McLeod, Ron --- "Commentary: Freedom of Information - An Ombudsman's Perspective" [2001] FedLawRw 17; (2001) 29(3) Federal Law Review 359
COMMENTARY
Freedom Of Information—An Ombudsman's Perspective
Ron McLeod[*]
Freedom of Information matters do not constitute a great proportion of the complaints made to my office. In 1999–2000, there were 260 such complaints, out of a total of nearly 20,000 complaints in my office's various jurisdictions.
The subjects of complaint most commonly include delay, the imposition of fees and charges and decisions that do not contain adequate reasons to support claimed exemptions. Routine FOI complaints are handled in my office by the generalist staff that receive them, but we have a few recognised experts in the area of FOI who deal with more difficult or protracted investigations.
However, the raw numbers tell only a part of the story. It is not uncommon for a person, sensing that something might have miscued in the handling of a matter affecting them, to make an FOI request to the agency for relevant material so as to use the results to support a complaint. The fact that disclosure of documents can usually be compelled through the FOI Act has helped to make agencies more willing to provide reasons for decisions and to give access to documents outside FOI. My staff are not averse to suggesting a complainant make an FOI request if he or she has some concern about an administrative process but is unable to quite put a finger on the concern.
Overall, I think Commonwealth administration has dealt reasonably well with the personal information end of FOI. The large agencies such as Centrelink and the ATO receive many FOI requests from their customers who seek access to their files and they generally deal with them promptly and efficiently.
On the other hand, the more complex end of FOI—requests for general policy and administrative documents—can be more problematic. Agencies may involve their own or external legal advisers which can raise the temperature of the interaction, they may take defensive stances and they may be inclined on occasions to be vague about the reasons for refusing access.
Last year, following continuing complaints about FOI administration my office undertook an investigation of FOI practices in a selection of departments. We issued a report entitled Needs to Know.[1] The report did not deal with specific cases, but made a number of recommendations related to improving processes in agencies covering the handling of FOI matters.
It was clear from the investigation that FOI activity had not always been given the attention it deserved and that, at times, exemptions were claimed without reasons given and without any need for the claim. Performance of section 8 and 9 obligations—about FOI arrangements, categories of documents and documents available for inspection or purchase—was often very poor. Decisions were sometimes made by officers without the authority to make them and internal reviews were sometimes performed—up to the point of signature—by the officer who had made the decision under challenge.
My recommendations were aimed at improving the quality of FOI decision-making and administration through improved guidance from the Attorney-General's Department, encouraging greater disclosure outside FOI and providing better training for performance of FOI functions. The report has met with a reasonably positive reception from agencies, and it has served as an expression of the standards my office expects from agencies.
Having said that, the number of FOI-related complaints received in my office in the financial year just passed was similar to the previous year. This suggests that there may not yet have been a significant 'filter down' effect from my report's recommendations.
I saw my report as necessary because of indications that some of the spark had left FOI administration in the Commonwealth sector. To some extent, over time, some of the departmental advocates of openness in dealing with requests had been replaced by staff who had grown up in a different public sector management environment than their predecessors and who took a more restricted or defensive stance.
The enthusiasm and leadership which had characterised the approach of the Attorney-General's Department in the past seemed to have become blunted by the demands of commercial practice and competition in legal services.
Resources needed to deal quickly and flexibly with FOI requests in agencies have been more limited and more strictly managed than had previously been the case, and we sensed that there was something of a tendency to see FOI as another function which would have to compete with core programs for attention. The mechanisms which monitor how FOI is working in the Commonwealth sector seemed to be reducing in scope and operation, and I saw a snapshot as necessary to ensure that an extremely valuable accountability mechanism remained capable of being used efficiently.
My report also recommended that the Government respond to the Open Government joint report of the Australian Law Reform Commission and the Administrative Review Council on FOI, issued in early 1996.[2] That report suggested numerous substantive changes to FOI, including the appointment of an FOI Commissioner and revision of some of the exemptions. To date, there has not been a response, although the Government has considered, and in the Privacy Amendment (Private Sector) Bill 2000 (Cth) adopted, options for dealing with requests for information held by contractors in a way which acknowledges certain recommendations in the report.
On the subject of the Information Commissioner, my report makes it clear that there is a need for a leader and mentor in the area of FOI. My office performed a similar if narrower role, until the Freedom of Information Act 1982 (Cth) was amended in 1991 in recognition of the impossibility of the Ombudsman performing the function without additional resources.
The Attorney-General's Department has had leadership in the FOI field and continues to contribute through training. But—like any Department, or Minister for that matter—the Attorney-General's Department would not be suited to the function of advocating a position which may be contrary to that of the Government or of clients of its legal practice. Nor do I think the task can properly be performed by a new specialised body, created especially for the purpose. Such a body would, of necessity, be small and may be unable to manage the peaks and troughs of its role. Because of its single interest, its contribution to policy may be disregarded in the bureaucracy.
I think it follows from what I have said that I see a case for my office, as a practical alternative, to be given the Information Commissioner function. It would, in no way be inconsistent with what we already do and some other Ombudsman have this dual role.
It is difficult, from a position independent of Government, to ascertain why the Government is taking so long to respond to the ALRC/ARC report. The recommendations were, for the most part, aimed at improving the effectiveness of the system in place, not in basically changing the balance in the current Act between openness on the one hand, and protection of the confidentiality of certain specified classes of information on the other. The proposed changes would remove some of the obstacles to accountability of officials to the public and would have simplified and rationalised administration of the Act.
