Senator John Faulkner's appointment as the new head of Defence has made two groups of people nervous.

The first are Australia's military snake oil salesmen, about to face a man whose long hours in Senate Estimates hearings should make him well-equipped to scrutinise their pet projectiles. The flagged $16 billion of spending on F-35 Joint Strike Fighters and $8 billion on Air Warfare Destroyers could certainly benefit from the forensic approach to public procurement which Faulkner once displayed in Senate Estimates.

The other twanging nerves belong to open government advocates, who will mourn Faulkner's departure as Special Minister of State and worry about the future of Freedom of Information reform now that it is no longer under the gaze of the 'glasses of democracy'.

The draft Freedom of Information (FOI) and Information Commissioner bills are a big deal in the context of Australia's appalling track record on FOI. A personal favorite is the narrowing of the 'Cabinet in Confidence' exemption so that it applies only to documents actually prepared for Cabinet and not, for example, documents piled on a trolley and wheeled through the cabinet room.

But some responses to the draft bills make it clear that there are still gaps wide enough to drive several trolley loads of documents through:

• The bills only tinker with the problem of high FOI fees. Faulkner has indicated that fees will be subject to future review, but as the Public Interest Advocacy Centre Points out, fees currently recoup less than 2% of the total cost of administering the FOI Act, so there's already a strong case for ditching fees, at least for documents which can be made available electronically.

• Sydney University's Anne Twomey warns that a clause allowing material to be deleted from a document because it can 'reasonably be regarded as irrelevant' could be abused to censor documents and could mean that 'FOI requests will have to be drafted broadly to ensure that material is not edited out on the grounds of irrelevance, leading to greater costs in agency time and greater financial costs to the applicant'.

The new Special Minister of State Senator Joe Ludwig was involved in the drafting of the ALP's 'open government' platform in his former role as Shadow Attorney General, and there's no reason to believe that the government won't pass the FOI bills - or something like them - under his watch. Unfortunately the most promising sign on Australians' future access to government information is not in the bills themselves, but in Faulkner's recent comments about them. For example, when describing the publication scheme that would accompany the new legislation he said:

'This publication scheme will require agencies to actively consider the types of information they have which can and should be made available to the public. It will not only encourage, but mandate, agencies to publish what they can lawfully publish – forcing a change of attitude for agencies to think about what they should be publishing rather than what they are obliged to...the publication scheme aim(s) to change the emphasis – from agencies defining their publication of information by what is required, to a culture of openness where information is  made available unless it is against the public interest to do so.'  (Emphasis added)

If Faulkner's words were to become law, it would represent a giant leap forward in open access government. But the bill itself makes this giant leap look more like a small step. Rather than having to publish everything that's not specifically exempt, there is a short list of information that agencies must publish. Apart from basic and obvious information like organisational structure, annual reports etc, the main requirement is to publish:

• 'the information in documents to which the agency routinely gives access in response to requests under Part III (i.e. FOI requests)'

• 'the information held by the agency that is routinely provided to the Parliament in response to requests and orders from the  Parliament'

This wording is very confusing - in Anne Twomey's words: 'How does one know that it is a document to which an agency would ‘routinely’ provide access, if one does not yet have it?'

One of Ludwig's first moves could be to reaffirm Senator Faulkner's commitment to the broader open-access agenda and to make sure that the shift towards publishing all non-exempt information is reflected in the new Publication Scheme, not just the provisions for FOI requests.

The bill puts much of the detail of the publication scheme under the guidance of the new Information Commissioner, but doesn't spell out how this new Data Tsar will be appointed. Another useful step by Ludwig would be to adopt the Nolan Rules for the appointment - rules which were recently adopted for the ABC board, and which really ought to be extended to most public sector boards.

Further Reading

The Freedom of Information Amendment (Reform) Bill 2009 - PDF 543KB and Information Commissioner Bill 2009 - PDF 106KB  are both available at http://www.pmc.gov.au/consultation/foi_reform/inde...

The following submissions on the draft bill are well worth a read:

• #3 Associate Professor Anne Twomey (31.92 KB)
• #21 Peter Timmins, Timmins Consulting Austalia (203.12 KB) 
• #25 Australian Library and Information Association (542.51 KB) 
• #35 Public Interest Advocacy Centre Ltd (778.75 KB)

Finally, don't miss Senator Kate Lundy's 'Public Sphere 2' for a glimpse of the opportunities that open-access government might open up for reinvigorating our democracy.