Freedom of Information

The Council's study and GPR 253
Attorney-General's letter
The Australian's article following the AG's letter
The Opposition's statement on FoI charges

The Australian Press Council FOI study and GPR 253.

Last year, the Council wrote to the federal, state and territory Attorneys-General with the outcome of a study on the effectiveness for journalists of the current Freedom of Information (FoI) laws. At the same time it issued General Press Release 253 which summarised the findings of the study and the Council's submisisons to the Attorneys.

Many of the Attorneys responded with undertakings to review the operation of FoI in their jurisdiction. In July 2003, the then federal Attorney-General, Daryl Williams, responded in detail. His response follows, together with an article from The Australian, in which Michael McKinnon and Natalie O'Brien comment on the issues in FoI and the AG's response, and a recent press release on the increasing costs of FoI (and the fact that such costs discourage many applicants from proceeding) from the Shadow AG, Robert McClelland.

Letter from the Hon Daryl Williams, QC MP, re the Australian Press Council review of the FoI Act.

In my previous letter to you I advised that I would like to provide a full response to your questions arising from the Report: The Use by Journalists of the Australian FoI Regime. The Government has a strong commitment to freedom of information principles and recognises the important role which the Freedom of Information Act 1982 ('FoI Act') can play in the work of journalists. I agree with the conclusion in the report that close cooperation between individual agencies and journalists regarding the processing of FoI requests is crucial to a full appreciation of the needs of both government agencies and journalists in using the Act.

I would like to address each of your concerns in detail. I note that my comments are restricted to the Commonwealth FoI Act and its administration. You may want to contact States and Territories individually regarding the administration of their FoI legislation.

1. You recommend that the Standing Committee of Attorneys-General take a uniform approach to improve public access to government held information.

Although there are many similarities between the different FoI Acts in each jurisdiction, it is important to note that FoI legislation is closely related to the structure and institutions of government. For this reason I would suggest that it is appropriate that each jurisdiction have specialised FoI legislation to reflect these differences.

2. You recommend that FoI administrators be adequately resourced.

The Government's commitment to resourcing FoI is demonstrated in the figures relating to the administration of FoI requests. In the last reporting year (2001-2002) Commonwealth agencies received 37,169 FoI requests. In this period 131 staff were allocated to spend 75% to 100% of their time on FoI requests and 1,849 staff to spend up to 75% of their time on FoI requests. The total staff years spent on FoI requests was 203.35 years (an increase of 28.19 per cent on the previous year). This includes a notable increase in the time spent by Senior Executive Service officers in processing FoI requests. In the same period, the Government spent $17,387,088 on processing FoI requests (an increase of 20.61% on the previous year) and the average cost of processing an FoI request was $468.

3. You recommend that penalties be introducedfor agencies and FoI officers who fail to comply with the time-frame provisions of the FoI Act.

It is not clear what penalties you recommend. Penalties could take the form of criminal or civil sanctions or disciplinary proceedings against individual officers. Different policy considerations apply to each form. A decision to legislate to impose civil or criminal sanctions is based on assumptions regarding the deterrence value of the penalty, the relative procedural advantages of pursuing criminal or non-criminal routes and the policy ram)fications of the choice. Given these considerations and the relatively minor nature of the breach, it is difficult to support the imposition of penalties on agencies or FoI officers who fail to comply with statutory time- frames. Moreover, I note that the duty to comply with statutory time-frames is imposed on the agency concerned, rather than the individual FoI officer. It would, therefore, be inappropriate to penalise individual officers. Agencies are already accountable to the Minister and to Parliament and are subject to administrative law review. Where there is any wrongdoing or maladministration by an agency in processing an FoI request, it is open to an applicant to complain to the Ombudsman at any time in the process. I conclude, therefore, that there are already effective supervisory mechanisms in place and that additional penalties for failing to comply with deadlines are unnecessary.

4. You recommend that FoI applicants be entitled to claim their costs if they are successful in administrative review processes.

