Critique of Justifications for Freedom of Information Amendment Bill 1994
As can be seen from Attachment 1 the hatching of this amendment bill has been a very long and carefully planned operation. The justifications for the amendments have been in operation since the first six months of the Act's operations. In large part these "planned justifications" have existed with reckless indifference to the actual operations of the Act. Fortunately for the Government, delays in drafting the amendments meant that, by the time the bill was introduced reality had moved slightly closer to the rhetoric.
The Government's justifications for changes to the Act can be shown as variously non-existent, weak or able to be corrected without amending the FoI Act. This Select Committee should subject the Government's justifications for the Amendment Bill to very careful and critical scrutiny. A Government that seeks to amend vital democratic legislation like the FoI Act should be required to present detailed and accurate evidence for such changes.
Preparing the Ground with no regard for reality
In the first Annual Report on FoI the Premier in the Foreword unveiled the inaugural display of the basic justification framework for the then still hidden agenda of the Government.
In the last weeks leading up to the introduction of the Amendments the costs of FoI became an important justification. Figures varied from $400,000 to nearly $700,000 if everything was counted including salary costs of the FoI Unit etc. One unnamed academic had cost the Government over $16,000 thus providing irrefutable reasons to amend this expensive legislation.
However the moves to amend the legislation began in October 1993 when the costs associated with FoI were at their lowest and the unnamed academic had barely made his first couple of requests.
Rubbery Figures
Attachment 3 represents the total information (albeit very belatedly) the FoI Unit had gathered to show the costs associated with FoI. An inspection of these figures will reveal some very rubbery calculations and efforts to throw everything including the office computer into the calculations. For example (see Item 6 at Attachment 3) Transport and Works included $1200 for a computer, $1200 for training, $2,200 for searches and a further $9000 for processing of 64 requests. Meanwhile the Police (Item 6) have claimed $8410 for computer equipment and software.
In Parliament the Premier alleged that one academic had cost the taxpayers of Tasmania $16,000 to process FoI requests. Item 1 shows that Treasury claims that one request from an academic cost $12,100. This request was for an index to Treasury files. I had to pay to have Treasury's computers reprogram so they could produce such an index. Clearly Treasury finds the processing of requests three times more expensive than most other agencies.
Furthermore TDR (Item 1) claim that it cost $150 to tell me that they had no information in relation to my request. This process took 30 days. The HEC has calculated that it cost that agency $750 to provide me with 25 pages in relation to the handling of the Subordinate Legislation Act 1992.
Why user pays is a myth
I have previously argued that the FoI Act cannot be evaluated in terms of user pays. The Tasmanian Parliament in 1991 specifically designed the Act to provide the greatest amount of information at the least expensive rate possible.
Section 17 is designed to minimise the collection of fess and charges. Even in other jurisdictions where fees are higher and aimed towards a higher degree of cost recovery the average charge per request does not come anywhere near recouping expenses incurred. See Attachment 4 for the position in Western Australia.
In fact the Government's stated objectives on increasing the ratio of personal information requests (for which the Amendment bill will still allow fees to be waived) as opposed to non-personal applications will still ensure that the Act's operating costs will far exceed its earning potential.
However this Select Committee should reject this users pays rationale. The objectives of the legislation namely increased accountability and democracy reap far greater benefits for the Tasmanian polity then any simple cost benefit analysis measured in $ will ever be able to identify.
Many months ago I wrote in my first commentary on the Freedom of Information Act 1991 that;
The NSW Ombudsman has a recommended a plethora of changes to the Freedom of Information Act 1989, in regards to fees and charges, to reduce the possibility of abuse and to bring it in line with best Australian practice. In justifying these changes and picking examples of best practice Tasmania is often used as his prime example. (see pages 23-34 of his Special Report "Freedom of Information: way ahead") In response to the Ombudsman's previous Special Report, March 1994, on FoI the NSW Premier rejected similar recommendations on the grounds that:
The NSW Ombudsman has provided ample reasons and examples of what happens if FoI Acts are designed to be modified paragons of the user pays principle. Dr Spencer Zifcak has argued the following:
If cost is a major motivation in the Government's moves to amend the Act it should be required to calculate the costs associated with the bureaucracy's tardy and grudging administration of the Act I outlined in the previous section. Missed deadlines, inadequate statement of reasons, a large percentage of decisions being overturned on external review would have all contributed significantly to the costs associated with the administration of the FoI Act.
