Freedom of information reforms and cultural change

John McMillan, Australian Information Commissioner: Presentation to the UNESCO Conference to mark World Press Freedom Day, Brisbane, 2 May 2010

Australia is currently undergoing the most active phase of freedom of information reform to have occurred in over two decades. This is not the first time that Australia has embraced FOI reform. An earlier reform wave commenced in the late 1970s, when Australia was a leading nation in introducing FOI laws into a Westminster-style democracy[1]. We were not the first country internationally to enact open government laws, but we were ahead of most of the other eighty countries that now have such laws.

A widespread view has since taken root that the 1970s reforms were not entirely successful. Many people feel that there was minimum cultural change in some government agencies, that a presumption in favour of disclosure was not practised across government, and that government agencies could exploit restrictions and gaps in FOI laws to make it harder for the public to gain access to government information, especially information that might be embarrassing to the government or an agency.

Will it be different this time around? Can we be more confident that current open government reforms will be genuine and lasting?

My view is that the current reforms will be more effective in causing a permanent cultural shift within Australian government. I will firstly trace the comprehensive reforms that are presently occurring in Australia, and then analyse why these reforms will together produce a cultural change.

The comprehensive reform agenda in Australia

Reform of FOI laws in the Commonwealth and other jurisdictions

There is simultaneous and comprehensive reform of FOI laws in four Australian jurisdictions – the Commonwealth, NSW, Queensland and Tasmania[2]. All aspects of the FOI laws are being reformed – access procedures, FOI charges, exemption criteria, FOI objectives, the procedure for review of disputed decisions, publication of information by agencies, and FOI reporting by agencies.

Appointment of independent Information Commissioners with comprehensive functions

Five Australian jurisdictions (the Commonwealth, NSW, Northern Territory, Queensland and Western Australia) will now have an independent information commissioner with a comprehensive oversight and advocacy role. The functions differ among jurisdictions, but include investigation of complaints about FOI administration, merit review of access denial decisions, publication of FOI guidelines, and providing advice to government on information policy.

The new Commonwealth agency, the Office of the Australian Information Commissioner, will be headed by three independent statutory appointees: the Australian Information Commissioner, the Freedom of Information Commissioner and the Privacy Commissioner (an existing position that is to be merged into the new office). The Information Commissioner will have strong powers, of three kinds:

• a decision of the Commissioner that a document is not exempt is binding upon an agency
• the Commissioner can issue an implementation notice requiring an agency to specify the action it will take to implement a recommendation by the Commissioner following the investigation of a complaint against the agency, and
• agencies must have regard to guidelines issued by the Commissioner on the administration of the FOI Act.

Integration of the FOI and Privacy Acts in a single scheme

The FOI Act, enacted in 1982, and the Privacy Act, enacted in 1988, have developed separately for over twenty years in Australia. Both Acts are being brought together in a single scheme in the Commonwealth (similar reforms are occurring in NSW and Queensland).

A shared objective of both Acts is to improve information management and record keeping in government agencies, and to confer upon individuals the right to access government information and to scrutinise government information practices. The integration of both laws in a comprehensive scheme will heighten the responsibility of government agencies to pay close attention to information issues.

There is, on the other hand, a point of tension between both Acts. The objective of the FOI Act is maximum disclosure, whereas the Privacy Act aims to ensure confidentiality of personal information. It will be easier to balance those competing objectives when both are handled in the same office, the Office of the Australian Information Commissioner. The concentration of oversight responsibility in a single institution also means that a larger and better resourced office can keep watch over agency administration.

Reduction of the open access archival period from 30 to 20 years

Documents that are initially exempt from disclosure under the FOI Act will now be publicly accessible much earlier. Formerly, documents entered the ‘open access period’ under the Archives Act 1983 (Cth) thirty years after creation. This will be reduced in steps to twenty years for all records other than census records and Cabinet notebooks, for which the open access period will be reduced from 50 to 30 years.