Under s. 66 of the FoI Act, the Administrative Appeals Tribunal ('AAT') has the power to recommend to the Attorney-General that the costs of a successful applicant for review be paid by the Commonwealth. In addition, the AAT may order the refund of the application fee. The Australian Law Reform Commission and the Administrative Review Council considered these provisions and the costs associated with review of FoI decisions in their joint report into the operation of the FoI Act in 1995. The report concluded that the flexible procedures of the AAT allowed proceedings to be conducted in such a way as not to make applicants feel the need for legal representation. The report also noted the public advantage in agencies not resorting to unnecessary legal representation. Such procedures provide an innovative alternative to expensive cost driven litigation.

5. You state that many FoI requests are obstructed on the ground that they 'substantially and unreasonably' divert resources.

The Attorney-General's Department has no consolidated figures about the grounds for refusing access under FoI requests but I am able to report that, in the last reporting period, access was granted in whole or part in more than 95% of determined requests.

6. You state that time delays discouraged FoI requests.

FoI officers are required to conduct thorough searches and, depending on the request, may have to search archives as well as disposal authorities relating to the destruction of government documents. Applicants may facilitate the search by limiting the time period covered by their request where appropriate and, where possible, by more clearly identifying the documents required.

7. You state that 'user pays 'principles often made the cost of seeking information prohibitive.

The FoI Act has provision for the remittal of fees and charges and these provisions are often invoked. In the last reporting year, for example, of the $17,387,088 spent on processing FoI requests only $97,284 was collected in fees and $198,551 was collected in charges. Thus, only 1.7 per cent of the total cost of processing freedom of information requests was collected in fees and charges and only 24.04 per cent of the total charges notified were collected.

8. You state that the operation of the exemption provisions greatly reduced the information made available.

The right of access to government documents under the FoI Act is an important but not an absolute right. In particular cases, there may be other competing public interests. The exemptions under the FoI Act represent a careful balancing of a number of public interests, including the public interest in transparency and accountability, the public interest in encouraging full, frank and considered decision making at all levels of government and between governments, and the public interest in protecting certain personal and commercial interests and maintaining duties of confidence.

9. You state that arbitrary decisions by FoI officers often stopped requests in their tracks.

Under current arrangements, the responsibility for the proper administration of the FoI Act in an agency lies with the chief officer of that agency. It is possible, therefore, that administrative procedures may differ in detail between agencies. Nevertheless, each agency is obliged to comply with the requirements of the FoI Act. Where an FoI applicant believes that an agency has not dealt fairly or properly with his or her application, that applicant may complain to the Ombudsman who has extensive powers to investigate maladministration in Commonwealth agencies. In addition, primary FoI decisions are subject to internal review and review by the Administrative Appeals Tribunal to correct any misapplication of the FoI Act.

In order to promote consistency in the interpretation of the FoI Act across agencies and to avoid misapplication of the Act, there are a number of resources available to assist of ficers to understand the Act. For example, agencies have access to expert training provided by the Australian Government Solicitor. In addition, FoI officers conduct a regular discussion forum on the policy and practical application of the FoI Act. The Attorney-General's Department also maintains an FoI website accessible though the Department's homepage at www.ag.gov.au which includes guidelines explaining the application of the FoI Act. The web site is also open to members of the public.

Thank you for bringing these matters to my attention.

DARYL WILLIAMS

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Article from The Australian commenting on the Press Council's paper and the AG's response.

A very secret service.

Freedom of Information is anything but: exorbitant costs and endless delays stonewall applicants. But there is a concerted push for reform, write The Australian's FoI editor Michael McKinnon and investigations editor Natalie O'Brien.

It has caused John Howard to defend himself in parliament over the contentious ethanol issue, it has revealed the federal Government's cover-up of the sex slave trade and it has exposed the disparity in access to bulk billing that has split the country. The Freedom of Information Act has helped Australian journalists uncover the truth behind the some of the most critical political issues of our times.

But it hasn't been an easy task for reporters negotiating the complex, lengthy and expensive FoI processes. And the federal Government doesn't appear to want to make it any easier.

Democrat Senator Andrew Murray has introduced a private member's Bill to reform the federal FoI laws and the Government is yet to announce whether it will support it. But Murray has put the Government on notice that the FoI Bill could become a crucial bargaining point if the Government wants Democrat support in the Senate for other legislation.

