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Closing down FOI: a case study in sneaky government

Information commissioner John McMillan (pictured right with then minister Brendan O'Connor) has not been replaced since resigning in June, nor has the FOI commissioner who left in January. AAP/Alan Porritt

Closing down FOI: a case study in sneaky government

Information commissioner John McMillan (pictured right with then minister Brendan O'Connor) has not been replaced since resigning in June, nor has the FOI commissioner who left in January. AAP/Alan Porritt

In a year and a half the Abbott government managed, in practice, to undo the painstaking reforms of the federal Freedom of Information (FOI) system that took shape in 2008 and came into force in late 2010.

In the best of worlds, FOI laws can create a win-win situation for governments and their constituents. By facilitating, instead of blocking, access to information governments signal that they take transparency and openness seriously. This limits maladministration and corruption. The public feels trusted with unspun information that they need to participate meaningfully in the political process.

Unfortunately, we’re not living in the best of access-to-government-information worlds.

From the time it took office, the Coalition government, spearheaded by Attorney-General George Brandis, tried and failed to shut down the Office of the Australian Information Commissioner (OAIC). The Abbott government’s first budget cut the OAIC’s funding.

The Senate rejected this part of the budget. The bill is still on the Senate Bills List, where it has been sitting for 16 months without the support needed to pass the Senate.

Meanwhile, the government tried to close the OAIC by starving it of funds. Reading the writing on the wall, the FOI Commissioner, James Popple, left for another job in January. The position is still vacant.

A few months ago, the inaugural Information Commissioner, John McMillan, followed suit. He was not replaced.

The OAIC’s FOI functions are now essentially closed down.

Three decades of FOI gains reversed in two years

The first Australian FOI laws were the federal and Victorian acts passed in 1982. The other states and territories then followed, with the Northern Territory act commencing in 2003.

By world standards the start of FOI in Australia is neither early nor late (apart from the NT act). Globally, FOI has moved from being a “nerd” issue to a strong international movement of well-organised information access advocates.

By the mid-2000s it was clear that FOI reform in Australia was sorely needed. A number of high-profile cases in both state and federal jurisdictions showed that the laws did not deliver in practice what was promised in the acts.

Queensland led the way when it reviewed its FOI legislation and implemented far-reaching changes in 2009. This was the first jurisdiction to move from a “pull” 1.0 FOI system – where FOI requests are used to “pull” the information from government agencies – to a 2.0 “push” system, where departments are supposed to proactively publish information on their websites.

In a 2.0 FOI system disclosure is meant to be the default position, in line with best international practice. But as research, mine and others, has showed, changing the law is the easy part. Making it work in practice is the challenge.

This is where the federal FOI regime led by the OAIC had started to make real headway. For the first time in Australia’s history of access to information there were some signs that the OAIC had started to change the culture of how federal FOI is interpreted and administered. My research points to a change away from the unfortunate Westminster-based tradition of government secrecy to one of increased openness and, most importantly, information access facilitation.

It’s clear from this body of research that the federal FOI reforms implemented by the former Information Commissioner were providing crucial national leadership, taking Australia closer to where access to government information is going internationally.

This is why the Abbott government’s blatant undermining of federal FOI was so tragic and frustrating. The information access momentum that had been building since 2007 came to a grinding halt under the Abbott government.

Turnbull faces ‘open government’ test

The proactive information disclosure feature of FOI 2.0 has in part been driven by the concept of Public Sector Information (PSI). The core of PSI is that information or products and services created with government funding should exist in the public domain. The European Union 2003/98/EC directive is the foundation on which several EU member nations have passed their own PSI laws.

Will Malcolm Turnbull let Australia join Russia as the only country to withdraw from the Open Government Partnership? AAP/Lukas Coch

The goal is that information generated and held by government should, as much as possible, be accessible to the public, with very few limitations. To date, the PSI discussion has not reached serious policy- and law-making levels in Australia. It remains to be seen how the government under new Prime Minister Malcolm Turnbull will deal with PSI.

Another challenge for the Turnbull government is what to do with the OAIC “kill bill” mentioned above. Even if the government now decides to keep and fund the OAIC (which would be the preferred option from a transparency point of view), a lot of organisational damage has been inflicted on OAIC by the Abbott government’s FOI-hostile policies.

Turnbull will also need to decide if Australia will formally sign up to the Open Government Partnership (OGP). The OGP describes itself thus:

OGP was launched in 2011 to provide an international platform for domestic reformers committed to making their governments more open, accountable, and responsive to citizens. Since then, OGP has grown from eight countries to the 66 participating countries … In all of these countries, government and civil society are working together to develop and implement ambitious open government reforms.

The Gillard government committed to the OGP in principle. But to become a full member, a national open government action plan has to be submitted.

The OGP has repeatedly asked for Australia’s decision. The Abbott government stalled for so long that Australia now risks joining Russia as the only candidate member to withdraw from the OGP.

Next year, 2016, will be the 250th anniversary of the first FOI-related law, which was passed in Sweden in 1766. Australian federal FOI approaches the anniversary in a poor state.

Turnbull will be a very busy man in the months to come. The question is if he can find head space to ponder the challenges above. Judging from Turnbull’s leadership challenge pitch, open government matters to him:

We need to be truly consultative with colleagues, members of parliament, senators and the wider public. We need an open government, an open government that recognises that there is an enormous sum of wisdom both within our colleagues in this building and, of course, further afield.

What this means in practice remains to be seen. A good starting point would be to reappoint the federal FOI commissioner and properly fund the OAIC again.

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