PREAMBLE:
Anyone can use Freedom of Information legislation to apply for access to information held by a government agency. When you do, that government agency must make a decision whether or not they will release the information to you within 30 days, and notify you of that decision. That is, unless there is a good reason why it will take longer – they have to consult with a third party, for example. In that case, they have to notify you of the delay and the reasons for it.
If, when you receive the Freedom of Information (FoI) officer’s decision, you are not happy with it, then you have the right to have the decision reviewed. As an example, you may not be happy with the decision because the government agency refused to release the information to you, citing one of the exemption clauses in the FoI Act as justification. Internal review involves a more senior member of the government agency re-examining the decision. If they too decide not to release the information, then you have the right to ask the Ombudsman to review the decision. The Ombudsman is independent of the government agency, so may be considered to be more objective. The Ombudsman also has 30 days within which to respond to your request for external appeal.
So in theory, the whole process should take less than three months. But this has not been my experience. In May 2003 I used Freedom of Information legislation to apply for information about a secret agreement between the Department of Economic Development and developer Denis Bignold, to develop Maria Island National Park. But it wasn’t until July 2004 that I received a decision from the Ombudsman. It had taken three months for the Department of Economic Development to get back to me with the decision that they wouldn’t release most of the information I’d asked for. But then, surprisingly, it took The Ombudsman eight months to get back to me with the decision that she wouldn’t release the information either.
In the following interview with FoI expert Rick Snell, we discuss this case, the extraordinary delays, the content of the Ombudsman’s decision, and what this indicates about the system in Tasmania.
EXCERPTS FROM THE INTERVIEW:
What you got was one of the most inadequate
justifications I’ve read. It was effectively just
that it will lead to unnecessary debate, therefore you can’t have it ...
What appals me about the
decision you’ve received is that it
says to the government agency that
they can get away with low grade debates, very low quality arguments, and if they raise
the spectre of uninformed speculative debate then the Ombudsman seems to be prepared
and give credence to that, despite of how well articulated the opposing viewpoints put
forward by an applicant are ...
So if the Ombudsman is saying that the agency when making decisions about
commercialisation of a national park with a secret agreement, can get away
with the miniscule arguments and material that they’ve presented to support
their reason for non-release, well what’s the threshold for much lesser matters of importance? ...
And at the same time the government, both Liberal and Labour, have refused
to give the Ombudsman’s office the resources necessary to carry out its functions.
When the FoI Act was originally going to be brought into place, the Ombudsman’s
office was promised a fairly significant staff increase to deal with the FoI load.
Instead, the Ombudsman’s office was cut because of general budgetary
cutbacks at that particular time, by 33 per cent. It has never recovered from that initial
onslaught of staffing cutbacks, and I think that as a consequence it has always been
behind the eight-ball in terms of building up a good, reliable, consistent monitoring and performance process.
And we’re paying the price now, ten years down the track, the Ombudsman’s office is still trying to catch up ...
THE INTERVIEW:
TAYLOR BILDSTEIN: When the Ombudsman finally replied to my request for external review, seven months late, she offered no reason or apology why her decision was so late. Is that normal?
RICK SNELL: I don’t know for sure whether that’s normal standard practise, but I think common courtesy and good administrative practise would be to recognise any cause for significant delays in your opinion. If the Ombudsman, or any type of decision-maker, felt there were any contributing factors to a delay, they should acknowledge what they were - whether it was because the papers had been mislaid, or the office was heavily pressured with workload, if the request itself was a highly complex request - I would say that in the normal course of events, a person like the Ombudsman ought to justify significant delays.
In my view anything over the statutory time period of 30 days, under the Tasmanian Act, is a significant delay - especially if there hasn’t been any earlier indication of the reason for not deciding it within the statutory time period.
So considering that the Ombudsman hasn’t given justification for the delay, is it reasonable to assume that there is no good reason?
The normal thing in administrative law, in the absence of any reasons, is to assume there are no satisfactory reasons to justify it.
After reading this, the Ombudsman might retrospectively come back and explain that she had very sick staff members, very poor resources, or whatever else it may be.
But it comes back to what the Act is all about. Under the FoI Act, you as an applicant have a legal entitlement to access that information. Implicit in that entitlement is that access should be on a timely basis, within the statutory time period.
Whether the public service now agrees with it or not, back in 1991 parliament said the time periods were the following: a maximum of thirty days for an FoI decision, a maximum of 14 days for internal review, a maximum of thirty days for the Ombudsman to make a review unless the applicant agrees.
So if resources, if structures since then have put those time frames in doubt, tough luck. Parliament either needs to go back and change the Act, or the government needs to go and find the resources to administer the Act within those parliamentary guidelines.
I’ve always played it a bit loose because I’ve felt it’s a kind of off-set: if the Ombudsman is snowed under with workload and they need time to come up with quality decisions, then a little bit of time delay is satisfactory. But seven months is not a little bit of a time delay, and the quality of the decision in your particular case, didn’t merit any time delay.
If a FoI applicant isn’t happy with a FoI decision – for example, they don’t get the information they wanted – and they appeal to the Ombudsman, the Ombudsman is required to respond within thirty days. But in my experience, this hasn’t happened. What penalties apply if the Ombudsman neglects her duty like that?
No penalty is applied, apart from bad public relations. Possibly the Attorney-General, in reading the Ombudsman’s annual report, or getting a complaint from a citizen whose FoI request has been so delayed, could possibly ask the Ombudsman to “please explain”, but there is nothing in the Act to require that.
I think it wasn’t contemplated that the Ombudsman’s office would ever be in a position where, either out of necessity, or from practise, it would go along with such exceptional time delays.
