Alternative Law Journal
Australian and British FOI legislation face similar obstacles in achieving their aim of bringing a more open and transparent system of information provision. The fundamental problem for both countries, from which all others stem, concerns the placing of a Freedom of Information Act (FOIA) regime atop a ‘closed’ Westminster system of government with ingrained habits of secrecy and strict information control. The 1982 ‘grafting’ of an FOIA upon a secretive administrative culture in Australia has led to the development of a culture of resistance within certain areas of government, resistance that manifests itself, for example, through the manipulation of vague exemptions, use of the veto and delay in processing requests. Similar problems can be seen within the UK’s new FOI regime. Furthermore, the central problem of poor records management that has hindered Australian FOI has also been highlighted as a difficulty in the UK. However, the key difference between the two regimes — perhaps the key area in which the framers of British FOIA may have learnt from the Australian FOI experience — is in the very different approach taken to oversight and appeal. The creation in the UK of a single FOIA advocate and a two-stage appeals process may serve to create a strong pressure for openness that the Australian system has lacked.
The central problem of the Australian FOIA, highlighted by successive investigations, is the imposition of FOI upon a ‘reluctant public sector with an established practice of secrecy’. Many of the problems the Australian FOIA has experienced stem from this flaw and it is the continued existence of this secretive culture that is undermining the effectiveness of the legislation. The attempt to accommodate an FOI scheme onto a traditional ‘closed’ Westminster system has led to resistance aimed at preventing disclosure. This has manifested itself in numerous ways. Although the effects of such a culture are by their nature difficult to discern, the effect of this ‘culture of secrecy’ can be observed in the misuse of exemptions, operation of the veto and delay in processing requests.
The first visible problem stemming from secrecy concerns the inappropriate use of exemptions. The Australian FOIA contains wide exemptions that ‘significantly undermine’ the ability of the legislation to promote openness.What has been described as the ‘vague drafting’ of a number of these clauses has been exploited by some agencies to prevent disclosure of information. For example, the exemption clauses 24 (A) relating to ‘unreasonable diversion of resources’ defers to an agency’s necessarily subjective view of what constitutes a ‘burden’ whereas clause 33 (1) (a) (iii) relating to the protection of international relations is ‘potentially unlimited’ in that it encompasses all information even ‘tangentially’ related to international affairs . The Commonwealth Ombudsman claimed to have discovered ‘deficiencies’ regarding some agencies’ application of exemptions, noting a ‘variable quality’ in making requesters aware of which exemption has been applied, which may point towards ‘cultural resistance’ towards FOI in ‘some agencies’.
The second discernible problem concerns the operation of the Ministerial veto. Through the issuing of a certificate, the veto can prevent disclosure pertaining to Cabinet documents, defence matters and internal working documents. Successive governments have made ‘significant use’ of the power of veto preventing the disclosure of information relating to ID cards, government revenue and internal documents relating to immigration and taxation. The veto remains controversial especially as not all veto use has been related to ‘exceptionally sensitive’ subjects. The presence of the veto was criticised even before the Act came into force, with a Parliamentary committee arguing ‘there is no justification for such a system’ and two Attorney-General department officials describing the safeguard in 1994 as simply a ‘hangover’ from the time when ‘the feared impact of FOIA was greatly exaggerated’. However criticism has not deterred successive governments from using it. The existence of the veto gives ‘unlimited potential for manipulation’. Furthermore, as the McKinnon decision demonstrated, use of the veto can ‘render futile’ the system of external review, as the Administrative Appeals Tribunal (AAT) can only review the issue of the certificate on the narrow issue of whether it constituted at least one ‘reasonable ground’ for refusal.
The third perceptible problem concerns delays in responding to requests. Between 2002 and 2003 less than half of all requests for non-personal information — often the more sensitive requests — were processed within the allotted 30-day period. This compares with 73 per cent for personal requests in the same period. The Commonwealth Ombudsman offered the view that this may be due, in part, to the fact that non-personal requests are often more problematic. However the increase in delays, for both personal and non-personal requests since 2002, points toward other explanations. The Ombudsman’s report argues that the rise may be indicative of ‘cultural resistance to FOI within some agencies’ and the fact that ‘good FOI administration’ may be of ‘dwindling importance’.
Each of these problems taken on its own constitutes a strong obstacle to openness. Taken together, they are a powerful force against FOI and may call into question the ability of the Australian legislation to fulfill its aims. The combination of a strong ‘culture of secrecy’ and legal ambiguities and mechanisms means that Australian FOIA frequently, according to Snell, ‘default[s] towards secrecy’ rather than towards openness.
