A final edited version of this paper appeared in Stephen Argument (ed) Administrative Law: Are the States Overtaking the Commonwealth? AIAL 1996, 153-184.

Introduction

" the [FOI Act] was enacted based upon the fundamental principle that an informed citizen (bod) is essential to the democratic process and that the more the .... people know about their government the better they will be governed. Openness in government is essential to accountability and the Act has become an integral part of that process."

The effects of Freedom of Information legislation in Australia have been far-reaching. The spirit of openness has crystallised into more stringent standards, and higher expectations, of governmental disclosure. Significant achievements and transformations have occurred in the way information is available to individuals in their capacity as citizens of a liberal democratic society. Nevertheless those achievements have not reached, in my view, the original goal of producing "Open Government" in the widest sense of the term. I believe that a valid critique can be made, from the applicant's perspective, that FoI has failed to achieve its full potential and capacity to be a crucial catalyst in the process of government accountability. Zifcak describes the current state of play perfectly:

...It has developed into part of the accepted, albeit modified, fabric of administrative life. Welcomed in the community as the principal instrument with which to shed light on the caverns and crannies of bureaucratic organisation, it has laid bare important aspects of government deliberation but left the whole largely intact. In its ten years of life, the Freedom of Information Act has neither confirmed the worst fears of critics nor has it brought to fruition the idealistic vision of its supporters. Rather, the Act has become part of the institutional furniture providing distinct but limited benefits and creating ascertainable but limited discomforts.

In the first part of this paper I compare and contrast the impact of the institutionalisation described by Zifcak, on FoI as an accountability mechanism. For marathon runners there comes those moments of truth, where behind them lay the achievements of conquered kilometre after kilometre, before them is only a few more minutes of effort yet their body feels like it has just hit a wall. In my view freedom of information has encountered such a moment of truth in Australia. The modified version of FoI we now have has presented us with some notable gains but it may lack the staying power to reach the ultimate goal of open government.

In the final part of the paper I suggest a number of possible means by which FoI can be transformed, from being a limited part of the institutional framework, into that critical accountability mechanism that was intended by its original designers and desired by its current advocates. A number of obstacles will hinder or prevent that transformation including; interpretation of the legislation, fee regimes, a gathering momentum of restrictive amendments and the failure of the media as a catalyst in the process of dismantling government secrecy. Without such a transformation FoI in Australia will become an antiquated mechanism, or even worse, a routine and controlled avenue of government disclosure.

On the border of the third phase of information management

Professor Paul Finn maintains that there has been in Australia three broad overlapping phases of information management; public interest paternalism, governmental authoritarism and the third currently developing liberal-democratic phase. I would argue that the current state of play in regards to FoI as outlined by Zifcak may herald the mutation of an instrument of accountability to a tool more suited to maintaining information management under a regime of governmental authoritarism.

Public interest paternalism

Finn argues that during this first phase public interest was the device used to set limits to the protection of official information. It was largely left it to the Crown to determine

public interest and the timing of when official information would be made available to the public. Nevertheless information was released where it came within the definition of public interest. A survey of Australian colonial history will reveal very vigorous and often well informed, from government sources, public debate on important government issues.

Governmental authoritarism

Finn maintains that this phase is marked by two key features. First, official secrecy operates as the governing code in the handling of government information. Second, public availability of information does not depend on definitions of public interest to determine release or non release of information. The government is allowed to elevate its own interests to regulate discretion re dissemination of information and formally, at least, to coerce subservience from its officials via widespread and stringent official secrecy regimes. A very good descriptive account of the nature and extent of this secretive approach to government information management in Australia is Jim Spigelman's work Secrecy: Political Censorship in Australia.

The Liberal-democratic information management

The third phase of information management is marked by the high value that is placed on the public availability of information. Various statutory means such as freedom of information, privacy and archival legislation in conjunction with common law developments such as the public interest test in relation to government information all contribute towards the availability of government information. The information is provided to indivduals or groups in their capacity as citizens of a liberal democratic state and steps are taken to ensure the confidentiality, integrity and protection of information.

The third phase of information management establishes the public availability of information as an important value to be promoted in a democratic society especially where this enables the public to discuss, review and criticise government action. In Attorney-General v Heinemann Publishers explicit recognition was given to the principle that government exists, and government officials are appointed to hold office not for their own benefit but for the benefit of the public. In that case McHugh JA at 191 stated:

Information is held, received and imparted by governments, departments and agencies to further the public interest.

As Mason CJ explained in Australian Capital Television Pty Ltd v the Commonwealth [No.2] the freedom of communication, including the supply of information from the government to the citizen, is an indispensible part of representative democracy. His Honour observed:

Indispensable to that accountability and that responsibility is freedom of communication, at least in relation to public affairs and political discussion. Only by exercising that freedom can the citizen communicate his or her views on the wide range of matters that may call for, or are relevant to, political action or decision. Only by exercising that freedom can the citizen criticise government decisions and actions, seek to bring about change, call for action where none has been taken and in this way influence the elected representatives. By these means the elected representatives are equipped to discharge their role so that they may take account of and respond to the will of the people. Communication in the exercise of this freedom is by no means a one-way traffic, for the elected representatives have a responsibility not only to ascertain the views of the electorate but also to explain and account for their decisions and actions in government and to inform the people so that they may make informed judgements on relevant matters. Absent such a freedom of communication, representative government would fail to achieve its purpose, namely, government by the people through their elected representatives; government would case to be responsive to the needs and wishes of the people and, in that sense, would cease to be truly representative". (my emphasis)

In my view Australian information management is still largely dominated by governmental authoritarism. The provision of information to the citizen by the government falls far short in many instances of a desire to supply timely and relevant information to individuals or groups so that informed judgments can be made. In a number of areas intrusions into the third phase of information management have occurred and in this respect Australians owe a great deal to Freedom of Information legislation. However participation by citizens requires something other than the limited outcomes from Zifcak's piece of institutional furniture. If FoI is allowed to languish we risk losing the contribution that FoI can make in achieving a permanent transition to Finn's third phase of information management. In the words of a journalist commenting about FoI:

Participation requires not just a willingness by government to consider the views of outsiders. It requires that the information gathered by government on given issues be made available before decisions are made by the government on the basis of it. Only when outsiders share the basic data which is influencing government's mind, can they make relevant comment. My favourite summary of this FoI principle comes from an American commentrator who called it the need to let the public on the take-offs as well as the crash landings.

Examples of FoI in the second and third phase of information management

In this section I present four case studies of the different roles and impact that FoI can have on information management. The first case study, from Victoria, illustrates the potential of Freedom of Information to produce a transformation in the availability and quality of information to citizens. The process outlined in the first example reflects how Paul Finn's third phase of information management ideally operates.

