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FOI: open Government or formality to deter scrutiny?

Freedom of Information (FOI) legislation comprises laws that guarantee access to data held by the State. Such laws exist as an attempt to establish a ‘right-to-know’ legal process by which requests may be made for information held by Government Departments ‘in the interest of promoting an open administration of that Government’ (Staples, 2007, p. 215).

This paper will explore aspects of the functionality of FOI legislation. It will particularly examine the possibility that the formality of the FOI request process; which, increasingly, is the sole means of obtaining unpublished information; has the potential to deter those who seek information, thus effectively contradicting the stated purpose of the Act. In many countries there are constitutional guarantees for the right of access to information, but without specific support legislation such a right often does not exist in practice. ‘Over 85 countries around the world have legislated further guarantees of Freedom of Information, with Sweden’s Freedom of the Press Act being the first in 1766’ (Staples, 2007, p. 240). In Australia, the Freedom of Information Act (Cth) was passed in 1982, applying to all ‘Ministers, Departments and public authorities of the Commonwealth’ (Freedom of Information Act, 1982). There has subsequently been similar legislation enacted in all States and Territories.
Considering the extent of legislation in Australian jurisdictions, theoretically, access to Government-held information is legally guaranteed to those who seek it; provided that information does not fall under any exclusion stated in the Act. In practice however, Freedom of Information does not guarantee ease of access to information. Critics argue that FOI procedure allows those holding information to adopt a policy of determent when encountered with requests for information. O’Brien expressed concern in a 2005 paper regarding statistics which were ‘showing that a significant number of FOI applicants do not proceed with their requests’ (O’Brien, 2005). Since O’Brien’s paper was published the Act has been subjected to reform, however the newly established Office of the Australian Information Commissioner (OAIC), a key initiative in the amendments, acknowledges there is no evidence to suggest that reform has resulted in an increase of ease in obtaining information from Government agencies. A spokesperson for OAIC admitted that FOI legislation may in fact act as a barrier regarding public access to many types of information. OAIC confirmed there was an increasing trend in Departments insisting that formal FOI processes be adhered to, even when the information requested is considered unclassified and, in some cases, when that information is actually intended to be published by that Department. “The ironic thing is that to access any information, even basic documents regarding statistics and trends that may be published in their current form at a later date, an FOI application would usually be requested by a Department… It may be attributed to a culture of suppression but organisations, even public ones, are selective of what information is divulged and are not in the habit of publishing all the material they possess” (Interview on Informal Information Requests, 2011).
It is such a practice that highlights some of the short comings of FOI legislation as an entity which may be too broadly applied; often adopted as a default policy in any circumstances regarding matters of public disclosure. If the purpose of such legislation is to “promote a pro-disclosure culture across the Government” (Department of the Prime Minister and Cabinet, 2010), then it could be assumed that without FOI laws, a policy of suppression would otherwise be in place. Indeed the broad application of the legislation could be interpreted as a display of reluctance by Government agencies to partake in mass-publication of information. Timmins argues that ‘when an organisation adopts a policy of widely withholding information, particularly that which is of little consequence, it results in additional information seeming less obtainable, as a shadow is cast over a large part of the operations of that organisation’ (Timmins, 2011).
This tendency, in which ‘government agencies increasingly only divulge information after formal requests have been lodged’, has the potential for creating ‘an atmosphere which prompts those who desire information to reconsider their want for which they are entitled’ (Timmins, 2011). Many argue that FOI requests should only be necessary when specific or obscure information is required, and in general, a broader disclosure of information should be encouraged. In 2008 the ACT Auditor-General observed that ‘many FOI requests are made when the applicants are not able to get access to the relevant information publicly, or when there was concern about the lack of transparency in Government decisions or dealings with the community’. The same Audit found it was ‘possible that these costs could have been reduced if more information on Government activities were available publicly, or on request, especially information on topics of current public interest’ (ACT Auditor-General’s Office, 2008). Such findings suggest a more cost-effective approach to satisfying public entitlements to information held by Governments would be an implementation of public disclosure as policy and an alternative to FOI in meeting the public’s ‘right to know’.

