Beyond FOI

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

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

‘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
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.

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…

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

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.

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