Freedom of Information

Since the changes in Australian Freedom of Information legislation (see below) took effect on 1 November 2010 the number of FOI requests to Australian federal government agencies has grown overall by 48%. Different government agencies have been recording variant figures, with some agencies having requests up by over 70% while others figures are down or stable.

Prior to the change in legislation, FOI requests were on a continuing downward trend from an already low base rate, which is one reason the changes were brought in.
People were not able to access the information they wanted or needed, due to cost, excessive exemptions which limited access rights and a general culture of non-disclosure by agencies and their FOI staff.

FOI staff traditionally looked at FOI requests not with a view on how to support access and transparency, but to determine how to use the law not to disclose.

The change in legislation reversed this, it instructed FOI staff to assist people seeking information, it made initial requests free and it reduced the exemptions and made them have to be judged against a general public interest test, which determines that “access must generally be given to a conditionally exempt document  unless it would be contrary to the public interest”.

The change in legislation seemingly has worked and more people are able to access government information. Other facets of law or government policy changes are also assisting as agencies are also now directed to publish their corporate documents online, put their data sets up on data.gov.au, and move to open copyright licences.

But is information access being made to everyone?

The number of FOI requests by individuals is stable or declining (depending on who you ask). These individuals represent the “information poor” or the average person who generally does not have the knowledge or expertise to be able to know what information is available or to navigate the FOI process.

Where there is a significant rise in FOI usage is by the “information rich” that is people in the  news media, legal profession and academic arena who know of the legislative changes and are able to benefit from them.

All large media organisations (TV stations and newspapers) now employ staff whose job it is to produce and manage FOI requests. These staff on behalf of journalists, or it can be by the journalist themselves, regularly send requests to government agencies seeking access to information. There have been multiple instances of this source of information in major news stories of the last few months. This is a good and valid use of FOI disclosure in the public interest. However some FOI staff are unhappy due to the workload as many of the FOI requests are what are known as trawling exercises, whereby large amounts of information are requested because the journalist a) may not know exactly what they are looking for or, b) want to hide exactly what they are looking for within a greater information set.

Another user group is academics who know what information the government holds and now have a chance to access it to support their research.

The other large scale use is by lawyers. The ‘discovery process’ whereby information and documents are gathered for a case, used to be an expensive and long process. Now however, an FOI request to an agency which may have nothing to do with a case except via some regulatory action, or may actually be a party to a dispute can be used to find and organise and deliver large amounts of information. Some FOI staff are unhappy about this as they feel they are doing work for a commercial entity, which that entity should be paying for.

It is possible for government agencies to charge for handling some FOI requests and for providing some information, however this is set at a rate that would not actually cover costs. This low rate was designed so as not to put off potential applications from poorer individuals. In some cases also the fees can be waived outright. There is a growing demand from some FOI staff in Commonwealth agencies for changes to the legislation. They wish to be able to charge enhanced fees to commercial entities such as media and legal organisations. There are also some staff who do not agree with the new policy of disclosure and some government agencies that are also uncomfortable, for example, The Department of Prime Minister and Cabinet released in July its FOI Guidance Notes which although seemingly endorsing access, could also be seen as existing to show staff how best not to disclose.

What we are seeing therefore as we come to the end of the first full year of the new legislation is that those who know how to use the system and have prior knowledge are able to better access information.

These people and organisations, whether commercial or not, have every right to use the legislation and receive the services of the agency and their staff (as public servants) to meet their information needs. It would be a serious mistake to change the legislation due to the complaints of some staff who are being asked to work harder (it would be better to instruct agencies to employ more staff).

The major problem therefore is not that some people or organisations are using the system too liberally, but that information poor individuals are not using the system enough.

It is to be hoped that in the next year that the Australian Information Commissioner takes upon itself as a priority the education and promotion of the pathways to government information.

It is also hoped that the Commissioner ignores the attempts to to try to shut down the access we now grant, and supports expanding FOI services.

Freedom of Information Act 

Objects

(1)  The objects of this Act are to give the Australian community access to information held by the Government of the Commonwealth or the Government of Norfolk Island, by:

(a)  requiring agencies to publish the information; and

(b)  providing for a right of access to documents.

(2)  The Parliament intends, by these objects, to promote Australia’s representative democracy by contributing towards the following:

(a)  increasing public participation in Government processes, with a view to promoting better‑informed decision‑making;

(b)  increasing scrutiny, discussion, comment and review of the Government’s activities.

(3)  The Parliament also intends, by these objects, to increase recognition that information held by the Government is to be managed for public purposes, and is a national resource.

(4)  The Parliament also intends that functions and powers given by this Act are to be performed and exercised, as far as possible, to facilitate and promote public access to information, promptly and at the lowest reasonable cost.

UPDATE

FoI charges are going to be reviewed, with a view presumably to cut costs and levy fees on applicants: http://www.ministerhomeaffairs.gov.au/www/ministers/oconnor.nsf/Page/MediaReleases_2011_FourthQuarter_7October2011-FOIchargesregimetobereviewed

Hopefully it will be recognised that although transparency may cost more to manage, it is a cost that the information holders should undertake, and not information seekers.

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