The Right-to-Know campaign, funded from the deep pockets of major news organisations, has concentrated on the rights of journalists and whistleblowers to legal protection when pursuing matters governments want to keep secret.
While the aims are laudable, they ignore the broader issue of FOI (freedom of information) which underpins the government's legal obligations to disclose information to the public. Unless ministers and public servants accept the public's right to have access to most of the material that crosses their desks, they will have little respect for the rights of journalists and whistleblowers who are testing the limits of this access.
Indeed, the Right-to-Know campaign implicitly recognises the fundamental importance of FOI through its use of a heavily redacted FOI document in its advertisements.
Unfortunately, the Commonwealth's ambitious FOI regime, established in 2010, is under strain as a result of shrinking resources and deliberate neglect. For example, the Department of Home Affairs has recently come under fire for the high proportion of FOI requests that have not been answered within the statutory 30-day period. In response the Office of the Australian Information Commission has opened an investigation into the department's compliance with the FOI act. More broadly, the information commissioner, Angelene Falk, in a wide-ranging address for Right to Know Day, confirmed most agencies were failing to meet many of their obligations under the act.
The central core of the FOI structure is still intact. Most agencies are making a reasonable attempt to deal with an annual total of 35,000-40,000 requests from the public, more than 80 per cent of which are for personal information and the remainder for "other" information about policy and administration.
The Department of Home Affairs attracts by far the largest number (almost one in four of all requests), followed by Human Services (now Services Australia) and Veterans' Affairs. Most requests are processed within the statutory period of 30 days (as high as 85 per cent in 2017-18). Numbers of requests and percentages of requests duly processed can fluctuate sharply from year to year, partly as a result of changes in administrative practice. In particular, Home Affairs and Human Services have significantly improved their throughput of personal requests by allowing administrative access to information previously available only under FOI.
However, when pressed further, the data reveal more disturbing outcomes. Home Affairs, for instance, last year processed only 56 per cent of "other" (non-personal) requests on time.
Another problem highlighted by Senator Rex Patrick of the Centre Alliance concerns the treatment of requests that cannot be dealt with inside the statutory 30-day period. Under the FOI legislation, an agency can issue a "practical refusal" if it considers a request would "substantially and unreasonably divert the agency's resources from its other operations" or the request does not adequately identify the documents sought. If a practical refusal is issued, the agency is obliged to inform the applicant and take reasonable steps to help the applicant revise the request in order to meet the practical objections. For example, applicants may be advised to narrow the terms of the request or to specify a particular document.
As answers to Senator Patrick's questions indicate, the Department of Home Affairs is not adequately applying this revision procedure. The department sought extensions for only about 30 per cent of all requests that ran over time, leaving the rest (about 3700 in total) to lapse and be deemed as refusals, as the legislation allows. Some of these lapsed requests will be due to applicants who themselves decided not to pursue the issue. But many result from the department's unwillingness to follow up the possibility of an extension. In this way, the provision for revision, which is intended to assist inexperienced applicants in making reasonable requests, is not fulfilling its proper purpose.
A frank exchange at Senate estimates between Senator Patrick and the secretary of Home Affairs, Michael Pezzullo, underlined the shortfall in FOI implementation is a consequence of deliberate government choices. The senator pointed out that FOI requests to the department will have increased by about 20 per cent over the past two years, but without the addition of any extra staff. In that case, the department was knowingly in breach of its legal obligations under the FOI act and was not taking sufficient steps to remedy the situation.
Pezzullo, with typical directness, replied that the department's funds would not be augmented to meet an increase in FOI requests. Any additional resources for FOI administration would have to come from "frontline operations", such as counter-terrorism or countering foreign interference, a shift in priorities he was not prepared to contemplate. He defended his department's handling of FOI requests noting the more than 80 per cent compliance rate (a figure that includes all requests, personal as well as "other"). He pointed to the very small number of departmental decisions overturned when reviewed by the information commissioner.
He was also willing to encourage further efficiencies to reduce the time taken on meeting requests. But he was not prepared to seek an increase in resources to meet the growing demand. Senator Patrick's conclusion stands. The Department of Home Affairs (probably not alone among government departments) has decided, with full ministerial backing, not to allocate sufficient staffing resources to properly fulfil the intentions of the FOI legislation.
This exchange illustrates two contrasting attitudes to the FOI legislation. On the principled view, espoused by Senator Patrick, the FOI legislation enshrines citizens' basic rights to information that governments are obliged to implement to the letter. On the pragmatic view, put forward by Pezzullo, the FOI legislation sets out certain ideal standards of transparency, which governments are merely obliged to work towards within the resources they choose to allocate to implementing them.
Other areas of FOI policy exhibit the same gap between ideals and practice. For instance, the FOI act requires each agency to establish an Information Publication Scheme to assist with the general aim of disclosing more information. A scheme is an elaborate framework that specifies types of information agencies must publish online, such as details of the agency's structure and functions, annual reports and other information presented to parliament, the name of a contact officer for inquiries about FOI. Agencies are also required to operate an information plan covering all the different aspects of their information policies.
The information commissioner has twice surveyed agencies for compliance with the scheme: once in 2102, soon after its inception, and again in 2018. Overall, while most agencies have adopted the main elements of the scheme, a significant number did not meet the commission's compliance standards. For instance, in 2018, 12 per cent had not established a plan at all; 24 per cent had not appointed a senior executive office to lead its information performance; and only 27 per cent had established a formal information governance structure. Most significantly, in 2018, compliance against all the information commissioner's indicators had declined significantly since 2012, indicating a general slackening of commitment to the scheme over the intervening period.
Admittedly, the information publication scheme is ambitious and, to be fully implemented, would require a level of resources that may be unrealistic for many agencies, particularly the smaller ones. But the negligent approach adopted by many public service leaders is further evidence that the public service is knowingly short-changing the public in how it handles its FOI obligations.
One factor in this general pattern of neglect must be the weakened position of the information commissioner itself, which has never fully recovered from the Abbott government's attempt to starve it into extinction. The position of information commissioner, for instance, is now permanently combined with that of privacy commissioner, and Falk performs both roles. As she stressed at Senate estimates, the resources available for the office's FOI functions are seriously inadequate. The most obvious symptom is the office's inability to deal with the increasing number of FOI decisions it is asked to review. In spite of improved procedures and efficiencies, the backlog of cases for review continues to grow, badly impairing the overall effectiveness of the FOI regime. Not surprisingly, the commissioner and her overstretched office have had little time to devote to their general role as monitors of the FOI regime and champions of open government.
If the media organisations behind the Right-to-Know campaign are serious about their commitment to the public's right to government information, they should urge the government to increase the funds available to the information commissioner. They should also demand agencies allocate sufficient resources to enable timely performance of their FOI obligations.
- Richard Mulgan is an emeritus professor at the Australian National University's Crawford school of public policy. firstname.lastname@example.org