“Freedom” not FOI open slather

By MATTHEW MACNEIL
THE word “Freedom” in Freedom of Information in Australia is not meant to connote limitless opportunity for access to government information, and it never has. As long as Freedom of Information has existed in Australia, so have the exemptions that act as barriers. Recent changes to the legislation are meant to improve the process of access to information in Australia, but how have these changes really faired?

I recently made a Freedom of Information request to the Federal Department of Climate Change and Energy Efficiency. The request concerned the National Greenhouse and Energy Register, a publicly available log of registered corporations’ greenhouse gas emissions, energy consumption and production data. The request asked for all documents relating to an application by Boral Limited for some of their greenhouse gas emission information for the 2009-2010 financial year to be withheld from publication. Boral had made the application to the Greenhouse and Energy Data Officer (GEDO) in accordance with section 25 of the National Greenhouse and Energy Reporting Act 2007 (NGER Act), the legislation that gives corporations the right to apply to keep their greenhouse gas emission information from going public. My request for the documents was denied.

The statutory time a government department has for either releasing the documents or rejecting the response is 60 days, as is outlined in section 54S of the FOI Act. Within three days of my request, I received a message from the department stating the date my request was received, that a letter would be forwarded to me advising of any charges, and that when the matter was finalised—after search, retrieval and a decision on whether to release documents—a decision letter and final account would be sent to me. After conferring with the department, I withdrew my application, as the documents I had requested were protected from public release under one of several exemptions in the FOI Act.

The exemption, in section 47 of the FOI Act, that states, “A document is an exempt document if its disclosure under this Act would disclose: a.)trade secrets or b.) any other information having a commercial value that would be, or could reasonably be expected to be, destroyed or diminished if the information were disclosed.”

The wording of this particular exemption is nearly identical to the section in the NGER Act under which Boral had made its application to have its total energy consumption not published. In the case of my request for documents, this meant protection for Boral, and a dead end for me. It looks as if the department did their job, handling my request in a fair manner and complying with the law, and the rejection was based fairly on an exemption from legislation. Exemptions, however, do not always come into play and are not meant to discourage people from making information requests, but are more for the protection of privacy.

According to the Department of Climate Change’s most recent annual report, it received 23 requests under section 15 of the FOI Act, 13 transfers under section 16 of the FOI Act, 10 consultation requests under section 26A of the FOI Act and four internal review requests under section 54 of the FOI Act last year. My failed request is just one example from a number of requests that go through to a number of different government departments.

Anyone can make a Freedom of Information request. You have to make your request to the FOI contact of the relevant government department, and be as specific as possible about which documents you are trying to obtain. It is the job of the Freedom of Information contact to help you narrow down your request if it is not specific enough and, of course, to comply with the law at all times. These laws that govern freedom of information in Australia have undergone a recent change. On November 1st, 2010, the new Office of the Australian Information Commissioner was established. The roles of this office include overseeing the operation of the FOI Act, reviewing decisions made by agencies, and privacy functions that were previously carried out by the Privacy Commissioner. The new legislation affects all Freedom of Information requests. In a speech in Canberra in March of this year, Information Commissioner Professor John McMillan acknowledged that information reform does pose some challenges for his office.

“Information laws make life more difficult and challenging for the executive branch and for political leaders,” he said. “There has been backsliding in the past and there may be again. But any counter-tensions will, I expect, have limited impact. The forces that are driving the open government and information policy reform process are now numerous, stronger and more compelling.”

McMillan also recognised the importance of information reform at the federal level in working towards an open democracy.
“The power of information is well understood,” he said. “A traditional and resilient chord in political and legal theory is that transparency and democracy go hand-in-hand, just as secrecy and dictatorship are intertwined. We have long had laws that control government information practices, by requiring government to collect information of various kinds, and to preserve or destroy information. Other laws penalise unauthorised or inappropriate disclosure. That legislative framework has been strengthened in the last three decades by new laws that guarantee public access to government information, control how personal information is handled by government agencies, regulate archival preservation of government records, and police government collection of information using electronic surveillance and interception. Only in recent years, however, has government made a concerted attempt to bring those information initiatives together.”

Leila Daniels, a spokesperson for the Office of the Information Commissioner, says their department is keeping busy with information reform, with Privacy Awareness Week happening next week. The week long affair will include Information Commissioner McMillan and Privacy Commissioner Timothy Pilgrim speaking at different events, encouraging Australians to exercise their privacy rights and take steps to make sure their personal information is handled appropriately. Professor McMillan will also be launching the sixth annual Information Awareness Month, which is a collaborative event between information and data management communities. The theme for this year is “Information overload: Finding the tree in the digital forest,” a theme that touches on the advancements of technology in relation to freedom of information in Australia.
“Technology has increased the volume of information held by government,” McMillan said. “More information is collected, assembled, downloaded and stored. More information is available to be requested, to be considered for IPS publication, and to be secured against inappropriate dealings or disclosure.”

Journalists can delve into the depths of government information and attempt to reveal secrets or interesting titbits of information, but often enough there are roadblocks and dead ends along the way. As I learned through one attempt at uncovering information, sometimes we have to just give in and accept that the law is the law.