas and information. However, for too long the general threat to frankness and candour of higher levels of openness has been used by the senior echelons of the APS to justify excessive levels of secrecy.

The APS needs to identify what needs to be protected, and for how long, in the public interest and for good governance and to clearly demonstrate that the motivation is not simply to protect the Minister from embarrassment or political discomfort or curry favour with ministerial staffers.

The onus needs to be on the APS to demonstrate how and to what extent their implementation and management of the 2010 FOI reforms have resulted in an increase in the availability on a timely basis of better quality information that has informed public debate and policy discussion.

The 2010 Declaration of Open Government , as minimalist and low in aspirations as it was, has been left as one of the few concrete achievements in this area.

Most critiques of the FOI performance are largely citizen-centric. There is a good reason.  FOI legislation, whether or not it is accepted by the powers that be in the APS or ministerial staffers, grants legal rights of access to information and allows a few limited exceptions.

However the citizen-centric approach to a large extent has driven government information handling to institute measures and processes to counter this ‘threat’ of transparency. FOI is seen as an imposed process that value adds little to the decisionmaking processes of the APS, and in times of fiscal austerity, is an unnecessary luxury or burden.

There are benefits to the APS of more open government but the dividends will not be harvested overnight.  A fuller and more timely sharing of information will allow greater collaboration and cooperation on policy development between citizens and the APS. Greater openness will lessen the interference and decrease the role of political opportunism but not eradicate it entirely, because of the dwellers in Terry Moran’s ‘black hole of government accountability’.

Furthermore it will allow trust and creditability in the APS’s capacity to provide government with frank and candid advice. This creditability will accrue by not allowing uncontested claims of confidentiality to protect Ministers and others from embarrassment but by continual demonstration of the quality and strength of that advice.

Andrea Di Maio, a member of the Gartner Blog Network, has argued, in the area of open data, that too strong a citizen-centric approach downplays the vital role of government employees in open government. A government employee-centric approach does not have to equate to excessive secrecy.

The APS needs to demonstrate it can deliver an open government policy as effectively as any other program and legal responsibility. It needs to demonstrate that its claims for confidentiality are valid, limited and serve the public interest.

The Australian Information Commissioner has continued to promise that culture change in the APS is possible.

The APS needs to deliver.

Memoir - Leaves 12-14 Car crash, Launceston early 1960s, A Road Not Taken

 The Memoir - a work in progress

Background see Working on a Memoir

1st leaf see Memoir Leaf 1 - Mexico 2008

Leaves 2-6 Ireland, Launceston, Cape Town, Whyalla, Cambodia
Leaves 7-9 Hooning, Teaching & Presenting
Leaves 10-11 Bookseller, Vexatious FOI applicants and shaky start to an academic career
Leaves 12-14 Car crash, Launceston early 1960s, A Road Not Taken

Postcard 12 “Now we’re moving in slow motion, To a piercing steering wheel, There’s chaos and commotion, The whole thing’s a bit too real" Mark Gillespie Pile-Up November/December 1979 behind Bothwell

The world spun and rolled before my eyes. Moments before I had been listening to Sue and Deb talking in the front of the car. We were en route to the back of Bothwell for a triple 21^st birthday party for three law students. Deb had just received her Provisional learner’s licence. When I was growing up, in Queenstown, Deb was the type of girl I could never have imagined or contemplated becoming friends with. She completed honours in ancient Greek art, she worked part time (rare in those days), wore skin tight jeans and helped me to appreciate women as something other than as “traditionally” viewed (mothers, sisters, or objects of lust).

I can’t recall the noise or any screams, but once the car had come to a standstill after rolling along a long stretch of barbed wire fence, I remember crawling from the vehicle. Someone who had been in the car ahead said that they had seen the accident in their rear view mirror and feared coming back to investigate. Yet, there were no major injuries, only minor cuts or scratches. I can’t remember much of the aftermath except we continued to the party and I think I got well and truly drunk. Now, as I try to recall the events of that summer, I struggle to remember any details, apart from those very brief snippets from the accident.

Leaf 13. “Living outside the law when way too young” Elphin Road, Launceston 1963-1964.

I have no real memory, only a few scattered images from “that night.” It is dark, very dark, and I’m standing at a building site for a future hotel, just off Elphin Road in Launceston.  Maybe I was five or six. I’m not sure why I was there: maybe,  as a look out; to help carry things; or possibly to scramble through somewhere to unlock a door or gate? There is a man near me but it is hard to see, or remember his face, maybe there were more in the background. In later memories, he becomes my mother’s boyfriend but I don’t know. 

