Administrative Reforms to Improve Freedom of Information Act 1991
Sir Harry Gibbs was on target when he suggested that FoI Acts, no matter how tightly worded they are on the statute books, can sink without trace when they begin to operate in real life. Sir Humphrey Appleby lives on when it comes to FoI administration. Just a few days ago I was told of the latest trick to avoid FoI in some Tasmanian Agencies.1 These suggestions are attempts to change the administration of FoI by a mixture of carrot and stick solutions. The primary aim is to produce a change in the mindset of all bureaucrats, especially that small handful of senior bureaucrats who appear uncomfortable with even a slight increase in accountability.
1. Directive to Agencies
Statement from Premier and each Minister to all agencies re giving effect to Section 3 of the Act. This statement would be akin to US Attorney-General Reno and President Bill Clinton's directive in August 1993.2 This statement would inform public servants that in administering the FoI Act that there is a presumption in favour of disclosure and that exemptions should only be claimed when there was a foreseeable risk of harm to an agency. The WA Information Commissioner has noted the problems in that jurisdiction in relation to the attitudinal difficulties of senior management in Agencies to meet their statutory obligations and take a more open approach to decision-making.3 In the NSW Ombudsman Guidelines issued in December 1994 the NSW Ombudsman has stated the following in the Foreword:
In a strange paradox the Government, with its full page advertisements in all Tasmanian newspapers, has spent more money (in a single campaign) publicising changes to the Act then it has on vigorously informing citizens of its existence and how it can be effectively used.
Publicity budgets for FoI should be set at 5% of the publicity and promotion budget of each agency. If agencies wish to promote their services, new programs, initiatives, existence or change of identity then concomitant funds must be provided to promote FoI access. How many agencies in Tasmania have FoI leaflets and/or information posters prominently displayed in all their public contact areas?
What percentage of the monetary support given to an event like Targa has been spent on advertising Freedom of Information?
What percentage of the activities of the Media Liaison Unit of the Premier's Office have been devoted to promoting FoI?
How many press releases have issued out of Ministerial offices announcing that one of the services their Department offers to Tasmanians is access to information?
3. Extra budget allocations to high performing agencies
Budgetary incentives for agencies that can demonstrate superior performances in their handling of FoI requests should be made available. These performance levels could be judged by clear criteria (such as Access Rates, Processing Times etc) and by feedback from applicants. This could be decided by the Ombudsman's Office or by some other method. This scheme would be like the current Quality Audit Scheme for Universities.
Agencies will often respond very vigorously to even non-financial incentives. For example:
In the Commonwealth Issues paper on FoI the following points were made:
The external review of such a small proportion of decisions may mean that additional quality control measures are needed. Some agencies have their own quality controls but there is no government wide quality control apart from AAT appeals and Ombudsman complaints.
A monitoring function, independent of existing review arrangements, may benefit individual agencies and the FOI system as a whole. Monitoring could increase public confidence and encourage agencies, where necessary, to improve request processing.
Under the Privacy Act the Privacy Commissioner audits agencies' handling of personal information. He makes detailed comments on these audits in his annual reports."
Establishment of an independent FoI Research and Audit Unit as a quality control monitoring service is an urgently needed reform.
Applicants should have some way of knowing whether they are dealing with a "Quality Practice Agency" or an agency which inspires further requests or reviews because it is a bit of a lottery whether information will exist or can even be found.
My experiences as a user of the Freedom of Information Act 1991 (Tas) has been a saga of lost files, further documents being discovered at internal review and then later more documents at external review. In relation to adequacy of searches I have made the observation that the onus is on agencies to try and persuade the reasonable applicant that an agency's search for records has been adequate in the circumstances.8 Given past history, and the observations made in the Fitzgerald and WA Inc Royal Commission Reports, the onus is on an agency to demonstrate that its record management practices are not deficient.
The major record management issue for FoI is the failure to record information or to establish enough of an audit trail to inform external observers of how decisions were reached or justified. There needs to be a systematic approach to uncovering deficiencies in record management practices.9 The Canadian Information Commissioner has made the following recommendation in his 1993-1994 Annual Report
It would be an interesting exercise for the Committee to randomly and directly access a range of non-personal information files in a number of agencies to see the extent that the yellow label virus, or similar practices, have proliferated since 1 January 1993.
