ACT News


The right balance on FOI requests

In an article appraising Labor's revised freedom of information regime (published in this newspaper last year) Australian National University political scientist Richard Mulgan observed that while ministers and public servants would adjust to greater openness ''FOI campaigners should not be surprised if the citadel of government secrecy does not fall at the first attack''.

Those who read it would have recalled the caveat on learning that a review of Labor's FOI changes being undertaken by former senior public servant Allan Hawke had drawn a barrage of submissions from government departments, nearly all of them complaining about the costs of meeting the changes that were ushered in in 2010.

The Department of Foreign Affairs and Trade has questioned whether the government, in abolishing the standard $30 application fee and allowing FOI requests by journalists, lawyers and not-for-profit organisations, was deriving ''value for money'' from the changes.

At least two departmental submissions have advocated longer statutory periods in which to respond to applications, while others have volunteered the view that imposing caps on FOI requests would be one way to reduce the demands being made on public servants.

With public service budgets being squeezed, it is no surprise that there should be bureaucratic grumblings about the resources being diverted to deal with FOI requests, particularly as there is solid evidence these are not only on the rise but also becoming more complex.

In his 2012 report on Labor's changes, Information Commissioner Professor John McMillan pointed out that law firms and other businesses have taken to using FOI as an alternative to discovery or to wage regulatory battles with government, as have individuals with a particular grievance against an agency.


Such trends appear to indicate a view that FOI, rather than being a means by which interested individuals can prise secrets from governments, can be put to more profitable, and problematic, use. As such, perhaps, it may not be unreasonable for government departments to suggest some fine-tuning of the regime.

The first of Professor McMillan's recommendations, and perhaps the most significant, was to suggest that agencies encourage the public to ask for information informally first, rather than using the more expensive FOI process, and to reinforce this by levying a $50 application fee for those who didn't at first try to access documents through less formal means.

Professor McMillan also advocated the adoption of a new fees system based on a sliding scale, noting that the current guide to processing charges had not been updated since it was written 26 years ago. An FOI request would be free if it took less than five hours to process, $50 if processed in less than 10 hours.

Each hour over 10 would be billed at $30. To that might be added an exemption for legitimate public interest inquiries by the media.

Professor McMillan's suggestions may be regarded as putting more impediments, not fewer, in the way of information disclosure, but in fact, the proposed charges do not seem unreasonable.

The pay-off would be in the reduction of requests by vexatious individuals or litigious corporations. As Professor McMillan noted, ''it's always a contest between balancing the cost to the agency and encouraging disclosure, but at the moment the balance isn't right''.

With FOI laws having been on the statute books since 1982, government agencies ought by now to be fairly efficient at the process of finding and delivering information. But the displacement of paper records by electronic files can actually make the job of tracking down information more time-consuming.

Progress towards greater accountability and accessibility has not been helped, either, by the natural tendency of bureaucrats to withhold material that could damage their ministers politically. The ministers have it in their power to break down this culture of secretiveness, but with a few notable exceptions (like Senator John Faulkner) not many are prepared to stare down the naysayers.

Were they to require agencies to place most, if not all, documents and reports on websites, and to institute a policy of making FOI requests the avenue of last resort for those seeking access rather than the main mechanism, governments could cut costs substantially.

With Senator Faulkner now on the backbench and no one apparently keen to assume his reformist mantle, there is a growing momentum towards reversing his changes. The default position, for governments, should be to release as much information as possible, not to find ways to withhold it.