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Hurdles remain despite reforms

REFORM to the Freedom of Information Act in 2010 aimed to streamline public access to Government information. However as I have found, even with the changes, this can be like trying to get blood out of a stone.

Everyone has a legal right to access documents held by Government agencies, unless clear exemptions apply under the Freedom of Information Act. The Commonwealth Freedom of Information Act (1982) was designed to create a pathway so that the public, in particular journalists, could apply to find out information about an issue they were interested in. The Freedom of Information Act (FOI) aims to improve Government decision-making and remove the secrecy around how key assessments are made.

For years investigative journalists have used the FOI process to obtain documents from Government. These documents have assisted journalists to prove malfeasance and inform public debate.

On 1 November 2010, substantial changes were made to the Freedom of Information Act (1982). The changes were intended to improve the FOI process, putting strong emphasis on the release of material, encouraging Government Departments to be open and transparent.

These changes include: (Office of the Australian Information Commissioner website, viewed 21 April 2012)

• Promoting disclosure of information held by Government. Agencies are now required to publish their information and provide a right to access.

• Establishing of the Office of the Australian Information Commissioner. Applicants who wish to have an FOI access decision reviewed can seek internal review by the agency or go directly to the Information Commissioner. The Information Commissioner can also investigate complaints about the actions of agencies under the FOI Act.

• Reforms to the FOI access requests. This includes ensuring that the public’s right of access to documents is as comprehensive as possible, and is restricted only where there is a stronger public interest in withholding access.

• Government agencies can no longer refuse a request based on potential loss of confidence in or embarrassment to the Government.

• An FOI access request may extend to documents held by a contracted service provider who is delivering services to the public on behalf of an agency.

• Access to archival records has been brought forward from 30 years to 20 years for all records other than Cabinet notebooks and census information, which have been reduced from 50 years to 30 years.

• All Federal application fees, including fees for internal review, have been abolished.

Even with the changes to the FOI Act, access to Government information is not a simple process. There are still many agencies that are exempt from FOI. Information which is exempt from FOI includes documents relating to national security, law enforcement, electoral rolls, legal professionals, commercial and trade secrets which could be destroyed, material obtained in confidence, or where disclosure would mean contempt.

Preparing an application takes time and has to be carefully crafted in order to obtain a suite of useful documents. I’ve found from my own experience that the FOI process is not streamlined and succinct, more a tangled web with many obstacles standing between you and the information you wish to obtain. There is definitely no guarantee you will find what you are looking for.

My experience was successfully bundled up in bureaucratic red tape. In my attempt I was unable to obtain the documents I required to inform a news angle exposing coal mining companies which do extensive damage to the environment yet are not accountable for their actions. I originally submitted two Federal Government FOI applications, one to the Department of Finance and Deregulation and the other to the Department of Resources, Energy and Tourism. I wanted to discover how much revenue coal mining companies pay to Government, in comparison to clean energy such as wind and solar, and how Government monitors environmental requirements for mining export licences in Australia.

My two applications asked for access to all documents created or received on:

• The creation and monitoring of environmental requirements for mining export licences in Australia.

• The total damage made by coal and gas-fracking mines to the Australian environment over the past two years.

• The revenue paid to both Federal and State Governments from coal mining companies in the last three financial years.

• The revenue paid to both Federal and State Governments from clean energy companies in the last three financial years. This must include but is not limited to financial revenue from Wind Turbine and Solar Energy development organisations.

For me the FOI process was a steep learning curve. My first mistake was not understanding how complex or broad my questions were. Mining is a multi-billion dollar business in Australia, with many key Government agencies involved.

The Resources and Energy Quarterly Report- March 2012 describes the value of Australia’s resource and commodity exports.

“In 2010–11, the value of energy and minerals commodity exports was about $179.2 billion, some 85 per cent of Australia’s total value of commodity exports.”

My first hit was from the Department of Finance and Deregulation. The FOI Coordinator Ms Lauren Clark informed me that “the Department of Finance and Deregulation (Finance) does not appear to hold documents that fall within the scope of your FOI request.” Ms Clark referred me to Department of Resources, Energy and Tourism – to which I already had submitted an FOI application.

According to the Department of Sustainability, Environment, Water, Population and Communities, the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) was created to provide a scheme of environment and heritage protection and biodiversity conservation. However, through the coordination of my FOI request at the Department of Resources, Energy and Tourism I found that the Federal Government has very little input into the monitoring of mining activity. This is primarily done through the individual State and Territory Governments.

Coal mining causes extensive damage to the environment with large areas of land disturbed. The World Coal Association states that coal mining causes soil erosion, dust, noise and water pollution, and impacts on local biodiversity. If my FOI request was successful environmental impacts of coal mining would have played a fundamental part in the creation of my investigative feature story.

It’s important to ensure your FOI application is not too broad otherwise Government agencies may issue a ‘practical refusal’ under section 24AA of the Freedom of Information Act. The Department of Resources Energy and Tourism’s acting aeneral manager fuels and uranium branch, Ms Nicole Hinton, advised that the scope of my request needed to be revised, otherwise a ‘practical refusal’ would be issued on the ground that “the Department is relatively small with only 500 staff and given the broad nature of the request the Department would be required to spend significant time searching for all relevant documents”.

The Department’s FOI Coordinator, Ms Tegan Farrelley, assisted to revise the scope of my request. Even though my FOI request was amended, it was still not successful.

“The Department does not play any direct role in the assessment or granting of environmental approvals,” Ms Farrelley said. “State and Territory governments have primary responsibility for regulating onshore mining and exploration in Australia, including coal seam gas. A specific coal seam gas project will only come under the purview of the Commonwealth if it has the potential to impact on Matters of National Environmental Significance.”

Through my own FOI experience it is clear that there are many obstacles which stand in the way of open and transparent information sharing. There are responsibilities of both the applicant and FOI Coordinator to ensure all the correct boxes are ticked for the information gateway to be opened. Even though changes have been made to the FOI Act, there is still much room for improvement. As in my case, unless you are experienced at FOI applications, you may find yourself wound up in red tape.

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