FOI reform needed in Victoria amid East West Link fallout

There is tension between the need for governments to be trusted to govern and the public’s right to know. AAP/Mal Fairclough

The disclosure of the full business case for the East West road link in Melbourne confirmed what many had suspected – the project is a dud. The release also unequivocally shows that the Victorian Freedom of Information (FOI) system failed on its most basic task – that is, to facilitate the disclosure of information that is in the utmost public interest.

It is hard to conceive, apart from the reasons for bringing the country to war, of what could carry a higher public interest than how a government proposes to use A$5 billion in taxpayer money for a major infrastructure project. The very least you would expect as part of engaging with the public is that the government is totally open about how the money would be put to use.

The disclosure of the business case by the new Andrews government revealed a number of staggering facts, including:

  • The initial business case showed that the benefit to cost ratio was only 0.45: so, for every dollar spent, the return would be 45 cents. This was consequently massaged by the former Napthine government using a number of dubious economic forecasting methods and what was eventually released to the public in the lead-up to the election was clearly misleading.

    • The road was so expensive to build (estimated total cost $15-18 billion) that it would take 56 years to pay off. This is significantly longer than previous projects such as CityLink, eight years, and EastLink, 20 years.
  • The most extraordinary revelation in the 9000-page full business case is a note to cabinet observing that a full submission of the business case to the independent umpire Infrastructure Australia disclosing the low benefit-cost ratio “may be used as a justification for not supporting the project”.

The Victorian and Australian public clearly had a right to know these facts before the construction contracts were signed. Not disclosing these basic facts is akin to your super fund refusing to tell you how your super money is invested. You’d leave such a fund, wouldn’t you? This is exactly what the people of Victoria did in the recent election.

In the best of worlds, governments can create a win-win situation proactively disclosing information needed for the public to make informed decisions. The win-win occurs when information disclosure is used as a trust-building tool between government and the governed. Independent access to government-held information makes the public feel trusted and more engaged in the political process.

In reality, however, there is tension between the need for governments to be trusted to govern and the public’s right to know. This is where FOI laws come in.

Section 3 (1) (b) of the Victorian Freedom of Information Act 1982 states that the act’s intention is:

… creating a general right of access to information in documentary form in the possession of Ministers and agencies limited only by exceptions and exemptions necessary for the protection of essential public interests and the private and business affairs of persons in respect of whom information is collected and held by agencies.

The East West link debacle again clearly illustrates that the current FOI system in Victoria does not create this general right of access – at least not when it comes to controversial matters.

In the lead-up to the election, a number of local councils, members of the public, journalists and academic researchers lodged FOI applications. The most high-profile application was submitted by the Victorian ALP. The then-opposition spokesperson for roads, Luke Donnellan, got the same reply as the other applicants: the documents could not be released as they had been prepared for and submitted to the cabinet and hence fell under the exemption clause for current cabinet documents.

The cabinet document exemption is one of the areas in the Victorian FOI law that need re-assessment. Should a public interest test apply to whether cabinet documents are released or not?

The last Victorian government promised extensive reforms to the Victorian information access system while in opposition, but delivered very little when in government. This pattern is unfortunately far too common. Let’s hope the new Andrews government will deliver more far-reaching information access reforms.

My comparative FOI functionality research, spanning 15 years, shows that you can change the law until the end of days with little effect on the practical access to information. The legal changes need to be coupled to an FOI advocate – such as a well-resourced and vigorously independent FOI Commissioner.

There is some evidence that FOI culture can be changed. The federal Office of the Australian Information Commissioner (OAIC) has made some progress in this regard. Unfortunately, the OAIC has been nominated as a saving in the federal budget and will most likely be closed in 2015.

The failure of Victorian FOI to deliver access to the full business case provides the new Victorian government with a reason and window of opportunity to enact meaningful reforms.

These reforms would involve some legislative changes. But most importantly, the culture of the administration of FOI in Victoria needs to change from one of secrecy to one of facilitating access to the information that the government generates and holds on behalf of the people.