Three Tasmanian examples of second phase governmental authoritarism serve to demonstrate a closer approximation of the inability of FoI to make a contribution to the accountability process where the issue is regarded as politically sensitive or important to the operations of the government. The examples involve FoI applications in regards to the salary package of the Premier's most senior adviser, the financial arrangements leading to the $140 million purchase of the Bass Strait passenger vessel the Spirit of Tasmania, and the closure of an environmental education centre.

The examples establish the extent of the difficulty for applicants to obtain information from governments even when freedom of information is used. In these examples some of the weaknesses of FoI are exposed including the relatively unrestricted capacity of agencies to delay processing of requests or to ignore uneforceable guidelines. In one of the examples the department that has the reponsibility for administering the Freedom of Information Act (Tas) and issued the offical guidelines on the Act completely ignored those same guidelines in handling a request.

Case 1 - Public health statistics in Victoria: a case study of the third phase potential of FoI

In October 1993 The Age newspaper sought details relating to comparative death rates from several public hospitals under the Victorian Freedom of Information Act. The hospitals were reluctant to release this information. The Age then sought the information directly from the Health Department. Information was released including adjusted figures that eliminated the distortions caused by factors such as variation in age, case complexity, the rate of emergency admissions and items such as discharge location and socio-economic factors. The Director of Public Health released these figures stating:

The value of this information is in trying to influence people to look at mortality as an indicator of quality, not trying to absolutely say one place is better or worse than the other....We're trying really to get to the point where the mystique of variance analysis is removed and where people regard it as a normal part of what they do.

The publication of the statistics was met with outrage from Victorian public hospitals. The hospitals argued that the figures painted a distorted picture of reality and the publication of comparative death rate statistics had the potential to damage the Victorian hospital system. In an editorial The Age responded:

"This is an entirely predictable response. It is the response you get from any public institution that is suddenly open to a form of scrutiny that it has managed to avoid over a long period of time. The fact is that the death-rate information has been available for some time and despite lobbying by consumer health groups, the information was kept secret because that was the way the hospitals wanted it."

The editorial argued that public hospital patients were consumers and that they had the right to information that would help them make informed choices about where to go for the health services required. The Age suggested that other health care information such as figures on infection rates, drug reactions, and other statistics, should also be released. On the 15 April 1994 the Secretary of the Victorian Health Department announced that public hospital death rates, patient infections, post-operative complications and unexpected readmissions would be made public on a routine basis in Victoria. The Health Department and the Victorian Hospitals' Association had established a working party to determine how best to release such information. The Secretary of the Department stated that people should be able to use the information in the same way as they used The Age's Green Guide or a form guide:

"As far as I am concerned, anything we've got is public. It's only a question of constructing it in a useable form. "

This Victorian example illustrates perfectly how FoI can achieve the objectives and hopes held out for it by its supporters and promoters. These objects and hopes are illustrated in the following examples from parliamentary debates in NSW and Queensland. In the Second Reading Speech introducing the New South Wales Freedom of Information Bill the Minister stated:

This Bill is one of the most important to come before this House because it will enshrine and protect the three basic principles of democratic government, namely, openness, accountability and responsibility. It is only if these three principles are firmly in place in the form of legislation that we can say with confidence that we have a truly democratic State Government …

....This freedom of information legislation will strengthen democracy by helping to provide the people with a basis on which government policies and actions can be discussed and debated, as well as allowing the performance of the Government to be judged fairly at election time. It will permit a more informed electorate to make rational judgments. This is obviously preferable to forming opinions based on the present diet of sensational leaks and reports isolated from their context.

The hope has been that FoI can act as a catalyst to break the long standing bonds of governmental authoritarianism and help shepherd in a far more livelier liberal democratic spirit and culture of accountability. These desires were captured in the Attorney-General's speech to the Queensland Legislative Assembly on the introduction of the Freedom of Information Bill:

In conclusion, this Bill will effect a major philosophical and cultural shift in the institutions of Government in this State. The assumption that information held by Government is secret unless there are reasons to the contrary is to be replaced by the assumption that information held by the Government is available unless there are reasons to the contrary. The perception that Government is something remote from the citizen and entitled to keep its processes secret will be replaced by the perception that Government is merely the agent of its citizens, keeping no secrets other than those necessary to perform its functions as an agent. information, which in a modern society is power, is being democratised.

Three Tasmania Case Studies in Maintaining the Status Quo of the Second Phase

The three Tasmanian examples discussed below highlight why FoI appears to have a greater capacity to occupy the comfortable institutionalised and limited role depicted by Zifcak then it has to be a vigorous instrument of government accountability. The case studies demonstrate the problems that can be faced by applicants at the various stages of an FoI request from the original decision making and internal review stages to problems associated with external review. These difficulties include decision makers taking the full statutory period to decide not to release documents, minimal information provided in statement of reasons, grounds of exemption being changed at different stages, strong inferences that an Agency is willing to resist disclosure to the maximum extent possible and restrictions, particularly resource limitations, on the external review decision maker.

Ardagh has argued that the more accurate test of the success of freedom of information, and closer in keeping with the original goals and legislative object, is the ease and degree of access granted to non-personal information at the sensitive end of the bureaucratic and political scale. As Zifcak observed:

By contrast, however, rates of refusal climb significantly in agencies whose records consist mainly of policy, administrative or law enforcement documents. Even in these, however, the majority of requests are granted although in law enforcement agencies, not surprisingly, access to documents is granted much less frequently. The higher rate of refusal reflects the not unsurprising fact that the closer an applicant comes to the political heart of government, the more likely it is that access to documents will be contested.

The three Tasmanian case studies may indicate that in some jurisdictions the sensitive end of the bureaucratic and political scale or the political heart of government has a very wide perimeter to its no access zone. The lesson for FoI supporters is that fresh and stronger approaches to the question of access may be needed to prevent the slow decline of FoI in Australia. Given the object clauses in Australian FoI legislation Ardagh's proposed test is the crucial one to guage the success or otherwise of freedom of information.

Tasmanian Case Study 1: The Spirit of Tasmania Request

In early March 1994 a journalist requested information involving the purchase of a replacement vessel for the Abel Tasman on the Bass Strait run. This "Replacement Vessel Project" represented a public sector investment of $140 million. The journalist requested the following information from the Department of Transport and Works:

1. A copy of the "Review of the Replacement Vessel Project" carried out by an inter-departmental committee comprising representatives of the Department of Treasury and Finance, Tasmanian Development Authority, Premier's Office, Department of Tourism Sport and Recreation and the Department of Parks Wildlife and Heritage.