My feet were on the verge of another path one that could have led me into a far different engagement with the law, a darker, more savage and higher risk engagement.  On this path, I probably would have been unlikely to complete high school and more than certain to have experienced Ashley Detention Centre or its predecessor. This was a path I stepped from without knowing why. At several points, until my early high school years, I stepped on and off this path or similar paths as I flirted with and was caught up in several types of unlawful activity - petty theft, vandalism and other anti-social behaviour. At the time I never constructed a rationale why this happened or what was drawing me to a potentially destructive path.  Many years later, after reading The Outsider and attending a rare political science lecture on alienation, the concept of being an outsider struck a very strong and lasting chord. 

Leaf 14 “Ride on the chrome horse with your diplomat. Who carries on his shoulder a Siamese cat” Bronte Inn Sydney June/July 1983

I’d spent just a few months in the Tax Office and my relationship with Esther was in its first passionate but uncertain stages. In between the lust, passion and early discoveries, both of us could sense a growing commitment to each other, despite all our stark contrasts and few shared interests or approaches to life.

I found myself at a breakfast table in the Bronte Inn in Sydney. I had used my internal knowledge of the public service to arrive in Sydney a day before the final selection round for recruitment into the Foreign Affairs Department. I was there largely by a series of accidents, last minute decisions and a whim. Nearly everyone else was on a determined mission, often started prior to their university studies, to join the diplomatic corps.
 

The three day selection ordeal was designed to pinpoint the final 30-50 ‘anointed ones’ to join the Australian diplomat corps.  The initial pool of applicants had numbered several thousand. That potential pool was culled via an intensive exam, and an initial screening of the written applications, to produce a group of several hundred applicants who were then interviewed. Finally, about seventy applicants were brought to Sydney for a final 3 day culling exercise that consisted of tests, role plays, seminars, presentations and intense, but discrete, scrutiny of behaviour at all meals and cocktail parties.

Sitting at the breakfast table, I was unsure whether my travel ingenuity had gained me bonus points or raised questions about my ethics and commitment to correct procedure. Many (including me) were surprised I had reached the final stage. On a whim, I had sat a 3 hour entry test (problem questions, current affairs, short essays etc) with little preparation. My application was written in a frenzy, fuelled by coffee and orange juice after a very late and boozy Tax function. My application was written more as a stream of consciousness missive than a staid, proper and disciplined application. One part of my application referred to my approach to things as being like a whirling dervish. Later, at the interview round, the panel told me they had waited their whole journey around Australia to meet the author of this unique application. 

On my second morning in Sydney, I sat at the same table, and the serving staff greeted me as an old friend.  Meanwhile, other tables filled rapidly with applicants who had only arrived overnight or very early that morning.  The friendly and familiar greetings from the serving staff convinced many of the other applicants that I was part of the selection team and they started to speak loudly, letting their claims for selection drop into their conversations. Later-to-be Prime Minister Kevin Rudd had been through this process a couple of years previously, and indeed that morning one nerdy guy blew me away when he talked about his honours thesis and how he had translated newspapers from Vietnamese or Chinese. I started to wonder how I would survive and make it through the next 3 days of the selection process against such superior and gifted candidates. 

My doubts were confirmed when late in the evening of day two I realised I had missed some sort of social cue and was the last applicant in the room among all the selectors. Until that moment, I had pursued the objective to be a ‘trainee diplomat’ simply as another intellectual challenge or job opportunity and a useful escape option from the bureaucratic confines of the lowest levels of the Tax Office. During the night, I started to think about whether this could be a career path. 

The following morning as I listened to and observed the other applicants at the breakfast table, I reflected on whether I had been allowed this far through the process simply as a social experiment or a dark horse. Most of the other applicants had far brighter academic qualifications, refined social skills and had already in the last two days learnt to deliver finely shaped diplomatic responses. While I could analyse, dissect and be objective as any of those around me on Timor or military intervention in Africa, I was well aware of my preference to be ‘frank and candid’ and to keep pushing the ‘we ought to’ case. I also wondered how quickly my refreshing West Coast directness or bluntness would become unsuitable in a sensitive diplomatic post. It certainly had not proved a career advancing trait in the Tax Office.

After the three day session, I left Sydney still uncertain about a career as a diplomat. A few weeks later, I was asked to complete a security clearance form to finalise the application process. I didn’t and dropped out at this final stage.  Why? First, during the three day Sydney process, the Foreign Affairs staff had indicated how hard the job was on families (spouses couldn’t work, and it would be difficult, if not impossible, to leave a posting to return to Australia in a family emergency). Esther was very attached to her horses and coming from a very small family, a foreign posting of two or more years would be a major trauma for her and her loved ones, including two elderly grandparents. Second, I had moved so many times in my years at university, and in my first few months with the Tax Office (over 10 different lots of flat mates many who could rival the strangest people featuring in He Died with a Felafel in His Hand), that it was easier to stay with my preferred option of remaining with Esther.

Another road not taken.

