Freedom of Information (FOI) provisions are languishing in NSW and federally. The blame for this does not just lie with the successive Labor and Coalition governments that have viewed FOI as an enemy that weakens their hold on power. The progressive movement also needs to take some responsibility for the FOI’s moribund state.
FOI legislation was won in the same way as so many other achievements that have made our society more democratic. A group of hard working people in the 1970s campaigned for FOI until the politicians of the day were either won over by their compelling arguments, or realised that the tide of support for FOI was too strong to resist.
But since FOI laws were passed, the progressive side of politics has not been vigilant in protecting and promoting this foundation of the democratic process. Recent developments at a federal level and in NSW show that it is time for the voice of support for FOI to be amplified across the country.
The federal government’s High Court win for their action in refusing to hand over Treasury documents to The Australian is the highest profile example. There are also numerous cases at the local and state government level where members of the public, journalists and representatives of various interest groups have had their legitimate claims for information refused.
At the end of last month the Director-General of Education in NSW, Andrew Cappie-Wood, admitted that a document requested by the Save Beacon Hill School Committee should have been made public when it was requested in 2003. At the time many believed this document was critical to informing the public debate about the government’s plans to sell this school on Sydney’s northern beaches. The document contained demographic evidence suggesting the school should not be closed. The school has been closed and the Education Department has the site up for sale.
We have no idea why the Education Department made this mistake. Maybe it was deliberately not released or maybe it was due to sloppy administration of FOI by that department. Either way it is a clear reminder that FOI laws are in need of an overhaul in NSW.
The NSW Freedom of Information Act came into force in July 1989 but has never been reviewed. The Greiner Government was in power then and gave a commitment to a full review of the legislation after two years. Seventeen years have now passed without any comprehensive review of the Act.
For over a decade, the NSW Ombudsman has repeatedly called for a review of the NSW FOI Act, but still nothing has happened. The Greens introduced a private members bill before the NSW Upper House on the 28th September seeking an independent review of this critical piece of legislation. That bill passed through the upper house yesterday, supported by the opposition and minor parties, but opposed by the government. It will now have to go before the House of Representatives (see below for a summary of the key points of the bill).
In the 17 years since the Act came into force, the context of government in NSW has changed dramatically and we have had the massive expansion of information technology. Our FOI procedures are struggling — and often failing — to keep up.
Over the last decade in NSW we have seen a huge shift to privatisation, corporatisation and the rise of the ubiquitous public-private partnership. The FOI Act now no longer covers many of the agencies and corporate entities that fulfil government duties. Information about important public services and infrastructure is now often held by the private sector and shrouded from the public gaze by commercial-in-confidence exemptions.
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The Cross City Tunnel debacle is just one example. Community groups had an almost impossible struggle to access information from a private consortium about this controversial piece of infrastructure which affected their community. The contract and related papers between the consortium and the Government became public only after a Greens motion requiring the release of this material was passed by the NSW Upper House. This was followed by a historic ruling by Sir Laurence Street that required the further release of secret government documents. This could not be achieved under the present FOI regime in NSW.
There have also been major developments in information and communications technology since 1989. The world has turned to digital recording, and information is collected, stored and disseminated in a very different form now than the way it was done in 1989. The Greens believe that these information technology developments provide an exciting opportunity to rework FOI procedures in NSW.
No longer are we dependent on someone standing in front of a photocopier in a windowless room copying documents for distribution for hours on end. Should we not now move to a system of proactive disclosure where the bulk of government information is automatically made available to the public via the internet?
The US FOI Act established what is known as ‘reading room access’ to information. In the electronic ‘reading room’ agencies must make categories of documents routinely available for inspection and copying. Those records must be available in electronic form, usually on the internet. In comparison, NSW procedures are languishing in the dark ages.
FOI applications have almost doubled in the past decade. The Annual Report of the NSW Ombudsman shows that applications have increased from 8,328 in 1995-96 to 15,791 in 2003-04. Despite that increase, the percentage of applications where all documents have been released in full has dramatically decreased to only 63 per cent in 2001-02, down from 81 per cent in 1995-96. The number of applications refused in part has more than tripled in that time. The NSW Ombudsman is blunt in naming this as a “significant and disturbing downward trend” in the release of information.
My office is awash with stories from disgruntled FOI applicants. The efforts of many community groups, journalists and members of the public are being frustrated by exorbitant application costs and lengthy delays in processing. Government agencies are overusing or misusing exemption clauses, such as cabinet confidentiality, to deny access to information.
Good government is fostered, not hindered, by public and media scrutiny of information. In an age of government spin-doctoring it is vital that both the media and public can lift the PR veil to scrutinise the operations of government.
The Greens will use our private members bill to put pressure on the major parties to adopt an election platform that commits to reforming NSW’s freedom of information laws.
The Greens Freedom of Information Amendment (Improving Public Access to Information) Bill 2006 requires the appointment of an independent reviewer, such as the NSW Law Reform Commission, to conduct a comprehensive review of the Act’s policy objectives.
The review must report to the Minister within 18 months of its appointment, having considered whether the objects of the Act would be more appropriately served by:
- establishing an independent body to manage FOI applications and provide independent oversight of the Act, and
- a presumption that any document to which access is sought is not an exempt document.
The review must also consider:
- trends in the determination of applications
- the grounds on which documents can be refused
- the Act’s exemption of certain agencies
- the impact of technological change on information keeping practices
- the Act’s interaction with other legislation in NSW dealing with access to information, for example the NSW Privacy Act
- the impact of piecemeal amendments to the Act
- the cost of lodging and processing applications
- the timeliness of the processing and determination of applications.