Freedom of information: 2010–2013

John McMillan, Australian Information Commissioner: Presentation to the Australian National University, 2013 Public Law Weekend, Canberra, 15 November 2013

The Freedom of Information Act 1982 (FOI Act) has been in operation for just on 31 years. The Act gave the community a new, radical and enforceable legal right to obtain documents upon request from government agencies and ministers. The exercise of this right more than one million times since 1982 has changed the culture of government and the practice of Australian democracy. Transparency is now an accepted principle of the Australian constitutional fabric.

The most vibrant period of freedom of information (FOI) activity has been the last three years, following substantial changes to the FOI Act in 2009 and 2010. Those changes invigorated the Act, enlivened community and media interest in using it, imposed greater demands on agencies and ministers’ offices, and raised fresh questions about the limits and the practice of open government.

FOI Act reforms in 2010

I begin by summarising the major changes in 2010.[1]

• It was made easier for a person to make an FOI request, pressure an agency to respond in a more timely manner and challenge an access refusal. A request can now be made by email; it can be made anonymously; there is no application fee; no fee for the first five hours of processing or for a personal information request; no processing charge if an agency fails to respond within the statutory timeframe; and no fee for Information Commissioner review of an access refusal.
• New principles that unequivocally convey a presumption of disclosure were introduced into the FOI Act. The objects clause declares that government information is a national resource that is to be managed for public purposes; a uniform public interest test has been added to many exemptions, that are now called ‘conditional exemptions’; and three factors that had hitherto been relied upon to refuse access were declared to be irrelevant, namely, embarrassment to government, the high seniority of the author of a document and that disclosure could result in confusion, misunderstanding or unnecessary debate.
• The Office of the Australian Information Commissioner (OAIC) was established with a diverse range of functions that include investigating complaints, conducting merit review of access refusals, publishing FOI guidelines that agencies are required to consider, monitoring agency FOI administration, conducting training and public awareness activities, and promoting open government.
• All access refusal decisions are now independently reviewable on the merits by the OAIC, and on appeal by the Administrative Appeals Tribunal (AAT). Ministers and agency heads have lost the power to issue a conclusive certificate to terminate an access claim.
• Proactive disclosure obligations have been imposed on agencies through a new Information Publication Scheme (IPS) and Disclosure Logs of documents released under the Act.
• The OAIC has responsibility for administering the Privacy Act 1988 and for advising government on information policy and practice. Competing tensions between transparency and privacy can thus be balanced within a single coherent scheme that aims to promote responsible information management.
• The FOI reforms were also part of a larger cultural shift within government to harness the potential for technology to transform the way that information is managed, services are delivered and government and the community interact.[2] Policy changes from 2009 onwards that draw that connection between technology and open government are the report of the Government 2.0 Taskforce, the Declaration of Open Government, the Blueprint for Reform of Australian Government Administration, the Digital Transition Policy, the Principles on Open Public Sector Information, the National Digital Economy Strategy and the Australian Public Service Big Data Strategy.

FOI developments since 2010

What impact did the 2010 changes to the FOI Act have? I will give a mixture of statistics, observations and impressions.[3]

• The total number of requests to agencies and ministers has increased, from an historic low of 21,587 in 2009-10 to 24,944 in 2012-13. More significant perhaps is an 85% increase during that period in the number of non-personal requests, which includes requests from journalists, parliamentarians, researchers, lawyers and community groups. The total number of personal information requests (comprising 79.5% of requests in 2012-13) in fact fell in the last year, due perhaps to projects aimed at moving those requests outside the FOI Act framework and being received and processed under administrative access arrangements. Approximately 85% of requests are processed by agencies and ministers within the applicable statutory time period.
• The estimated cost of administering the FOI Act rose from $27.5M in 2009-10 to $45.3M in 2012-13, plus an additional $3.1M for the Information Publication Scheme and approximately $5M for OAIC FOI and information policy work. The total FOI charges collected by agencies has dropped from $516,790 in 2009-10 to $236,754 in 2012-13, and now constitutes only .52% of the estimated annual cost of the FOI Act.
• The number of applications for external merit review has risen – from 110 applications to the AAT in 2009-10 to 456 to the OAIC in 2012-13. The number of complaints is steadier – 137 to the Commonwealth Ombudsman in 2009-10 and 148 to the OAIC in 2012-13.
• FOI now has much greater visibility. There are prominent stories in the national media each week that are based either on documents released under the Act or on refusals to provide access. Agency Disclosure Logs routinely publish documents that were previously harder to obtain, such as incoming government briefs, ministerial briefing notes, internal audit reports, correspondence and submissions from industry bodies, expense account records, incident reports and minutes of meetings. A community body has developed a Right to Know website through which more than 450 non-personal information requests to agencies are published online together with the agency responses.[4]
• Cultural change is occurring within government. Most agencies have an icon or link on their website homepage to FOI information, including the agency’s Disclosure Log and Information Publication Scheme entry. An OAIC survey of 191 agencies in 2012 reported that 94% had published a plan for proactive publication in accordance with the FOI Act and 93% had assigned responsibility for IPS compliance to a Senior Executive Service officer.[5] The OAIC is aware informally that FOI administration is now handled at a more senior level in many agencies, and that agency Executives takes a more direct interest in FOI issues than previously.

