17 December 2007
Key Points:
The new Government's Information Policy adopts, in large part, the mantra of "open government".
There has been considerable debate lately about the effectiveness of FOI Laws at both the Federal and State levels. The election of the Rudd Government may signal significant changes to FOI laws in accordance with the Information Policy that was released by the Labor Party in October this year.
The context of the current reform agenda - What has been the lead-up to the new government's Information Policy?
Created in 1982, there has been no major reform of the Freedom of Information Act 1982 ("FOI Act") since 1991. While the Australian Law Reform Commission ("ALRC") made over 100 recommendations for reform of the FOI Act in its report titled "Open government: a review of the federal Freedom of Information Act 1982" (ALRC 77) in December 1995, no decision was made to implement the report's recommendations.
In recent times, interest in FOI reform has been reinvigorated, albeit some 10 years since the last ALRC report. In 2005 the Commonwealth Ombudsman commenced an investigation on his motion "in the interests of focusing attention on good practice as well as areas requiring improvement". The Ombudsman's report was published in March 2006 and recommended that each agency head issue a clear statement to staff expressing a commitment to sound FOI practice and the goals of the FOI Act, and that the Australian Government consider establishing an FOI Commissioner. The recommendations in the report have not yet been adopted.
Subsequently, in September 2006, the High Court handed down its decision in McKinnon v Secretary, Department of Treasury (2006) 229 ALR 187. That case had the effect of denying a journalist documents he had sought in relation to "bracket creep" in the context of income tax brackets and in relation to the First Home Owners Scheme based on two conclusive certificates issued by the Treasurer.
Following the decision in McKinnon, in May 2007, a number of media organisations launched the "Right to Know" Campaign ("RTK Campaign"). The RTK Campaign was designed to draw attention to the growing culture of secrecy that was said to exist in government agencies and to focus attention on difficulties associated with freedom of speech and access to information from Government including perceived difficulties with the administration of the FOI Act.
The response of the then Howard Government to the RTK Campaign, and presumably the Ombudsman's review, was a referral in September 2007 by the then Attorney-General to the ALRC to inquire into FOI laws and practices across Australia. The referral asked the ALRC to look at harmonisation with State and Territory FOI laws, the impact of evolving technologies, minimising cost and regulatory burden to government and the need to ensure that government received frank and fearless advice.
In this context, only weeks later in October 2007, the Labor party released its Information Policy, "Government information: Restoring trust and integrity", which dealt in part with FOI. The policy called for quite dramatic reform of the current FOI regime.
With the election of the Rudd Government in November, the implementation of the Labor Government's new Information Policy will have a significant impact on the reform of FOI laws at a Federal level. We discuss that policy in greater detail below.
The Rudd Government's Information Policy
The new Government's Information Policy adopts, in large part, the mantra of "open government".
Referring to McKinnon, the RTK campaign and the Ombudsman's finding (in its March 2006 report) that personal information is readily released but the requests for other information have a higher rate of refusal, the new Government is interested in promoting a "pro-disclosure" environment within government and in putting an end to what it regards as a culture of secrecy. The new Government maintains that not allowing contentious material to be produced pursuant to FOI promotes a culture that facilitates leaking of material by the public service.
To create this "pro-disclosure" culture the Policy identifies several matters as priorities for FOI reform. Principal among those reform priorities are the following issues:
The Policy does not make any particular comment in relation to evolving technologies and their impact upon the administration of the FOI Act and/or whether reform is warranted in the face of significant changes in the creation of information, but it does focus on some of the issues identified by the RTK Report, which is further discussed below.
With the ALRC not due to report on the former Government's referral before the end of 2008 it seems unlikely that the new Government will wait that long before implementing the terms of its Information Policy. Alternatively, it may seek to amend the terms of the referral to the ALRC to ensure that the issues it wishes to review are covered in the work that the ALRC has scheduled.
Finally, it is worth noting that the Information Policy was prepared and released at around the same time as the "Report of the Independent Audit into the State of Free Speech in Australia" ("RTK Report") prepared for the RTK Campaign. The RTK Report sets out a range of factors that limit the effectiveness of FOI laws and is discussed in more detail below.
The Right to Know Report - What did it say?
The RTK Report was prepared by a team chaired by Irene Moss AO pursuant to terms of reference issued by the members of the RTK coalition. The RTK Report deals with various factors affecting free speech in Australia of which FOI legislation is but one.
The RTK Report found that FOI laws work effectively and reasonably consistently when they are used to provide access to personal information about the applicant but that a range of factors limit their effectiveness in ensuring access to documents relevant to government accountability. It found high costs and excessive delays are two of the factors that limited the effectiveness of the FOI Act in relation to such information.
The RTK Report also found that no federal, state or territory government has taken sustained measures to deal with what it has labelled an enduring "culture of secrecy". It was also said that there were few visible, consistent advocates of open government principles and that leadership on FOI is lacking. The RTK Report also found that, at the Federal level, FOI is marked by a high degree of legal technicality and, not surprisingly, the Report was also critical of the conclusive certificates regime.
Conclusion
The Rudd Government's Information Policy suggests that, after 16 years of relative inactivity in the development of the FOI regime at a Federal level, there now appears to be considerable drive for reform of the FOI process.
For further information, please contact Caroline Bush.
