Faulkner’s FOI reforms get a Credit grade from me

(*This was posted elsewhere for my CDU Intro to Public Law students, so it might be a bit dry and technical for some.  Nevertheless others might find it worth reading)

The Rudd government’s proposed reforms to the Freedom of Information Act 1982 (Cth) (“FOI Act” ), sponsored by Special Minister of State John Faulkner have received a mixed reception from media and bloggers.

The Sydney Morning Herald was almost rapturous with praise while The Australian has been rather more equivocal, and positively scathing about related reform proposals on whistleblower legislation (which currently doesn’t exist at Commonwealth level) and “shield” laws for journalists who protect their sources (as journalistic ethics require).

Blogger and FOI legal expert Peter Timmins also damns Faulkner’s reforms with faint praise:

To the outsider, the bulk of available time to date on FOI reform appears to have been spent by Minister Faulkner, his office and the public service engaging in a 16 month, largely private internal seminar on drafting legislation to enable the Government to tick the box on another election commitment. It could have been different if there had been a serious attempt to reach out to engage the community on the subject of government transparency and accountability, not now after 16 months, but way back when minds first turned to the subject. That didn’t occur. Overall, however its way better than what was on offer-nothing- from the last lot.

I think Timmins is being a little unfair.

The Australian Law Reform Commission’s Beyond the Door-Keeper report essentially identified 7 significant deficiencies in the current operations of Commonwealth FOI legislation:

  1. There are far too many categories of exemption from disclosure;
  2. “Ministerial certificates” allow the executive government to put some categories of document almost completely beyond disclosure or effective independent review of non-disclosure decisions;
  3. Court interpretations of FOI have meant that it is interpreted conservatively and technically, with no bias in favour of disclosure;
  4. Even though the Act allows/requires balancing between public interest factors favouring disclosure versus public interest factors favouring maintaining secrecy in respect of some exemption categories, the courts have tended to accept weak and even spurious arguments for maintaining secrecy;
  5. There is no Information Commissioner under the Federal FOI legislation, and therefore no independent agency to assist the citizen in fighting for disclosure against a powerful bureaucracy with an entrenched culture of secrecy;
  6. Application fees and charges by agencies for time taken in locating documents the subject of an FOI application and perusing them to ensure they do not contain exempt material, are often prohibitively high;
  7. There is no obligation on departments or agencies to store documents efficiently so as to minimise the cost and inconvenience of document search and retrieval following the making of an FOI application.

Timmins demonstrates fairly persuasively in a longer post that the Faulkner proposals do little or nothing to address deficiency 1.: they’re just tinkering around the edges. But arguably the sheer number of exemptions isn’t the central reason why FOI has failed to lve up to its original aims. The Faulkner reforms specifically and effectively address the great bulk of the deficiencies identified by the ALRC:

  • on 2. by abolishing “Ministerial Certificates” (an express election promise);
  • on 3. by legislating for a clear bias in favour of disclosure;
  • on 4. by abolishing the most egregious weak excuses for non-disclosure (see below for more detail);
  • on 5. by establishing an office of Information Commissioner;
  • on 6. at least in part, by abolishing FOI application fees.

4.5 out of 7 ain’t bad on most scales. On CDU Law School’s marking scale it’s a mid-range Credit grade which, if maintained, would entitle Senator Faulkner to enter the Honours stream in his final semester of study. A creditable effort but a little more application will yield even better results.

Finally, it may be worth explaining my comment above about ALRC deficiency 3. At one time there was a trend for the AAT to accept arguments to the effect that the public interest in disclosure was outweighed by considerations that administrators would be inhibited in the effectiveness of their deliberations and assessments if they were unable to express themselves with “frankness and candour” in internal communications, for fear that their words might later be disclosed. Apocryphal stories were recounted about public servants communicating by yellow “post-it” labels attached to documents, which could be removed and discarded thereby circumventing public disclosure!

Approval of this argument against disclosure reached its high water mark in Re Howard and Treasurer of the Commonwealth (John Howard as Opposition Leader versus Paul Keating as Treasurer). The case dealt with high level policy documents (not being Cabinet or Executive Council documents, which are exempt from disclosure without scope for any weighing of public interest in disclosure). In Re Howard the AAT accepted Keating’s arguments to the effect that the public interest in disclosure was outweighed and exemption might be justified because of:

  1. the seniority of the person who created, annotated or considered the information;
  2. the possibility that the threat of later disclosure might inhibit the “frankness and candour” of public servants’ deliberations; and
  3. the possibility that the public may not readily understand any tentative or optional quality of the information.

Argument 1. hasn’t subsequently won much respects from courts or State-based merits review bodies, but arguments 2. and 3. have continued to win the support of judges, most recently by several High Court Justices in McKinnon v Secretary, Department of Treasury in 2006. Hence, Faulkner’s proposal to abolish 2. and 3. by legislation as legitimate factors in weighing the balance for disclosure is welcome and a very significant reform.

In fact, the only aspect on which I’m really disappointed in Faulkner lies in his failure to address ALRC criticism 7. Requiring all departments and agencies to invest in and maintain “state-of-the-art” document management systems would greatly reduce the cost and time involved in processing FOI applications, even ones where the application criteria are broad enough to encompass thousands of documents. If all government documents (inwards and outwards) were digitised and indexed by a Google-like searchbot, and also indexed on creation by humans against obvious basic non-disclosure criteria (created for dominant purpose of legal proceedings; Cabinet document; obtained in express situation of confidentiality etc.), then the time for retrieving and assessing even very large FOI applications, and therefore the costs charged to applicants, would be vastly reduced. Moreover, such systems would deliver numerous other efficiencies and cost savings to government entirely unrelated to FOI.

Clearly Faulkner’s reforms aren’t “best practice” in these latter respects, but you seldom get that in the real world of politics. In the non-utopian world where most of us live these proposals are a lot better than I expected. The trick now will be to see how well they survive the subtle white-anting efforts of the Public Service between now and being formally introduced to Parliament.

About Ken Parish

Ken Parish is a legal academic, with research areas in public law (constitutional and administrative law), civil procedure and teaching & learning theory and practice. He has been a legal academic for almost 20 years. Before that he ran a legal practice in Darwin for 15 years and was a Member of the NT Legislative Assembly for almost 4 years in the early 1990s.
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