OAIC activity since 2010

The OAIC, now three years old, has been active on many fronts.

• In the past three years[6] we have closed 339 complaints and 844 IC reviews, published reasons in 135 cases, and processed over 6000 extension of time requests and notifications. In the last year we handled 1847 FOI phone enquiries and 601 written enquiries. The OAIC website (dealing with privacy, FOI and information policy) is visited by over 1 million unique visitors each year; and the three Commissioners delivered 55 speeches last year.
• We have developed FOI guidance and case law in numerous ways – including 250 pages of FOI Guidelines, 16 Fact Sheets for the public, and over 30 detailed agency guides on processing times, calculating charges, administrative access, third party objections, anonymous requests, statements of reasons, redaction, FOI training, website publication, sample letters and frequently asked questions. Those examples illustrate the diversity of practical issues that arise in FOI administration. The OAIC guidance material goes some way to addressing a major complaint prior to 2010 of inconsistent agency administration.
• The OAIC reasons published in 135 cases include many decisions that deal with novel or contentious FOI issues – such as calculation of charges, burdensome requests, vexatious applicants, amendment of personal records, and access to incoming government briefs, auditors’ reports, ministerial diaries, raw digital data, code of conduct investigations and lost passport information. We have, we believed, developed an appropriate style of reasons that is brief, easy to read, authoritative and integrated with the FOI Guidelines.
• In the broader information policy sphere, the OAIC has published the Principles on Open Public Sector Information that are widely referred to across government. We have also published reports on measuring the value of public sector information and developing a national information policy; hosted a national information policy conference attended by over 300 people; and celebrated the 30th anniversary of the FOI Act in 2012.

FOI changes – disappointments

What of the gloomier side? I’ll select three themes.

OAIC budget, staffing and workload

The OAIC’s budget, staffing and workload have been raised as a prominent concern a number of times in Senate Estimates questioning. In 2010 the Government estimated that the OAIC’s budget would support 100 staff to cover privacy, FOI and information policy functions. This staffing level has never been met, due to incorrect budgetary assumptions, unexpected capital costs and efficiency dividend reductions. As at November 2013 there were 62 full-time equivalent OAIC staff in budget-funded positions – which is four fewer than the number employed by the former Office of the Privacy Commissioner that became part of the new OAIC in 2010.

Over that period there has been a steady increase in the OAIC’s caseload – in the last year alone, a 20% increase in FOI and privacy phone enquiries, a 28% increase in written enquiries, a 9% increase in privacy complaints, a 13% increase in FOI complaints and a 10% increase in IC review applications. Another new unfunded OAIC task is to prepare for major reforms to the Privacy Act that commence in March 2014 and that require the OAIC to prepare more than 50 legislative instruments, codes, guideline statements and guidance notes.

The inevitable consequence is a delay in throughput. At the end of September 2013 there were 60 unresolved FOI complaints, 451 unresolved privacy complaints, and 510 unresolved IC reviews. More worrying is that new FOI complaints were not being allocated to a case officer until 196 days after receipt, and IC review applications until 228 days after receipt. This is contrary to a declared object of the FOI Act, ‘to facilitate and promote public access to information, promptly and at the lowest reasonable cost’ (s 3(4)).

A related concern is that agencies may seek to game the system by denying access in the expectation that review applications will sit in an OAIC queue (a perception that we counter by active management of cases from the date of receipt). Another consequence of budgetary restraint is that the OAIC has had to suspend worthy projects, such as own motion investigations, training, and a desktop review of how approximately 250 agencies are meeting their IPS publication obligations.

