Nearly four out of five complaints about freedom of information requests have gone unanswered since the Coalition government moved to abolish the Information Commissioner’s office.
The federal government moved responsibility for complaints about Freedom of Information (FOI) requests to the Commonwealth Ombudsman’s office in 2014 when it introduced a bill to abolish the Office of the Australian Information Commissioner (OAIC), which had overall responsibility for the legislation.
According to the Ombudsman’s own figures, since 1 November 2014, the Ombudsman’s office has investigated only 51 of 246 complaints from citizens about how their FOI requests were dealt with by government agencies.
This means that as many as 195 people have been waiting for up to eighteen months to have their complaints assessed.
Freedom of information legislation gives every citizen the right to gain access to government documents about themselves or about public policy issues subject to a range of exemptions such as for national security or cabinet documents.
Commonwealth Ombudsman Colin Neave told UniPollWatch that his staff had been doing the best they could in a difficult situation.
But the decision to move FOI complaints to his office had left Australians confused.
“Citizens suffer from fatigue in trying to find somewhere to go with their problems,” he said.
“I think it would be in the interests of everybody if there was a clearer message out there about where you can go for FOI complaints and which body has which rights.”
The Office of the Australian Information Commissioner, set up as a statutory authority in 2010 under the previous Labor government, had been given responsibility to consider complaints, review agencies’ refusals of access to documents and to provide independent advice to government about FOI issues.
The bill to abolish the Office of the Australian Information Commissioner was not passed by the senate but the government’s 2014-15 budget presumed that it would be closed by the end of 2014 and so did not provide funding for the OIAC.
This led to the ludicrous situation of its commissioner, Professor John McMillan, needing to close his Canberra office and work from home.
Left in limbo, McMillan opted to move to New South Wales where he is acting Ombudsman.
McMillan argues the travails of FOI stem from fickle politics.
“All major political parties, at one time or another, are in favour of FOI and then against it,” he told UniPollWatch.
“They use the issue as a political football.”
“I’d like to see them translate their rhetorical commitment to transparency, to a practical commitment to a workable law.”
Formerly a senior academic with the Australian National University, Professor McMillan served as the Commonwealth Ombudsman between 2003 and 2010. He was appointed the inaugural Information Commissioner when the office was set up in 2010.
In the explanatory memorandum for the 2014 bill to abolish the OAIC the government argued that it “created an unnecessarily complex system which caused processing delays in FOI”.
However, the OAIC closed 268 complaints over the two years before the bill’s introduction to parliament, significantly better than the Commonwealth Ombudsman’s office achieved in the succeeding 18 months.
In the 2016 budget, the federal government did an about face and threw a lifeline to the Office of the Australian Information Commissioner, providing $9.3 million in annual funding, which restored the money that had been cut in 2014.
The budget funding came amid fresh efforts by the coalition government to gain full membership of the International Open Government Partnership (OPG).
McMillan has welcomed the renewed funding but cautions that the impact of the past two years will not be easily undone. He says it is unlikely the OAIC will re-open its Canberra office, and he expects its policy development work to be wound back.
The OAIC is still without a dedicated commissioner: current Information Commissioner Timothy Pilgrim also serves as Privacy Commissioner. This will not change until a new government is elected and gets around to considering the matter.
The mixed messages from government about its commitment to FOI legislation is at odds with prime minister Malcolm Turnbull’s promise late last year for Australia to join the Open Government Partnership (OGP), as had been originally promised by the Labor government in 2010.
Becoming a member requires countries to put in place measures to continually improve transparency and accountability. Five years after the federal government announced its intention to become a member, Australia is still classified at the ‘developing action plan’ stage.
“I think that tells you something about how genuine senior politicians are about their commitment to transparency,” said Professor McMillan.
Neither Attorney General George Brandis nor Shadow Attorney-General Mark Dreyfus responded to requests from UniPollWatch for a timeline for OGP membership. Nor did they respond to requests for the parties’ policies on FOI and the OAIC.
McMillan sees some cause for optimism.
“The restoration of the OAIC now removes what I think would have been a substantial obstacle to Australian membership,” he said.
Even so, two senior former and current public servants, Peter Shergold and Martin Parkinson respectively, have recently put on record their concerns that FOI, far from being weak and underfunded, needs more exemption clauses so that public servants can provide “frank and candid” advice to government without fear of it being released to the public under FOI.
This is eerily reminiscent of arguments made by senior mandarins about the perils of FOI decades ago before the commonwealth act was introduced in 1982.