Access to information forces government to open

Article by Prof. John McMillan, Australian Information Commissioner provided to ‘Legal Affairs’ section, The Australian (September 2012)

An edited version of this article was published in the ‘Legal Affairs’ section of The Australian on 7 September 2012

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Government is more open as a result of countless battles forcing politicians and bureaucrats to release documents they preferred to keep secret. Some battles were fought in the parliament, others in the media, and a few in the courtroom.

To sustain that pressure on government, freedom of information legislation empowers an independent body to rule on whether documents shall be released. That power rests at the national level with the Office of the Australian Information Commissioner (OAIC), following important FOI reforms in 2010.

This ultimate power to compel disclosure is a critical FOI feature, but not the only one. Open government reform cannot be assessed by looking solely at the number of contested disputes that are unresolved. That narrow but mistaken approach was taken recently in a paper by barrister Tom Brennan, reported by Dennis Shanahan, ‘Backlog ensures FOI reforms fail to fire’ (The Australian 24 August 2012). The theme of the article was that a backlog of OAIC review cases is rendering the 2010 FOI reforms ‘useless and raising the prospect of appeals being pushed to the courts’.

More about the backlog in a moment. First, a broader perspective on recent trends.

Three changes required for more open government are cultural change, proactive disclosure and administrative access.

Cultural change is a smart idea that is complex to achieve. To quote Senator Ludwig when introducing the FOI reform package, ‘we need to switch the mindset … from information control to information sharing’. The OAIC has taken up that challenge in publications and seminars, in and outside government, by actively promoting the headline messages that underpin open government. They include that transparent government is better government; public sector information is a national resource to be used for public purposes; and all decisions against release should be convincingly justified on public interest grounds.

Anecdotal signs point strongly to this cultural change message taking root. Government agency disclosure logs publishing documents released under the FOI Act include many that were harder to obtain in past years, such as ministerial submissions, hot issues briefs, expense accounts, audit reports, incoming government briefs and correspondence and submissions. The Australian’s disclosure log published by journalist Sean Parnell tells a similar story of increased media use of the FOI Act and heightened disclosure by agencies and ministers.

FOI is now front-of-mind for many senior executive officers. Documents are frequently written with an eye to possible release or publication, and open government briefings are a regular feature of executive meetings in agencies. Indeed, such is the impact of the FOI reforms that there is some unease in government and academia that the pressure to disclose is resource intensive and unsettling during policy formulation.

Across government there is an increase in FOI requests for policy documents, lower FOI cost recovery, faster processing – yes, with exceptions – and more consistent practice. Failure on those criteria was the source of much criticism prior to the 2010 reforms.

Proactive disclosure – also called open data – is another key reform objective. The aim is to harness web-based technology to make government information more widely accessible and useable.

A standout example of this drive is the MySchool website that has been visited more than 5 million times and has sparked an intense public debate on educational quality and assessment. Similar projects are being rolled out in other government quarters for publication of spatial (or locational) data, environmental information, health data, university research results and much else

These and other data holdings are linked on the data.gov.au website that has quickly grown to 1120 data sets. Proactive publication of this kind will transform the way that government functions and engages with business and the community.

The OAIC has supported this trend by promoting eight Principles on open public sector information (PSI). Principle 1 is that open access to PSI should be the default position. Other principles are about agency reorganisation to support open PSI, making PSI discoverable and useable, and adopting open licensing.
Another OAIC project was a survey of nearly 200 government agencies on their implementation of the Information Publication Scheme (IPS) that is an element of recent reforms. The results are encouraging. Ninety-four per cent of agencies publish operational information that guides decision-making affecting the public; and a similar percentage have assigned responsibility for IPS compliance to a senior agency officer.

The survey points usefully to practical impediments to greater openness. They include outdated agency record keeping systems, inconsistent information management practices, and resource constraints on reformatting documents for digital publication.

A third open government reform measure is the development of administrative access schemes. The enforceable FOI right of access to documents is a fundamental legal right, but the FOI process can be formal, cumbersome and unnecessary for many information requests, particularly personal information requests that constitute over 80% of those to government. This month the OAIC will release a new policy on administrative access to prompt the development of more flexible arrangements for answering public requests.

The other big challenge facing the OAIC has been to resolve more than 950 FOI review applications and complaints received since November 2010. This is no easy task, particularly when OAIC staff resources are 20% less than forecast at commencement.

However, the picture is not as bleak for open government as the Brennan paper suggested. Over 500 reviews and complaints have been resolved: a far higher number than was handled under previous arrangements.

Most cases are resolved without a published decision, often by agreement between the parties or the applicant withdrawing. This, too, must be understood in context. There is no application fee for OAIC reviews, which can be lodged by email, and some appeals are not well thought out. Some are lodged to prompt agencies to decide requests following deemed refusals. Other applicants are more interested in a quick agreed resolution than a battle, and the OAIC’s informal procedures facilitate that approach.

In summary, the 2010 open government reforms were designed to herald lasting change that becomes deeply embedded in government practice and philosophy. To prefer the courtroom as the natural home for this evolutionary change is mistaken.

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