New parliament can fix FOI, but public servants will have to get onboard

Attorney-General Mark Dreyfus has more on his to-do list to reinstall trust in government. The public will take heart from his promises to end political appointments of Administrative Appeals Tribunal members. Together with a healthy injection of the more expansive integrity reform agenda driven by "teal" crossbench MPs, there's much reason for optimism that this term of parliament will force future governments to be more accountable and transparent.

There is however a strange quiet on one item that should sit on any credible agenda of integrity reform. The new Labor government is yet to state definitively what it will do about the shambolic state of the Commonwealth freedom of information system, a mechanism sorely in need of attention after years being trashed under the Coalition.

As unsurprising as it is for a journalist to call for a better-resourced, more disclosure-leaning FOI regime, there is renewed urgency to overhauling the system as the nation approaches a window of reform. It will take determined championing from crossbenchers, even if they're unlikely to take up the cause with quite the same gusto as former senator and self-anointed "FOI jedi" Rex Patrick.

As important to the success of reinvigorating FOI will be the attitudes of public servants. Leading bureaucrats have tried to reshape the somewhat jaundiced view taken within departments and agencies toward freedom of information. Last year, then-National Archives of Australia director-general David Fricker urged public servants to drop their "visceral fear" about freedom of information rules and shed their complacency about the importance of releasing documents to the public. In the early stages of the pandemic, Australia's information commissioner Angelene Falk encouraged the public service to proactively release information for people wanting to understand decisions made during the crisis, to ease the strain of FOI requests.

Such calls seemed to leave the public service unmoved. Judging by the views expressed in the FOI decisions received by this journalist, and by opinions from within the public service about freedom of information, the wider bureaucracy lacks an understanding of the purpose of the system or is too concerned with protecting itself to administer it with the public's interests at heart.

Mr Fricker and Ms Falk were right to voice their views, because what's needed is a discussion that clarifies the real intent and principles of the FOI system for public servants. It shouldn't be forgotten that documents created by the government and public service are paid for by the public, and should inherently be accessible by the public. The result of FOI obstruction extends well beyond mere journalistic annoyance. Much about the previous federal government's handling of the pandemic remains a mystery to the public. Trust in government - and the bureaucracy enacting its decisions - takes a hit. Voters are less informed in making their choices at the ballot box.

The other purpose of FOI is the very "visceral fear" that Mr Fricker described. It's an all-pervasive check on integrity. If public servants are worried about whether an email or document detailing a decision sees the unredacted light of a disclosure log, then they should consider whether they are doing the right thing. Visceral fear for wrong-doers is the point of FOI.

As it stands, Labor inherits a freedom-of-information system in terrible disrepair. The latest government report shows the number of requests decided fell in 2020-21, requests on hand at the end of the year increased, the percentage of FOI requests granted in full decreased, and the proportion that were outright rejected grew. Decision-making became less timely, as fewer FOI requests determined were processed within the statutory time period.

The spectre of angry ministers and their advisers probably also cowed agencies in their FOI decisions under the Coalition. By the same token, the new government will have a large influence in fostering a healthier freedom-of-information regime. Arguably no minister will have more sway than the new Attorney-General himself, who can spearhead an overhaul. In a speech in April, Mr Dreyfus acknowledged FOI was an area of law that had been neglected and in need of reform. That's cause for some hope the issue won't go forgotten in the next parliament.