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FOI Act needs reform following robodebt disaster

Following the robodebt royal commission, legal academics have called for reforms to Australia’s Freedom of Information (FOI) Act.

user iconLauren Croft 02 February 2024 Politics
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Reforms to the FOI Act would combat challenges posed by automated government decisions, including the removal of a blanket exemption for the release of cabinet documents, according to a new research paper.

The upcoming paper, set to be part of an Australian Journal of Administrative Law special issue focused on robodebt, argues that the rise of artificial intelligence (AI) and related technologies will mean an increase in automated decision making by governments and the public sector. The authors said this makes public oversight and transparency of such decision making even more crucial.

Lead author Deakin Law School Associate Professor Maria O’Sullivan said it was striking that the robodebt royal commission’s only recommendation not adopted by the government involved a suggested amendment to the FOI Act.

 
 

“The over-classification of government information is one very critical reason robodebt was allowed to continue with impunity for so long. Even the royal commission itself noted it had trouble obtaining information as part of its inquiry,” she said.

The contentious 57th recommendation of the robodebt royal commission argues that section 34 of the Commonwealth FOI Act should be repealed so that the classification of a document as a “cabinet document” is no longer itself justification for maintaining the confidentiality of that document.

Currently, any document that has been stamped as a “cabinet document” cannot be the subject of an FOI request, simply because of its protected designation.

This “protected” status has previously meant that affected members of the public, advocacy groups and journalists were unable to access cabinet briefings related to the robodebt scheme to better understand what was known about its legality and operation.

In the paper, Professor O’Sullivan and co-author Monash University Associate Professor Yee-Fui Ng evaluated the case for and against repealing section 34 of the act and looked at potential negative consequences that would need to be mitigated.

“There’s always a risk when you open up these things. If you say that cabinet documents are disclosable, then you risk people not writing things down, leading to a culture of post-it notes or oral briefings,” Professor O’Sullivan said.

“There is a record-keeping obligation, but the danger is that politicians and public servants will try to get around this. They might use message encryption apps, as was shown in the COVID enquiry in the UK.”

However, these risks could be outweighed if FOI legislation can’t appropriately enable transparency and open government.

“We believe that section 34 should be amended but that appropriate care should be taken to ensure all the implications are considered,” Professor O’Sullivan added.

“What we are proposing is more modest than the royal commission recommendation: for the cabinet exemption to be supplemented with a legislated public interest test, and appeal to the information commissioner. This mirrors UK FOI legislation and strikes a balance between cabinet confidentiality and the public interest in disclosure.

“We also argue for a narrowing of the scope of documents covered by cabinet confidentiality, and we contend there should be a reduction of the time frame of disclosure from 30 years to 10 years.”

These changes must be part of a larger review of the FOI Act, according to Professor O’Sullivan, who added that “FOI has always been a touchy issue”.

“The Australian administrative state has reached a critical juncture where the use of automated technologies and artificial intelligence is becoming increasingly widespread and pervasive, without compensating safeguards.

“Automation results in impenetrable decisions made at a large scale, which ramps up the risk of widespread systemic harm. More than half a million people were affected by robodebt because it could be implemented quickly due to automation,” she said.

“We need something in the act to directly cover automated government decision making, including requiring proactive disclosure of all government algorithmic tools on a centralised website. The increasing rise of automation in government necessitates a greater openness in government.”