A further problem that continues to hinder the Australian FOIA is the crucial issue of records management. The issue has been a ‘common concern’ of various investigations into the Act, as well successive Ombudsmen who have viewed the issue as one of the ‘main challenges’ to Commonwealth FOIA. The 1999 Ombudsman investigation found that few agencies had centralised record-keeping and in ‘some cases’ record-keeping was so ‘fragmented’ that locating information was ‘extremely difficult’. The continued existence of poor records management and data handling was highlighted in a recent Ombudsman investigation regarding the detention of immigrants which found that in all 45 cases ‘data problems had occurred’. The failure resulted from inaccurate and flawed data which, according to the Ombudsman, itself stemmed from a combination of human error and a lack of training and guidance. Good records management is essential to the operation of FOI as ‘access to information through FOI is based on the existence and availability of information’.
Overall numerous studies have viewed the operation of the Australian FOIA as flawed and problematic, with a diverse set of problems all resulting from the continuation of a culture of secrecy within Australian government. Lidberg’s 2005 study found the ‘chief problem’ to be a ‘culture of resistance to FOI’. In 2006, a report by the Commonwealth Ombudsman took the view that reform was ‘overdue’, as compliance with the Act was ‘variable’, identifying an ‘uneven culture of support for FOI across government agencies’.
These problems can all be seen reflected, albeit in embryonic form, within the British FOIA. As with Australia, Britain’s FOIA was placed atop a Westminster system with a long history of strict information control in which ‘secrecy is built into policy-makers bones’. The manipulations of exemptions, threatened use of the veto and delay evidenced in Australia have all been identified within the British system. Moreover, within its first two years, the FOIA system has faced two attempts to amend and limit its scope.
First, although it remains provisional, there are signs that exemptions may have been interpreted broadly in some requests. The pressure group Friends of the Earth complained to the Constitutional Affairs Select Committee (CASC) that public authorities had, in their view, ‘interpreted exemptions … in an excessively broad manner’ and CASC identified a number of requests where it ‘considered that public authorities had interpreted the exemption too widely’. BBC FOIA expert Martin Rosenbaum suggested that the success of certain exemptions, such as legal privilege and international relations, may either reflect the particular view of the Information Commissioner’s Office (ICO), or authorities ‘using the exemption when it is not justified by the circumstances’. An anonymous ‘very senior Civil Servant’ asserted that some in the public service manipulated exemption provisions, claiming ‘officials write “this is a policy submission not a factual document” even when this is not really true’ to ensure the document is exempt from an FOI request.
The second problem concerns the veto power. Although the veto power under the British Act has yet to be used, one of Gordon Brown’s key allies recently suggested that the government may soon do so following a series of decisions by the ICO and Information Tribunal relating to policy formulation. Alastair Darling, a few weeks before being appointed Chancellor of the Exchequer, outlined in a letter to the then Lord Chancellor his fear at the possible impact of the succession of appeal rulings regarding access to policy. According to Darling, ministers need to ‘consider whether a change to the legislation is needed’ or exercise the as yet unused ministerial veto to annul tribunal decisions regarding policy formulation. The Campaign for Freedom of Information (CFOI) believes this possibility constitutes ‘by far the most serious threat to the Act we have seen’ as veto use may ‘erode public faith in the Act’.
The issue of delay is also pertinent to the British FOIA. Although requests are recorded differently, and only cover two years, there are already notable inconsistencies in patterns of disclosure among ministries that deal with similarly sensitive policy areas. Although the Ministry of Defence, traditionally regarded as hostile to openness, fully disclosed 71 per cent of requests in 2006, the Cabinet Office fully disclosed in only 39 per cent of cases and the Department for Constitutional Affairs and Home Office in 43 per cent and 45 per cent of cases respectively. Similar discrepancies are evident in the withholding of information. The Ministry of Defence fully withheld disclosure in 12 per cent of cases during 2006, whereas the Cabinet Office fully withheld in 37 per cent of cases and the Department for Constitutional Affairs and Home Office in 42 per cent and 36 per cent of cases respectively.
The quality of information and records management is also an issue within the British system. According to the 2006 CASC there is ‘evidence that records management is poor in some public authorities’ a factor that ‘reduces the quality of response’ and Baroness Ashton, the Minister initially charged with direct responsibility for FOI, described the quality of records management as ‘patchy’. The report concluded that records management required ‘substantial improvement’. FOI expert Steve Wood highlights a further criticism that the ‘user has not benefited’ from new electronic storage systems which would allow FOI requests to be dealt with more easily, as authorities, even with such systems in place, continue to view requests with a ‘paper based mindset’.
