Two and a half centuries of FOI and still working out the formula

By Stephen Easton

Tuesday December 6, 2016

Time flies; it’s already been 250 years since the world’s first freedom of information law was passed in Sweden, and still the debate rages over how much information liberal-democratic governments should have to share with the public.

A group of responsible commissioners from every Australian jurisdiction — bar the ACT — and the top two officers of the New Zealand Ombudsman’s Office celebrated the largely unheralded anniversary on Friday with a statement expressing their support for open government and FOI in very general terms:

“The right to access government held information and our ongoing commitment to open government is a cornerstone of modern democratic society. …

“Having access to government held information is critical to citizens being able to meaningfully participate in government decision making.

“Access to information and participation in government processes contributes to the transparency of government — promoting better decision making, accountability and greater public trust.”

The group also pointed out the anniversary on Friday coincided with the close of public submissions to Australia’s first Open Government National Action Plan, a 14-point plan to expand opportunities for democratic participation on the part of individuals and organisations, which heralds Australia’s entry into the worldwide Open Government Partnership.

Swedish citizens first gained the power to ask for some kinds of government information that would not otherwise be published in 1766, through the passage of the nation’s Freedom of the Press Act, which is now one of four fundamental laws that comprise the nation’s constitution.

In fact, the law even lets companies and foreign citizens request Swedish government documents. Requesters don’t have to provide their name and address or a reason they want the information, and agencies can refuse to release information on a range of grounds.

But, according to a fact sheet from University College London’s Constitution Unit, the Swedes get into the same debates about the longer-term effects of FOI on the behaviour of ministers and public servants as we do in Australia, despite being seen as the global benchmark in government transparency:

“Professor Kjell Östberg and Dr Fredrik Eriksson have recently argued that because of a long tradition in government openness in Sweden there is a reason to believe that in order to prevent potentially controversial decisions being released into the public domain, Swedish politicians and civil servants have avoided committing themselves on paper.

“This has [led] to a situation where most of what is of the greatest public interest is possibly not written down and hence not available for scrutiny. This ‘oral’ culture of policy-making not only renders government unaccountable, but also may damage the historical record.”

Sweden had a long public debate over nuclear power but, according to the UCL backgrounder, there is “a definite lack of documents concerning the subject in the Swedish archives”.

In 2003, Sweden’s chief auditor also expressed concern that an extremely far-reaching FOI framework demanding a high level of transparency had in fact reduced the possibility of genuine public scrutiny — and other Nordic countries have had similar experiences.

Back in Australia, public service chiefs and senior politicians often warn the same thing is happening here. Mandarins have cautioned that any advance in the reach of FOI laws tends to be followed by retracting their most contentious advice and confining it to oral briefings and sticky notes that have a habit of falling off at inconvenient times.

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