Current Administration of the Act
Administered in a "tardy and grudging way"1
There is no doubt that Tasmanian bureaucrats have been produced from a mould based on generations of government secrecy and the perception that Tasmanians are best governed on a need to know basis. The Burnie Hospital saga is an ample demonstration of the continuation of that approach to public administration. Individual public servants have performed their FoI functions to the best of their ability and capacity given the low priority and minimal resources begrudged by the Government to support this legislation.
Yet Sir Harry Gibbs observation about the administration of FoI has been clearly upheld in Tasmania over the last two years. The irony for the Government is, that in the absence of the Freedom of Information Amendment Bill 1994, FoI in Tasmania would have eventually withered away. A poorly resourced Ombudsman, an indifferent and at times hostile senior bureaucracy and the relatively minimal use of the Act by professionals such as journalists and lawyers (except in a ham fisted and a follow the leader way in one small area of its potential use by lawyers) would have seen the practical demise of FoI in Tasmania within the next three years.
1.0 Crippling the Guardian
In Point 5 of the previous section I highlighted how the Ombudsman's effectiveness in FoI was being severely restricted by the savage cut backs in funding. The emasculation of the Ombudsman seriously hampers the ability of that office to perform anything other than a reactive role. Similar, and more critical, observations have been made about the impact of these types of restrictions have had on the role and operations of the New South Wales Ombudsman in relation to effective FoI supervision.2
1.1 Reasons for Decisions
When compared to reasons for decisions issued by the Information Commissioners in Western Australia and Queensland there is no doubt how funding restrictions have made the Ombudsman's standard setting role ineffectual and substandard. A recent comparison of the standard and quality of reasons for decisions between the Western Australia Information Commissioner and the Tasmanian Ombudsman in relation to decisions made in relation to Section 33 (Confidential Information) reached the following conclusion:
The average length of a decision by the Tasmanian Ombudsman is 3-5 pages for the Western Australia Information Commissioner the average is about 20 pages. Quantity and quality are not necessarily related but it is hard to escape the impression that review decisions are being made under very trying and difficult circumstances in the Ombudsman's Office.
1.2 Time Limits
Currently the Ombudsman requests on a regular basis an extension of time (normal time limit for an external review is 30 days) from applicants. The time delays associated with the external review exacerbates the problems with delays in the processing of FoI requests.
1.4 Still Scoring Points for Accountability
Despite my previous pessimistic comments 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:
This 50% plus adjustment rate in favour of applicants in the first 18 months of the Act's operation is a sad indictment in the nature and quality of decisionmaking at the Agency level. However funding restrictions effectively limits the Ombudsman to winning what may in the long run be small pyrrhic victories leading to eventual defeat in the disclosure war. This quality control check only takes place in regards to the handful of applicants who are obstinate enough to pursue their rights to review. Too many applicants will regard the actions of Agencies as clear writing on the wall that information will not be released and never seek external review.
2. Inadequate statement of reasons
I have made several criticisms about the adequacy of reason statements supplied by agencies in Tasmania and elsewhere.7 A study carried out by a law student at the University of Tasmania in 1993 demonstrated that Tasmanian Agencies needed to improve the overall adequacy of reason statements. The study highlighted that FoI Officers and Principal Officers had difficulty understanding what was required to achieve an adequate statement of reasons and concluded that:
I believe that a close inspection of the FoI requests decided in days 25-30 after a request is received would reveal a disproportionate number of cases involving access to policy or other non-personal information. I also hold the suspicion that many of these decisions could have been made on the day the request was received rather than spinning the delay out until near the maximum period allowed under the Act.
The Committee should investigate whether it is a common practice for some agencies to "sit on" requests rather than process them in the quickest time possible. I am aware of many requests which have been decided in the last days of the maximum time period which could have been easily decided in the first five days of the request being made. For example the two tables below show how long it has taken various agencies to process my requests. While some have been difficult a number of the examples resulted in the agency releasing very little or no information upon my initial request.
Time Taken to Process Requests
4. Frankness and Candour smokescreens
Letter to Rick Snell from Department of Finance and Treasury
The Western Australian Information Commissioner in an unreported decision 94034 Re Ian Taylor and Ministry of Premier and Cabinet made the following observations about the standard and level of scrutiny that public officers, especially senior officers, should be subjected to and why the public interest is in favour of disclosure;
2. Smith, "The demise of FoI in New South Wales," 4-5. FoI Review 1993
3. Trang Nguyen, "s33 Freedom of Information Act (Tas) 1991 and the Tasmanian Ombudsman". Undergraduate Research Paper ,Advanced Administrative Law, University of Wollongong 1994-1995 at 11.