Already there is a ground swell of support for overhauling the 22-year-old laws. The Australian Press Council has made FoI reform a top priority because it believes many requests are being obstructed and delayed. The Australian Law Reform Commission, the Administrative Review Council and even the Commonwealth Ombudsman have joined the call for reform.

But former attorney-general Daryl Williams was in no hurry to back widespread changes. And his replacement, the new Attorney-General Philip Ruddock, is yet to show his hand on FoI. But he is likely to be focusing on terrorism in the lead-up to the next federal election.

The FoI legislation was introduced in 1982 and has not been substantially amended since. Critics have argued that the process is unwieldy and complicated and doesn't achieve its intended objective of allowing the community to access government information.

"The real problem is that, quite frankly, you go through this kind of automatic process of refusal through the federal government department," says Ross Coulthart, a journalist with Nine's Sunday program. "They know that when it gets to the Administrative Appeals Tribunal [the final step] that 99 times out of a hundred we drop off because we can't afford it."

Other journalists say the time taken to process FoI requests is one of the biggest deterrents. Many believe some government agencies use those delays to discourage applications. "The lengthy delay in processing can mean the significance of the story is lost," says a reporter with The Australian, Jennifer Sexton.

Even the Commonwealth Ombudsman has reported "widespread problems" in the recording of FoI decisions and the "probable misuse of exemptions" to stop the disclosure of information. "This was more evident in agencies which receive FoI requests for government policy or decision-making information than in agencies which typically deal with requests for personal information," said the Ombudsman in a June 1999 report.

The Press Council has issued a public report and put a list of recommendations to the Government about how to make the legislation more workable and user-friendly. The council wants penalties for departments failing to meet legal deadlines and costs to be awarded to FoI applicants who successfully overturn decisions at the AAT. The council has complained that many FoI requests are obstructed on the grounds that they "substantially and unreasonably" divert resources.

Murray, who has argued that his Freedom of Information Amendment (Open Government) Bill 2003 is a long-overdue reform, says there was unanimous support for change in a report brought down by the Senate Legal and Constitutional Legislation Committee.

The Murray Bill proposes three key changes: genuine ease of access, reasonable and low fees and charges, and expanding the Ombudsman's role to act as an information commissioner.

The Howard Government has been guarded about whether it will support the Bill, instead simply claiming the principles of transparency and accountability of government as a linchpin of Australia's democratic society. "The FoI Act is an important element of that commitment," a spokeswoman has said.

The Government says the Attorney-General's Department regularly monitors the Freedom of Information Act to ensure it remains effective.

But the department lacks credibility through its inaction. As the Ombudsman's report has already found, few public servants have FoI training and there are wide and sometimes wrong variations in FoI practices.

In 1997 the Attorney-General's Department stopped issuing the FoI Memoranda and Decision Summaries, a virtual guidebook to the most current cases in FoI - regarded as one of the most valuable tools in educating FoI officials and applicants. "As a result there is a growing void in the availability of current FoI information," the Ombudsman has complained.

The Press Council has also asked that the Standing Committee of Attorneys-General take a uniform approach to improve public access to government-held information.

But the federal Government has argued FoI legislation relates closely to government structure and that each state and territory has specialised laws reflecting the differences. However, journalists believe if the legislation was adopted nationally, all governments would still be able to argue for special exemptions in appropriate cases.

The Government has also rejected the Press Council's call to better resource FoI administrators and thereby reduce waiting times for FoI requests. It argues that in 2001-2002, Commonwealth agencies received 37,169 FoI requests and spent $17.3 million on processing FoI requests. The Government complains FoI officers could be better helped by applicants more clearly identifying the documents required.

The latest FoI report from the Attorney-General's Department shows a poor performance, with agencies taking 60 days or more to provide a decision in about 44 per cent of non-personal FoI requests - the sort typically used by journalists.

The Government has also rejected recommendations for penalties for agencies and FoI officers not meeting deadlines, saying it would be hard to work. FoI is the department's responsibility, which is accountable to the minister. Not surprisingly, there are no examples of any politician admonishing a department for tardy FoI procedures.

While the Government suggests another option is a complaint to the Ombudsman - it is the same Ombudsman whose recommendations on FoI reform are still being ignored by the Government.