Government leadership in promoting FOI and open governments

At a function in November 2010 to mark the opening of the OAIC and the commencement of the FOI reforms, I observed that the lesson of the last 30 years was that open government success rests on four factors, the first of which is ‘leadership at senior levels of government’. Two years later in a joint submission by the FOI Commissioner and myself to a review of the OAIC and the FOI Act being conducted by Dr Allan Hawke AC, we commented that ‘there has not since been the same explicit promotion of open government reform and cultural change by Government as occurred in 2009-10’.[7]

It has been disappointing that the special Executive position of Minister for Privacy and Freedom of Information was discontinued in November 2011; there was no Government response to the report, Review of Charges under the FOI Act,which the OAIC was asked to prepare for Government in February 2012; there was no government response to other seminal OAIC publications, such as the Principles on Open Public Sector Information and the survey of proactive publication practices, Open public sector information: from principles to practice ; there was no ministerial contribution to or representation at the OAIC event to mark the historic 30^th anniversary of the FOI Act in 2012;[8] there was no take-up of a suggestion in an IC review decision that ministerial appointments diaries be published on the web, as they are in some other jurisdictions;[9] legislation to entirely exempt the Parliamentary departments from the FOI Act was moved quickly through the Parliament in May 2013 before the Hawke review had reported, and contrary to a submission to that review from the Parliamentary departments;[10] and in three IC review decisions in 2012-13, I had to reverse decisions in the Prime Minister’s Department and Office, declining to release correspondence from a former Prime Minister, diary entries concerning meeting dates with cross-bench MPs, and the acquittal of Parliamentary entitlements.[11]

Australia falling behind world leadership

A third area of disappointment is that Australia, one of the first countries to enact FOI legislation and more recently to launch Gov 2.0 strategies, is now falling behind the open government momentum in some other countries.[12]

We have been slow to join the international Open Government Partnership that was formed in September 2011 and that now boasts 61 member countries. We do not have a detailed national open government action plan, as do the UK, Canada, the US and many other countries. Nor have we adopted the Open Data Charter launched by the G8 nations in June this year.

It is important also that we echo messages from abroad that point to the profound philosophical shift occurring in the open government agenda. An example is the opening sentence of the 2013 Communique of the G8 nations – ‘As leaders of the G8, we are committed to open economies, open societies and open governments as the basis of lasting growth and stability’. Another illustration is the observation of UK Prime Minister David Cameron in opening the annual summit of the Open Government Partnership in London in November 2013:

[F]or years I’ve argued that there is a golden thread of conditions which allow countries to thrive: the rule of law, the absence of conflict, the absence of corruption, the presence of strong property rights and institutions. And open government should be woven deep into the heart of this thread.[13]

FOI – Looking to the future

Finally, what lies ahead for open government in Australia?

It is essential that the FOI Act is reformed, and that this occurs sooner rather than later. Numerous proposals for change have been made in two reports in 2012 by the OAIC on FOI charges and in 2013 by Dr Hawke. These include changes to encourage agencies to develop administrative access schemes that will operate alongside the FOI Act, simplify the FOI charges provisions, place a cap on the time agencies are required to spend on individual requests, and provide the OAIC with greater flexibility to resolve FOI appeals in a less formal and quicker manner.

These proposals for reform are driven by a number of pressures. One is to make it simpler and easier for the public to obtain digitised information informally and without having to go through the legal formality of framing a formal request for specified hard-copy documents.

A second is to rein in some unattractive trends in requester behaviour. There are instances of FOI over-use and inappropriately framed requests that are insensitive to the other program responsibilities of government agencies, or that are part of an ongoing battle between a person and an agency. The apparent assumption underlying some requests – often framed as a request for ‘all drafts, emails, briefs and file notes’ – is that the requester believes they occupy a notional desk alongside the agency officer and a right instantaneously to comment upon or participate in every transaction. That is not a sustainable model for effective government in a complex age.

A third and related concern is to reduce the processing burden on agencies and the OAIC, particularly at a time of substantial staffing reductions in agencies. As my earlier statistics indicate, there is a realistic concern that agencies and the OAIC will be weighed down by FOI requests if the numbers increase and the Act is not amended.

Looking to the future the other challenge is to strike a better balance between the two streams of openness that now characterise the open government agenda.[14] One is political openness, focussed on providing public access to transparency data that is often inert or offline, and may still reside in documentary form. The other is technological openness, which is more concerned with publishing operational or functional data that is likely to be digitised and held in a format that is adaptable and can be made available online.

Both are important, but both have limitations, as aptly captured in one remark: ‘Open data can help you catch a bus – but can it preserve democracy?’[15] Integration of both openness themes is possible and desirable. The challenge is to clarify where the FOI Act fits into this broader policy setting.