Freedom of Information
An important part of our democracy is the ability to access privileged information through Freedom of Information legislation. Particularly for journalists who are charged with the responsibility of informing the public, the ability to apply for and be granted documents through FoI is essential. Unfortunately, many FoI requests drag on for years without a result leaving journalists frustrated and the public in the dark. Scott Richardson takes a look at the efficiency of FoI in Australia.
This week the NSW Government announced that its election promise to widen the Spit Bridge in Sydney’s northern beaches has been dumped.
Despite rumours it was going to be dropped, the Government swore by their promise, which formed a significant part of the local Independent MP’s campaign to be re-elected to the seat of Manly.
The Liberal candidate in the seat had launched Freedom of Information requests before the election to determine whether the widening proposal would ultimately go ahead, however there was no response.
Only now, after the election, has the decision to not go ahead with the proposal been announced.
The impotency of our FoI laws in this case clearly shows the ramifications for democracy and how a Government, by ignoring FoI, can try and manipulate an electorate.
This is of course not the only example of FoI failures in Australia.
The recent High Court decision in McKinnon v Secretary, Department of Treasury also demonstrated the limited scope of FoI laws in Australia.
The Australian Press Council said this decision gave “fresh impetus to suppress information that is embarrassing or politically inconvenient.”
News Limited Chairman and Chief Executive John Hartigan was quoted in The Age as saying it was “difficult not to conclude that the Freedom of Information laws are now effectively lost as an avenue for making governments open, transparent and accountable.”
Indeed, there are inherent defects in the Freedom of Information Act (1982) that allow Government agencies to excuse themselves from revealing requested information.
For example, Section 24 of the Act says that FoI requests can be refused if "in the case of an agency--would substantially and unreasonably divert the resources of the agency from its other operations."
The first difficulty here is the ambiguity of the phrase ‘unreasonably.’ What is reasonable or unreasonable is at the discretion of the agency itself. Michal Alhadeff’s report Denying the Public’s Right to Know recommends this power be balanced against a public interest provision.
Another issue is with Section 33 (1)(a)(iii) which states that information can be withheld if it "would, or could reasonably be expected to, cause damage to the international relations of the Commonwealth." So does that mean any information of wrongdoing on behalf of the Government, whether it be a trivial error or an issue with serious implications, may be withheld and never come to public attention?
Surely FoI is in need of serious reform and could be strengthened by the following amendments:
1. Create a new FoI system that stops the Government having the ability to make a
final determination of whether certain information is within the scope of the
Freedom of Information Act by abolishing 'conclusive certificates.'
2. Creation of an independent tribunal that adjudicates FoI disputes.
3. Enforce penalties on officials and/or departments that deliberately hinder FoI
requests.
Michal Alhadeff in her report also recommended the following changes:
4. Redraft the language of the Act so that it explicitly favours disclosure of
information.
5. Make all provisions that provide exemption from FoI subject to a ‘tangible harm’
test.
6. Create a ‘new culture’ by promoting FoI inside government and create incentives
to FoI officers as well as comprehensive advice on FoI changes.
7. Create a collective of journalists, academics and interest groups to establish an
information management system so that information is easily traceable.
It should be noted that the federal opposition have recently signalled their intention to make FoI easier and more accessible. We now wait in hope for Mr Howard to match the ALP.
This week the NSW Government announced that its election promise to widen the Spit Bridge in Sydney’s northern beaches has been dumped.
Despite rumours it was going to be dropped, the Government swore by their promise, which formed a significant part of the local Independent MP’s campaign to be re-elected to the seat of Manly.
The Liberal candidate in the seat had launched Freedom of Information requests before the election to determine whether the widening proposal would ultimately go ahead, however there was no response.
Only now, after the election, has the decision to not go ahead with the proposal been announced.
The impotency of our FoI laws in this case clearly shows the ramifications for democracy and how a Government, by ignoring FoI, can try and manipulate an electorate.
This is of course not the only example of FoI failures in Australia.
The recent High Court decision in McKinnon v Secretary, Department of Treasury also demonstrated the limited scope of FoI laws in Australia.
The Australian Press Council said this decision gave “fresh impetus to suppress information that is embarrassing or politically inconvenient.”
News Limited Chairman and Chief Executive John Hartigan was quoted in The Age as saying it was “difficult not to conclude that the Freedom of Information laws are now effectively lost as an avenue for making governments open, transparent and accountable.”
Indeed, there are inherent defects in the Freedom of Information Act (1982) that allow Government agencies to excuse themselves from revealing requested information.
For example, Section 24 of the Act says that FoI requests can be refused if "in the case of an agency--would substantially and unreasonably divert the resources of the agency from its other operations."
The first difficulty here is the ambiguity of the phrase ‘unreasonably.’ What is reasonable or unreasonable is at the discretion of the agency itself. Michal Alhadeff’s report Denying the Public’s Right to Know recommends this power be balanced against a public interest provision.
Another issue is with Section 33 (1)(a)(iii) which states that information can be withheld if it "would, or could reasonably be expected to, cause damage to the international relations of the Commonwealth." So does that mean any information of wrongdoing on behalf of the Government, whether it be a trivial error or an issue with serious implications, may be withheld and never come to public attention?
Surely FoI is in need of serious reform and could be strengthened by the following amendments:
1. Create a new FoI system that stops the Government having the ability to make a
final determination of whether certain information is within the scope of the
Freedom of Information Act by abolishing 'conclusive certificates.'
2. Creation of an independent tribunal that adjudicates FoI disputes.
3. Enforce penalties on officials and/or departments that deliberately hinder FoI
requests.
Michal Alhadeff in her report also recommended the following changes:
4. Redraft the language of the Act so that it explicitly favours disclosure of
information.
5. Make all provisions that provide exemption from FoI subject to a ‘tangible harm’
test.
6. Create a ‘new culture’ by promoting FoI inside government and create incentives
to FoI officers as well as comprehensive advice on FoI changes.
7. Create a collective of journalists, academics and interest groups to establish an
information management system so that information is easily traceable.
It should be noted that the federal opposition have recently signalled their intention to make FoI easier and more accessible. We now wait in hope for Mr Howard to match the ALP.
posted by Scott Richardson at 6:37 pm
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