2. A copy of any report to the State Government from the Department of Transport and Works on the purchase of the Peter Pan (renamed the Spirit of Tasmania).

3. Documents detailing the financial costs to the Government of the borrowing's to buy the Spirit of Tasmania.

4. Documents detailing the costs to the Government of maintaining the Abel Tasman since it came off the Bass Strait run.

The FoI Officer transferred parts 1 and 3 of the request to the Department of Treasury and Finance as this information was more closely related to the functions of that Department. The Department of Transport and Works FoI Officer also suggested that aspects of part 2 of the journalist's request could be considered voluminous and therefore could be refused under section 20 of the Freedom of Information Act 1991 (Tas). After negotiations the journalist reworded part 2 of his request to read;

(i) Any rigorous commercial or sensitivity analysis undertaken by the Rutherford Working Party into the replacement of the Abel Tasman; and

(ii) Any chief report or outstanding report which convinced the government to choose the Peter Pan as the replacement vessel.

The Department uncovered 44 documents relating to this revised part 2 request and claimed cabinet exemption for 3 documents (Section 24(1)(b) and exemption under S27(1), internal working documents for the remaining 41 documents. In making a decision under section 27 (1) the FoI Officer considered that disclosure of any of these 41 documents would not be in the public interest because:

The financial modelling documents are preliminary working analyses undertaken for the Working Party and their disclosure may cause misunderstanding and mislead debate of possibilities considered;

Disclosure of these documents, which do not fairly disclose the reasons for the recommendations subsequently made by the Working Party, would be unfair to the Working Party and may prejudice the integrity of its deliberative and decision making processes;

Officers may be inhibited in the future from fully exploring all options through financial modelling as part of the deliberative process.

It is my view that the above arguments against disclosure outweigh the public interest of the applicant and members of the public being satisfied that government carries out its investigations in a fair and proper manner, as well as their right to know what information is held by government.

In relation to Part 4 of the request the journalist was told that he would be charged $100 to collate the information requested and for the typing of a schedule of costs. The journalist fared no better with the request (parts 1 and 3 of the original request) for information which had been transferred to the Department of Treasury and Finance. Near the end of the statutory period, in mid April 1994, the journalist received a very brief reply which stated:

"I am unable to comply with your request as the information you seek is Cabinet information covered by Section 24 of the Freedom of Information Act 1991 and is exempt under the Act."

This episode proved particularly frustrating for the journalist as the requested information was time-critical because the public debate about the Spirit of Tasmania peaked in late March and early April 1994. The other two crucial factors were the totally inadequate statement of reasons received from the Department of Treasury and Finance and that a prolonged series of negotiations and compromises with the Department of Transport and Works FoI Officer had resulted in no information at all being released. The journalist was reluctant to seek internal review on the expectation that the same delays and ultimately the same non-disclosure decision would be a foregone conclusion.

Tasmanian Case Study 2 Senior Adviser Salary Package Details

In early 1994 a FoI application was sent to the Tasmanian Department of Premier and Cabinet seeking details about the salary package and termination of employment details for the Premier's principal adviser. This is the Department which administerts the Freedom of Information Act 1991. After thirty days, the maximum time period for an initial application under the Act, the FoI Officer refused to disclose any information. In a very short statement of reasons the FoI Officer claimed exemption on the grounds of Section 23 (Executive Council documents) or Section 30 (Personal Information). No attempt was made to identify the number of documents in question and which exemptions applied to each document. There was no attempt to justify why disclosure was not in the public interest.

The case law in this area is clear. The issue that must be determined in a Section 30 exemption claim is whether the disclosure of the personal information was "unreasonable". The question involves a balancing exercise, in determining whether the public interest (as distinct from idle curiosity) in disclosure outweighs a government employee's right to privacy. In Re Ricketson and Royal Women's Hospital the Tribunal decided that paying regard to the magnitude of the expenditure from the public purse, the proportion of hospital revenue, the importance of the services the institution provided and the fact that the salaries of persons in more junior positions were known, it was satisfied that the disclosure of the contents of the CEO's salary package would not be unreasonable. Furthermore, the CEO's remuneration level was the subject of legitimate public interest, scrutiny and discussion.

In Re Atkinson and Public Transport Corp the applicant, a parliamentarian, sought review of the respondent's decision to release documents (containing income and taxation information), claiming it would be an unreasonable disclosure of his 'personal affairs' under s.33(1) of the FoI Act (Vic). The Tribunal found that 8 of the 10 documents in dispute did in fact relate to the personal affairs of the applicant. In determining whether their release would amount to 'unreasonable disclosure' the Tribunal referred to the test established in Re Ricketson, which required a balancing of interests between the public interest in disclosure against third parties right to personal privacy. The Tribunal in Re Atkinson considered the relevant factors to be the nature of the information, the circumstances in which it was obtained, the nature of the interests of the applicant in the information, and the current relevancy of the information. In affirming the decision of the respondent the Tribunal stated that the "degree of the right to the protection of privacy of personal affairs is lesser than the degree of the public's interest".

In September 1993 the AAT ruled in Forbes and Department of Premier and Cabinet that the publicly released range of the remuneration package of Mr Ken Baxter, head of the Department of Premier and Cabinet was 'too broad for sensible analysis', and ordered the release of the amount specified in his five year contract. The Tribunal found that the public was entitled to know the precise amount received (within a $10,000 band) by senior public officials given that they were paid from public funds for acting on the public's behalf. The decision of the Victorian AAT implies that the disclosure of at least some aspects of the salary packages of senior public servants will be regarded as a legitimate public interest that would weigh heavily in favour of disclosure.

In late 1993 and early 1994 the National Tertiary Educational Union (NTEU) made 39 requests to all Australian Universities seeking access to documents which showed the total annual and contractual remuneration of the CEOs of each University both in monetary form and by way of benefits offered either personally or to their families. Only 9 of the universities granted access to these documents at the original decision maker stage. A further 12 institutions released this information after the internal review stage. The NTEU has sought external review of the decision by the remaining universities not to release the information.

The argument put to the Tasmanian Department of Premier and Cabinet Secretary on internal review by the applicant was that the most senior adviser to the Premier of Tasmania would occupy an even more public and important position than the CEO of a hospital or senior university staff and would be in the same category as the Re Atkinson and Forbes cases. The documents requested would disclose information revealing the employment arrangements of a key public employee and not the unreasonable disclosure of the personal affairs of that public employee.

