Wednesday, June 11, 2008

Queensland FOI law: for better or worse?

Queensland Government took delivery of a major report today that recommended 141 changes to the state's Freedom of Information laws. The report has far-reaching reforms and would likely lead to pressure on Kevin Rudd to follow nationally. Premier Anna Bligh immediately called the report "a blueprint which could make Queensland the most open government in Australia" and plans to have a new right to information act before Parliament next year.

FOI is already enshrined both national and state Australian law as the citizens right to ask their government about any matter of public interest. Or so it seems. While the core aim of the law is to improve decision making by removing unnecessary secrecy, the intent is betrayed by the word “unnecessary.” This word enables a raft of exclusion clauses to be built into the legislation in order to stunt and protect information flow. This is why today’s FOI announcement in Queensland has the potential to be a truly democratic event. Tim Dunlop called it an “impressive approach to the problem” and agrees with the authors that a new model is required.

Called “The Right to Information” (pdf) the report is a review of Queensland’s FOI Act. The Queensland Government commissioned it late last year as one of the early initiatives of the Anna Bligh government. The government commissioned a three-person Independent Review Panel headed by Dr David Solomon and assisted by Simone Webb and Dominic McGann. Solomon is a former journalist, barrister, and a member of the Australian Law Reform Commission's national review of FOI laws. Simone Webb is a former Deputy Director-General of the Department of Premier and Cabinet, and Dominic McGann is a partner at law firm McCullough Robertson who specialises in government liaison, the privatisation of government corporations and utilities and native title.

The threesome’s June 2008 report is an important and useful primer in FOI. It begins by calling the public interest the central, unifying feature of freedom of information. It then acknowledges the application of the public interest test was a significant weakness in the current law. The balancing act of opposing interests made the test difficult and it was further hindered by the vagueness of what actually is the “public interest”. And of course the test doesn’t even apply to the “exemptions” lucky documents that are automatically barred by the law, preventing all sorts of nasty cabinet documents, Wheat Board shenanigans, and “commercial in confidence” handshakes from ever seeing the musty light of day.

Solomon, Webb and McGann have proposed three key changes to make FOI decisions easier to approve. First they attempt to define public interest factors to make the law more testable. Secondly the decision will be framed so that access is the default position and putting the onus of proof on the person denying the request. Thirdly and most radically, they propose getting rid of the exemptions. Instead, the authors say, each case would be decided individually on a “harms test” to the public interest. These changes are aimed at simplifying the test by “making it more transparent, understandable and credible”. Heady stuff. But will Bligh accept the recommendations?

As a carrot, the authors say the changes would also “simplify the administration of the test” and therefore save public dollars in application claims. Though that might be swallowed up by the number of individual cases going down to the wire on the results of the “harms test”. The other out-clause the authors gave Bligh was a “small number of true exemptions”. These would not have a public interest test applied, because Parliament decided that it was outweighed by other factors.

Therein lies the political reality according to Matthew Ricketson and Rick Snell. In their in their chapter on FOI in "Journalism: Investigation and Research", they wrote how Sir Humphrey Appleby used the term “courageous” when he really meant “suicidal”. Similarly Freedom of Information has become code for government documents that are neither Free nor Informative. The 1994 Sydney Yellow Pages took this to its obvious limit when it listed the NSW example of the legislation as the Freedom From Information Act. Bligh would have been aware of the double-edged sword nature of the legislation when she announced the move. It was her way of showing open-government credentials in the wake of dodgy dealings during the Beattie era. It was also a way of showing that she learned from the Media Tart to oblige the opinion setters in other ways.

But just like Beattie, it is highly unlikely that Bligh wants to wash her government’s linen in public. The government likes the idea of an informed citizenry more than the reality. No government wants the full scale of its decision-making revealed. As Nicola Roxon (channelling Bismarck) observed, media management is like sausage making - “some things you don't want to see behind the scenes”. And Government distaste for this sort of spotlight is usually matched by their bureaucracy. To quote another Sir Humphreyism “surely you can have openness or you can have government, but to have both is a contradiction in terms”. Therefore it is likely the government will keep the shutters up by trumping the public interest with the national interest. Queensland may enact the letter of Solomon’s report, but not its wisdom.

But even that alone will be useful if they succeed in changing the 1992 FOI Act in two other areas. Firstly if it rids Queensland of “conclusive certifications”. At a federal level Peter Costello was notorious for producing these get-out-of-jail-free cards to avoid make a document public. Secondly, if it fixes the time and costs of making an FOI Application. The report says that the present system is a “disaster.” But they make a fantastic recommendation to make sure the agency provide, “as a first response to a request, a Schedule of Relevant Documents and engage the requester to decide which of the documents in the list are really wanted.” Knowing exactly what to ask for will be a massive boost for those seeking information and making the document a charge by page will simplify the cost of FOI. It may even inspire journalists to use this under-valued tool more often. Truth is a good disinfectant.

No comments: