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Rose, Alan --- "Open Government: a Review of the Federal Freedom of Information Act 1982" [1996] ALRCRefJl 10; (1996) 69 Australian Law Reform Commission Reform Journal 27

ALRC Reform 69

OPEN GOVERNMENT
a review of the federal freedom of information act 1982

Representative democracy and FOI legislation in Australia
The conceptual base for FOI
Open government through access
A culture of secrecy
FOI Commissioner
FOI and agency culture
The 'object clause'
Exemptions
Using the FOI Act
Record keeping
Costs
FOI and privacy
Review
Private sector
Government business enterprises (GBEs)
Conclusion
Endnotes
Dismantling the 'culture of secrecy' that pervades much of the Australian public sector was the central theme of Open Government, a report released on 24January 1996 by the Australian Law Reform Commission & the Administrative Review Council.

Open Government was the result of an 18-month review of the Commonwealth Freedom of Information Act 1982.

In an edited version of a speech given in March this year at the Second National Freedom of Information Conference, ALRC President Alan Rose outlines the main recommendations and explains why freedom of information legislation is crucial for an effective and representative democracy.

'Knowledge', as Francis Bacon put it, 'is itself power'. The ability to control the flow of information through which knowledge is acquired is also power. In a society in which citizens have little or very limited access to governmental information, the balance of power is heavily weighted in favour of the government. It is doubtful that an effective representative democracy can exist in such circumstances.

In the exercise of governmental authority the Commonwealth Government generates, collects and processes an enormous volume of information. Although appearances may at times suggest otherwise, the Government is not at liberty to generate and use official information as it sees fit. The Government's powerful and privileged position is constitutionally and legally defined and therefore limited. At the cutting edge of those limitations is freedom of information (FOI) legislation.

Representative democracy and FOI legislation in Australia

In Australia the right of public access to information held by government authorities and the government's complementary voluntary disclosure of information are crucial for a healthy representative democracy. What a community does about 'freedom of information' is in fact an accurate barometer of the state of democracy within that society. At base, the freedom of communication in relation to public affairs and political discussion is, as Chief Justice Mason proclaimed in Australian Capital Television v Commonwealth (1992), 'indispensable to [governmental] accountability' and thereby to representative democracy.

It is important that whatever laws define the boundaries of freedom of information - whether FOI, privacy or secrecy provisions - are administered in the full knowledge that the outcomes are vital to protecting and allowing the steady evolution of Australia's representative and participatory democracy.

FOI legislation is, in essence, the primary means by which government can be made accountable directly to the public in real time - rather than the virtual accountability of elections. As such it should lie at the heart of any system calling itself democratic.

The conceptual base for FOI

Certainly, the rhetoric that surrounded the introduction and early operation of the Commonwealth FOI Act stressed the crucial part that the legislation was to play in the pursuit of open government. In the foreword to the first annual report on the Act, the then Attorney-General, Gareth Evans, said that the principal purpose of the legislation is nothing less than
to develop further the quality of political democracy by giving the opportunity to all Australians to participate fully in the political process ... [by] removing unnecessary secrecy surrounding the decision-making process [of Government]' and by 'enabl[ing] groups and individuals to be kept informed of the functioning of the decision-making process.
A straightforward reading of the 'object clause' of the Act also yields an apparently broad and strong commitment to open government in providing that
public information about the operations of departments and public authorities [is to be made] readily available.
Although this motherhood statement suggests a liberal attitude towards the disclosure of government held information, a further provision in the object clause makes it clear that the onus is on those who seek information to trigger disclosure by the exercise of a 'general right of access to information' that is limited by the exemptions in the public or third party private interest. Effectively this is a substantial reading down of the right of access.

Open government through access

Open government and the individual right of access for members of the public to government-held information contrasts starkly with the traditional British approach which held that information should be released to the public at the discretion of the government and that the general public interest is best served by a regime of secrecy.

