Timmins Consulting

Australian Society of Archivists NSW

Access to Public RecordsFOI Act

Peter Timmins Timmins Consulting Australia Pty Ltd

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Not Quite ‘Horse and Buggy’ but..

• 16 years since Act commenced and 30 years since general principles and concepts were developed

• 11 years since NSW Ombudsman recommended comprehensive review in light of concerns regarding wide scope of exemption provisions, limited range of public interest overrides and continuing entrenched habits of secrecy

• While Act has produced some positive changes clearly has not fully achieved objectives

• Piecemeal amendments • The world and government have dramatically changed since the 1970s

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Victorian Privacy Commissioner

“FOI has now been part of Victorian law and Government for 22 years. It is part of the furniture of public administration. Like all furniture it could do with an inspection and perhaps renovation, but only to make it stronger. This particular item of furniture remains essential, not merely tasteful, for any democratic home”

(Submission to Victorian Ombudsman Review of FOIA August 2005)

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FOI Law a Beginning - Not an End

“While strong Freedom of Information legislation is a promising start in entrenching open governance and the citizen’s right to participate, experience has shown that the enactment of an FOI law is often the high watermark of open government. Constant vigilance is required to ensure that the law is properly operationalised and not undermined by a subsequent lack of political or bureaucratic will”.

“Commonwealth Human Rights Initiative March 2004”

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What needs to be Changed?

• Many major and minor technical changes should be considered in the light of experience since 1989

• Any review should be broader than simply examining changes that suit the government/bureaucracy

• Review needs to examine a wider information access policy suitable for the 21st century and an appropriate legislative regime to achieve policy objectives

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FOI Foundations

• FOI currently reflects the human right/democratic justification for access to government information - the requirement for government to be accountable in the performance of public functions, the public’s right to know what government knows and to participate in government affairs

• This right is universal and enduring but needs to be constantly safeguarded as the ongoing debate about security and anti terrorism measures demonstrates

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Inevitable Tensions

“There is a reluctance to let Parliament and the public know how government programs are working, because if things are going badly you may be giving your opponents the stick to beat you with. And even when a Minister is not personally concerned with this, senior public servants assume this fear on the Minister’s behalf”.

“Canadian Information Commissioner 22 November 2001”

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Another Dimension for Information Society

• Government information is a national resource • FOI Acts developed in another era do not reflect the legitimate objective of ensuring that this resource is utilised also for the public purpose of enhancing social and economic advancement

• Access to, and use and reuse of government information for these purposes should be reflected in access to information laws

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Complex Issues to be Addressed

• Raises copyright, commercial utilisation, exclusive use and special issues for bodies such as universities.

• However many state and local government agencies hold substantial information and data in connection with research, planning and related activities and much of this information is not published as a matter of routine

• An EU Directive concerning use and reuse of government information and requiring consistent application in EU countries has been in force since 1 July 2005

• Little debate in Australia to date - see: Access to Public Information: Key to Commercial Growth and Electronic Democracy Conference Stockholm 1996

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Objectives and how to Achieve Them

• “To extend as far as possible rights of members of the public to gain access to information held by the Government” - already in FOIA

• Maximise proactive disclosure and dissemination

• Establish ‘request and response’ procedure for access to information not made publicly available as a matter of routine

• Harmonise publication and access rights legislation

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Technology and the Web• The internet did not exist as a public information super highway in the 70s and 80s when FOI laws emerged in Australia

• Gives rise to new opportunities for proactive disclosure of government information, only some of which have been utilised to date

• The FOI Act concept of ‘documents’ inconsistent with modern IT environment

• FOI has only a minor and outdated requirement regarding proactive disclosure - publication of statement of affairs and summary of affairs (including a list of policy documents to be published in the Government Gazette)

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International Precedents

• The UK requires every government agency to adopt a Publications Scheme and to list all documents it intends to publish as a matter of routine

• Each agency is required to give consideration to the public interest in deciding what will be included in its list

• The US since 1996 has had an Electronic FOI Act • One of its requirements is to maintain an “electronic reading room” of documents sought and released under the FOI Act which are of general interest

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Right to Know Laws

• Some Canadian, US and UK laws impose positive disclosure obligations on the chief executives of some government agencies to make public information about health and environmental hazards including the identification of certain chemicals, the provision of information about health effects, and places from which harmful substances may be emitted

