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Wednesday, July 02, 2014

Silver Anniversary: 25 years since FOI commenced in NSW

The silver isn't without some tarnish but access to government information has come a long way since the commencement of the NSW Freedom of Information Act on 1 July 1989. 

From that day the absolute discretion exercised more frequently than not by public servants and ministers to refuse or limit access because they could, was replaced by legal, enforceable rights to know what government knows unless there are good reasons why not.

Time is testimony to the fact that opinion varies about whether that line has been drawn in the right place and whether those responsible for delivering the goods have delivered in full or left the requester empty handed or short changed.

But overall the Information Commissioner can report in 2014 that many applicants get most of what they seek most of the time; the Government's ICT Strategy proclaims: "An open, online approach to delivering services, communicating and sharing information in accordance with the principles of transparency, participation, collaboration, and innovation"; and the government has encouraged an Open Government Community of Practice.

A pity that 1 July 2014 passed apparently unnoticed in the corridors of power. With or without a cup of coffee and a biscuit discussion about this journey would have been not only of interest to many but for government would have the makings of a reasonably good story about what has been achieved since 1989, and the lessons so far.

If you are interested in the stepping stones along the way to where things are today:

The ALP policy platform going into the 1972 election included a commitment to Federal legislation. That started the discussion that led to the enactment of a law finally passed by Parliament in 1981. The act commenced a year later. 

A report on the state of the NSW public service in 1977 (Directions for Change) by the late Professor Peter Wilenski and his follow up report in 1982 (Unfinished Agenda) recommended freedom of information legislation, by this time a commitment in state labor's policy platform.The 1982 report described the NSW Government as a “bastion of secrecy.” The Labor Government introduced an FOI Bill into Parliament in 1983 which promptly disappeared into the filing cabinets at the premier's department marked 'courageous' and lapsed. 

Silence followed although I can recall then head of the premier's department Gerry Gleeson saying in the mid eighties that NSW (without an FOI act and with very limited parliamentary scrutiny) led the nation on transparency and accountability mechanisms. Needless to say it didn't.

Against a backdrop of corruption allegations in the Labor government tipped out at the election and within months of his electoral victory in 1988, Liberal Premier Nick Greiner introduced separate bills on freedom of information and the establishment of the Independent Commission Against Corruption. 

Greiner saw the link  between excessive secrecy and corruption. His key adviser through this period Gary Sturgess (now Professor at the Australian New Zealand School of Government) said at the time corruption “is behaviour between consenting adults, it’s secret. It’s a crime of the powerful.”Because it took place in secret it was often difficult to obtain evidence and prosecute successfully, so “what we have (in the ICAC) is a process of shame, exposure and cleansing.”

The connection between the two initiatives was that greater transparency through FOI would reduce opportunities for corruption, and the ICAC would help educate the public sector about the management of corruption risks, and investigate allegations of corrupt conduct.
But FOI's objectives went beyond curbing corruption.The second reading speech is replete with references to how the law would strengthen democracy, improve accountability, and lead to a more active citizenry involved in the affairs of their government. It would help citizens make more informed judgments at election time. The prospect of greater scrutiny would lead to better decisions by ministers and public servants in the day-to-day operations of government.

The ICAC commenced operations in March 1989, the FOI act on 1 July 1989.

It was recognised at the time that FOI would require strong, vigorous and continuing leadership to shift government culture from discretionary secrecy to compulsory disclosure of information. Responsibility for the FOI legislation was retained in the Premier's Department, not as elsewhere assigned to Attorney General's. A senior, able and experienced public servant with a strong commitment to make things work, David Roden was put in charge of a support unit.

However the FOI support unit only lasted a couple of years, the then secretary claiming, either naively or with hidden intention that it had done such a good job in seeding FOI it was no longer needed. 

A long period of 'orphan status' for FOI began, with few and rare voices speaking up for the principle of transparent and accountable government that underpinned the law, except successive occupants of the Office of Ombudsman, and long time Deputy Ombudsman Chris Wheeler.

It also became clear within a few years that the law itself had significant flaws and implementation efforts were at best patchy. 

Then ombudsman, David Landa, told the government early on the act was overly complex with too many vaguely worded provisions that were being used to refuse access to documents. He also said not enough was being done to change the culture. 

Successive ombudsmen reported consistently that the law needed review and that the public service was failing to manage responsibilities required by law, let alone reflected in spirit and intent. Various reports highlighted obfuscation, delay and the high cost of access.

No one took much notice until Ombudsman Bruce Barbour found an enthusiastic supporter of meaningful change in Premier Nathan Rees in 2009, having placed on the table a year earlier a comprehensive review and a long list of recommendations.  

With change in the air elsewhere, notably in Queensland, Rees led and Parliament passed a much improved but short of best replacement act, the Government information (Public Access) Act in 2010. (No one has ever owned up publicly for the terrible choice of name.) Unfortunately Rees took his eye off the ball for a moment, enough time for responsibility for the new legislation to be passed to Attorney General's to administer, not a step in the right direction.

'Orphan' no more, under the GIPA scheme the Information Commissioner has responsibility to champion the open transparent and accountable government cause among other functions.

As for the lofty ambitions of 1988, information access is much improved, and the 'open data' journey is underway. Still rumblings of discontent about time, cost and mental gymnastics when it comes to some reasons for decision.

 A five year statutory review of the GIPA act is due now, so hopefully a chance to to build in further improvements.

Anecdotally, culture change has occurred and continues, but we don't have much in the way of measures or indicators to get at the complete picture. As a generalisation, Wilenski's 'bastion of secrecy' doesn't hold these days. However I'm yet to hear of agency interest in asking their staff about attitudes they see on display about open, transparent government, or asking applicants what they make of their GIPA experience, and how access to information could be improved.

A larger part of the corruption iceberg may be visible these days through the investigations of the ICAC. Prophetically, Greiner himself said in 2009 "the corruption we see now in the state is probably just as endemic and systematic" as it was in the late 1980s.

On the democracy front, experts and the public would agree that the government and the people are still largely separated in "them and us" groupings, and that we are still in the dark about what goes on in many areas of government. Too much of what passes for consultation is of the "read our discussion paper, send us a submission and we'll go ahead and do what we intended anyway."

As for the quality of government decisions, ministers and public servants are still evident too often at the barricades seeking to protect from disclosure advice documents on the basis that release would be the end of the world as we know it. 

Not seeming to recognise that at a time when politicians and government agencies aren't held in high regard, openness and transparency are essential for rebuilding trust and confidence in the policy process as Stephen Bartos argued in The Canberra Times this week.

Greiner was onto something 25 years ago. With the silver under the belt, let's go for gold!

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