Unfortunately the legal foundations of such an anachronistic secrecy regime are still in place in Australia. There are extraordinarily broad secrecy provisions in a surprisingly large number of statutes. The Public Service Act and regulations continue to prohibit public servants from disclosing any information they encounter at work to anyone, other than during the course of official duty.

Similarly drafted provisions currently operate under the Broadcasting Act, the Health Insurance Act, the Social Security Act and the National Health Act, a range of specific tax Acts, the Child Support (Registration and Collection) Act, the Disability Services Act, the Patents Act and on and on.

As a result of such blanket provisions we still have agencies claiming exemptions for documents whose release can cause no harm merely because the documents technically fall within an exemption provision. These secrecy provisions should be repealed. All the protections for valid public interests are now adequately provided by other provisions of the FOI and Privacy Acts.

A culture of secrecy

The culture of an agency is one of the most important factors in the success or otherwise of an FOI request. In our public consultations we heard of widely differing approaches - some agencies take a very constructive and helpful approach, others take an adversarial and legalistic approach.

A recent example of the different attitudes between agencies, albeit at the state level, was seen in the responses of NSW agencies to the Sydney Morning Herald's request, in May 1995 after the state election, to NSW government departments for information on their analyses of election promises made by the Government and the Opposition. Some agencies provided detailed information without restrictions, some rejected the applications totally and others released some documents but claimed exemptions for others.

Whilst, clearly, there is no single, all-pervasive government culture in respect of the disclosure of information, there is a tendency towards caution, to put it generously - or secrecy to put it more bluntly. The culture of secrecy is born of an attitude that views government-held information as the property of government rather than a national resource held in trust by the government.

It is most important that all officers have a full appreciation of the purpose and philosophy of the FOI Act. If they understand the role of the Act within the broader constitutional picture, they are more likely to act in accordance with its spirit and see the Act as less of a threat and more an opportunity for both citizens and government.

At least one way to break such conceptual limitations is to 'lead from the front', as it were, by overhauling and adjusting the current FOI legislation so that it promotes rather than retards the exercise of democratic governance by increasing the extent to which government-held information is disclosed and circulated.

This, in a nutshell, is the overall objective of the recommendations made in our report, Open Government. I believe it provides a real opportunity for the Federal Parliament to show leadership in this area, to reinvigorate the FOI debate and to ensure that all barriers to the effective operation of the Act are removed.

FOI Commissioner

One of the most serious problems with the FOI regime is the lack of a single, independent person or organisation with responsibility for overseeing the administration of the Act and for providing guidance, assistance and advice to both agencies and people seeking information. This situation may be contrasted with the superintendence of the Privacy Act 1988 by the Privacy Commissioner.

The Report therefore recommends the creation of a new, statutory position of FOI Commissioner. The Commissioner's role would include

- at any stage of an FOI request
- at the request of the applicant, the agency or a third party
The existence of a FOI Commissioner would lift the profile of FOI, both within agencies and in the community. It would be an incentive to accord FOI the higher priority that is required. Agencies that need to change their practices and attitudes will be more likely to do so if they know their performance is going to be evaluated, monitored and reported publicly. Vesting all the proposed functions in a single office will create the 'critical mass' required to ensure a public profile for FOI and greater effectiveness of the Act.

The FOI Commissioner would not have determinative review powers. That function would remain with the Administrative Appeals Tribunal (AAT). There are several reasons for this.

First, a determinative review power does not fit with the other functions envisaged for the FOI Commissioner. For example, the auditing, facilitating, promotional and advising roles could not be carried out by a person who was responsible for determining the correctness or otherwise of a decision if a dispute should develop.

Second, we did not consider the creation of a specialist FOI review mechanism was necessary. The AAT has the necessary experience and organisational flexibility and is working to improve its handling of FOI matters. It has, for example, introduced reforms, such as the appointment of designated FOI members, that should enhance the level of the AAT's FOI expertise. In addition, the number of FOI applications is insufficient to warrant the creation of a specialist review tribunal.