Another mechanism for the earlier release of records is the principle of ‘conditional exemption’ that is being introduced into the FOI Act. As explained below, some of the important FOI exemptions will be subject to a public interest test that directs an agency to provide access unless, at a particular time, disclosure of a document would be contrary to the public interest. In effect, there will be a presumption in favour of disclosure, and the initial reason for non-disclosure may quickly subside. It becomes a question of when and not whether a document can be disclosed.

ALRC proposals for reform of secrecy provisions

The long tradition of official secrecy was underpinned by a large number of statutory provisions that made it a criminal offence for government officers to disclose information without authority. Those secrecy provisions were not revised when the FOI Act commenced in the 1980s.

A recent report of the Australian Law Reform Commission[3] has highlighted that many of those secrecy provisions are at odds with the policy of open government. The Commission recommended the repeal and revision of many secrecy provisions, so that they reflect a few key themes. Among them are that it should not be a criminal offence for an official to disclose government information that is already in the public domain; nor should unauthorised disclosure be a criminal offence unless it causes a demonstrated harm to a specific public interest; and the scope of authority of officials to disclose information should be clearly defined.

Government 2.0 Taskforce report

The Australian Government has been quick to recognise that the development of the web can transform the way that government and citizens interact. Indeed, one influential parliamentarian has observed that the development of Web 2.0 has led to ‘the democratisation of innovation and decision-making, and will make us all co-designers of civil society in the 21st century’.[4] Similarly, as the Minister for Finance has observed, ‘Technology is also driving a new focus on transparency – as citizens rightly expect to benefit from public information created using their money’.[5]

A report to government in 2009 by the Government 2.0 Taskforce, Engage: Getting on with Government 2.0, made numerous proposals for harnessing web technology to make government information more readily available to the public and to facilitate greater public involvement in formulating government policy and evaluating government service delivery. The report broadens the concept of open government to embrace ‘citizen centric services, facilitating innovation through open data and transparency, and government engagement with citizens’.[6]

The Government has since announced that it has accepted most of the recommendations of the Taskforce, including the creation of a Steering Group to drive the new reforms.[7] The Australian Information Commissioner is a member of that Group.

Blueprint for reform of Australian Government administration

The same broad approach to open government was taken in the report of an Advisory Group established by the Prime Minister to formulate proposals for reforming the Australian Public Service. The Advisory Group was headed by the Secretary of the Department of the Prime Minister and Cabinet. Its report in May 2010, Ahead of the Game: Blueprint for Reform of Australian Government Administration, has been accepted in full by the Government.

The Blueprint identifies nine areas for public service reform. One of the nine areas is to ’create more open government’, particularly in using web technology to facilitate greater public involvement in policy and service design, and to make government data more widely and easily available to the public.

New whistleblower protections and arrangements

Whistleblower protection is ultimately about disclosure of information. The thrust of a whistleblower protection scheme is to protect workers who draw attention to problems they see in the workplace, ranging from corruption and threats to public health and safety, to mismanagement and public wastage. A worker who follows a designated procedure in disclosing information about workplace wrongdoing will receive protection against criminal and disciplinary sanctions and receive assistance aimed at safeguarding their employment and career.

The Australian Government announced in March 2010[8] that it accepted most of the recommendations for legislative reform made in a report in 2009 by the House of Representatives Standing Committee on Legal and Constitutional Affairs, Whistleblower protection: a comprehensive scheme for the Commonwealth public sector. The proposed scheme will assign responsibility to the Commonwealth Ombudsman and the Inspector-General of Intelligence and Security for receiving whistleblower complaints, monitoring the investigation and handling of those complaints by government agencies, and ensuring that whistleblowers are properly protected. On one matter the Government response went further than the Standing Committee report, in expanding the circumstances in which a person can make a public interest disclosure to a third party, such as the media.

The cultural shift – why the changes will be effective

Government promotion of the reforms, in multiple jurisdictions

There is corresponding action by four Australian governments to strengthen the legal framework for open government and to overcome weaknesses in existing FOI laws. In New South Wales, Queensland and Tasmania the reform proposals were sponsored by the Premier, and in the Commonwealth by the Special Minister of State in the Prime Minister’s portfolio. This concerted action at a senior level in government sends a strong message that the whole of government must take serious action to implement the reforms.

