Last week, Attorney-General Nicola Roxon announced that a review of the FOI Act was to be undertaken by Dr Allan Hawke. The review could be a welcome development, but there is an ominous tone to its terms of reference that suggests this could be a major step backwards for open government.
"About $41 million of taxpayer money was spent across the Federal Government in 2011-12 processing FOI requests," the Attorney-General’s department said in a statement. "The review will consider how the Government’s FOI costs could be reduced, including the Information Commissioner’s recent recommendations regarding the current charging regime."
It’s true that FOI costs have increased, with the 2010/11 year costed at $36 million. The increase can be attributed largely to the number of non-personal requests being made, according to the Office of the Australian Information Commissioner (OAIC) 2012 annual report. Non routine requests are often those made by journalists and politicians seeking access to documents in the public interest.
It’s ironic that the federal government is now concerned about an increase in costs brought about by encouraging open access to government information. In some respects, the FOI Act has succeeded in encouraging precisely the type of requests that are good for open government, and good for the public.
However, there’s a real concern that the current review could endorse the OAIC charges review from earlier this year, which proposes measures that could deter FOI applicants. The OAIC suggested establishing an "administrative access scheme" prior to the formal FOI period. The review suggested agencies be given 30 days to determine whether they would release information proactively, at which point the applicant could apply without an application fee.
As a further disincentive to applicants lodging FOI requests straight away, the review suggests that if this occurs before access is attempted informally, a $50 charge should apply. Further, to seek OAIC review of the decision (similar to an appeal), Roxon’s review recommends that applicants be compelled to seek internal departmental review first. If they don’t, a $100 fee will apply for the OAIC review. The OAIC also recommends placing a 40 hour cap on processing requests, to curb applications that could divert an agency’s resources.
From the perspective of the OAIC this system makes perfect sense, because it forces applicants to go through a number of checks with the agency before appealing for OAIC review, which would limit the strain on their resources. As it stands currently, applicants can receive a decision and apply for free to the OAIC straight away.
If Roxon’s proposed scheme were to be introduced, it would simply add more layers of bureaucracy to an already bloated system of merits review. Further, the introduction of a 40 hour cap would seriously limit the ability of journalists to gain access to larger documents like contracts and audit reports which could exceed that ceiling.
Instead of devising a scheme that places more of a burden on applicants, part of the problem could be solved by simply providing more resources to the OAIC. The current scheme and the impacts on the OAIC’s office are clearly showing, as the Commissioner simply doesn’t have the resources to undertake all of its FOI functions. Only 35 per cent of the OAIC’s resources are dedicated to FOI — around $4.5 million — a minuscule amount of resources for an agency that effectively took charge of the operations of the Administrative Appeals Tribunal and the Commonwealth Ombudsman in hearing appeals, complaints and investigations of FOI matters.
There are plenty of other problems with the Act that this review could be a timely opportunity to revisit. One problem is an antiquated notion that information sought must be a type of "document" defined under the Act. Other acts simply allow users the "right to access information", which is more flexible and also more conducive to data journalism. Federal FOIs for datasets can be refused if the agency doesn’t already have the figures in a pre-existing document. While some agencies like the Department of Finance and Deregulation are more willing to provide those sorts of datasets, other agencies may still use their discretion to refuse requests.
A stronger enforcement mechanism is needed to compel agencies to process FOI requests. Agencies generally have 30 days to process a request, however they can ask for a further extension from the applicant of up to 30 days, and also request consultation. But once a request exceeds any of these periods, it becomes a "deemed refusal" — agencies are encouraged by the OAIC guidelines to still process the request, but short of seeking OAIC review to force them to process it, there’s not much applicants can do to move things along.
An OAIC review also takes a substantial amount of time, given their limited resources. The Minister for Foreign affairs received two requests in the 2011-12 reporting period, both of which took over 90 days to process. The Department of Foreign Affairs and Trade took over 90 days to process 17.9 per cent of requests, the Australian Federal Police 9.9 per cent and the Department of Health and Ageing 7.9 per cent, according to OAIC’s 2012 report. A stronger mechanism is needed to ensure that applicants can effectively compel agencies to process requests.
It’s also worth noting that there has been a steady decrease in the number of requests granted in full — from 71 per cent in 1998/9 to 59.1 per cent in 2011/12. Revising the construction of the FOI exemptions could also be a positive step in improving government transparency.
So what’s the worst case scenario? It would be disastrous if the OAIC’s review model were accepted, and charges be updated and maintained. The non-reviewable 40 hour ceiling on processing time would also deter larger requests, like the release of Serco’s Immigration Detention Centre contract that New Matilda obtained in 2011.
If the Hawke review endorses limiting access to executive documents this would also curb access to government information. The combination of these recommendations, if they were endorsed by Hawke and adopted by the Government, could be a serious step back for Commonwealth FOI access.
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