FOI and agency culture

The report contains several other recommendations designed to improve attitudes towards the Act and its interpretation. Changes need to be made to remove the 'mixed messages' public officers receive from the proliferation of secrecy provisions throughout federal legislation and other legislation which cast blanket prohibitions on the disclosure of information by officials, irrespective of the nature or content of the information.

These provisions are inconsistent with the basic objectives of FOI legislation. Over the years, considerable work has been undertaken on secrecy provisions and on the Crimes Act (for example, the Review of the Commonwealth Criminal Law chaired by Sir Harry Gibbs). Yet to date, little progress has been made on the legislative front. Our report recommends the immediate implementation of the recommendations of the Gibbs Committee and a thorough review of all federal secrecy provisions.

In addition, it recommends the repeal of s38 of the FOI Act, which exempts documents that are subject to the secrecy provisions of other legislation. It is our view that the exemptions in the FOI Act represent the full extent of information that need not be disclosed pursuant to an FOI request.

The 'object clause'

The object clause needs to be amended to encourage a pro-disclosure approach to the application and interpretation of the Act. It needs to explain why the Act provides a right of access to government information - to enable people to participate in the policy, accountability and decision making processes of government, to open the government's activities to scrutiny, discussion, comment and review and to increase the accountability of the Executive. In short, to ensure the health and success of our system of representative democracy.

Another important amendment to the object clause is needed to encourage a generous and open interpretation of the Act. The object clause should not refer to the limitations on the general right of access imposed by exceptions and exemptions. This will not reduce the availability of the exemptions - they exist by virtue of express provisions, not by virtue of mention in the object clause. It will, however, avoid the impression that the Act is just as much about creating exemptions as it is about providing access to information. The current wording of the object clause has indeed led the courts to construe it narrowly (see the cases of News Corporation (1984); Arnold (1987) and Searle (1992)).

This recommendation to alter the object clause is but one of a number designed to bring about a situation where all agencies approach requests with a presumption that the documents should be disclosed. If this happens, it will be a significant achievement.

Exemptions

The exemption provisions in the FOI Act provide a necessary balance to the right of access. They represent a statutory recognition that in some instances there is an overriding public interest in government-held information not being made public. There is, however, a perception in the community that agencies are unnecessarily secretive and use the exemptions to withhold evidence of bureaucratic incompetence. As President Kirby (as he then was) put it in the case of Perrin, 'the question properly is not why the information should be disclosed but why it should be exempted'. 1

Submissions and consultations indicate that the starting point for some agencies seems to be more along the lines of deciding immediately that the document will not be disclosed and then scanning the exemption provisions to find a way of justifying their refusal to disclose the information.

Exemption provisions must be applied with great judgement and care. Even if a document technically falls within an exemption there may be no need to withhold it from FOI access. The exemptions should only be used to prevent harm to the public interest.

It must be conceded, of course, that the public interest is an amorphous concept. It is not defined in the FOI Act or any other statute. Nor should it be. The public interest changes over time and according to the circumstances of each situation. The report does, however, recognise that this very flexibility can make the public interest difficult for agencies, applicants and the AAT to ascertain.

The FOI Commissioner should, therefore, issue guidelines, which are regularly reviewed, on what factors should or should not be taken into account in weighing the public interest. For example, the fact that release of a particular document may cause severe embarrassment to the government of the day is not sufficient reason to justify withholding it from FOI access.

The report recommends a number of amendments to specific exemptions designed to remove ambiguities and to ensure that the exemptions are only available where harm would flow from disclosure. We have recommended that several exemptions should be repealed because they are redundant or unnecessary.

Using the FOI Act

It is vital that the procedural requirements in the FOI Act do not undermine the valuable access rights created by it. The report makes a number of recommendations in relation to making and processing requests that are aimed at improving the way the Act operates in practice.