The Secretary of the Tasmanian Department of Premier and Cabinet on the last day of the review period, in an even shorter response than the original decision, argued that all documents (type and number unspecified) were exempt as Executive Council documents or were documents subject to legal professional privilege (Section 29). Once again no attempt was made to identify into which category the various documents fell. In a classic understatement the Secretary wrote:

"I note your arguments in respect of any exemption under S.30 of the Act but have found it unnecessary to consider those arguments in view of the fact that the information sought is clearly exempt under Section 23 and (in part) Section 29."

In this case the applicant has applied to the Ombudsman for an external review. However that application has been made on a basis where the applicant does not know how many documents are in issue nor which exemption has been used for each of the documents. The Tasmanian Ombudsman has also requested an extension of time beyond the statutory time limit of thirty days. The applicant has been faced with a wait of 75 days plus since his original request and is no better informed than he was at the time of his application.

Tasmanian Case Study 3: FoI and its use in public protest actions

In December 1992 the Tasmanian Government closed down the Molesworth Environment Centre on cost cutting grounds. Local residents and other supporters of the Centre resorted to FoI to access a favourable report on the Centre that supporters believed had been prepared by the Education Department during 1992. Information in such protest actions needs to enter the public arena in a relative short period of time to be at all useful. The protesters needed to have the department or Minister reconsider the decision by the commencement of the new school year in mid February 1993. In this case it took three requests (two by politicians), three internal reviews, three ombudsman reviews and thirteen months for the information contained in the report to be released. The released information revealed that departmental officers had argued that the Centre was one of the best of its kind in Australia and expected cost savings from closure were much less than originally estimated.

The Molesworth example could be painted as a FoI success story. Information crucial to the accountability process of decision making of the Government of the day and the Education Department became available, albeit with some delay, to citizens with an interest in those decisions. Nevertheless I would maintain that the predominant form of information management throughout the process was governmental authoritarism rather than a testimony for openness. The Department displayed every intention of trying to keep its decision making processes secret and removed from public scrutiny and debate.

The three Tasmanian examples were all from the upper end of the political sensitivity scale but certainly not as close to the heart of government so as to warrant unnecessary time delays, inadequate statement of reasons and claims for blanket exemptions. In this context Zifcak would strike a resonant chord with, at least, Tasmanian FoI applicants when he commented:

Taken as a whole, the Government's actions have sapped the community's confidence in the accessibility and usefulness of freedom of information.

The Role of the Tasmanian Ombudsman

A crucial aspect of these Tasmanian case studies was the perceived limitations of the Tasmanian Ombudsman Office as the external review agency for FoI requests. On most evaluations the Ombudsman has proved a successful appeal avenue for FoI applicants. The following statistics for the period 1 January 1993 - June 1994 demonstrate that Agency decisions on non-disclosure are frequently altered, at least in part, by the Ombudsman:

Summary of Decisions

Agency decision upheld 12

Partial upheld/reversed 15

Agency decision reversed 8

Released by arrangement 5

Total 40

However, severe funding restrictions have seriously hampered the ability of the Ombudsman to perform anything other than a reactive role. Currently the Ombudsman requests on a regular basis an extension of time (normal time limit for an external review is 30 days) from applicants. Most applicants are unaware of the Ombudsman's external review of decisions, or the reasoning upon which they are based, and therefore do not consider an external review as a viable option. The time delays associated with the external review exacerbates the problems with delays in the processing of FoI requests. Similar, and more critical, observations have been made about the role and operations of the New South Wales Ombudsman in the area of FoI. The Tasmanian Office of the Ombudsman, after been given responsibility for external reviews under the FoI Act has experienced a 37% reduction in its staffing establishment in 1992-93. The problems associated with this funding restriction were highlighted in the 1993 Annual Report:

Although every effort had been made and continues to be made to streamline procedures and resolve complaints by more creative and decisive means, I expressed some disquiet at our growing inability to address the larger questions of systemic deficiency. By restricting our activities to the resolution of immediate complaints, we were continuing to treat symptoms rather than causes and not, in my view, contributing, as I believe the Office of Ombudsman should and can, to the improvement of public administration in this State. With inadequate funding, we are in danger of being reduced to little more than what the Commonwealth Ombudsman referred to as a '"fly-swatting" function.

....the Ombudsman assumed responsibility under the Act (FoI) for hearing and determining appeals against decisions of agencies not to release information sought by members of the public. In accordance with advice given to the Parliament that the Ombudsman would be provided with an additional staff member to handle Freedom of Information matters, I have sought the provision of such an officer by the Secretary for the Department of Justice but, regrettably, he has been unable to meet that request...

The service I am offering now is necessarily inadequate in terms of the proper functions of an Ombudsman and falls far short of the potential provided for by the Ombudsman Act. I am simply unable to carry out any "own motion" enquires or systemic investigations and am obliged to apply fairly harshly the provisions of the Act which allow me to decline complaints or require complainants to pursue other avenues of redress.

This resource restriction on the Ombudsman places an effective clamp on the nature and quality of response which the office can bring to the external review process for FoI applications. In the long term this resource starvation will ensure that FoI, at least in Tasmania, becomes a very poor piece of the institutional furniture of public administration.

A closer look at some of the achievements of FoI

Most commentators will agree that FoI legislation has produced benefits in public administration. The benefits include improvements in record keeping, report writing, general decision making, easier access to useful information held by government, improved ability to access and correct personal information and evidence that in many cases where decisions initially taken in error have been reversed or revised as a result of access having been granted to relevant documents. The experience at the State level in Queensland confirms these positive gains which have been attributed to FoI. In Queensland agencies have altered their administrative practices to allow routine access to commonly sought documents. Following on from the Commonwealth experience some Queensland agencies have codified and collected material which had previously been dispersed throughout their organisations.

These attributable benefits are often used to justify why the limited performance of FoI as an accountability mechanism can be accepted as nevertheless a strong positive contribution to the development of open government in Australia. For the purposes of this paper I will examine more closely the relationship between FoI and two of these benefits namely record management improvements and high disclosure rates of government information.

Improvements in records management

Records management is a commonly cited key benefit associated with FoI. Usually commentary focuses on the purported improvement, without detailed evidence for the claim, and with no acknowledgment of the other factors which may be responsible. In a recent paper I argued that FoI has made both a positive and negative contribution in the area of records management. The following is typical of the records management virtues attributed to the influence of FoI:

Time deadlines for processing applications imposed by the Act have focused attention of senior management in some agencies on the need to improve records management. Administrative difficulties have been experienced in locating some records....

