Independent MLA Paul Osborne has called for a more open system of freedom of information. He says he has been trying to get a redraft of the Freedom of Information Act before the Assembly since 1995. Under the present system, he says, getting information out of the ACT Government is like trying to track down an X File.
Unfortunately, there is a lot of truth in what Mr Osborne says, not only in the ACT, but also federally and in the other states. Freedom of information Acts have become more costly and difficult to use. The trouble is that legislative change may not help much. The ease of extracting information from government is as more a test of bureaucratic and political attitude than legal provision. If bureaucrats and government politicians do not want information to go out, they will stretch the exemptions granted under the law to their utmost, fighting requests in the Administrative Appeals Tribunal and the courts if necessary.
If, on the other hand, a bureaucrat wants information to come out, they will be very helpful. Indeed, the FOI Act is often used as a legal means for whistle-blowing bureaucrats to get information into the public domain. They do not have to leak the document in question; just leak the fact that it is there and that an FOI request would not be resisted.
The practice and administration of FOI is just as important as the legal provisions. There needs to be a greater recognition that public has a prima facie right to government information, and it is for government agencies to prove documents fit exemptions. Mr Osborne no doubt feels that many bureaucrats make the presumption that as soon as a request arrives they should try to refuse access to as many documents as possible and be as suspicious as possible about the reason the request was made. Its these sorts of attitudes that can make a liberal FOI law worthless.
That said, the legal provisions are important. Attorney-General Gary Humphries has pointed out that there are no fees for personal information about the applicant. He says that fees are charged when the amount of material sought would be a significant drain on departmental resources.
There is merit in the view that fees can act as a break on vexatious requests. However, they can also be used to deter people who want to find out about things government has done.
The aim of FOI is not only to provide information that belongs to the people to the people, but to keep politicians and bureaucrats on their toes. If bad practice is exposed it can be rectified and procedures put in place to make sure it does not recur.
There may be ground for narrowing present exemptions to give greater effect to the presumption that people have a right to information held by the government.
Perhaps a more significant reform would be to extend the provisions to the FOI Act to a range of tribunals and other bodies that deal with the regulation of the professions and others who work under government licences of one sort or another.
There should be a presumption that medical, legal, liquor and gaming and other disciplinary tribunals work in public and their findings are public. That presumption should have to be positively overruled on stated public interest or other grounds. At present there seems to be a presumption that they work in private until someone prises them open. To that extent, the ACT Government does have some X Files.