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Thursday, June 12, 2014

SA Ombudsman's FOI wisdom should travel beyond state borders

The report (pdf) by South Australian Ombudsman Richard Bingham tabled in Parliament last week after a comprehensive review of how 12 government agencies manage their responsibilities under the Freedom of information Act identifies a whole raft of problems and issues that should attract the attention of the SA government. More on that in a moment.

The Ombudsman also raises issues relevant elsewhere. 

For example just as the Federal Government proposes to abolish the Office of Australian Information Commissioner which among other negative impacts on transparency and open government, will remove the independent oversight body, the 'champion' of open government, and wipe from the Federal Government statute book non litiguous merits review of FOI decisions, the Ombudsman recommends for SA: 
an independent oversight body with investigation, audit and recommendatory powers to issue FOI guidelines, ensure public awareness, provide advice and conduct training, deal with complaints, monitor and audit agency performance, conduct merit reviews with determinative powers, recommend reforms and report to Parliament.
"This body should also be responsible for the oversight of state privacy policies and legislation..", an aspect of the model the Federal Government plans to dismantle.
The Ombudsman concludes (along with just about every other review of FOI that has taken place around the country) that the absence of a dedicated independent ‘champion’ is a significant shortcoming in the FOI framework. 
The Federal Government is yet to explain its counter intuitive decision to abolish the function to deliver the transparent and accountable government to which it claims to be committed.
 South Australia and FOI shortcomings
 The Ombudsman highlights:
  • the "disconnect between stated government policy regarding proactive disclosure in the digital age and agency approaches to  information disclosure";
  • "the Act is outdated and its processes belong to pre electronic times";
  • "agencies’ implementation of the Act is wanting, and demonstrates a lack of understanding or commitment to the democratic principles which underpin the Act.";
  • "evidence provided to the audit strongly suggests that ministerial or political interference" is brought to bear in decision making and "FOI officers may have been pressured to change their determinations in particular instances"; (See these observations last year about this issue on a broader scale.)
  • agency chief executives are not providing appropriate leadership on FOI and open government.
The Ombudsman recommends many changes to the act including a clear objects section weighted in favour of disclosure, reducing the number of exemption provisions, removing the 'Howard factors' from the public interest calculus, and the introduction of offence provisions. 

Richard Bingham is long on experience  with the way agencies go about their FOI business, in Tasmania before SA since 2009. His counsel should be welcomed and provide the impetus for change in SA which, along with Victoria and WA sat out the FOI reform period in 2008-2010. Those serious about transparency and accountability in Canberra in particular (there have to be some?) but also in the other states and territories should heed his wisdom. as well.

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