The effect of the culture of secrecy in Britain has not been limited to the above. Rather than the passive resistance evident within the Australian system, the FOIA in Britain has faced two attempts to limit its scope and power. This can be viewed as part of a process occurring across FOIA regimes worldwide and which Alasdair Roberts terms ‘Executive pushback’, defined as the ‘determination of politicians to reverse laws or policies that govern openness’. The first British ‘pushback’ attempt began with a government attempt to clamp down on vexatious and serial requests through limiting the number of requests one individual could make, and making it easier for civil servants to deny disclosure on the basis of expense. Following criticism from across the political spectrum and concerted opposition from the media, MPs and campaigners, the government put the proposed changes on hold.
However, just as the government appeared to back down, a Private Members’ Bill aimed at excluding Parliament from FOIA gathered momentum. Despite pro-openness MPs attempts to filibuster it, the Bill moved to the House of Lords but was halted following criticism from both Prime Minister-in-waiting Gordon Brown and Leader of the Opposition David Cameron. Although both attempts to amend FOI were beaten, they gained considerable momentum before being defeated and are unlikely to be the last.
Both FOI regimes can thus be seen to face the same array problems, stemming from the single difficulty of placing FOIA atop secretive ‘closed’ Westminster systems. However, a key difference exists between the British and Australian FOIA — a difference that may have a significant impact upon British FOIA and may serve to offset the culture of secrecy and problems associated with it. The issue concerns that of the presence of a single independent advocate for FOI. While the Australian system lacks a central figure or institution to advocate and monitor FOIA, with different roles spread across different agencies and departments, Britain is unique in the world in having not only an independent ICO but also an Information Tribunal (IT) that together have already proven to be an influential force for openness.
The lack of a single unified FOI advocate in Australia has been criticised by the ALRC and ARC, the Senate and successive Ombudsmen. Numerous experts believe that ‘many’ of the Act’s ‘shortcomings’ could be solved through the creation of an institution empowered to advocate, investigate, issue guidance and monitor FOI. Yet this potential counter-availing power for openness is currently spread and dissipated across three agencies: the Ombudsman, the Attorney-General’s department and the AAT, with a final possibility being recourse to judicial review.
The Ombudsman was granted powers of investigation and scrutiny under the Act but was constrained throughout the 1980s by a lack of resources . Moreover, the Ombudsman’s power is persuasive not co-coercive and is constrained by time and resources. Thus, the Ombudsman is not always certain to proceed with cases that are either unlikely to succeed or overly complex, which FOIA cases frequently are. Furthermore, the Ombudsman’s power was limited in 1991 when the Ombudsman was removed from the day to day monitoring of FOI .
The role of the Attorney-General’s department concerns maintenance of general FOI policy. However, the department does not monitor or audit FOI performance and its role ‘is confined to the maintenance of the Act’ by providing annual reports, memoranda to public authorities, FOI training and providing help via the FOI website if resources allow.
Although the AAT cannot grant access to documents, it was intended to serve as an appeals body. However, as Rick Snell points out, ‘from its very first case it adopted a cautious approach’. Between 2004 and 2005 decisions of the agencies were upheld in 78 per cent of cases, with only 22 per cent showing any variance with the official agency decision. The possibility of success is thus ‘slight’, and even more so when it is considered that exercise of the veto can override an AAT decision.
The final option of judicial review is costly and constrained by the fact that the judiciary can only consider on the basis of whether an error on law took place. The recent McKinnon case further demonstrated the limitations of this appeal option. The case concerned an appeal against the issuing of a certificate to veto access to Treasury documents, and the majority of judges took the view that one reasonable ground was enough to justify the issuing of a certificate, a decision that further restricting the power of the AAT to review ministerial decisions. Although a minority of the judges criticised the final verdict, the majority ‘took little account of the wider policy objectives of the FOI Act … and restricted themselves to a very narrow interpretation of the legislation’.
According to the Vice Chairman of the Australian Press Council, the ruling ‘in practical effect, have given the government of the day carte blanche to deny information to the people according to its whims and fancies’. The Ombudsman expressed his ‘great disappointment’ at the verdict, due not only to the fact that certificates would now be ‘hard to overturn’ but also because there was no ‘serious appraisal’ of what constituted the public interest.