Most importantly, agencies and applicants must be encouraged to take a cooperative rather than a confrontational approach to the FOI Act. If agencies and applicants are in constant communication it is likely that many disputes can be avoided. The FOI Commissioner should have a leading role in publicising the importance of consultation and assisting agencies to make their application procedures user friendly.

It is also important that government-held information is conveyed in the most effective manner. Agencies and applicants should take full advantage of advances in electronic information storage and dissemination. Wherever possible agencies should provide on-line access to frequently requested information.

Record keeping

An important prerequisite to successful FOI is good record keeping and management. Again this is a product of a culture that presupposes that all (or nearly all) government decision-making processes must be transparent and that all actions be open to scrutiny. A right of access to information is not much use if documents have not been created or cannot be found.

The Report makes several recommendations aimed at improving the standard of record keeping in agencies and expanding the role of the Australian Archives in setting, promoting and monitoring recordkeeping standards for the public sector.

Overview of main recommendations

  • Retention of the FOI Act as an instrument of public sector accountability.
  • Creation of a new statutory office of FOI Commissioner to monitor and improve the administration of the FOI Act and to provide assistance, advice and education to applicants and agencies about how to use, interpret and administer the Act.
  • Revision of the object clause to promote a pro-disclosure interpretation of the Act and to acknowledge the important role of freedom of information in Australia's constitutionally guaranteed representative democracy.
  • Rationalisation of provisions exempting material from FOI so that they only apply to information that there is a public interest in withholding.
  • Review of all secrecy provisions in federal legislation to ensure that they do not impose prohibitions on the disclosure of government-held information that are broader than the exemption provisions in the FOI Act.
  • Amendments to the FOI and Privacy Acts to ensure the continued smooth operation of the overlap between the two Acts in respect of the disclosure of third party personal information.
  • Retention of the Administrative Appeals Tribunal as the sole determinative reviewer of FOI decisions.
  • Not applying the FOI Act to the private sector or to government businesses that are engaged predominantly in commercial activities in a competitive market.
  • A comprehensive national legislative scheme should be introduced to provide information privacy protection in all sectors, including the private sector and those parts of the public sector that are not currently subject to the Privacy Act.
  • FOI charges should not be inconsistent with the objects of the Act. Charges should be in accordance with a fixed scale determined by the FOI Commissioner and should only be levied in respect of documents that are released. Access to an applicant's personal information should be free.

Costs

The cost of obtaining access under the FOI Act is one of the most controversial aspects. Applicants believe fees and charges are too high and prevent them from exercising their access rights fully. On the other hand, many agencies consider that current charges are inadequate as a means of recouping the cost of administering the Act.

In 1994-95, the cost of providing information under the FOI Act was estimated by agencies to be $10383956. Only 3.7% of this amount was recovered by way of fees and charges. 2 The Review considers that in light of these figures the fees and charges regime should be categorised as a contribution scheme rather than as a means of cost recovery. This should remain the case. In general terms, this is entirely appropriate in a society in which government is practised according to principles of democratic accountability. The cost to agencies of administering the Act must be viewed in the context of the FOI's role in furthering democratic accountability. As the Senate Standing Committee on Legal and Constitutional Affairs said in its 1987 review

too much emphasis has been placed upon economic factors (such as cost recovery) at the expense of admittedly unquantifiable social (and political) benefits derived from the right of access to documents conferred by the FOI Act. 3
Currently, the same fees and charges apply to requests for the applicant's personal information as to requests for policy documents. This should no longer be the case. In most cases individuals have no choice as to whether or how the government collects information about them. Access to personal information enables the applicant to protect his or her privacy and contributes to the accuracy of government records thereby improving accountability.

For these reasons, access to an applicant's personal information should be free. This is unlikely to impose an undue financial burden on agencies as the majority of agencies that deal with a high volume of FOI requests for personal information do not charge for access anyway.

The report considers that agencies should continue to be able to charge for FOI access to material other than the applicant's personal information but recommends a new approach that is less cumbersome and more equitable than the current system.

