Freedom of Information in Australia

Australia is a democracy where the public can ostensibly access a wide range of information from government departments, agencies and public institutions. But as Alison Sandy, FOI editor at 7News writes in this opinion column, the process of obtaining information can be fraught in practice.

In 2016, I applied to all universities across Australia for documents under Freedom of Information laws relating to sexual assault on campus. The purpose was not only to find out how prevalent it was, but to examine whether universities provided enough support for victims, and where they could, ensure proper sanctions were applied to the perpetrators.

The FOI investigation was a frustrating and time-consuming one. Many universities, particularly those in Victoria, drew out the process — feigning confusion over the scope, refusing to communicate verbally, asking dozens of questions in writing, refusing to answer questions about what they were capturing which made it “too onerous” to process.

The strategy was obvious — avoid agreeing to a scope so that they wouldn’t even need to process the application, let alone deny access to information.

Fortunately, many issues were brought to the fore when police and victims provided the information willingly and it featured on a Sunday Night special called “The Hunting Grounds”. The investigation, which also involved the expertise of seasoned journalists PJ Madam and #LetHerSpeak founder Nina Funnell, revealed most universities’ actions in relation to sexual assault were woefully inadequate, and record keeping on the issue was minimal.

The problems were so extensive the Australian Human Rights Commission did its own investigation and made recommendations of action and reform, which universities were supposed to implement.

This year, I did the same FOI investigation and it seemed that many more universities employed the strategies of their Victorian colleagues and refused to comply with their legal obligations of being open and accountable.

The FOI laws in Victoria are the worst in the country so most of the Victorian universities take advantage of that, particularly Monash and RMIT which treat it like a sport.

Some of the others like Curtin University in WA and University of New England in NSW, who were relatively cooperative in the past though, used the opportunity to frustrate the process with a new determination to obstruct and obfuscate.

There was a common theme in this week’s Right to Know events — “Trust”. It was said on more than one occasion that once governments lose the trust of the people by being overly secretive and unaccountable, it’s hard to get back. Universities are institutions which are meant to be progressive, enlightened and democratic. Yet, their treatment of FOI rights proves many are actually the opposite.

Alison Sandy is the Seven Network’s FOI editor.

Corruption threat greater with more secretive governments

By Alison Sandy, 7News FOI Editor

Lack of transparency and accountability in Freedom of Information access will leave secretive governments more prone to corruption, experts warn.

As part of Right to Know Week on Sept 28-Oct 4, Australia’s Information Access Commissioners and Ombudsmen united to lobby state and federal governments on how to best address threats to security and democracy by being more open and transparent with a series of Open by Design principles.

The officials raised concerns that what they termed a “secrecy reflex”, a tendency to withhold information unless absolutely forced to release instead of the other way around, was undermining public confidence in government.

Transparency International Australia CEO Sarina Lillywhite told the online audience Australia’s rank in the Corruption Perception Index world rankings, which measures the perceived level of public service corruption, was declining.

“What we’ve seen is that Australia has regrettably slipped out of the top 10 and has been trending downwards over the last eight years,” she said. “A culture of secrecy has been characterising our Parliament of late.

“There’s a growing discontent, decisions are increasingly being made behind closed doors with a handful of influential people and not always in the national interest.

“This really does need to be addressed at a federal level.”

Ms Lillywhite warned infrastructure was among “the most corruption prone sectors in the world.”

“Not least because of the vast amount of money involved,” she said.

She said accountability and transparency in this area was more important than ever as it’s relied upon much more as part of the economic recovery in the wake of COVID.

“It is vital that for the remainder of this year and coming years there’s a very sharp focus on how we spend public funds and these public/private relationships that are entered into (and) how these decisions are made.”

Also speaking at the online event, NSW ICAC Chief Commissioner Peter Hall QC said the public’s right to access information held by the government was at the core of democracy.

“Information is the linchpin of the political process and knowledge is quite literally power,” he said.

“If the public is not informed, it cannot take place in the political process with any real effect.

“The principle of the sovereignty of the people, that is that democratic governments obtain their authority from the people and govern with their consent means that to be giving proper consent, the people must know what the government is doing in their name.

“From a corruption prevention point of view, it is insufficient for a community such as ours not to have promulgated, adopted, a set of principles of transparency and accountability.”

Victorian FOI Commissioner Sven Blummel acknowledged Freedom of Information in Victoria was comparatively inadequate to NSW which boasted a much better disclosure rate.

He said while that was reflected in the legislation which was now more than 40 years old, it was also to do with the culture.

“To me the biggest problem which inhibits good information release in relation to FOI is the ‘secrecy reflex’,” he said.

“You’ll try and find a way to not to give it out and if you manage to do that, you consider that a win.

“It’s a win tactically, not for democracy.”

NSW Information Commissioner Elizabeth Tydd said being unnecessarily secretive led to the eroding of trust from constituents.

“Accountability is everything,” Ms Tydd said. “Each time there is potentially this desire, ‘well what can we keep out .. or what business case shouldn’t be released’ … it’s actually eroding the overall legitimacy of that government.

“Where a decision maker is dis-inclined to examine the presumption for disclosure, that is there to promote democracy and accountability and transparency and serve a pro-integrity purpose, it has an overall impact on the community at large, on every single member of the public because it has an impact on how that government is seen.”

Ms Tydd added that many of the issues in relation to the correct use of GIPA exemptions came from local governments and government-funded corporations.

She said it was an area they would continue to focus on.

The Open by Design principles can be found here.

For more information on how FOI laws work and how to make applications for information to government departments and agencies, you can view Alison’s recent FOI Masterclass here.

How the Government Information and Public Access Act has been used over the past 10 years

Source: The Office of the Information and Privacy Commissioner.

  • An increase from 6000 applications from members of the public in 2010 to 13,690 in 2020. Up 28 per cent increase.
  • A 230 per cent increase in applications seeking personal information in 10 years from 3000 to 10,000 in 2020.
  • 90 per cent of people say right to access information is important to them.
  • Release rates for citizens are around 70 per cent.
  • The use of the “Cabinet in Confidence” as an exemption is about 9 per cent by government departments. But there’s been a dramatic increase in reliance from State Owned Corporations by 33 per cent to 67 per cent in the past three years.

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