Waiting for FOI culture to change

By KIRILEE DAGG
JOURNALISTS should know how to wrangle information out of anyone, right? They should automatically have the skills to lasso a sliver of knowledge out of even the most slippery of politicians. They should hit the bullseye each time they go searching for the source of a leak. They should have the talent to reel in that elusive government report that everyone knows exists, but no one has seen.

It would seem this way, yet until last year even the most seasoned reporter was fighting a losing battle when tackling a Freedom of Information request. And despite changes in 2010 to Freedom of Information legislation to make the process easier, cheaper and less time consuming, the system is still difficult to navigate.

In many cases the initial query may be the most straightforward part of extracting information to be published. The process of the request however, requires solid background research, a good understanding of FOI laws and most importantly persistence.

And as a student journalist, making my first Freedom of Information request was like walking blindfolded into a library to seek out a single book.

I had recently read newspaper reports that suggested that the Organ and Tissue Authority’s $151 million reform scheme that was introduced in 2008 had so far failed to increase donations.

Organ donation pressure group ShareLife Australia’s director, Brian Myerson, told The Age that bottlenecks within the hospital system were to blame (Hagan, 2010)

“We need people working in hospitals, from the chief executive officer down, to ensure that every single person is assessed as to whether they are a potential donor. No one should be lost in the system.” he said. (Hagan, 2010).

Based on these facts, I jumped straight into the request which read:

“I request that a copy of the following documents [or documents containing the following information] be provided to me: All documents detailing clinical guidelines and training methods regarding organ donation and documents regarding communication methods with families of organ donors, provided to all Australian Organ and Tissue Authority staff since 2008. “

Three days later I received a reply from the authority asking for clarification of the scope of my request.

This highlighted my first mistake.

According to FOI expert and Monash University’s senior lecturer in Journalism Dr. Johan Lidberg, the first thing that any journalist should do is call the Freedom of Information officer in charge of their request to seek out any information already available.

“Making a phone call to the agency is important. It builds rapport, and the officer will remember you when they receive the written request. . . ,” Dr Lidberg said. “And if you have knowledge of there being previous requests, you will have a base to work from.”

The subsequent phone call to the Organ and Tissue Authority underlined the fact that I had neglected to conduct extensive research to find existing information.

The general Manager of the Organ and Tissue Authority, Elizabeth Flynn, clarified that it is not necessarily true that organ donation staff come to the job cold.

“Yes, there is recognition that we need to do more with family conversations,” she said. “However, we do put our staff through several one-day training programs. Most of the information that you are requesting is on the internet, you just have to know where to look for it.”

This highlighted my second mistake.

Instead of simply taking this on board I should have pushed her to provide me with website links to the information I was seeking.

According to Dr Lidberg, finding crucial information hidden on the internet is not uncommon as government websites are difficult to navigate. Any number of facts may be uncovered if a journalist knows where to look.

“Persistence is important. With the nature of the news cycle it is quite common that journalists drop the ball when they are on the verge of getting through,” Dr Lidberg said.

“Many also let the request go when they are faced with a reasonable fee. This is when they should go to their editor and ask for the money, because often it’s worth paying.”

So the question may be asked, why is it that even after significant legislative reforms, most Australians do not know how to correctly conduct a request?

The answer lies in the past.

In 2009, Dr Lidberg published a report comparing the effectiveness of Australia’s FOI legislation with Sweden, the United States, South Africa and Thailand (Lidberg 2009, 167-182).

His conclusion?

“Australia is the worst case in the study. Not only did it score lowest, it also projects what turns out to be a misleading and even false image of having a functioning and mature FOI system. The study clearly shows that the federal Australian FOI regime is dysfunctional and not worthy of a country that prides itself on being a mature liberal democracy.” (Lidberg, 2009, p179)

The original laws were passed under the Freedom of Information Act 1982, yet they quickly became unworkable.

“In the past there were way too many loopholes and the processing fees to retrieve information would run into the thousands,” Dr Lidberg said. “The early acts were used to achieve the opposite of what the laws stood for, and loopholes were a way for the government to get away with not disclosing information.”

This is because Australia’s government structure is closely aligned with the United Kingdom’s Westminster system, therefore such a culture could flourish.

“It was not done out of malice, the issue was more that people thought ‘this is the way we’ve done it, so this is the way it will stay’,” Dr Lidberg said.

The executive secretary of the Australian Press Council Jack Herman, has voiced a similar opinion in the past, stating that journalists rarely used FOI as it required a lot of work and more often than not offers little reward.

“It remains easier and quicker for journalists to acquire information via unofficial leaks and off-the-record briefings than it is to gain access through formal FOI procedures,” he said in a 2004 speech. “This makes journalists more vulnerable to being manipulated and misled and makes it much easier for governments and officials to manage news.” (Herman, 2004)

So will the changes to FOI legislation make a difference to how requests are made in Australia?

“It’s a huge change, and it is something that journalists should be aware of. But the new laws do have great potential,” Dr Lidberg said.

“The new Federal Information Commissioner, Professor John McMillan, is pro disclosure and if I know him, he will work tirelessly to make it right.”

Judging by the requirements to be placed on government agencies from May 1, Australia is well on the way to establishing a new set of ethics within the government’s FOI system.

One of the most notable changes is that agencies will be required to publish all information that has been released in response to an FOI request in a disclosure log.

As Professor McMillan states on the Office of the Australian Information Commissioner’s website, these changes will facilitate a pro-disclosure culture across government.

“The FOI message is focused on promoting open government. The challenge for Office of the Australian Information Commissioner is to foster a culture of openness that also protects the privacy of individuals,” he said (Office of the Australian Information Commissioner, 2011)

It remains to be seen if the new legislation will have wide impact on the number of successful FOI requests from the media.

As Dr Lidberg says however, “The proof will be in the pudding.”