As the 2008 Atlanta Declaration and Plan of Action for the Advancement of the Right of Access to Information (1) stated:
“.. the right of access to information is a foundation for citizen participation, good governance, public administration efficiency, accountability and efforts to combat corruption, media and investigative journalism, human development, social inclusion, and the realisation of other socio-economic and civil-political rights.”
and
“.. the right of access to information promotes efficient markets, commercial investment, competition for government business, their administration and compliance of laws and regulations”
It urged States to
“.. integrate promotion of the rights of access to information into their own national development and growth strategies and sectoral policies (2)“
On about 20 November 2007 the Victorian government announced its intention to reform FOI laws including by abolishing conclusive certificates for Cabinet documents thereby enabling VCAT and the courts to decide whether a document was a Cabinet document, abolishing FOI application fees, requiring departments and agencies to provide updates of certain information on the Internet and allowing an extra 30 days for FOI responses to facilitate consultation with individuals businesses and agencies affected.
The Opposition opposed the proposed changes. Later, on 19 November 2009, it issued a media release setting out its proposals which involved the creation of an independent Office of the FOI Commissioner who would take decisions about FOI access out of the hands of government and departments at a cost of up to $2 million per annum. The Commissioner would be accountable to a joint Parliamentary committee. Nothing was said about abolishing conclusive certificates, placing the onus on those seeking exemption, or excluding popular and absurd grounds seeking exemption.
Both proposals fall short of the Solomon Report (3) recommendations which have been taken up in legislation in Queensland and Tasmania (and to a lesser extent federally). That legislation gives effect to the proposed major policy change from the old approach of responding to specific demands for information (the demand approach) to one where government is expected to take the initiative in publishing information (the push approach), the presumption being that the community is entitled to information about the actions of government unless the balance of competing public interests requires non-disclosure.
To facilitate and maintain this changed approach, the position of Information Commissioner has been created. The legislative reforms include removing automatic exceptions for classes of documents, abolishing the conclusive certificate system, and placing the onus on those resisting the disclosure of information to substantiate their claim that disclosure would be contrary to the public interest. The legislation also contains an inclusive list of factors favouring disclosure and nondisclosure as well as a list of irrelevant factors (such as the alleged potential for a document to confuse an applicant and the fact that the document was authored by a senior official).
As to the future in Victoria, a perusal of the ALP website and its platform does not give information about its present position beyond a promise to “promote a proactive publication of information regularly sought by the community”, and “lead the establishment of a National Information Policy”. The Coalition website repeats in essence the above policy statement.
The Greens 2006 platform supported the Solomon approach. It was as follows
3.2.11.Revising the Freedom of Information laws, to better respect the general principle of a public ‘right to know’, by establishing –
a. a clear principle that citizens are entitled to free and immediate access to government records other than in circumstances in which it can be demonstrated that release would specifically damage or compromise someone’s rights or legitimate interests or the public interest
b. a reversed onus of proof, so that a public agency must make its own
successful application for non-release of the records.
There is considerable disquiet about government secrecy in Victoria particularly in relation to major construction projects and PPPs. This eats away at community confidence in the government. If evidence was needed, the experience in Australia in the 20th century demonstrated that where secrecy is practised, the government of the day cannot be held to account by the Parliament, or ultimately the people, good governance is put at risk and the risk of corruption is significantly increased.
A particular concern in relation to major financial commitments is that full details are not made available including, in the case of PPPs, the Public Sector Comparator. The balance of public interest clearly requires the disclosure of such information. While the Opposition has been critical of government secrecy, its current policy also fails to adequately address the issues. The Greens proposal would go a long way to doing so.
The present FOI legislation was first enacted in 1982. Since then communication and record keeping has undergone the most remarkable change and the provision of information by government and access to it made much easier, speedier and cheaper. There is no excuse for maintaining the old approach. It is time that Victorians had what, in this the 21st century, is best practice. That requires Right to Information legislation of the kind and content of that already implemented, and operating, in Queensland and Tasmania.
The Accountability Round Table calls on all parties to commit to the enactment of that legislation.
[1] The Carter Centre, “A Declaration and Plan of Action for the Advancement of the Right of Access to Information”, Paper from the International Conference on the Right to Public Information, 27-29 February 2008, p.1. <www.cartercentre.org/news/pr/ati_declaration.html>; cited Solomon Report, 33 and 34
[1] ibid, p.5.
[1] Right to Information; Reviewing Queensland’s Freedom of Information Act, June 2008.