Increased allocation of resources and intellectual capital to records management, while it may be painful for some agencies in the short term, can only yield long-term productivity benefits. Efficient record retrieval will mean that:

precedents can be located;

the history of an agency's dealings with a client can be accessed;

the wheel does not need to be invented afresh in every case - the accumulated organisational wisdom gained through past experience is available to present officers; and

agencies will not be defeated in litigation simply because records which support their cases cannot be located.

A study of the literature about the effects of FoI provides strong support for this proposition that a range of benefits flow to record management. The literature can be separated into three major groupings. The first either briefly refers to other reports which mention the records management benefits of FoI or assumes a benefit without referring to any supportive evidence. The second grouping, and the far smaller category, presents some tangible evidence for the positive linkages between FoI and improved records management. The third grouping, and most informative, consists of the reports of government agencies about their perceptions of the benefits of FoI. Rarely, in any of the groupings, are possible negative consequences of FoI on record management canvassed.

Whether there is necessarily a simple nexus between FoI and improvements in records management is debatable. FoI legislation is only one of a number of factors which impact on records management, including technological advances, modernised management practices, the development of records management as a discipline in its own right and the push for greater efficiency in the public service. The contribution of these factors must be taken into account. McGann probably best summarises the contribution of FoI when he noted that FoI

"does not purport to regulate the recording, filing, storage, retrieval and destruction of government documents.... nonetheless recognised that FoI legislation has contributed to improvements in the efficiency of these systems."

Research based on the early operations of FoI in Tasmania supports the conclusion that FoI can also have the potential for a negative impact on records management, in contrast to the frequently cited improvements in administration due to FoI. This negative effect has been summarised by Waterford in the following way

In short, in the long term, FoI should have no appreciable effect on reducing the quality of the record, even if, in the early days, there may have been a tendency to truncate the record, or to temper advice with a view to history or outside scrutiny.

If we cannot attribute a substantial proportion, if not all, of the improvements to record management that has occurred in the last decade to FoI then more caution is needed about accepting the comfortable institutionalised role FoI has settled into. That caution would be reinforced if negative consequences for record management can also be linked in full or in part to FoI.

Disclosure Rates

FoI legislation has widely been regarded as a successful innovation in Australian public administration. The degree and nature of that success is much more problematical. Commentators and Governments will argue that the success can be measured by the increased access to personal records and/or the general access rates to information. The following are typical comments;

"The Act's creation of a right to gain access to personal records is perhaps the greatest success of the legislation."

"The first six months of FOI in Tasmania have indicated a number of problems with the Act. The legislation was primarily enacted to assist ordinary Tasmanians. It has been disappointing that they have not proved to be the main users..."

Most Australian applicants receive all or partial access to the documents they request under FoI. Access is granted in full for approximately 65-70 percent of all requests and access is granted in part for 25-30 percent of requests. The 1992-93 Queensland Annual Report notes:

"That is, most applicants get most of the documents they want, most of the time."

This success must be tempered in the light of the intentions of the drafters of FoI Acts in Australia and the stated objects set out in the legislation. In a recent discussion paper I argued that the Tasmanian Premier's concerns in the Foreword to the Annual Report 1992-1993 were misdirected. Access to personal information is an important benefit of FoI but that is not the Act's major objective. Instated in Section 3 of the Act, and repeated in parliamentary debates, the main function of the Act is to encourage democratic government. Not only does democratic government require the free accessing of personal information, but far more importantly it also involves allowing individuals, groups and professionals to access other information held by the executive arm of government;

3 - (1) The object of this Act is to improve democratic government in Tasmania -

(a) by increasing the accountability of the executive to the people of Tasmania; and

(b) by increasing the ability of the people of Tasmania to participate in their governance.

Zifcak has argued that there is a noticable climb in refusal rate for agencies whose records and operastions are largely high level policy, administrative and law enforcement orientated. He also observed that the access rate for these agencies was nevertheless still high. The position in Tasmania, see Table 1, seems to support this conclusion. However, it would be interesting to see a more detail analysis within agencies between the types of documents released and those for which exemptions have been claimed. Another area for further study would be the precise nature of what type of access is considered "partial access".

Table 1 Top Ten Tasmanian Agencies Year Ended 30 December 1993

Agency	Total	Full Access	Part Access	No Access	> 45 Days
Police	225	142 (63%)	48 (21%)	35 (15.5%)	7 (3%)
Community&Health S	78	53 (68%)	14 (18%)	11 (14%)	6 (8%)
Enivronment&LM	53	32 (60%)	13 (25%)	8 (15%)	1 (2%)
Works	31	20 (65%)	8 (26%)	3 (9%)	4 (13%)
State Development	24	16 (67%)	5 (21%)	3 (12%)	3 (12%)
Forestry	25	20 (80%)	2 (8%)	3 (12%)	1 (4%)
Dept Education Arts	23	19 (83%)	1 (4%)	3 (13%)	0 (0%)
Justice	24	10 (42%)	3 (13%)	11 (45%)	2 (8%)
Primary	15	9 (60%)	3 (20%)	3 (20%)	1 (6%)
Premier and Cabinet	9	2 (23%)	4 (44%)	3 (33%)	1 (11%)
Total	507	323 (63.7%)	101 (19.92%)	83 (16.37%)	26 (5.1%)

Obstacles

In the previous section I have argued that while FoI in Australia has produced many benefits, it has failed to achieve in any significant way the legislative objects of increasing accountability of government and arming citizens with informational power. It may come as an uncomfortable revelation to Australian FoI supporters how unthreatening our legislative approach to information access has become in the 1990s. One of the most damning, albeit unintended, critiques of the slow neutering of Australian FoI has come from the United Kingdom government. In a recent letter from Maurice Frankel he noted a slight paradox during the last stages of the debate on the doomed Right to Know Bill in the United Kingdom parliament:

You may be interested to know that the Right to Know Bill, which we drafted, was introduced in the House of Commons last session and debated for 21 hours before finally being talked out. At its Committee stage, instead of arranging for the normal "wrecking amendments" to be tabled, the government had a series of amendments taken from the Australian FOI Act put down instead. These challenged the areas in which we had attempted to go further than the Australian Act (eg the exemptions were narrower; fees were lower; no ministerial certificates; and we had a 'public interest override' across all exemptions if there was evidence of abuse of authority, negligence, danger to the public etc - a statutory form of the 'iniquity' defence under the law of confidence). What followed for much of the Committee was a debate on whether Britain should have a bill along our proposed lines, or along the lines of the Australian! Unfortunately, this was a somewhat academic exercise, since all knew that the government had no intention of allowing a statute to pass in either form! But it made for a more intelligent debate.