I doubt, in retrospect, I could have survived as a junior diplomat. I remain uncertain whether at that early stage in our relationship I should have dragged Esther into that life/lifestyle and whether our relationship would have survived. Looking back 28 years later surrounded by my family and the life I have created there are no regrets. Esther and I have grown together and now support each other like two large trees, of different species, that have grown together giving each other a strong physical and emotional centre. I think the diplomatic corps would have offered neither.

Joint Submission to FOI Review by Breit, Henman, Lidberg & Snell

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

Australian Law Reform Commission (1996) “Open Government: a review of the federal Freedom of Information Act 1982”.

Breit, R., Snell, R, and Neal, R (2011) From FoI to RTI: Mapping the essential literacies. International Association for Media and Communication Research. Annual Conference. Cities, Creativity, Connectivity, July 13-17.

Breit, R., Henman, P &  Snell, R. (2012) ,Towards a Qualitative Approach to Evaluating Access to Information Legislation (September 7, 2012). CPRafrica 2012/CPRsouth7 Conference, Port Louis, Mauritius, September 5-7, 2012. SSRN: http://ssrn.com/abstract=2147661

Darch, C and Underwood, P. (2010) Freedom of Information and the Developing World: The Citizen, the State and Models of Openness. Oxford UK: Chandos.

Dekkers, M., Polman, F., te Velde, R., de Vries, M. (2006) MEPSIR Measuring European Public Sector Information Resources. Final Report of Exploitation of public sector information – benchmarking of EU frameworks

Eggers (2007) Government 2.0, Plymouth: Rowman & Littlefield.

Gruen, N, (2009), ‘Getting on with government’, Final Government 2.0 report, Commonwealth, available: http://www.finance.gov.au/publications/gov20taskforcereport/index.html

Hazell, Robert & Worthy, Ben. (2010) Assessing the performance of freedom of information. Government Information Quarterly 27 Pp: 352–359.

Lathrop & Ruma (ed) (2010)  Open Government, Sebastopol CA: O’Reilly Media

Lewis, K., Sligo, F.,  & Masses, C. (2005) Observe, Record, then Beyond: Facilitating Participant Reflection via Research Diaries. Qualitative Research in Accounting & Management. Vol 2, No 2. Pp 216-228.

Lidberg, J. and McHoul, A. (2003) Freedom of information and journalistic content in Western Australia and Sweden. The UTS Law Review, 5 . pp. 101-118.

----(2009) The International Freedom of Information Index - the Promise and Practise of FOI Laws. Berlin: VDM Verlag,. Print.

--- (2006). "'Keeping the Bastards Honest' - the Promise and Practice of Freedom of Information Legislation." PhD. http://wwwlib.murdoch.edu.au/adt/browse/view/adt-MU20070115.121829.

Loblich M & Pfaff-Rudiger (2011) Network Analysis: A qualitative approach to empirical studies on communication policy. International Communication Gazette. 73: 630-647.

Noveck, B. (2009) Wiki Government: How Technology Can Make Government Better, Democracy Stronger, and Citizens More Powerful, Brookings Institution Press, Washington, DC.

Office of the Australian Information Commissioner (2011) Understanding the value of public sector information in Australia, Issues Paper 2. November.

Pope, C., S. Zieland & N. Mays. 2000. Analysing qualitative data. BMJ 320: 114-116.

Roberts, A. (2006). Blacked Out. Government Secrecy in the Information Age, Cambridge University Press

Snell, R. (2000) “The Kiwi Paradox - A Comparison of Freedom of Information in Australia and New Zealand, Federal  Law Review, 28 (3), 575-616.

----(2002), "Freedom of Information and the delivery of diminishing returns or how spin doctors and journalists have mistreated a volatile reform," in The Drawing Board: An Australian Review of Public Affairs, 3 (2), , 187–207.

---(2006), “Freedom of Information Practices“ in Agenda A Journal of Policy Analysis and Reform  13 (4), , 291-307.

---(2007), “Failing the Information Game,” Public Administration Today  January-March,, 5-9.

Stubbs, R (2012) A Case Study in the Rise of Public Sector Transparency: Understanding the Global Diffusion of Freedom of Information Law. Faculty of Law, Tasmania Australia. University of Tasmania, PhD. 

Timmins, P. (2012) It’s clear FOI isn’t working properly. Australian Financial Review 27 September, 2012. 

Yu, H., and Robinson, D.G. (2012) The New Ambiguity of “Open Government”. Princeton CITP/Yale ISP Working Paper. Draft of February 28, 2012.

---

[1] Office of the Australian Information Commissioner, Information and Privacy Commission, NSW, Commonwealth Ombudsman, Ombudsman South Australia, Information Commissioner, NT

Second Response to the Review of FOI Laws (Cth)

Associate Professor Rick Snell

University of Tasmania

r.snell@utas.edu.au www.ricksnell.com.au

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 21^st 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 21^st 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 20^th 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 21^st 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 19^th 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 7^th 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.