The simultaneous action across a number of jurisdictions will also engender a healthy element of cooperation and competition between the jurisdictions to ensure best practice in implementing the reforms. There is already close cooperation and sharing of ideas between the new Information Commissioners in the Commonwealth, NSW and Queensland, and this cooperation will strengthen. Outside government, it will become routine for the media and others to compare the steps taken in each jurisdiction and to draw attention to weaknesses as well as innovations in each jurisdiction. It will become much harder for any of the Australian governments to fall behind the pace of others.

Central coordination and oversight, by information commissioners and other agencies

The creation of the Office of the Australia Information Commissioner addresses a major weakness in the design of the FOI system three decades earlier. The Attorney-General’s Department was initially given policy responsibility for the FOI Act, but this fell short of assigning responsibility to an independent and specialist agency that could provide leadership across government in ensuring consistent and best practice FOI administration. Nor, apart from the Ombudsman, was there an independent body with allotted funding to which members of the public could turn for assistance in battling agency failure to honour the spirit of open government.

That has now changed. The Information Commissioner, supported by the Freedom of Information Commissioner, will be a permanent and independent champion of open government. A key role of the Information Commissioner is to monitor agency practice and advise government on information policy reform. As the Queensland Information Commissioner, Julie Kinross, has noted, ‘what gets measured gets done’.[9] A key role of the Information Commissioner will be to stimulate improved agency performance by developing compliance standards and measuring and comparing how agencies meet those standards.

The Office of the Information Commissioner will also provide an accessible and cost-free mechanism for individuals to complain about agency administration and to apply for merit review of access denial decisions by agencies. It will no longer be possible for agencies to use inertia as a strategy to defeat public access.

A related change is that the central coordinating role of some other government bodies has been strengthened. The Australian Government Information Management Office, in the Department of Finance, plays the leadership role in implementing the Government 2.0 agenda, in particular by harnessing web technology to make government more consultative, participatory and transparent. The National Archives of Australia plays the lead role in promoting good information and records management, in part to facilitate public access to government records. The creation of an Information Advisory Council to advise the Information Commissioner provides a forum in which government and non-government representatives can work together in reviewing government information policy and practices and highlighting the importance of transparency in government.

Revision of the guiding principles

The FOI Act in 1982 changed the ground-rules for government information handling by introducing three new principles: a person seeking access to government documents was no longer required to demonstrate a special interest in access or explain why access was sought; an agency could deny access only if the document fell within one of the exemption criteria in the Act; and the agency's decision was reviewable on the merits by the Administrative Appeals Tribunal, in which the agency had the onus of justifying its access denial decision.

The FOI changes being introduced in 2010 go a step further and introduce new and fundamental principles. The FOI Act contains a new objects clause (s 3) which declares that it is the intention of the Parliament ‘to increase recognition that information held by the Government is to be managed for public purposes, and is a national resource’. Embodied in that statement is the recognition that information held by government has economic and social utility to the community broadly, and presumptively should be publicly available unless there is a demonstrated reason to the contrary.

The exemptions have been rewritten to give greater emphasis to the concept of public interest in deciding whether a document is exempt from disclosure. A document that falls only within a ‘conditional exemption’ cannot be withheld unless disclosure would, on balance, in the circumstances at a particular time, be contrary to the public interest (s 11A). Conditional exemptions include those applying to Commonwealth-State relations, the deliberative processes of agencies, the economy, business confidentiality, personal privacy, and agency operations and financial and property interests. In deciding the balance of public interest, there are factors favouring access that an agency must consider, and factors that are irrelevant (s 11B). The factors favouring access include that disclosure would increase participation in Government processes, increase scrutiny and review of the Government’s processes, inform debate on a matter of public importance, promote effective oversight of public expenditure, or allow a person access to his or her own personal information. Irrelevant factors include the seniority of the author of a document, or that disclosure would be embarrassing to the Government or could result in confusion, misunderstanding or unnecessary debate. That statement of public interest factors is an important advance on the uncertainty and imprecision that has operated since 1982 in defining what is meant by the ‘public interest in open government’.