FoI still has a great untapped potential to perform the role of a catalyst in bringing Australian public administration into the third phase of information management that Paul Finn has described. For that potential to be realised a number of obstacles need to be overcome. In my opinion these obstacles include; the way FoI has been interpreted, fee structures, a trend towards restrictive amendments and amendments by other legislation, administration of the legislation especially in the areas of time delays and statement of reasons and finally the relatively ineffectual role the media has played in dismantling government secrecy by use of FoI.

Interpretation

The interpretation and application of any legislation has the potential to frustrate its purpose. In the area of Freedom of Information the approach adopted towards interpretation is even more crucial. For those favouring a transition from a state that endorses and encourages secrecy to a society that operates on the principles of open government, it is vital that a "leaning" approach is taken towards FoI legislation. This approach emphasises that FoI legislation should be interpreted with a bias towards disclosure and that public access ought not be frustrated by the Courts, or other review bodies, except upon the clearest grounds so that doubt ought to be resolved in favour of disclosure. If the "leaning" approach is adopted then the burden of persuasion must rest upon the party resisting disclosure. In 1991 Spencer Zifcak argued that the interpretation of the Commonwealth FoI Act had helped to compromise its effectiveness. The interpretation of the Act:

'...has distanced the practical operation of the legislation from the principles and understandings which underpinned it at the time of its formulation. As a result, the Act has been much less successful than it might have been in drawing government to account.'

In Zifcak's view the AAT had adopted a cautious approach to the interpretation of key exemption provisions in the Act, and its caution '...has increased rather than decreased over time...' He argued that since 1983 considerations in favour of non-disclosure have been emphasised, rather than those supporting release of information.

'Principles and understandings prevalent at the time the Act was introduced have been blurred, and sometimes lost sight of, as layer upon layer of freedom of information case law has accumulated.'

Fee Structures

It is clear that the nature and extent of fee charges under FoI has the potential to deter applicants from using the Act especially if the information being sought are policy documents or files that shed light on the reasons for government decisions. An interesting case study on the use of inflated search and retrival charges was set out in Choice in relation to the Commonwealth department of Transport and Communications. Zifcak notes that:

the Legal and Constitutional Committee of the Parliament of Victoria (1989) heard and accepted evidence that their effect had been to discourage many public interest groups from pursuing their rights under the Act, that on occasions the charges levied or proposed had been prohibitive and that estimates of charges had sometimes been inflated to deter applicants from pursuing particular requests.

Recent changes to the charging regime for the Victorian Freedom of Information Act, and proposed changes to the Tasmanian Act, highlight the vulnerability of FoI legislation in this area. The Victorian changes have attracted strong criticism. Under the Tasmanian legislation all charges are set by regulation, and therefore relatively easy to adjust, except the maximum charge of $400 and fee waiver conditions.

Restrictive Amendments

There appears to a growing momentum with FoI legislation in Australia to revise exemptions so as to exclude more information from potential disclosure thus limiting its effectiveness. Examples of this trend have taken place in Tasmania, Queensland, Victoria and at the Commonwealth level. In most cases the amendments have been to widen exemptions relating to Cabinet documents. In Tasmania the Act was amended before it came into operation. One of the amendments removed the power of the Ombudsman to release exempt information without reference to a public interest test.

In addition to direct amendment to FoI legislation another trend has emerged whereby amendments to the legislation are effected by other legislation. This indirect approach has taken place both in Victoria and Tasmania. The State Owned Enterprises Act 1992 (Vic) allows a State owned enterprise to be excluded via regulation from coverage of both the freedom of Information Act and the Ombudsman Act 1973. The second half of 1993 saw the introduction of a similar practice in Tasmania. The Tasmanian Freedom of Information Act is being amended by the inclusion of a section in Acts controlling bodies like the TT-Line and Tasmanian Government Insurance Office which read:

"...that, but for this subsection, would be a prescribed authority within the meaning of the Freedom of Information Act.... is to be taken not to be a prescribed authority within the meaning of that Act."

Parliaments should reject this approach as the practice has undesirable consequences. First, parliamentary debate is focused on the main object of the bill (the TT Line, changes to Forestry etc) and little debate occurs over the information access and management issues that have arisen. In the absence of such a specific debate the radical reforms introduced by the FoI Act are being slowly watered down. I have also argued in the Tasmanian context that:

consequential amendment of Act undermines the whole structure of the FoI Act. The FoI Act was designed to give access to all government information unless it came within the parameters of a limited number of restricted exemptions. The Act also permitted and encouraged Agencies to release information. Unfortunately a user of the FoI Act must now not only check the listed exemptions under the Act but must make a study of all legislation passed since 1/1/93 to see if the provisions of the Act still apply to a particular agency or parts of its operations. Any amendments affecting FoI should only be made to the principal act and only after a period of full and informed debate that weighs the pros and cons of such proposed amendments. Clearly in the case of acts like the TT-Line etc the government has sacrificed careful consideration, frankness and candour for expediency.

Administration

A number of criticisms can be made about the general administration of FoI in Australia with varying degrees of applicability for each jurisdiction. I have recently highlighted problems with the adequacy of searches and statement of reasons and outlined possible remedial steps or reforms that have been adopted in at least one or more jurisdictions. In that article it was noted that there have been major concerns expressed about the adequacy of statement of reasons in Australia. The Queensland Information Commissioner made very strong criticisms about the adequacy of reason statements prepared by Queensland agencies during 1993. The Freedom of Information and Administrative Law Division of the Queensland Attorney-General's Department responded to these concerns by issuing new guidelines and claimed that this action had improved the statement of reasons issued to applicants. In Re Eccleston the Commissioner had noted:

It is a matter of some concern for the general administration of the FoI Act that many agencies, and especially internal review officers, do not appear to be fully and adequately complying with the statutory obligations imposed on them by s.34(2) (in particular paragraphs (f) and (g)) of the FoI Act, and s.27B of the Acts Interpretation Act 1954 Qld, in respect of the content of reasons statements. .... I have on occasion exercised the discretion conferred on the Information Commissioner by S.82 of the FoI Act to require an agency to provide an additional statement of reasons where the statement provided to the applicant was inadequate for the purposes of satisfactorily progressing the conduct of my investigation and review. I could have done so in a great many more cases, if my only purpose was to ensure that decision-makers fully comply with the statutory requirements in respect of the content of reasons statement.

Similar concerns have been expressed in Tasmania and for the Commonwealth. In response to continuing concerns about the adequacy of FoI statement of reasons the Commonwealth Attorney General's Department in June 1993 released a "New Memorandum No. 26: Section 26 Notices: Statements of Reasons."

