Our right to know is under attack. A new and deliberate assault is now being launched on one of the pillars of access to federal government information: the Freedom of Information (FOI) Act. We risk losing one of our most valuable tools to help open governments.
Information is power. The Snowden disclosures show that the ability to access information through surveillance is a critical tool for governments. FOI is a small but powerful tool that ordinary citizens can use to counter government power. When used effectively it can prise open the inner works of government to devastating effect.
Unfortunately, the process is being weakened. While there were open government gains from reforms implemented in 2010, our right to know has become narrower. Requests are increasingly denied on spurious grounds and excessive costs are used to deter requests. Information about detention centres and what is happening on the high seas has been a heavy casualty. Requests for towbacks and turnbacks are knocked back. Even information about the nationalities of those arriving by boat is withheld.
The federal government will soon dismantle the FOI regime further. Sometime this year it will attempt to radically change the law.
The details are still unclear, but this is what we know so far. The Office of the Australian Commissioner (OAIC), designed to be a champion of open government, will be abolished. Complaints will be heard by the commonwealth ombudsman, although there will be given no additional resources to deal with them.
Reviews of FOI decisions will go the administrative appeals tribunal, which will likely cost more than $800. It is anticipated the government may also seek to reintroduce some kind of application fee to the FOI process.
None of this bodes well for access to government information. A system that’s more expensive, and more difficult, to enforce will be accessible only to the most experienced applicants. A system that solely allows appeals to the tribunal, which has a much more formal legal setting, poses a much higher barrier for access.
Some have welcomed the dismantling of the commission. It’s true that it has been plagued with delays and cumbersome bureaucracy. Limited funding by the current and previous government has created a major backlog.
But an advocate of open government must be retained. The real value of the commission is that it was always watching. It conducted investigations when necessary, looked into complaints, or simply extended time for agencies to deal with requests. OAIC created valuable statistics about what the government was doing with requests from the public, how many were granted, and how many were refused.
This meant that government agencies knew there was somebody always looking over them. Its investigation into the immigration department had a demonstrably positive effect on how they deal with requests.
The loss of application fees and the presence of the commission also saw FOI requests flourish; an entire community of FOI users has grown on the right to know website, where requests can be publicly lodged. Journalists and activists use FOI increasingly to seek important information.
We are now at a point where we risk allowing those gains to be slowly stripped away. It’s not too late, but the gradual creep towards a more shuttered form of governing suggests a new approach needs to be taken.
In the lead up to the 2007 election a coalition of media organisations, Australia’s right to know, advocated for changing FOI laws to make them more favourable to access government information. The reforms created the OAIC and abolished conclusive certificates, one of the most offensive provisions in the act. The coalition became a major force for change, and succeeded in persuading the then Labor government to changes the laws.
The federal government has indicated it intends to abolish the OAIC before the end of the year. The coalition has been silent now for some time. If it can’t be resurrected, perhaps a new one needs to be formed.
Paul Farrell is a reporter for Guardian Australia.