John McMillan, the inaugural Australian information commissioner from 2010 until this year, has written for ‘The Australian’ on the need for a permanent Freedom of Information Commissioner.
JOHN MCMILLAN, THE AUSTRALIAN, 30 SEPTEMBER 2015
It is 16 months since the government announced its intention to revise arrangements for resolving disputes about access to government information under the Freedom of Information Act 1982.
At a formal level nothing has happened: the government bill to implement its plan by abolishing the Office of the Australian Information Commissioner languishes in the Senate.
At an informal level the cynicism and hypocrisy that has permeated the operation of open government laws for more than three decades becomes entrenched.
The FoI Act has long been a source of tension in government, dating back to before it took effect. Nearly every politician is on record, at some point in their career, as declaring their belief in open government.
Prime ministers often lead the chorus. Democracy, accountability and transparency go hand in hand. That is why we have a tradition of open parliaments.
But transparency in government will not occur unless the law requires it. The default position in government is to control the information flow.
This minimises the risk that government actions will be misunderstood or misrepresented, that a spotlight will shine uncomfortably on matters that are hard to explain or justify, or that an ill-timed disclosure will sidetrack debate on an issue.
Transparency ends up being a vacuous concept unless there is a law that requires disclosure.
In a practical sense, that means a law that enables an outsider to point to information that they think should be released, and to seek independent arbitration if a government agency claims the information is sensitive or confidential and should remain secret.
It is a truism that political leaders understand that point while in opposition but disown it when in government.
Former British prime minister Tony Blair described the passage of an FoI act during his tenure as his biggest regret.
US president Lyndon Johnson was said by his press secretary to have been “dragged kicking and screaming” to a ceremony at which he signed the US FoI Act “with a deep sense of pride”.
And Australian FoI parliamentary advocate Gareth Evans later recanted, saying “really strong FoI legislation is for elves, fairies and oppositions”. At one level that renunciation is understandable. In my five years as information commissioner I saw many FoI requests that did not tie in with the noble “right to know” cause espoused by applicants.
Some FoI requests are little more than a fishing expedition to find a story or an attack point. Some are driven by an obsessive belief that bureaucrats are hiding a skeleton.
Others involve wasting time on searching for drafts and email chains on topics that are amply on the public record.
At a general level, society gets more value from open government practices such as open data and proactive disclosure than from individual FoI requests.
On the other hand, it has become fashionable at senior government levels to say that the FoI Act has gone too far — that it is stopping officials from tossing ideas around and providing candid written advice to ministers.
The legal and practical reality is the FoI Act contains numerous exemptions that adequately protect any document that warrants exemption. It is probable that leaks and selective releases lie behind many irksome disclosures.
Despite the challenges and complexities, having effective public access to government information through an FoI Act is a cornerstone of democracy. We must ensure that the operation of the FoI Act is uncoupled as far as possible from political and bureaucratic expediency. Leaving the FoI Act and the information commissioner in limbo for 16 months — and counting — is a shameful way to deal with this perennial tension in government.
Nor is this an issue for the government only. The opposition, which first promoted open-government reform in government in 2010, then went cold on the idea, has as much responsibility to fashion an enduring and workable FoI scheme.
The FoI Act ushered in a new era of open government in 1982. Ever since, government in Australia has been more responsive, engaged and transparent. The Australian lead was followed in many other countries. And yes, the FoI Act is not perfect. It doesn’t balance well the administrative demands on government with the ideal of public access to government information.
Many recommendations for reform have been made during the past five years by the OAIC and others. There has been scant government consideration of those proposals, at least outside the bunker.
There is an urgent need for constructive debate on future directions in FoI. No political party can truly claim to subscribe to a policy of open government while this impasse continues.
John McMillan was the inaugural Australian information commissioner from 2010 until this year.