The other major criticism that can be made about the administration of FoI is the question of delays in handling requests. In the first six months of operation of FoI in Tasmania a total of 10.6% of requests run over the statutory limit of 45 days, the average for the full year was 5% of requests not being decided within the maximum statutory period. Other jurisdictions, especially the Commonwealth, also have a poor record in this area. Queensland reported problems with some agencies meeting the time limits imposed by the legislation. The complexity of some requests or the necessity for sensitive third party consultations have contributed to some of these time delays.

I have no doubt that contributing to these processing delays is the practice of some agencies to "sit" on requests until the last 2-3 days of the maximum time limit, despite the fact that full access or non access to the information has been decided upon from the earliest days of the initial request. In the three Tasmanian case studies used in the early part of this paper, and from my own experiences, the practice appears commonplace where the requested information approaches the upper reaches of Ardagh's political and policy sensitivity scale.

Role of the Media

"It is difficult to overstate the importance of the media in freedom of information. Both as individual professionals and as organisations, journalists to my mind have a responsibility to educate themselves and the community they serve about FOI. Their role goes far beyond merely using FOI."

"Knowledge is power. If the public is not informed, it cannot take part in the political process with any real effect."

It has been argued that the media has a responsibility to inform the community about FOI, thereby promoting the Act's aim of public participation in democracy. In the first Queensland Annual Report it was stated that:

The communications media play a vital role in maintenance of our democratic system, one of which the media themselves are self consciously aware. FOI offers the media a powerful investigative tool to open government to public scrutiny, to criticise the rationale for decisions rather than simply reporting the fact of decisions being made, to expose incompetence, malice and wrongdoing in public administration. In the hands of a skilled journalist, FOI can expose the thought processes of government; it can fill in the background; it can lay bare underlying assumptions and values.

Every story 'beginning 'Material revealed under FOI today...' will be a minor victory for the legislation.

Yet the experience in Tasmania and Queensland throws considerable doubt on the current ability of the media to perform either educative, publicity or accountability functions in conjunction with FoI. The Queensland experience has been that only a small number of applications have been made by journalists. Two undergraduate 1993 research studies in Tasmania confirm the low usage by journalists of FoI. The studies indicated that media use of the FOI Act had been minimal, and that journalists perceived many impediments to using FOI. The Townley study highlighted a number of potential impediments to the use of FoI by journalists including;

Inappropriateness of issues. Format inappropriate.

Time constraints. Other sources more effective.

Breadth of exemptions. Costs of obtaining information.

Lack of knowledge of FoI and its procedures.

Complicated and time-consuming process.

Jack Waterford has been highly critical of the lack of use of FoI by fellow journalists. Waterford has also pointed out that the low usage is further marred by inappropriate and unskilled use:

If a relatively full disclosure by a public servant or administrator reveals no obvious points of attack, research is most often promptly halted and attention is then focused on some other project. All too often, journalists drop the ball precisely when they have a good story because they have defined the story only in terms of a fairly naive outcome which did not come about.

Some Rays of Hope

In the introduction I promised, after delivering a critique and outlining the obstacles facing any transformation, some ideas to recharge the potential of FoI. It is highly unlikely that legislative reform designed to revitalise FoI will occur in the short term. Therefore attention should be turned towards addressing some of the deficiences in the current system or achieving the dissemination of best practices. In a recent article there was a brief but informative summary listing the deficiencies of the current system of freedom of information in New South Wales including;

There is no obligation on agencies to actively pursue programs of regular and timely release of information within their possession or in other words to overcome their disposition to keep things secret.

There is no agency with one of its statutory functions the active scrutiny of information held by agencies for the purpose of ensuring and/or encouraging the public release of that information and there is certainly no agency committed to education in changing the attitudes of bureaucrats away from obsessive counter productive secrecy.

Any person may ask an agency for access to specific documents held by it and the agency then must either release the document or, more likely, conjure up some basis for refusing to do so.

Decisions on appeals do not necessarily bring about any change in the practices of those agencies under appeal in future cases or within those other agencies unaffected by their decisions.

Smith argues that it is time to take out a blank sheet of paper to write down again what we want from FoI. My suggestions on reforms or remedial action are not intended as a panacea or an exhaustive list of prescriptions. Rather I want to offer some ideas for further debate and analysis. On my fresh piece of paper the following headings would appear; interpretation, application, administration, observation, education and investigation

Interpretation

In a recent paper I have argued that recent trends in Australia may be heralding a welcome return in favour of the "leaning" position when FoI legislation is interpretated. The comments and analysis contained in the NSW Supreme Court decision of Perrin, and the Victorian Supreme Court in Sobh support the proposition that Australian freedom of information Acts are designed to assist disclosure of information and exemption provisions and need to be applied in a way that assists, where ever possible, this deliberate design and intention of parliament.

The trend in Sobh and Perrin is reinforced by decisions made by the Queensland Information Commissioner who has endorsed the statement made in Victorian Public Service Board that "it is proper to give the relevant provisions of the Act a construction which would further, rather than hinder, free access to information." The Queensland Information Commissioner in Re Eccleston and Department of Family Services and Aboriginal and Islander Affairs has signalled a clear support for the "leaning" approach. In that decision the Commissioner directly links the concept of public interest in freedom of information legislation to the objects of FoI Acts and to the accountability of government. The West Australian Information Commissioner has signalled a similar acceptance of the "leaning" argument.

Australian applicants are currently faced with the reality that despite the legislative objects of freedom of information legislation the onus is on the requester of information to demonstrate that the exemption being claimed is invalid. I have argued that:

If the approach in Sobh and Perrin is followed then the presumption would be restored that the various Australian FoI Acts have produced a shift or "tilt" in favour of disclosure so that, in case of doubt, decision makers and review bodies should favour a construction supporting disclosure over a construction which favoured non disclosure. Zifack explored the fundamental difference such an approach would theoretically have on current FoI case law. The decisions of the Queensland FoI Commissioner have revealved the practical impact.

If the trend towards a "leaning" or "tilting" approach continues and is supported then I believe that significant changes will start to occur in the way FoI starts to operate for applicants.

Application

I would maintain that the way FoI is applied by agencies is a critical aspect of the effectiveness of FoI. Most applicants would share my belief that far too many FoI officers approach their task from the prespective of looking for an exemption first. Sometimes you can see the mental processes "No exemption...it will have to disclosed I suppose." This approach, albeit probably overgeneralisied on my behalf, is despite the objects of the legislation and sections such as section 12 of the Freedom of Information Act 1991 (Tas) which read

12- This Act does not prevent and is not intended to discourage an agency or a Minister from publishing or providing information (including exempt information), otherwise than as required by this Act.

