While the NSW Ombudsman made 88 recommendations for change to freedom of information laws, questions still remain on whether access will be forthcoming, writes Sarah Sharples
Freedom of information (FOI) requests to government agencies have been met with excessive secrecy, long delays and legalistic arguments which seize on any exemption available, the NSW Ombudsman Bruce Barbour stated in his report last month.
While his 88 recommendations included replacing the act with one written in plain English, introducing an Information Commissioner to externally review applications and requiring government agencies to routinely publish information as a matter of course, a culture shift was also identified as a significant issue.
Peter Timmins, a consultant on FOI who made a submission to the Ombudsman, describes the current culture as one where the predominant view is that information belongs to the Government, anyone who raises questions should be regarded warily and that documents should be protected wherever possible.
"I think the public has suffered as a result.
"I think one of the objectives of the freedom of information legislation - here and everywhere - is that it really has its core objectives of increasing public participation in government affairs, giving people better information about what's going on, encouraging them to let government know what they think and keeping an eye on what government is doing that impacts on the broader community interests," he says.
Rick Snell, senior lecturer in law at the University of Tasmania, agrees that freedom of information laws are recognised as a key democratic tool which has now been proven to at least be in "severe need of serious maintenance" in NSW.
Snell is concerned that the Government has not indicated how it plans to move forward to make changes, despite Premier Nathan Rees announcing that he would introduce a new Open Government Information Act in the next session of Parliament.
"There's not a clear pathway from the report to implementation, both in terms of legislation and framework. Which minister is going to be responsible for it? What's the timeline for getting under way? There's a possibility of getting bogged down and getting lost," he says.
Timmins agrees that the process of implementation needs clear direction otherwise it could potentially cause infighting in the Government.
"I think - unless there is clear laying down of the law by the Premier that this matter is to be fixed up and fixed up promptly, probably within 60 or 90 days - it's got great potential to drag on," he says.
More importantly, says Snell, the Premier is crucial to ensuring that the culture of secrecy is stamped out, otherwise implementation will be challenging.
"One of the problems in New South Wales has been bureaucratic resistance and almost a lack of faith or lack of support for the act. Yet it's going to be the same bureaucrats overseeing that process [of implementation and who] have chief responsibility and leadership for making change," he says.
However, Michael Head, associate professor of law at the University of Western Sydney, cautions that there is little hope for change - even if the 88 recommendations are adopted.
"I think more far-reaching changes would be necessary than are really contemplated, even in this report. The fees aren't going to change, which presents a considerable burden to anyone, apart from large corporations, seeking information," he says.
Head is also critical of some of the recommendations in the report, which he says would expand the exemptions available for agencies to refuse FOI requests.
"Recommendation 43 actually says that law enforcement, public safety and counter-terrorism should be included as reasons for refusal in the new act. In other words, it seems to be calling for a new exemption, a more specific one which relates to the alleged safety requirements of security agencies," he says.
Head is also troubled by recommendation 74 under which the Ombudsman seeks provision for the NSW Administrative Decisions Tribunal to be given the power to make civil restraint orders against applications which are considered without merit or would result in an unreasonable diversion of resources.
"I think that is problematic. The emphasis should be on helping ordinary people to gain access - even if their applications could be considered vexatious under certain circumstances - but this recommendation 74 would enable a new barrier and ... it could possibly work against people," he says.
Timmins counters that the Ombudsman has suggested that another element should be introduced for exemptions - the need to consider whether disclosure is, on balance, contrary to the public interest - but that the real barrier to change is the attitude of the public service.
"Changing that culture around to a pro-disclosure culture - recognising the public has a right to know what government knows unless there is very good reasons why they shouldn't - that's the issue that no one in Australia has successfully addressed," he says.
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