National statistics on FOI usage, published late last year, ostensibly show the leaders and laggards in transparency, but they may also obscure the real picture of how far there is to go towards open government across the federation.
An explainer published by the Association of Information Access Commissioners, along with the data from all governments except the ACT, emphasised that the new metrics were only “reasonably comparable” in a direct sense.
The national group of FOI commissioners and ombudsman’s offices warns the dashboard may actually make the more transparent governments — those with a “push model” where agencies proactively publish some information without being asked — look more secretive than they really are.
They say there is a big difference between proactive regimes and the older “pull model” of FOI (known as “right to information” in Tasmania and Queensland):
“As jurisdictions become more proactive in releasing information, application rates and release rates may therefore be lower as more information will be made available outside of formal application processes.”
To help understand the contours of the FOI landscape across Australia, the first dashboard came with a table showing key differences between the eight pieces of legislation. This complicates matters, as the explainer admits:
“While every effort has been made to provide a common baseline across jurisdictions, the metrics cannot deliver directly comparable data between jurisdictions. The metrics and data should be read in conjunction with the specific legislative arrangements in each jurisdiction.”
The New South Wales Information and Privacy Commission, which co-ordinated the dashboard project, told The Mandarin that both the NSW and Queensland governments have push models, so they might appear less transparent than they really are.
In these states, “formal applications for access to information are seen as a last resort and refusal rates for formal applications can be higher than they might otherwise have been in those jurisdictions” according to the IPC’s statement.
“This is because the applications seek excluded information or information that requires the balancing of significant factors such as security, and law enforcement or because it includes other people’s personal information.”
On the other hand, the IPC has also found evidence that in NSW, the new act has not necessarily led to more disclosure from the public service in practice.
The Commonwealth also supposedly moved to a more proactive model in 2010, but it has not simply translated into a particularly apparent increase in transparency. If public servants and ministers aren’t enthusiastic about moving to a push model, its impact is substantially lessened in practice.
Despite what the then-government promised when the Australian Information Commissioner Act 2010 was passed, the attitude of public service leaders had a big influence on the real outcomes from FOI requests.
A lot of senior federal bureaucrats have publicly complained that the current system goes too far, and there is plenty of anecdotal evidence that on the whole, the APS never supported a significant change to a genuine push model.
Furthermore, the current government came to power openly hostile to the Office of the Australian Information Commissioner, established by its predecessor. It tried to abolish it at first and when that failed, scaled it back to a shadow of its former self.
The ACT has just moved to a new push-model FOI regime, which commenced on January 1. Chief minister Andrew Barr’s office told The Mandarin the territory government wasn’t asked contribute data on its old FOI scheme for the dashboard, which covers the 2014-15 and 2015-15 financial years.
Barr’s spokesperson said the ACT’s FOI office would have been happy to submit its statistics, and would be following up to ask about submitting data from those years and in future. If the idea was to compare the difference over time between a pull model and a push model, one would think the ACT’s transition offered a pretty good opportunity that was missed.
Greens minister Shane Rattenbury, who holds several portfolios in the Barr cabinet, said the new legislation meant “the ACT moved from being one of the laggards to one of the leaders in allowing people to access government information” in a recent op-ed:
“Previous FOI laws allowed the government a strong hand in determining whether to release information to the public. These laws ignored the obvious conflict of interest that exists in having the government decide what the community is allowed to know.”
In principle, Rattenbury explained, “access to government information should be based on the best interests of the community and not the interests of the individuals or party forming the government of the day” and this meant that under the new system, FOI decision makers would have fewer reasons to block requests:
“They cannot take into account whether a release could result in embarrassment to the government or cause a loss of confidence in the government; result in confusion or unnecessary debate; or affect the frankness of public service advice.
“Overall, the [public interest] test is designed to achieve a balance between protecting private rights and certain government processes, and the public’s right to government information.”
Releases can be blocked on the basis that they might infringe on security, law enforcement, public safety, privacy or other human rights. Cabinet deliberations, trade secrets, confidential research, certain private business affairs, the local economy and environment are all valid considerations as well under the new law.
As it’s only the first shot at comparing the different jurisdictions, as part of Australia’s commitments to the international Open Government Partnership, the IPC has more to say on the limitations of the first dashboard:
“Where jurisdictions are not currently able to report on the metrics as proposed, it is intended that jurisdictions will report their best available data. In such instances, differences in reporting are outlined for these metrics.
“In order to support improvements in more detailed reporting, and respond to feedback from civil society about these inaugural metrics, jurisdictions will explore over time (including with other jurisdictionally relevant organisations and departments), the possibility of further developing the data collected to meet these reporting criteria.”
The NSW agency also published a summary of feedback from an online survey asking how the current dashboard and accompanying information could be improved and expanded.
The trend in FOI law reform is towards the promise of proactive disclosure, but the adoption of more modern systems like the ACT’s are only half of the battle, and the same could be said for all of Australia’s open government commitments.
Government ministers and public servants also need to be on board and realise that the sky won’t fall in if they tell the public more about how they interact with one another inside the corridors of power.