5. Alternative Suggestion: Creation of an Information Commission
The model of an Information Commission to supervise FoI in Tasmania is worthy of further consideration. Many of the administrative reforms I have suggested could easily be included in the charter of such a Commission. The model has been proven to be very successful in Queensland and Western Australia and is an option being considered for the Commonwealth. The NSW Ombudsman has suggested that a version of this model be adopted in New South Wales.11
An Information Commission could be seen as a possible duplication of functions and resources to that of the Ombudsman Office. However the success of the concept in Queensland and Western Australia has in large measure been because of the necessity for those Governments to explicitly demonstrate their particular commitment to information access, information management and the handling of privacy. At the moment the Government is able to effectively emasculate the Act by limiting resources of the Ombudsman Office.
The members of the Committee will recall the rock solid commitment given by this Government that it would increase resources to the Ombudsman Office to offset the workload associated with FoI.
The Tasmanian Office of the Ombudsman, after been given responsibility for external reviews under the FoI Act 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:12
....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.
The Government has obscured its dramatic retreat from supporting the Freedom of Information Act 1991 by the expediency of pointing to global cuts to all departments and programs as a justification for cutbacks to the Ombudsman. A separate authority would demand that the Government quantify the level and strength of its support of Freedom of Information.
A separate Information Commission could incorporate the earlier reforms I have suggested in regards to auditing information handling, ensuring a proper statistical reporting of FoI and other measures. The organisation would be responsible exclusively for monitoring, surveillance and education.
2. Attorney-General (US) Memorandum 4 October 1993.
3. First Annual Report of the Office of the Information Commissioner WA 1993-1994, 27.
4. Information Commissioner of Canada, Annual Report Information Commissioner 1993-1994, 7.
5. Information Commissioner (Canada) Annual Report, 7.
6. Memo, Secretary of Department of Treasury and Finance, 24 November 1994, "Annual Report".
7. Australian Law Reform Commission and Administrative Review Council Issues Paper 12 Freedom of Information, September 1994, paras 4.12-4.13.
8. R. Snell, "Obviously Four Unbelievers: Adequacy of Searches Under FoI, an Act of Faith?" (1994) 50 FoI Review 15-18.
9. I would term the use of yellow sticky labels as a serious deficiency.
10. Information Commissioner (Canada) Annual Report, 10.
11. NSW Ombudsman, "Freedom of Information - Way Ahead".
12. Ombudsman (Tas) Annual Report for the Year Ended 30 June 1993, 7.
"When dealing with FoI complaints my office will now initially presume access should have been granted to all requested documents. This approach is based on and designed to further the objects of the FoI Act."
The Canadian Information Commissioner has made a similar recommendation:
"this report also makes a plea for government leadership in support of the value of openness. In particular, the Prime Minister should give specific written direction to his ministers and senior officials that public access to government information is not to be unreasonably delayed or denied. The clear direction should be: Find a way to release information, not a way to withhold it."4
Many applicants are justified in feeling that the agency is playing "Pick An Exemption, Any Exemption Will Do" when they deal with non-personal information requests. Regular users of FoI in Australia cannot escape the conclusion that current practice appears to place the onus on the requester of information to demonstrate that the exemption being claimed is invalid. The Canadian Information Commissioner categorised access law as expressing
"a single-request, often confrontational approach to providing information - an approach which is too slow and cumbersome for an information society."
2. Greater publicity for Act
"As part of the continual process of improving our Annual Report and aiming for first prize in the RIPAA Annual Report Awards, the report has undergone a substantial facelift"6
4. Monitoring agencies' processing of requests
"The way agencies handle FoI requests is not systematically reviewed. Independent examination only occurs if an appeal or complaint is lodged....Less than 1% of FOI requests received external scrutiny.
External Review agencies, such as the Tasmanian Ombudsman, treat most deficiencies identified in request handling process as isolated and specific instances and not reflective of systemic irregularities.
"Archives Act be amended to affirm government officials' duty to create such records as are necessary to document adequately and properly, government's functions, procedures and transactions."10
The establishment of a FoI Research and Audit Unit attached to or reporting to the Ombudsman may be a solution. The linking of research and auditing is desirable so that systemic deficiencies can be identified, understood and realistic reforms presented in a timely and coherent program. While the proliferation of yellow labels has been greeted with a wry sense of acceptance by Australian public servants it and similar practices need to be exposed and eradicated.
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.
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.
1. Fold the top corner of a document over and write your comments on that area of the document. When an FoI request is received fold the corner back into original position and photocopy the front of the document only.
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