The difference between the Australian and British appeal mechanisms could not be more pronounced. The British FOIA, by contrast, has an Information Commissioner to act as an advocate, monitor and advise on FOI as well as to serve as first stage appeal bodies who can issue a decision notice, though, like the AAT the ICO can only recommend disclosure. The British system also has a second stage expert appeals body, the Information Tribunal, which decides on cases irrespective of the ICO’s judgment.
In the early stages of FOIA operation, as with the Australian Ombudsman, the ICO was limited by resources and fell behind in decisions, developing a backlog of cases. Moreover, the IT was seen as an institution designed to encourage ‘delaying tactics’ by agencies. However, in the course of the past year, the two bodies have begun to create a significant pressure for openness leading to the disclosure of policy documents relating to ID cards, minutes of ministerial meetings and civil service advice to the Chancellor regarding pensions. The combined force of the two institutions has already created powerful precedent, with the effect that some departments are choosing not to pursue appeals to the IT but simply release the information.
In the long-term, the question of whether FOI legislation can successfully overcome a culture of secrecy is a question itself couched on a conundrum
in the same vein as ‘chicken and egg riddles’, which comes first, culture change or FOI? It seems that FOI is supposed to bring with it a culture change and yet culture change is necessary for FOI to work properly’.
The FOIA regimes in both Britain and Australia have suffered from this contradiction and from the ill-effects that stem from placing FOIA upon a ‘closed’ system with a history and culture of strict information control. These ill-effects have undoubtedly undermined and hampered the operation of FOI in both countries.
The question is whether FOI in Britain, still in its early stages, can successfully overcome the problems that Australian FOIA has yet to fully solve — after more than two decades. The appearance of manipulation and resistance within areas of British central government, as well as the problems related to records management, do not bode well for the future success of British FOIA. The successive attempts to limit the Act’s power are perhaps evidence of the continuing strength of the ‘culture of secrecy’.
However, the achievements of the ICO and IT in opening up government and creating pressure and precedents for openness have given FOIA a focus and momentum lacking within the Australian system. This may serve to guide, support and expand FOIA within Britain in its crucial early stages as well as addressing some of the problems outlined above. Moreover, the fact that both attempts to amend FOI failed demonstrates the power of support for the legislation among MPs and the media, and the amendments may just as much be evidence of secretive forces’ desperation rather than strength. Nevertheless, it must be remembered that the passage of an FOIA, as the Australian case demonstrates, is only the beginning of an ongoing and continuous struggle for openness and that the price of freedom of information, like freedom itself, is eternal vigilance.
[*] BENJAMIN WORTHY
© 2007 Benjamin Worthy
 Transparency International, Overview of Freedom of Information in Australia http://www.transparency.org.au/documents/FOI_Summary_Information_06_10.pdf at 10 November 2007.
 Ibid, 21.
 Stephen Lamble. ‘Media use of FOI surveyed: New Zealand puts Australia and Canada to shame’ (2004) FOI Review 109, 5.
 Australian Freedom of Information Act 1982 s 24A www.austlii.edu.au/au/legis/cth/consol_act/foia1982222 at 10 November 2007.
 Michael Alhadeff ‘Denying the Public’s Right to Know: A critique of the operation of the FOI Act 1982’, (2006), 22 see <http://www.ricksnell.com.au/resources/Alhadeff2006.pdf> .
 Commonwealth Ombudsman, Scrutinising government: administration of the Freedom of Information Act 1982 in Australian government agencies (2006), 30 <http://www.comb.gov.au/commonwealth/publish.nsf/AttachmentsByTitle/reports_2006_02.pdf/$FILE/FOI_report_March2006.pdf> at 10 November 2007.
 Campaign For Freedom of Information [CFOI] ‘The Ministerial Veto Overseas’ (2001), 2 http://www.cfoi.org.uk/pdf/vetopaper.pdf at 10 November 2007.
 Ibid 3.
 Ibid 8.
 Ibid 2:4.
 Ibid 8.
 Rick Snell. ‘Conclusive or ministerial certificates — an almost invisible blight in FOI practice’ (2004) Freedom of Information Review 109, 11.
 Moira Paterson. ‘FOI: McKinnon’s Case: Where To Now?’ www.presscouncil.org.au/pcsite/apcnews/nov06/foi_where.html at 11 November 2007.
 Above n 6, 17.
 Ibid 21.
 Ibid 28.
 Ibid 18.
 Ibid, 28.
 Rick Snell ‘Freedom of Information Practices’ (2006) 13 (4) Agenda, 297–298.
 Commonwealth Ombudsman, Needs to Know (1999), 26–27 http://www.ombudsman.gov.au/commonwealth/publish.nsf/attachmentsbytitle/reports_1999_all_foi/$file/needstoknow.pdf at 10 November 2007.