A related legislative reform in 2009 was the Freedom of Information (Removal of Conclusive Certificates and Other Measures) Act 2009 (Cth). The abolition of conclusive certificates means that ever denial of access – even of Cabinet and national security information – can be independently scrutinised by the Information Commissioner and the Administrative Appeals Tribunal, to determine if the exemption criteria in the Act are satisfied. It is both symbolically and practically important that Ministers and government agencies no longer have the final and conclusive say on whether a document is available for public access. Their decision is subordinated to that of an independent review body that has no interest or stake in the outcome beyond being satisfied that the provisions of the FOI Act are correctly applied.

Increased use of FOI laws, highlighting their importance in government

It has long been suspected that the objectives of the FOI Act are not warmly embraced by all within government. An occasional criticism of the FOI Act is that it prevents agencies getting on with their pre-eminent and important role of developing and administering government policy. There is not the same support within government for FOI as there is for some other framework laws that ensure integrity and transparency, such as financial accountability and conflict of interest laws.

That is likely to change. Information access laws will steadily play a more active role in day-to-day government and be accepted as part of the constitutional framework for government administration. The new oversight, monitoring and advocacy role of the Office of the Australian Information Commissioner will be one element in this change. So too is the integration of FOI, privacy and archival laws to form a new and larger system for information management. There is likely also to be an increase in FOI activity within agencies, arising from a reduction in FOI access charges. FOI application and internal review fees have been abolished, the first five hours of search time will be free for journalists and non-profit organisations, and the first hour will be free for other FOI applications. Public requests for government documents will become a more routine and accepted part of the daily business of government agencies.

A comparable development that occurred after the creation of Ombudsman offices in the 1970s is that complaint handling became a routine function within government. Thirty years ago it was rare for a government agency to have turned its mind to this issue by establishing its own internal complaint unit. The senior officers in many agencies now regard complaint handling as a key function and source of intelligence on program operation.

An interesting development that has occurred in Queensland, on the initiative of the Premier, is that the performance agreements of departmental heads includes a requirement to promote open government and implement the new legislative reforms.[10] In effect, the salary and career prospects of public service leaders can be influenced by their performance in promoting open government.

Expanded information publication scheme

A key objective in current reform activity is to move from a ‘reactive’ or ‘pull’ model of FOI administration, in which agencies disclose information in response to requests; to a ‘proactive’ or ‘push’ model, in which agencies take the initiative to make information available to the public. The central element in this new approach will be an expanded web publication scheme. A key role of the Information Commissioner is to provide guidelines to agencies on the information they should be making available.

It is likely, before long, that the front page of agency websites will include an FOI or open government icon that will link to a list of the information and documents an agency has published in discharge of its FOI obligations. This includes information about the agency’s structure and functions, policies and manuals on legislation and programs administered by the agency, public consultation procedures, and the disclosure log of document released in response to other FOI requests. Those categories of information are required by the FOI Act to be published, but it also encourages agencies to publish additional categories. In the United States and Britain, for example, the trend is for agencies to publish ‘data sets’, which is a bank of information collected by the agency that, when published in raw form, but can be searched and manipulated by public users.

External pressures for improved FOI performance

The current wave of FOI reform in Australia is attributable in part to the formation in May 2007 by 12 major media organisations of the Right to Know Coalition. The Coalition and its member organisations can be expected to take a keen interest in whether the FOI reforms are working properly. It is possible that there will be regular media analysis of the performance of different agencies. The threat of adverse publicity can be a powerful motivating force in government.

It is possible, equally, that individual journalists will make more use of the FOI Act than many have in the past. Government information will be more readily available through the Information Publication Scheme; there are reduced FOI search charges for journalists; they can approach the Office of the Australian Information Commissioner for advice and assistance; and the publication of agency disclosure logs will be a practical resource as well as a curiosity for many journalists. There is unlikely to be a sea change in media practice, because of the journalistic focus on unfolding government stories, and the reliance by journalists on established information gathering techniques such as contacts and leaks. Nevertheless, the reformed FOI Act can be a more powerful tool for professional journalists, which could elevate the importance of the Act both to government and to public reporting of government performance.