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Wednesday, April 01, 2009

Some analysis of the FOI reform package.

Minister Faulkner's Freedom of Information reform package is draft legislation to give effect to Labor's election commitments. ( Memory jogger- pre-election policy.pdf ).The commitment apart from words about the end of excessive secrecy, change in culture across government, and promotion of greater opennness and transparency, was to implement "key findings" of the Australian Law Reform Commission 1995 Open Government Report to revise (in largely unspecified ways) the Freedom of Information Act, to rationalise exemption provisions, abolish conclusive certificates, review charges and establish an information commissioner. The Minister clearly sees the draft legislation as something to wave in front of the public service as evidence that the government is serious about culture change.He said last week he had a memo to public service leaders sitting on his desk to this effect, hopefully sent by now.

The proposals deliver mostly on a legislative scheme to deliver on the commitments. Selectively mind you when it comes to the 106 Recommendations of the ALRC-see below. Here and there, for example in abolishing application fees entirely, the draft goes beyond what was proposed by the Commission.The Government's separate move to abolish all conclusive certificates also goes further than the Commission recommendations.

But "rationalise exemption provisions" has produced a bit of a damp squid with the abolition of two rarely used exemptions (Executive Council documents and documents prepared in accordance with companies and securities legislation) and a sub-section relating to documents concerning the conduct of industrial relations, all as recommended by the ALRC. All other 16 exemptions (including many internal combinations and permutations) remain, with a couple of welcome changes but some ALRC recommendations not acted upon. Exemptions will now be arranged in two neat boxes - absolute exemptions, and conditional exempt documents where a public interest test applies. (More about these in another post shortly.)

Some media reports suggest confusion that the Minister's statement about a single public interest test means there will be one exemption. That's what Queensland is proposing. Federally it means only that the current situation of several different formulations of a public interest test in the Act will be replaced by one test- whether disclosure is contrary to the public interest, relevant only to specified exemptions but not others.

Many of the ALRC's 106 recommendations related to non-legislative measures but quite a few statutory changes on issues other than exemptions have been rejected without explanation. As already pointed out, its a big x for the recommendation that the parliamentary departments which spend and pay money on and to our parliamentarians be brought within the scope of the Act; ditto for a recommendation now 13 years old to reduce the time limit for dealing with an application in three years from 30 days to 14 days; ditto that charges should only be imposed in respect of documents released; and ditto for other proposals of varying significance such as that chief executives of government agencies should have a duty under records legislation to create "such records as are necessary to document adequately government functions, policies, decisions, procedures and transactions." You might be surprised they don't have such a duty already, only an obligation to safeguard records once created.

Overall there are important positive changes- notably the proactive publication requirement- even if it falls way short at this stage on detail as mentioned here last week- and the pro-disclosure bias achieved through a clear statement of the objects of the act and a more forceful expression of relevant and irrelevant public interest factors.

But what we will end up with is hardly an access to government information act tailored to community needs and expectations and reflecting 21st century realities. It's still essentially the 1982 Act- in fact drafted in the 70s- with a lot of legalisms and horse and buggy features of the original, amended to reflect some aspects of the internet, to give effect to election commitments, and informed by many but by no means all of the changes recommended by the Australian Law Reform Commission all those years ago.

The reforms therefore represent significant incremental change but limited rethinking of basic concepts. In the dry and dusty 130 pages of proposed changes to the legislation there is no hint of bigger, broader consideration of access to government information in the Google Age. It wasn't much of an issue way back in 1995 when the internet and the information age had just dawned. But the debate (as picked up to some degree in the Queensland Solomon Report Chapter 3) these days has in some respects moved on from a good law that fairly balances the right to know and the imperatives of good government. The discussion is about government wide information access policies; the linking of public access considerations to an approach to information and communications technology management that is geared to reflect the changing sensitivity of information over time; access to search tools that would enable the citizen to search for government-held information of interest; improved access to digital information including government databases that might promote investigative reporting and further action by those outside government to achieve government policy objectives. And agency score-cards, performance agreements with chief executives, and penalties for obstruction.

Maybe the Government recognises this and expects the detail to flow forth when we have an information commissioner, or when we have a further review of the Act two years after the new legislation takes effect. In the meantime once the legislation passes Parliament later in the year, you will in 2010 be able to lodge an FOI application by email!!

If you are interested in ideas about FOI 2.0 this presentation by Rick Snell last year outlines what openness and accountability could mean in our times. (Pdf)

One reason we won't be spending much time tossing around these ideas is that the Government has done a neat job of "framing" the problem and the answer by putting on the table the proposed amendments to the Act in a way that will certainly limit public input to the proposals put forward, not broader concepts. In addition the technical language of the bill will limit participation in the discussion to the boffins and usual suspects. Few others will get through the draft and the links back to the Act, ALP policy and the ALRC Open Government Report to try to work out what was promised and recommended, and the merits of what is now proposed.

To the outsider, the bulk of available time to date on FOI reform appears to have been spent by Minister Faulkner, his office and the public service engaging in a 16 month, largely private internal seminar on drafting legislation to enable the Government to tick the box on another election commitment.
It could have been different if there had been a serious attempt to reach out to engage the community on the subject of government transparency and accountability, not now after 16 months, but way back when minds first turned to the subject.That didn't occur. Overall, however its way better than what was on offer-nothing- from the last lot.

The rest of us have about six weeks now to offer a comment.

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