A comprehensive and coherent Government response to the ALRC/ARC report on FOI would also enable the lines to be drawn for debate and that debate could test whether the need for FOI, structured along its current lines, is as pressing in today's changed and more accountable administration as it was in the early 1980s or whether FOI is more necessary as the systems of government continue to become more complex. For example, in an administration increasingly attuned to the competing needs of cost recovery and accountability, is the balance right in terms of fees and charges? Is it right in terms of exemptions and the coverage of the Act in a situation where government functions are increasingly not performed by government directly?
As mentioned, the Government has introduced amendments to the Privacy Act 1988 which would improve the position of individuals whose personal information is held by government contractors. But there has not yet been a comprehensive response to the problems thrown up by the interaction of administrative law and outsourcing of government functions. That problem exists in the FOI context—the way people are dealt with can depend on contracts and related documents to which they do not have access because of claimed commercial sensitivity. And it remains a source of difficulty for my office.
A theme in reviews of contracting out—by the former Industry Commission and the Administrative Review Council—is that my jurisdiction should be extended to deal with the actions of government contractors. The second report of the Senate Finance and Public Administration Committee in May 1998 recommended that, pending a decision on the general principles, my jurisdiction should be extended on a case by case basis – and that recommendation was made in a context that seemed to support a general extension. The Government's position has been that the matter of my jurisdiction would be addressed in the response to the ARC report on outsourcing[3]—which was issued in August 1998 but which has not yet received a response.
I have real concerns that the public may, by accident, lose the right to complain simply because of changes to the way services are provided. The services are essentially the same, the desired outcomes the same and the source of funding the same, but the right to question and attach responsibility for poor service delivery performance may be lost. My office will, as a general rule, assert jurisdiction in these cases unless it is absolutely clear that our jurisdiction has been lost. For the most part, we will treat contractors as the officers of the Commonwealth agencies for whom they act. Indeed, I believe that my existing legislation is more robust in this regard than is generally believed.
I am heartened to see that the Joint Committee of Public Accounts and Audit has just released its report on Contract Management in the Australian Public Service.[4] One of its key recommendations is that the Ombudsman Act 1976 (Cth) be amended to extend my jurisdiction to include all government contractors. I hope this tips the balance of argument in favour of this course being adopted by the Government.
Contracting out raises another issue in the context of FOI. Because of the work it does, government receives a massive amount of sensitive information. People provide personal information when claiming pensions and allowances, when paying their taxes and on many other occasions; for example, when making complaints to my office. Companies provide a great deal of commercially sensitive information to government regulators and in the course of tendering to and contracting with government.
Those providing information are entitled to expect that it will be maintained securely and used lawfully. There is a justified loss of faith in government when it becomes clear that these expectations have not been met. The official who checks what his or her neighbours have said about themselves, the contractor who copies tender documents because of a career interest in that area of work, the policeman who uses official data to identify someone in whom he has a personal interest—disclosures of these kinds can contribute to a loss of faith and confidence in general.
But, once information comes into the hands of government, it may be subject to an FOI request. The ARC/ALRC report dealt with some of the weighing of interests that arises here—including the general right of access to government documents against the desire to maintain a proper level of confidentiality for what has been provided for a limited reason. The issues are complex and it is not always possible to say where the balance of public interest lies from case to case. There may be good reason for refusing to disclose a business document to a competitor of the body who supplied it, but do those reasons hold up when the request is made by a person whose interests are strongly affected by the same document? The FOI process, which requires consultation and permits those affected to seek review, can make decision-making longer and more complex and has the potential in some cases to leave everyone (except the lawyers) dissatisfied.
Despite its shortcomings and despite the lack of universal acclamation for it from officials, in my view the existence of FOI legislation has had a major and positive impact on changing the culture of the public sector from being very inward looking to accepting a greater sense of openness. However, the message has to continue being reinforced from time to time—my office is doing some of the reinforcing as are decisions of the AAT. An Information Commissioner would have a major role in performing the function in a consistent and regular way.
FOI has lent itself to an embrace of the concepts of accountability. Actions and decisions should be recorded so that those with an interest in them can see what was done and why. This links in neatly, in my view, with the public sector managerial reforms of the last twenty years which have emphasised enhanced accountability.
At the political level, FOI has changed to some extent the dynamics of politics. There will be a record of what has been done, and that record will generally be accessible and available, including to the media and the political opponents of the government of the day, although at times its release may be achieved with varying degrees of difficulty. FOI has been used in this way, and will continue to be used—it is capable of bringing about embarrassment to governments and individual Ministers. The knowledge that disclosure is possible, and may be painful, has forced governments to consider more carefully how something will appear to the public when disclosed; it has also helped the community to become more acutely aware of issues and more demanding of explanations about situations touching on probity and propriety in government. Those factors have enhanced accountability.
This is not to understate the role of a vigilant Opposition or an aggressive and independent media in enhancing accountability. But the political function of FOI should not be minimised—it is one of the basic tools by which any government can be exposed for failing to meet the high standards to which it should aspire. For this reason alone, FOI legislation has deserved to become one of the lynchpins of our system of democratic government.
[*] Commonwealth Ombudsman. This paper is an edited version of the paper presented at the Centre for International and Public Law, Annual Public Law Weekend 2000, Administrative Law Conference, 10-11 November 2000.
[1] Commonwealth Ombudsman, 'Needs to Know' : Own motion investigation into the administration of the Freedom of Information Act 1982 in Commonwealth agencies. (1999)
[2] Australian Law Reform Commission, Administrative Review Council, Open government : a review of the federal Freedom of Information Act (1982)
[3] Administrative Review Council, The contracting out of government services : report to the Attorney-General (1998)
[4] Joint Committee of Public Accounts and Audit, Contract Management in the Australian Public Service (2000)