Under the current fees and charges regime, applicants pay for the documents they request. Even if all documents covered by a request are claimed to be exempt the applicant may receive a bill for hundreds of dollars. This is unfair and represents a major disincentive for prospective applicants.

An applicant should only be charged for the documents he or she receives.

Currently, charges for search and retrieval time and decision making time are discrete and are calculated individually. This means that a person who applies for access to documents that are held by an agency that has an unsophisticated or disorganised filing system will inevitably be charged more than an applicant who makes a request of an agency that has a state of the art records management system.

Applicants should not be penalised for agencies' poor information management practices. Instead, the FOI Commissioner should determine a fixed scale of charges for specific numbers of pages. For example 1-20 pages $30; 21-50 pages $45. The scale should be set on the basis of a realistic assessment of the average number of hours a competent administrator in an agency with efficient records management systems would spend on search and retrieval.

It is our view that reforms aimed at improving agency culture and making the FOI Act easier to use will be wasted if the average citizen cannot afford to take advantage of his or her access rights. It is counterproductive for the Act to encourage involvement in government but effectively disqualify citizens from participating by imposing prohibitive charges.

FOI and privacy

There are significant overlaps between the FOI Act and the Privacy Act 1988 Both deal with access to, and amendment of, individuals' own personal information and both address the issue of disclosure of one person's personal information to another (third party disclosure).

The overlap is significant because the great majority of FOI requests are for people's own personal records and because the definition of personal information is broad. Nevertheless, in identifying and rationalising the points of connection between the two legislative regimes we were keen not to lose sight of their very different objectives.

We gave extensive consideration to whether the overlap should be dispensed with by removing access to and amendment of personal information from the FOI Act, thereby leaving it to be dealt with solely under the Privacy Act. While this approach is favoured by some on the basis that access and amendment of personal information is principally a privacy issue, the Review does not consider the overlap between the Acts gives rise to any difficulties that justify a major change in legislative arrangements.

It does, however, recommend that as access and amendment of personal information are clearly privacy issues as well as matters of openness and accountability, the FOI Commissioner should be required to consult the Privacy Commissioner when issuing guidelines on access and amendment.

Review

It is expected that the recommendations made in the Report will lead to improved agency decision-making and so reduce the need for applicants to seek review. Nevertheless, it cannot be assumed that original decision-makers will always make the preferable decision. An effective system for merits review of decisions is fundamental to the successful operation of the FOI Act.

Currently, the first stage in seeking review of any FOI decision is internal review by a more senior officer. Generally internal review is a prerequisite for seeking external review by the AAT. This should no longer be the case.

The right to seek external review should not be fettered in any way. Many applicants consider that the only thing achieved by internal review is delay. The fact that internal review is not a prerequisite to external review will not stop applicants from taking advantage of it.

In respect of the AAT, the Review considers that it should remain the only external review body with determinative powers undertaking merits review of FOI decisions.

The Report makes several recommendations to improve the AAT's effectiveness in resolving FOI disputes. Perhaps the most significant of these is to amend the FOI Act to ensure that the AAT can require an agency to produce a document it claims to be exempt. This will significantly improve the chance of early resolution of disputes.

As an alternative to lodging an application with the AAT, however, an applicant can make a complaint to the Ombudsman about the way his or her FOI request has been handled. Ombudsman review is free but any findings are not determinative. The Ombudsman plays a valuable role in addressing systemic problems in FOI administration. There should not be any changes to her powers in this regard.

Private sector

Our terms of reference required us to consider whether the FOI Act should be extended to cover private sector bodies.

The Report recommends that FOI should not be extended to the private sector on the basis that the democratic objectives of FOI have little relevance to such bodies.

The private sector is already accountable to the community on particular aspects of their management, policies, operations and products through a wide range of federal, state and local regulatory schemes and voluntary codes of practice. If there is a need for greater disclosure in particular industries, it should be addressed by way of specific disclosure requirements or community 'right to know' legislation.

