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Monday, July 28, 2008

A few suggestions on immediate FOI changes from "ungenerous" critic


Cabinet Secretary John Faulkner apparently thought criticism (guilty, your honour) of the Government for failing to get cracking on culture change to promote open government and a more effective Freedom of Information regime, was "ungenerous", given his recent speech on the subject, according to Matthew Moore's "What they won't tell you " column on Saturday.

Moore suggested that the"Reno memo" issued by the then Attorney General eight months after Bill Clinton was elected President of the US, is an example the Minister should follow if he was looking for ways to get the message across that the Government wants no more excessive secrecy from now on, not sometime in 2009-2010 when a proposed new legislative regime is in place.

A Faulkner memo, guideline, or instruction to the effect that agencies should err on the side of disclosure when dealing with requests for information about the conduct of public functions would be a clearer message than that conveyed by the Minister to senior public servants recently when he asked for their assistance in achieving the objectives of greater openness and transparency.

A few other initiatives could help to get things moving in the right direction, in advance of the legislative changes.

For example, the Government could pick up and act on these issues raised in the Australian Law Reform Commission Open Government Report twelve and a half years ago.
Recommendation 8: "Performance agreements of all senior officers should be required to impose a responsibility to ensure efficient and effective practices and performance in respect of access to government-held information, including FOI requests."
Recommendation 9 which appears to have current efficacy, given the fact that the Ombudsman recently found the Department of Immigration unnecessarily forced people to seek information under the FOI Act could be stiffened up a little: "Agencies should regularly examine the types of requests for information they receive to determine whether there are particular categories that could be dealt with independently of the FOI act. If there are, this should be made clear to potential applicants and staff."

It could issue new guidelines on the public interest that emphasise the importance of the public interest in access to information generally, in knowing the basis for government decisions, in encouraging public debate, and improving accountability and participation in government.But then to put to the sword, the hoary old chestnuts that the Commission all those years ago said should be irrelevant, that still get trotted out from time to time, and similar, contemporary versions including that the public service won't write things down if there is any prospect of disclosure.Irrelevant factors listed in the Report (page 97 ) were: the seniority of the person who is involved in preparing the document or who is the subject of the document;that disclosure would confuse the public or that there is a possibility that the public might not readily understand any tentative quality of the information ;that disclosure would cause a loss of confidence in the government; that disclosure may cause the applicant to misinterpret or misunderstand the information contained in the document because of an omission from the document or for any other reason.

fees and charges are the subject of regulation, and this is still to be sorted out later, it could inform agencies that in exercising the discretion to allow a full or partial rebate on public interest grounds,they should bear in mind that the Government wishes to encourage use of the Act to scrutinise government performance, and that cost should not constitute a barrier to access.

It could ask every agency to examine and introduce ways to improve the processing of applications and achieve better results in complying with time deadlines, and ensure a senior officer keeps track of performance improvement.

It could ask every agency to undertake an immediate review of every FOI complaint currently under investigation by the Ombudsman, and every review application before the Administrative Appeals Tribunal, with a view to resolving matters promptly, particularly by the release of documents where no harm to important government or other interests would result. A senior officer should be aware of the savings in time and cost that result.

To stand alongside the Australian Privacy Awards initiated by the Privacy Commissioner and launched by Minister Faulkner a few months ago, the Government could announce its intention to recognise outstanding contributions to improved access to information through Australian Freedom of Information awards.

I'm just warming to the subject, maybe with the last suggestion going overboard, but you get the drift. An intention to abolish conclusive certificates was a welcome initiative, and a nudge to the public service about coming on board for greater transparency was a good thing. But there is so much more that could be done to start to shape a new culture

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