Additionally, while Departments are increasingly demanding FOI requests to justify releasing information, a precedent is being set where broader information is generally unavailable. As such, initial FOI requests are often mere preludes to requests for more specific information; or otherwise ‘shots in the dark’ which require superfluous attention and the allocation of resources away from other matters. Such an environment is undesirable for both parties who hold information and parties who require information. The 2008 ACT Audit of FOI Administration estimated that individual FOI requests cost the Territory an average of $12,000 and 3.8 equivalent full-time staff per application (ACT Auditor-General’s Office, 2008). Such findings are further evidence that FOI requests are rarely straight forward. Many attribute this to a lack of public disclosure of general information. This results in many initial applications being broad in nature and hence requiring more time to determine the specific information being sought. Upon the author’s submission of an FOI request to the Department of Foreign Affairs and Trade (DFAT), the Departmental Officer assigned to the task required two additional applications to be made in order to determine the type and topic of documents requested. This resulted in the FOI process not being completed within the appropriate time-frames as specified by the Freedom of Information Act 1982- that is 14 days for the request to be acknowledged, and 30 days for the applicant to be notified of a decision (Commonwealth of Australia, 1982). When questioned about the length of time the Department was taking to fulfil the request the Officer admitted there were practical issue in administrating FOI. “There are cracks in the process. Requests can fall through the cracks and occasionally are not fulfilled within the time-frame… It is not possible to eliminate all potential for human error and technical difficulties” (Officer for the Department of Foriegn Affairs and Trade, 2011).

Responsibility for Freedom of Information falls to the Department of Prime Minister and Cabinet. The Department proclaims desire for a style of ‘open government’ with the statement “the Australian Government announced as part of its 2007 election policies that it would reform the Freedom of Information Act 1982 with the principal objects of promoting a pro-disclosure culture across the Government and building a stronger foundation for more openness in Government” (Department of the Prime Minister and Cabinet, 2010). However while public entitlement to information is legally guaranteed, the administration of FOI and the increasing status of FOI as a requirement in seeking any information creates problems in fulfilling the concept of a ‘transparent’ Government. Even information deemed in the ‘public interest’ can fall under a ‘grey’ area regarding the right to access it. Most freedom of information laws exclude the private sector from their jurisdiction, hence information held by the private sector cannot be accessed as a legal right. This limitation is more apparent as the private sector performs more functions which were previously the domain of public sector.

Private sector implications are not the only interference for FOI. Information is routinely held across a variety of agencies and when that information is not initially disclosed publically resources must be spent to fulfil FOI entitlements. Additionally, the evolving nature of Government means information is often transferred between agencies. OAIC acknowledges the problems faced by newly created or reformed Departments, exemplified by the limitations of their own Office. “The Office only holds information from after we were appointed. For comparisons and past information the Commonwealth Ombudsman would have to be contacted because there is no certainty as to which Department would hold such information” (Spokesperson for the Office of the Australian Information Commisioner, 2011). While theoretically, FOI guarantees public access to Government-held information and proceedings, the practicalities in administrating FOI are less certain. There can be little doubt that in the interest of preserving public resources, as well as in promoting transparency and openness of Government and its proceedings, the most effective course of action for Government agencies would be to adopt a policy of public disclosure, and limit the need to operate under FOI guidelines at all.

Bibliography
ACT Auditor-General’s Office. (2008). Administration of the Freedom of Information Act 1989. Canberra: ACT Legislative Assembly.
Commonwealth of Australia. (1982). Freedom of Information Act. Retrieved April 10, 2011, from Australian Government: ComLaw: http://www.comlaw.gov.au/Details/C2004A02562
Department of the Prime Minister and Cabinet. (2010, November 9). Freedom of Information (FOI) Reform. Retrieved April 2, 2011, from Department of Prime Minister and Cabinet: http://www.dpmc.gov.au/foi/foi_reform.cfm
O’Brien, D. (2005). Freedom of Information Law in Need of Overhaul. Canberra: Minter Ellison.
Officer for the Department of Foriegn Affairs and Trade. (2011, March 27). Interview regarding FOI Request. foi@dfat.gov.au.
Spokesperson for the Office of the Australian Information Commisioner. (2011, April 14). Interview on Informal Information Requests. 0407 663 968.
Staples, W. R. (2007). Encyclopedia of Privacy. Westport: Greenwood Press.
Timmins, P. (2011, March 7). NeHTA not a FOIer. Open and Shut , pp. 2-9.

Recent Comments

1

Freedom of Information is an interesting quandary. I was just reading about that News of the World Journalist who is being indicted (i think?) for writing certain so called racist comments. It is a fine line to be sure. Where does Freedom of Speech end, and sedition or racism etc begin.. Also it may have been a local sydney journalist, cant quite remember.

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