In Parliament Mr Groom indicated that an unnamed academic had cost the taxpayer over $16,000 in FoI requests. Even if we assume that those figures are accurate at least 70% of those costs can be attributed to slow processing, unfounded claims for exemptions (as shown on internal and external review) and woeful record management in several agencies (lost files, records scattered over several locations). In a recent request about the costs of FoI (which resulted in Attachment 3) it took the Agency 29 days to process that request. The Departments of Education and Treasury have had to undertake several searches for lost files and missing information.
Hunting for the Abusers
The Government has legitimated its blitzkrieg on the FoI Act on the basis that certain users - journalists, lawyers, politicians and academics - have over exploited the Act. It is my view that the only way that the democratic objects of the Act, as outlined in Section 3, can be achieved is via the activities of these users. When the Act cannot be used by professionals such as politicians and journalists then it will fail to achieve its objectives
The Government has constantly referred to the overuse of the Act by academics. To the best of my knowledge the only academic using the Act for non-personal information is myself. It would be a sad day for open government in Tasmania if my restrained and careful use of the FoI Act is used by the Government as part of its justification to blunt this relatively weak instrument of accountability.
2. Tasmanian Freedom of Information Bill 1990, A Report prepared for the Green Independents in Tasmania by the Communications Law Centre, 36.
"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. Many requests from other users required the allocation of significant resources because of their scope or complexity....requests from legal practitioners and other professionals..."
Creative Accounting and No Concern for Value for Money
Too often Government leaders when discussing FoI concentrate on the costs and problems with access rather than reflecting on what a qualitative difference the Act can make in the public arena. These benefits include increased government accountability and a better informed public. During the first year of operation in Tasmania, FoI provided vital information which made a fundamental difference to how public debate unfolded.
The use of FoI in regards to Hastings Cave and the Burnie Hospital case have brought benefits and levels of empowerment to ordinary citizens and their elected representatives that by themselves have almost offset any costs associated with the legislation.
Each of these matters runs counter to the user-pays philosophy which has been adopted in this state, in a modified form, for Freedom of Information. The modified system in practice provides for reduction in fees and charges in genuine cases of financial hardship or for public interest reasons. It is considered that this system is fair and reasonable in reducing charges in genuine cases of hardship while protecting agencies from unreasonable disruption to their normal activities from wide-ranging applications which could proceed unchecked if limits were placed on fees and charges for all FOI applicants.
In a tone familiar to supporters of FoI Mr Landa wrote "I found this response from the Premier to be particularly disappointing. I can only assume that the Premier was not fully briefed on the issues raised and the recommendations set out in my Special Report."
If the freedom conferred by the Act is to be meaningful, it must be capable of exercise. A freedom that is unaffordable is no freedom at all. The new legislation removes the ceiling on fees replacing it with a charging regime based on the user pays principle. In doing so, it will inevitably and significantly deter requests for policy and administrative documents, those which, more than any other, should be disclosed in order to enhance government's accountability to its constituents.
Paul Chadwick has argued in relation to a user pays approach to FoI that
FOI will add little to public administration if the only requests which become affordable are simple, routine disclosures of mainly non-controversial personal records.2
The costs of tardy administration
Section 3-(1) The object of this Act is to improve democratic government in Tasmania-
It is precisely to frustrate these objectives that the Government is seeking to amend the Act. The use of the Act by Dr Jackson in relation to the Burnie Hospital and journalist Nick Clark with the Hasting Cave Pool incident have by themselves justified the role played by professionals in the operations of FoI 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.
1. Freedom of Information Annual Report 1992-1993, Foreword by Premier.
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