Background – could do better In October 2011, an international survey of Freedom of Information regimes found that Australia, based on the Commonwealth Freedom of Information Act, as amended in 2009 and 2010, came in at number 39 out of 89 countries, scoring 86 points out of a possible 15012. The Global Right to Information Rating assessed Australian law as just a little better than Canada with 85 points, but behind the USA 89, New Zealand 93, UK 95, Indonesia 102 and a long way behind the leaders Serbia 135, and India and Slovenia 130. According to the Open and Shut blog13 by FoI expert Peter Timmins, shortcomings that cost the Australian law points include: • No constitutional right of access to information • Exclusions from the act for parliamentary departments, intelligence organisations, a range of other executive government agencies. Private sector bodies in receipt of significant government funding are not covered • Excessive “wriggle room” on time limits • Fees not limited to cost of reproduction • The extent of secrecy provisions in other legislation • Broadly framed exemptions, with some that contain no harm test. No universal public interest override, for example, for disclosure of information about corrupt conduct • No sanctions for improper public service employee conduct such as undermining the act or destruction of documents. The survey was conducted by an international panel of FoI experts, including Johan Lidberg of Monash University, who said that countries which scored more highly than Australia tended to have strong pro-disclosure laws with a default towards publication of government-held information. “It’s also common for those laws to have a really simple request process, including verbal requests, and have a simple appeal system to an information commissioner or ombudsman that’s not costly and has no application fees and no processing fees,” he told The Sydney Morning Herald.14 The reform of Australia’s FoI regimes has been piecemeal since the then Cabinet secretary and special minister of state, John Faulkner, announced an overhaul of the laws back in March 2009. Launching the reforms at a conference organised by the Right to Know Coalition, Senator Faulkner said: “There is a growing acceptance that the right of the people to know whether a government’s deeds match its words, to know what information the government holds about them, and to know the information that underlies debate and informs decision-making, is fundamental to democracy. “This has not lifted from Australian governments their responsibilities to safeguard confidentiality, privacy and security. But it has required them to evaluate and define those responsibilities in the democratic arena. Questions of both openness, and confidentiality, have to be treated as different aspects of the same over-riding obligation to act in the public interest.”15
Criticisms remain Far from heralding in a new era of accountability and transparency, FoI laws still keep too much government business under wraps. Timmins highlights complaints from the recent round of negotiations for the Trans-Pacific Partnership agreement being held in Melbourne in March, where international observers said that: “decisions [were] being taken without public access to any documents or details”.16 Timmins notes that the Trans-Pacific Partnership participants forged a four-year confidentiality agreement: “all participants agree that the negotiating texts, proposals of each government, accompanying explanatory material, emails related to the substance of the negotiations, and other information exchanged in the context of the negotiations, is provided and will be held in confidence, unless each participant involved in a communication subsequently agrees to its release.” A challenge to this agreement is being made under Peru’s FoI laws. Peru came in at 25 on the global ranking. At home, recent judgments by the information commissioner, John McMIllan, as reported by The Australian reveal some other serious limitations of the FoI Act.17 According to the newspaper’s FoI editor, Sean Parnell, requests to the prime minister’s office for information relating to meetings between the prime minister and various companies and lobby groups, and her correspondence with lobby group Emily’s List, were refused on the grounds that they were beyond the reach of the FoI Act in that they did not meet the requirement of “a document that is in the possession of a minister… in his or her capacity as a minister, being a document that relates to the affairs of an agency or of a Department of State”.