AustLit

FREEDOM OF INFORMATION

Freedom of information (FOI) legislation came to Australia in 1982. By that stage, it had become a part of the armory of investigative journalists and public-interest groups in the United States— attracting attention as both check and balance to the kinds of abuse of power demonstrated by government during the Watergate scandal and a reaction to excessive secrecy by government.

In Australia, political acceptance was assisted by tying the reforms to the simultaneous creation of citizens’ right to access personal information held by government agencies, as well as rights to correct and amend such personal records. FOI was a part of a package that saw the establishment of an Ombudsman’s office, with a right to review bureaucratic action, extensive rights of appeal in administrative tribunals against routine decisions made by bureaucrats, and a right of judicial review in the courts in cases where government had exceeded or abused its powers.

From the start, the Commonwealth legislation proclaimed that its purpose was to promote public participation in government, and the establishment of a general right to know. One section of the Freedom of Information Act 1982 created a duty within government departments to publish and make available details of their general activities and processes; another created a legal right to government documents within a specified period, unless they were held to be exempt for some reason. The onus fell on an agency to prove that documents were exempt; in some cases, review bodies could weigh the public interest to determine questions of access. In other cases, however, their officials were able to issue a ‘conclusive certificate’ keeping material from the public record.

While journalists had generally grumbled about a culture of secrecy inside government and about the need to look at what the United States was doing, few played a role in the development of the Act or, in the beginning, in making requests for policy-oriented materials or records. Most reporters were working to daily deadlines. The expectation—fairly quickly proved in practice—was that officials would take ages to process requests, and would be predisposed to limit disclosure and to over-claim on exemptions. The introduction of fees created a new hurdle, even before processing began. Challenges quickly became highly legal, technical and procedural, accentuating the feeling among many reporters that FOI was hardly worth the effort.

An additional problem among journalists was a tendency to imagine that documents ought to disclose, on their face, evidence of malfeasance, abuse of power or some sort of ‘smoking gun’. Yet most government files record and detail bland and routine administration by people generally doing their best. A few early attempts were disappointing, when access to information, often after considerable delay, revealed no scandal. That need not have made the request a failure: for the good journalist such information could add extra layers of understanding to a story, and be the springboard for fresh questions and inquiries.

However, there were a few journalists who were prepared for the Act, and lodged early claims—many of which were run through the appeal tribunals, even up to the High Court. Some newspapers, such as the Canberra Times, the Australian, the Age and the Sydney Morning Herald, and several television stations, including the ABC and Channel 7, had dedicated journalists making use of the Act, often for long-term stories, even if the majority of their reportage concerned obstacles to access to information. From time to time, there were successes—for example, revealing profound military and administrative doubts about a $1 billion Defence plan for compulsory land acquisitions in central New South Wales for artillery ranges and tank training grounds, and showing that a federal minister had misled parliament about his involvement in a tender process.

In the meantime, serious scandals in state administrations—for example with the Fitzgerald Inquiry into systematic corruption by politicians, police and public servants in the Bjelke-Petersen Queensland government, and the WA Inc scandals in Western Australia—saw commissions of inquiry recommending urgent changes to the systems of checks and balances in such administrations, including FOI.

It was expected that the passage of such legislation would help create a culture of open government, by which much more material would be routinely available for public access. Against this was a developing tendency by politicians and their minders to want to control and politicise the flow of even unimportant information out of an agency, generally to promote or protect the interests of the minister. Called news management, the shift saw agencies instruct staff that all requests from the media were to be directed to public relations branches (often located in the minister’s office). Although the FOI process stood outside media relations, the capacity to FOI to affect the image of agencies and ministers saw more and more obvious political control of the process.

There was ever a tendency of oppositions to promise that they would substantially ‘reform’ FOI to make it work better—particularly for journalists—but as Senator Gareth Evans joked just before taking office as Attorney-General in the first Hawke Labor government, he had to move fast before the public servants got at his colleagues. As it turned out, the reforms put forward by Evans delivered a lot less than he had initially promised. In 2007, Labor promised substantial reform—particularly designed to make processes quicker and cheaper, and with better appeal processes, led by an Information Commissioner.

The amendments, which passed through the parliament in 2010, did reduce the range of possible exemptions, and have led to a considerable increase in the use of the Act by journalists. Even if journalists are mostly focused on tomorrow rather than next month, many more have realised the capacity of well-crafted requests to add extra information to the story mix. Unfortunately, the hopes for quicker and more efficient appeal processes were not realised; indeed, within a year of the amendments coming into effect, the Office of the Information Commissioner was running nine months or more behind on appeals. Some agencies have taken advantage of this sluggishness. However, the amendments have seen the legislation become a far more integral part of the journalist’s toolkit.

REF: P. Bayne, The Freedom of Information Act (1984).

JACK WATERFORD