Strong justification would be needed to subject private sector bodies to the additional resource burden and potential threats to commercial operations that could result from a general extension of the FOI Act. We do not believe that such justification exists.

Where agencies contract with private sector bodies for services they should take responsibility for ensuring the preservation of the public's information access rights in an appropriate manner.

FOI's democratic objectives must be distinguished from privacy issues. While as a general rule the FOI Act should not apply to the private sector, the protection the Privacy Act provides to certain information should be extended to business. The Privacy Commissioner favours a consistent national legislative framework for information privacy protection.

Extending the Privacy Act in this way will provide citizens with comprehensive rights of access to information about them. It will also remove incongruities that currently exist such as the fact that a patient who has been treated in a public hospital can gain FOI access to his or her medical records while a patient in a private hospital cannot.

Government business enterprises (GBEs)

The term government business enterprise (GBE) covers a wide range of entities. Typically, a GBE is wholly or partly government owned and undertakes commercial activities. In addition to these commercial activities, a GBE's functions may include a regulatory and policy functions and Community Service Obligations (CSOs).

The creation of GBEs and the reduction of the government's direct control over their day to day operation is intended to improve the efficiency with which goods and services are provided. Many GBEs conduct their functions in competition with wholly private entities.

This poses particular problems for FOI legislation, both in terms of coverage and practice.

The changes in ethos and personnel that accompany corporatisation may conflict with the philosophy of FOI legislation. Those whose professional frame of reference is the market place may not be accustomed to the notion that their actions are subject to general public scrutiny. Applications under FOI legislation may be viewed as unwelcome intrusions and therefore resented.

In terms of coverage, the Review considers that applicants should have a right of access to their personal information whether it is held by a government agency, a private sector body or a GBE. However, by virtue of their commercial orientation, some GBEs might be treated differently from other government agencies in regard to FOI access to non-personal information.

In the end, a careful balancing of pubic interests is required when assessing whether a GBE should be subject to FOI. On the one hand, it can be argued that the government must, in the public interest, retain ultimate responsibility for the use of public assets and the performance of public functions. On the other hand the purpose of creating GBEs is to seek increased efficiency and competitiveness. This is itself in the public interest.

Even so, it is inconsistent to create a GBE and to authorise it to set its priorities and objectives by reference to competitive market conditions and then put the increased efficiency and competitive-ness at risk by subjecting the GBE to regulatory mechanisms and overheads that do not apply to its competitors.

These considerations led to the recommendation that GBEs which are engaged predominantly in commercial activities in a competitive market should not be subject to the FOI Act.

It is accepted, of course, like in the private sector, if there is a need for greater disclosure in particular industries, it should be addressed by way of specific disclosure requirements or community right to know legislation where appropriate. In terms of privacy issues, applicants should have a right of access to their personal information whether it is held by a government agency, a private sector body or a GBE.

Conclusion

It is true that in terms of the conditions necessary for a system of democratic government, FOI legislation constitutes only one part. It is, however, a crucial part, upon which much else in the system depends. Its subject matter is, after all, the very thing that allows governments to function and to wield the enormous power entrusted to them. At the same time it is the essential means by which the governed can bring their governing representatives to account.

For this reason, no amount of vigilant scrutiny of the means by which the disclosure of such information is effected is too much. The 'theology of secrecy', as Peter Bayne has put it, that informs so much of governments' attitudes towards the disclosure of official information may indeed appear impenetrable. Nevertheless, the presence of FOI legislation provides a positive basis upon which to build a more sophisticated and more liberal framework for the free flow of information between the people and their government, in both directions! Our inquiry can best be seen as part of that ongoing process of review and reform.

We are confident that if the new government accepts and implements our recommendations it will be taking positive steps towards achieving a more open, informed and responsive form of government in Australia.

Endnotes

1
(1993) 31 NSWLR 606 at 625.
2
Attorney-General's Dept FOI Annual Report 1994-95 AGPS Canberra 1995, 16.
3
Senate Standing Committee 1987 Report para 19.5.

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