One of the things that went largely unnoticed last week, drowned out by the screams coming from the Opposition’s party room, was the Government’s introduction of its new freedom of information reforms.
But looking at the bills presented to Federal Parliament by Senator Joe Ludwig last Thursday, I was sadly underwhelmed. As my recent attempt to use FoI procedures to get access to Federal Government documents showed in the most demoralising way, these reform bills won’t do anything like enough to fix our dysfunctional freedom of information culture.
"Freedom of information" in government agencies is the ultimate misnomer. My freedom of information application cost money, took up time and was seriously lacking in transparency. It was to the Department of Foreign Affairs and Trade. After I sent them the envelope containing my request, it took them four weeks just to reply letting me know that my application had been received.
Leaving aside the irony of describing it as "freedom of information" when I had just received a $1500 estimate of costs (which was later waived on grounds of financial hardship, but what freelance journalist has $1500 to spare anyway?), at first I felt optimistic that I was engaged in a process that could help in holding the powerful to account.
But soon I began to lose that optimism. Every week I would call Canberra to speak with someone there who would bleat the same old line: my application was always "a week off" or would be ready at the "end of next week at the latest". I was told time and time again over the weeks that they were "consulting with other government agencies on some of the documents". I began to wonder if I was going crazy. Was I stuck in some sort of time warp? No, time was in fact still passing, as usual. The problem did not lie with me, but rather with a government agency I was coming to regard with growing suspicion.
As the weeks passed I began to fall into a kind of daze on the matter. The only thing that kept me going was a hope that it would be concluded by the mysterious department identity known as the "decision maker". This was an apparently mythic figure somewhat like the Wizard of Oz, spoken of with awe by colleagues for having awesome powers of, well … decision making.
Finally on 17 September, almost two months after my initial request, I received a letter advising that:
"Due to the delay in receiving relevant documents from post and competing operational requirements we were unable to finalise the processing of your request by the 30-day statutory deadline under the FoI Act, for this request, which was 9 September 2009. This letter is to advise you that we are working with the appointed decision maker and are endeavouring to finalise your request as soon as possible."
The most frustrating thing about all this was that there was nothing I could do. Despite the fact that DFAT had breached their statutory obligations by failing to provide an outcome within 30 days of my request, my options for redress were very limited. Had I gone to the Commonwealth Ombudsman, I would be placed at the rear end of an already lengthy queue of FoI complaints. If I approached the Administrative Appeals Tribunal not only would I have had to pay even more money, but it was likely the tribunal would simply say that there was no matter in dispute here, because the documents were clearly in the works. In one of the many highly repetitive conversations I had with Peter Truswell, the director of the FoI section in DFAT, he said "It’s not uncommon for us [DFAT] not to meet the 30-day period."
Earlier in the year I had attended the annual MEAA public affairs conference and heard Joan Sheedy, assistant secretary for privacy and FoI policy branch in the Department of the Prime Minister and Cabinet, discussing the changes to FoI laws. Her rhetoric was full of optimistic homilies about how the changes were going to inspire better relationships with journalists and allow the public to see that government departments weren’t just huge piles of red tape. She insisted that these reforms were encouraging a "pro-disclosure culture" of freedom of information.
I remembered these claims after Ludwig introduced the Government’s package of reforms and decided to have a look at what they had to offer. One change is the creation of the new role of Information Commissioner which establishes another avenue of appeal for FoIs and will also function as a complaint mechanism. But there is still little indication about how much the Information Commissioner will realistically be able to intervene. While the Commissioner is obliged to investigate the handling of an FoI if a complaint has been lodged, the high level of delays in FoIs currently could create a flood of complaints that will back up the commissioner for months.
The bills are also vague about what will actually be done to change the "culture" of freedom of information. The information commissioner has the role of "promoting awareness and understanding of the freedom of information act", but beyond five-year reviews of departmental procedures it is unclear how this cultural shift is expected to occur.
From my examination of these bills, little will be done to prevent the system from repeating the result I got.
Finally, on 25 October, 90 days after my initial request, a parcel arrived in the mail from DFAT. Hands trembling, I opened the envelope to find … an utter whitewash. Whole pages were stripped bare of their content, great pencil slashes across the pages citing exemption after exemption.
A "culture of pro-disclosure"? Hardly. One of the most bizarre aspects of the exemptions is a little section known as 22(1)(a)(ii) of the Freedom of Information Act, which states that documents that are "reasonably regarded as irrelevant" to the request can be exempt. What’s strange is that the documents did relate to my request, but this section was used to block out subsequent paragraphs in the same documents. Perhaps DFAT’s FoI department head did not receive the minister’s letters about this new pro-disclosure culture? It’s disheartening that this section is retained in the current Reform Bill. Had I made this application a year from now under the Government’s new laws, the result may well have been the same.
I’m far from the only one with an experience like this — there are plenty of other people lost in administrative limbo, or left with a hefty bill and very little actual information to show for it. A few weeks ago, the Australian ran a piece showing how a woman seeking documents regarding the deaths of two yachtsmen 30 years ago had been stalled for months by DFAT. More recently, the NSW Ombudsman criticised the Board of Studies, the Roads and Traffic Authority and a number of other agencies for their handling of FoI requests.
When I speak to fellow journalists about my experience I get a sympathetic look and a commiserating nod. A study by the Australian Press Council several years ago revealed that most journalists simply didn’t bother with FoI requests because of the lengthy bureaucratic battles that had to be fought.
In short, despite the introduction of these reform bills, there is little in the changes that would have made my experience any better. After three months waiting for a pile of mostly censored documents, it is very clear to me that there’s something deeply wrong with freedom of information culture in Australia.
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