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Information Access Laws for 21st Century

• An obligation to make publicly available information accessible

• Decide categories of information to be proactively disclosed and require publication where practicable on the web

• Build on and extend the publication requirements of the FOIA and the ‘Open Access’ provisions (SS52 and 57 of State Records Act) in a single legislative framework

• Move to categories of information available/not available (as now stipulated in SRA and reflected in Attorney General’s Guidelines)

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IT Search Tools Accessible by Members

of the Public• Categorise information at the time it is created and provide for systematic review of status

• Make indexes of information available• Alternatively require publication of list of files held or created

• Move to enable members of the public to ‘google’ search government held information

• Appropriate limitations relating to personal privacy, sensitive commercial information, security considerations etc.

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Reform Agenda

• Coherent legislative framework - the confusion, overlap and uncertainty currently from different laws that impact on information access

• Scope of FOI - all government agencies and bodies established for a public purpose and all documents held by a contractor or agent carrying out public functions.

• Proactive disclosure obligations - narrow the need for ‘request and response’ applications

• An example - contracts and limitations on use of confidentiality clauses

• Open Government (Disclosure of Contracts) Bill

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Charges Cap

• Cap on the cost of applications • NSW Ombudsman reported some years ago an agency sought an advance deposit of $13,000

• CEO of News Corporation told Press Council in 2003 of an estimate of costs from a (Commonwealth) agency of $605,284 reduced to $284 after negotiations

• A Department charged $186,128 for 13 applications - an average $14,317

• Another charged for 141 hours of decision making time at $20 per hour

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Other Changes • Require publication of and adherence to agency processing procedures

• Provide for electronic access applications rather than ‘requests in writing’ and for copies of released documents to be available in digital form on request

• Some flexibility regarding time limits to reflect realities - not all requests are the same

• A procedure for independent decisions regarding voluminous requests and potentially vexatious users

• Penalties for obstruction of an FOI application/tampering with records the subject of an application

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Making FOI Work

• Deemed access rather than deemed refusal• Make CEOs responsible and accountable for agency performance

• Accredited decision makers along the lines of SA model

• Require every agency to report against published performance standards

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Exemptions and Review Rights

• Exemption provisions that provide a fair balance between the public right to know and the need for limitations - too many current exemptions; include public interest test for all exemption categories

• Review secrecy provisions in other acts and limit availability of the exemption to those acts specified in a schedule of the FOIA

• Speedy, cheap access to independent review - Ombudsman/Information Commissioner with powers to require disclosure. ADT for appeals

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Implementation

• A good law is necessary but is only part of the picture

• How the law is implemented is the vital issue

• Cultural change in the direction of openness and transparency requires constant and strong leadership, reinforcement, incentives or disincentives

• “Orphan” status of FOI in NSW

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Tone at the Top“No matter how well-crafted a freedom of information law may be, it will not be effective unless the leader of the Government and the head of the Public Service insist that openness becomes part of the culture of governance. Without an insistence on openness from the top, the culture of secrecy will thrive. If employees feel that compliance with the Access to Information Act is not a priority for the leaders you will see delays, inflated fees, antagonism towards requesters, inadequate searches and increasing numbers of complaints”.

“Canadian Information Commissioner November 2001”

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Making FOI Work

• Central coordination, including guidance, training, oversight and reporting is essential

• Laws that reflect principles and require subjective judgement can only work when useful practical guidance is available on what they mean and how they should be applied in particular circumstances

• Adequate resources will always be an issue but costs will only be a fraction of what government spends on spin and advertising. Proactive disclosure may have efficiency benefits. There may be a ‘good government’ dividend

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Review Resources

• 1994 Report (01) NSW Ombudsman Proposing Amendments• 1995 (Report 40) review of Commonwealth FOI Act by

Australian Law Reform Commission/Administrative Review Council

• 1999 “Needs to Know” report by Commonwealth Ombudsman

• 2001 Report by Senate Constitutional and Legal Affairs Committee: Inquiry Into FOI Amendment (Open Government) Bill

• 2001 Review by Queensland Parliamentary Committee • 2002 Report by NSW Committee on Ombudsman and Police

Integrity Commission • 2005 (Current) Review by Victorian Ombudsman