4. Nguyen, "s33 and Tasmanian Ombudsman, 15.
5. Various other requests were withdrawn or dealt with outside the parameters of the Act. For example wrong decision conveyed to applicant due to clerical error see Ombudsman (Tas) Annual Report for the Year Ended 30 June 1993, Case FoI 10 at 14.
6. Ombudsman involved but without formal review proceeding, agency and applicant agreed to partial release, or agency provided in full after referral back to agency after "deemed decision" of refusal.
7. "Reasons for Decisions: The Tasmanian FoI Act" (1992) 40 FoI Review. 42-44, "Obviously Four Unbelievers: Adequacy of Searches Under FoI, an Act of Faith?" (1994) 50 FoI Review, 15-18.
8. Natasha Apandy, "Freedom of Information: The Adequacy of Statement of Reasons in Tasmania, 1993 Principles of Public Law Research Paper.
"Contrary to the expectations of many, the Ombudsman's practices in the construction of s33 of the FOI Act have been far from desirable in the light of the Act's scope for allowing access to information and the development of a state-citizen relation. In a number of FoI reviews made in 1993, the interpretation of s33 has been limited to quoting the section of the Act followed by an "off-handed" covering comment indicating whether the information falls within the exemption or not."decisions explained to both parties the reasoning behind the conclusion."4
Summary of Decisions. 5
Agency decision upheld
12
Partial upheld/reversed
15
Agency decision reversed
8
Released by arrangement
56
Total
40
" the overwhelming conclusion is that the standard of statements of reasons are inadequate based on the recommendations and requirements of Attorney General's Memorandum No. 26. Furthermore, in failing to meet the criteria stated below, there is an overwhelming failure by agencies to comply with their statutory obligations in providing a statement of reasons, under the freedom of Information Act (1991), and in fulfilling their obligations to the public to inform them of their real basis of a decision."8
There has been an improvement in the standard of statement of reasons by some agencies during 1994, notably the Department of Treasury and Finance. However other agencies, especially in regards to Section 47 review decisions, are still woefully inadequate. It is not rare to find many applicants, who have provided several arguments in favour of disclosure, being rebutted in a brief and offhanded way by comments like;
"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."
3. Sitting on sensitive or troublesome requests
from R. Snell in 1993
Agency
Time Taken (Maximum
period 1993 45 Days)
DPI
36
TDR
27
Justice
35
Justice
56
DELM
15
DEA
16
Time Taken to Process Requests
from R. Snell in 1994-1995
Agency
Time Taken (Maximum
period 1994-1995 30 Days)
HEC
36
TDR
42
DPAC
16
DPAC
29
Treasury
30
Treasury
50
"The public interest consideration has been noted against relevant documents where applicable. These considerations are based on a view that good government requires that departmental advice to Ministers be frank, open, honest, complete and professional. If that advice is to be subsequently made available to third parties, officers will be reluctant to provide advice and offer opinions in a complete and frank way. This also applies to advice from departments on Cabinet submissions. The quality of the advice will accordingly be of a lower standard than if it remained entirely between the Department and Ministers. The quality of the decision making based on that advice and consequently the quality of the government will be lower than otherwise would be the case. This is not in the public interest."
It seems that the upper echelons of the bureaucracy are quite prepared to wheel and deal, and have crucial inputs into the operations of the parliamentary process but only under the cover of secrecy.
para 50
A frankness and candour defence allows Tasmanian agencies to avoid scrutiny of many types of decisions. The NSW Ombudsman in relation to Clause 9 (equivalent to Section 27 of FoI Act Tas) of the NSW FoI Act has issued Guidelines which state "However, once a final decision on a matter has been made, the public interest would generally assert that documents are no longer exempt under clause 9." (NSW Ombudsman Guidelines 9.16.17 at page 59).
"responsibility of CEOs of government agencies include the duty to express critical views about administrative procedures in the public sector that adversely affect efficiency and effectiveness, for the purpose of finding better ways to achieve desirable outcomes"
para 51
"I do not accept that senior executives in the public sector would expect their views about staff selection and promotion procedures to remain secret, nor do I consider in the public interest that they should."
1. Sir Harry Gibbs, Foreword to Keeping Them Honest: Democratic Reform in Queensland, University of Queensland Press, 1992 xvi.
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