 Ibid 26.
 Commonwealth Ombudsman, Department of Immigration and Citizenship: report into referred immigration cases: data problems (2007), 18 http://www.ombudsman.gov.au/commonwealth/publish.nsf/AttachmentsByTitle/reports_2007_08/$FILE?reports_2007_08.pdf at 10 November 2007.
 Ibid 18.
 Rick Snell & Peter Sebina, ‘Information flows – the real art of information management and freedom of information’ (2007) Archives and Manuscripts 35 (1), 68.
 Johan Lidberg, ‘Freedom of Information Banana Republics and the Freedom of Information Index’ (Paper presented to the Journalism Education Conference, Griffith University, 29 November to 2 December 2005) 6 www.abc.net.au/mediawatch/transcripts/ep31lidberg.pdf at 10 November 2007.
 Above n 6, 33.
 Peter Hennessy, Whitehall (1990), 351.
 Constitutional Affairs Select Committee [CASC]. ‘Seventh report: Freedom of Information: One Year On’ (2006) p 15 accessed at www.publications.Parliament.uk/pa/ cm200506/cmselect/cmconst/991/99105.htm
 Martin Rosenbaum ‘Which exemptions succeed?’ (13 July 2007) <http://www.bbc.co.uk/blogs/opensecrets/2007/07/which_exemptions_succeed.html> at 10 November 2007.
 BBC News, ‘Alistair Darling’s letter to the Lord Chancellor, Lord Falconer’(8 May 2007) <http://news.bbc.co.uk/2/hi/uk_news/politics/6689241.stm> at 10 November 2007.
 David Leigh & Robert Evans ‘Brown’s secret mission’ (28/5/2007) see www.politics.guardian.co.uk/foi/story/0,,2090465,00.html.
 Ministry of Justice, ‘Second Annual Report on the Operation of the FOI Act in Central Government 2006’ (2007), 21 www.justice.gov.uk/docs/foi-annual-report-central-gov-2006.pdf at 10 November 2007.
 Above n 28, 21.
 Ibid 18.
 Ibid 18.
 Ibid 22.
 Alasdair Roberts ‘A complex battle over openness’ (6/3/2007) see <www.sunshineweek.org/sunshineweek/roberts07>.
 CFOI, Press Release ‘Welcome for FOI rethink’ (2007) http://www.cfoi.org.uk/foi290307pr.html at 10 November 2007.
 BBC News, ‘Brown will not block secrecy bid’ (18 May 2007), www.news.bbc.co.uk/1/hi/uk_politics/6667431.stm at 10 November 2007.
 Above n 6, 33.
 Ibid 33.
 Ibid 3.
 Michael Alhadeff ‘Denying the Public’s Right to Know: A critique of the operation of the FOI Act 1982’, (2006), 29 <http://wwwricksnell.com.au/resources/Alhadeff2006.pdf> at 10 November 2007.
 Above n 6, 3.
 Ibid 4.
 Above n 19, 298.
 Above n 48, 30.
 David Bannisar. ‘Freedom of Information across the world’ (2006), 42 www.privacyinternational.org/FOIAsurveypart1.pdf
 Above n 51, 293.
 Ibid 293.
 Ibid 294.
 Professor H P Lee. Freedom of Information: A Court Adrift? (2006) <http://www.presscouncil.org.au/pcsite/apcnews/nov06/foi_court.html> at 10 November 2007
 Professor John McMillan. ‘The FOI landscape after McKinnon’ (speech delivered to the Australian Institute of Administrative Law, Canberra, October 2006) www.comb.gov.au/commonwealth/publish.nsf/content/speeches_2006_06 at 10 November 2007.
 David Bannisar, ‘FOI around the world-a global survey of access to information’ (2006), p16 accessed at www.privacyinternational.org/FOIAsurveypart1.pdf
 Constitutional Affairs Select Committee [CASC] ‘Seventh report: Freedom of Information: One Year On’(2006) p18 see www.publications.Parliament.uk/pa/ cm200506/cmselect/cmconst/991/99105.htm
 Martin Rosenbaum ‘FOI spotlight now shines on policy development’ (2 April 2007) see http://www.bbc.co.uk/blogs/opensecrets/2007/04/foi_spotlight_now_shines_on_po.html at 10 November 2007
 Helen Gregorczuk ‘Freedom of Information: A damp squib or a culture change in the making?’ (2005) volume 1 , Open Government: a journal on Freedom of Information, 5 <www.opengovtgournal.org> at 10 November 2007.