Recent deveklopments in the United States offer a realistic and feasible alternative in the application of FoI. The Clinton Administration has instiuted dramatic changes to agency decision making about disclosure under the US Freedom of Information Act. Attorney General Reno's FOIA Memorandum released on October 4 1993 made the following points:

Agencies urged toward greater openness under the Act, with an overall "presumption of disclosure."

A new "foreseeable harm" standard governing the application of FOIA exemptions.

Promotes "discretionary" FOIA disclosures, as a means of achieving the goal of "maximum responsible disclosure" under the Act.

This new guideline rescinded the Department of Justice's 1981 guidelines on the defence of agency action in Freedom of Information Act litigation. The 1993 guideline has dramatically increased the potential for disclosure of information which would normally be exempt under the US FoI Act. Departments in the United States cannot withhold information merely because there is a "substantial legal basis" (as permitted under the 1981 guidelines) but must apply a presumption of disclosure.

The "foreseeable harm" standard will require Agencies to conclude that not withstanding the general character of information involved no reasonably foreseeable harm will occur by disclosing the information requested. Paramount examples of where the "foreseeable harm" standard will be most noticeable will be in the areas of deliberative process and attorney work product (legal professional privilege) privileges under Exemption 5. For example information might be sensitive when created during ongoing litigation "yet be disclosable without any foreseeable harm to the agency's litigation interests at some point after the litigation is completed."

Administration

During 1994 there will be at least two reviews commencing into the administration of FoI in Australia. The first will be the review of the Commonwealth Act and the second will be a review of the Queensland Act. As indicated earlier in this paper a number of areas need to be examined in relation to administration including time delays, statement of reasons, the way the legislation is interpreted and meeting the objects of the legislation. The SA Ombudsman, Eugene Biganovsky, has suggested that the concept of 'deemed refusal' should be replaced with 'deemed access'. The experience of external review bodies and applicants seem to indicate that on a number of occassions agencies take the attitude that 'deemed refusal' provisions takes the onus off the agency to actually consider particular requests until they reach the external review stage. It is not difficult to imagine how a 'deemed access' clause would produce a far different reaction and decision making process.

Observation

Associate Professor Margaret Allars, who is currently conducting an empirical study of the impact of FoI in Australia, has argued the significance of such studies is that lawyers in general and administrative lawyers in particular neglect to assess the impact of legislation like Freedom of Information.

"Empirical studies ... should provide a basis for forming a view as to whether avenues of accountability, such as FOI legislation, operate effectively in particular decision-making contexts and improve the quality of administrative decision-making."

There have been far too few empirical studies in the area of Australia administrative law in general and especially FoI in particular. An expansion in the number and type of research being undertaken on FoI would make a qualitative difference to our understanding of how effectively FoI does work as an accountability mechanism. The recent Queensland Law Reform Commission report into the review of secrecy provision exemptions is a very good example of the contribution that can be made by detailed and through research in this area.

Education

The commitment to, and activities associated with, education about FoI has varied from jurisdiction and from time to time. Overall educative efforts seem to decrease over time from the commencement of a new FoI Act and become largely concentrated in training activities for public servants. Paul Villanti wrote:

Who knows about access to government information? Most certainly public servants do. Some clever lawyers use FoI on behalf of their clients. Would-be lawyers are probably the only group in society compelled to learn about FoI (for a week or two) as part of their study of administrative law. Some, but not many, journalists use FoI in an effort to keep politicians and public servants accountable for the decisions they make and the money they spend. A handful of public interest groups also try to extract documents from the bureaucracy in support of their causes. But if the success of freedom of information laws today is to be judged by the community's appreciation of its legal right to obtain documents in the possession of Ministers and government departments, then in many respects FoI has been found wanting.

Undergraduate studies on the level of and extent of the knowledge about FoI in Tasmania during its first year of operation revealed low levels of awareness. While the Tasmanian FoI unit had conducted an impressive number of community awareness sessions it operated on an almost non-existant budget for advertising and promotion. The experience in Queensland seemed to have been somewhat different with a much greater utilisation of the media to publicise the availability of FoI. A similar pattern occurred in NSW but with an eventual withdrawal of resources for promotional activities. Greater activity is required in this area and just not from the government sector. Academics, journalists, interest groups and other users of FoI need to be more vigourous in the promotion and discussion about this vital tool of accountability.

"Even negative comment on FOI has been useful, both as publicity on the existence of the legislation, and as admonition to administrators to heed the public interest in prompt disclosure."

The Campaign for Freedom of Information in the United Kingdom has an annual Freedom of Information Awards ceremony where it recognises individuals who have campaigned for greater openness and authorities and companies which have taken important initiatives in releasing more information. I would like to see the development of a similar set of awards in Australia. I would particularly like to see some sort of recognition for Australian individuals, groups or agencies who have tried to move us towards that ultimate objective of FoI - open government. There is a need to hear about some of the victories and to reward those who continue in the face of daunting odds to use FoI to chip away at the walls of secrecy. It is interesting to note that the UK awards are also given to public servants and Agencies who practice open government.

Investigation

In Smith's litany of FoI deficiencies a common thread was the absence of an agency to undertake proactive scrutiny of the administration of FoI. More attention needs to be given to this problem. There are a series of possibilities including the creation of Information Commissioners in each state, who do not play an activve role in the external review process, charged with ensuring the administration of FoI Acts in accordance with their legislative objects.

Paradoxically we may need again to borrow from the United Kingdom and develop a campaign for freedom of information. There seems to be an Australian tendency to assume that once government takes on a function or legislates on a particular reform issue that there is no need to maintain a vigil or watching brief on that issue from that moment onwards. The contrast between the level and nature of the debate about privacy issues with the Australia Card issue and the interest since the Privacy Act seems very pertinent.

Conclusion

The intention of this paper was to deliver a critique of the current operation of FoI in Australia. I started from the premise that when FoI is examined from a user's perspective (where the information being sought is not personal information) there appears to be a number of obstacles in the ability of FoI to crack the walls of government secrecy. In developing the critique I have not sought to belittle the significant achievements of FoI but rather to sound a clarion call that the ultimate victory for FoI is still ahead of us.

The time has come for us to re-evalate the administrative law reforms and mechanisms that gained life in the 1970s and 1980s. Administrative lawyers and academics need to occasionally lift their sights from the case law and the need to pay homage to the "new" administrative law and start to question whether there are newer and better ways of ensuring accountability and control in public administration. It maybe that the conclusion reached is that the current state of play in Australia only requires some tinkering and fine tuning to remain at the forefront of world best practice in the area of administrative law.