But FoI experts argue the penalties could be a "no cost" FoI response when agencies don't meet deadlines.

The Government has said the AAT already has the power to recommend the costs of a successful applicant be paid by the Commonwealth. The AAT can also refund the application deposit money.

Refunds for application deposits are routinely provided in successful appeals. But those who are unrepresented cannot quantity their costs. The other option of legal representation is expensive for any media organisation. It is difficult to believe any minister would then compensate the media for its costs after a successful appeal on FoI.

The Attorney-General's Department maintains public access is granted in whole or in part in more than 95 per cent of determined requests. But the department, which is supposed to monitor the effectiveness of FoI, doesn't even keep refusal-based statistics.

What is known is that almost 90 per cent of requests relate to personal information. In those cases, exemptions are often more difficult to justify and are usually not vetted, delayed and blocked because of potential political damage to governments.

The Government also disagrees with the Press Council view that "user-pays principles" make it too expensive. The Attorney-General's Department says that of the $17.3 million spent on processing FoI requests last year, only $97,284 was collected in fees and $198,551 was collected in charges.

But this ignores the fact that media companies cannot have fees waived on the grounds of personal hardship. Any attempt to have fees waived on public interest grounds have never succeeded.

The Australian was told in one case that the release of information was not in the public interest because the newspaper would benefit commercially from being able to publish hard-won government secrets.

The Press Council has warned the Government that the exemptions dramatically cut the amount of information available. But the Government has argued the right of access to government documents is not absolute. There are always competing public interests.

Journalists understand the public interest of transparency and accountability has to be balanced against the public interest of encouraging frank and considered decision-making in government. There is also the public interest of protecting certain personal and commercial interests and maintaining duties of confidence.

Where that balance lies is often the key issue in FoI. What is certain is the public and bureaucrats would all be better informed if the Attorney-General's Department resumed issuing the FoI guidebooks.

On the matter of the Press Council claim that arbitrary decisions by FoI officers often stopped requests in their tracks, the Government has said that applicants can complain to the Ombudsman, "who has extensive powers to investigate maladministration in Commonwealth agencies" and "FoI decisions are subject to review by the Administrative Appeals Tribunal".

The Government has also advised the Press Council that "there are a number of resources available to assist" understanding the FoI Act and has pointed to the Attorney-General's Department's own FoI website. There was no need to add that the FoI guidebooks are available there - or at least those up until early 1997.

However, the prospect of real reform of the FoI laws under this Government may have been dealt a blow in August when the Prime Minister, who had been accused of misleading parliament over whether he had meetings with leading ethanol producer Dick Honan, was forced to deny the charge. The Opposition - using FoI - had been able to show Honan personally lobbied the Prime Minister on the issue.

Those wanting reform could be in for a long wait.

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Statement from the Robert McClelland MP: "Freedom of Information charges explode".

I have today written to the Ombudsman inviting him to investigate why charges for FoI requests have exploded under the Howard Government, in direct defiance of a warning by the Ombudsman to rein them in.

New analysis released today by Labor reveals that charges notified by the Howard Government in response to FoI requests leapt from $308,689 in 199899, to $552,038 in 1999-2000, $1,099,380 in 2000-01 and $825,779 in 2001-02. (Attachment 1)

In June 1999, the Ombudsman investigated the Howard Government's administration of the FoI Act, noting in his report that "there is concern that charges are being unreasonably determined and applied by agencies as a means of deterring FoI requests". (Attachment 2)

The Ombudsman concluded that the evidence "lends weight to the concem that some agencies may be setting unreasonably high charges to process FoI requests" and recommended the Government introduce appropriate controls.

In direct defiance of the Ombudsman's warning, charges notified in response to FoI requests practically doubled in each of the following two years, as the Howard Government began to suffer poor polling the lead-up to an election.

Few of these extra charges were actually collected, raising serious concerns that they were only ever notified to deter requests for information.

Attorney-General Daryl Williams should explain why the Coalition expects Australians to pay such a high price for openness in government, particularly before an election.

Daryl Williams has a clear case to answer about his competence to uphold the integrity of Australia's freedom of information laws.

ROBERT McCLELLAND

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