In retrospect, I think the problem is that in the absence of good resourcing, that 30 day statutory time period is a little bit unrealistic. What the Ombudsman used to do was to enter into negotiations with each applicant and ask permission for an extension, but over time they’ve just stopped asking.
In recent times I don’t think the Ombudsmen and their staff have been re-examining the basic principles of the Act, the statutory requirements etcetera, and thinking about how best to meet those requirements.
It comes down to the fact that you, as an applicant, are relatively powerless. That’s the thing about most FoI applications. You could possibly go to the Supreme Court and seek an action to require the Ombudsman to perform their statutory duty within the time period, but the Supreme Court action is going to cost you a bucket-load of money, and the Ombudsman still may not be able to produce the decision in that period of time.
But the serious consequence in my mind is the flow-on effect of the Ombudsman’s decision-making: this sets a very bad precedent, as guidelines for public sector agencies.
If the Ombudsman can’t deliver on her statutory obligation because her office doesn’t have the resources or the staff to do so, then public sector agencies can argue the same. If they breech the 30 day period, how can the Ombudsman criticise them for their poor performance, when the Ombudsman is doing the same?
One of the things that upsets me about the handling of your request is the flow-on effects that are cumulative, that build up in the system, and then have a detrimental effect on the quality of the decision-making process at the agency and internal review level, their reasoning, and the actual operation of FoI in Tasmania.
Yes, I was surprised when the Department of Economic Development took three months to get back to me, when they’re required to take 30 days; but I was even more surprised when the Ombudsman’s office took eight months to get back to me, when they’re also required to get back to me in 30 days.
As soon as the Department of Economic Development breached the 30 day limit, you could have appealed straight to the Ombudsman about the time delay. But if you do appeal to the Ombudsman the automatic response is that you’re told to wait. They’ll tell you they’ve contacted the agency, the agency says they’re working on it and it will take another week or two, which is the same amount of time that the Ombudsman would take to address the issue, so you might as well just wait.
The unfortunate thing is that the time periods start to roll into each other and two weeks becomes three weeks, becomes six weeks, becomes twelve weeks.
It’s an issue of poor maintenance. The Ombudsman’s lack of resources means that, both in practise and in principal, she hasn’t applied herself and her institution to the maintenance both of the legislation and the administrative practise in Tasmania to make FoI work.
You said before that I could have taken it to the Supreme Court if I was so concerned, but it would have cost a lot of money. I’ve told the Tasmanian Government and the Ombudsman’s office that I’m a student and requested them to waive the fees because I can’t afford them. Do you think they would consider that when they consider whether to give my request priority or not?
No, I don’t think your pecuniary status, whether you are poor or rich, affects the decision-making process.
Certainly from the agency’s perspective, what you were asking for and the precise nature of your request made it more likely than not that you would be treated in a delayed fashion. It was in the best interest of the department, given the nature of the surrounding political controversy, to wait out the period.
From my knowledge of the internal workings of the Ombudsman’s office, I don’t think the staff in the Ombudsman’s office take that into consideration, ie the political controversy surrounding the information requested under FoI. I think the problem is a resource issue, a management issue, and a kind of complacency. The attitude is that it’s “just” a FoI Act, they haven’t got the time and effort to put into it. Near enough is good enough.
When the Tasmanian Government Department of Economic Development contacted the Triabunna Chamber of Commerce, it didn’t ask for written justification of the Chamber's view that the seven-year-old information that I was asking for should not be released. So there’s no record of the Chamber's reasoning. Are you surprised the Ombudsman accepted that?
I am. I think that it’s obligatory on a decision-maker like the Ombudsman, looking at FoI requests, to start from first premises. The basic practise is for the Ombudsman to call on the department to supply the Ombudsman with all the raw material they used to make their decision, and the Ombudsman will and should look at all that material with a fresh eye, and make a new determination based upon the requirements of the Act and what the material is that’s confronting them.
And I would have said that the agency was – negligent is probably too strong a word but – less than stringent in seeking out confirmation of the position of the Triabunna Chamber of Commerce. It doesn’t take much to ask for a confirmation email, fax or letter. After speaking about the issue on the phone, all the agency has to say in the email is something like “we seek to confirm with you our understanding of the telephone conversation, that you have the following concerns…”
That’s just ordinary administrative practise, and good administrative practise.
But beyond just good administrative practice, a FoI request really does require documented evidence of a refusal decision because the onus is on those seeking to deny access to information either to put up or shut up. So if they’re not prepared to demonstrate the position on non-release in written form, then their consideration shouldn’t be taken into account.
In contrast, one of the reasons why the Queensland Information Commissioner takes ever so long to make their decisions is that they do go through that process. They get in contact with the third party and ask for written documentation on their position. An objection isn’t registered unless it is lodged as an email, fax or letter. If someone objects to release of information they have to show why. Then, the Information Commissioner balances up the evidence and makes a decision.
In your particular case that evidence from the Chamber of Commerce was crucial in the Ombudsman’s final decision not to release some of that information to you. Weight was given to their objection, yet it’s hearsay evidence and the Chamber of Commerce hasn’t been asked by the Ombudsman to confirmation their position, to stand by it by confirming their objections in written form.
How can the Ombudsman make a decision on the Chamber of Commerce’s position on the matter when there’s no written record on the matter? Are they taking the Department of Economic Development’s word for it?
Yep, and in part you can argue that when you’re challenged by resource considerations, operating in a small public sector area in Tasmania, that you do take people’s words or the assertions they make relatively on trust, as a normal operating principle. But in this particular case, if it was going to be a crucial point on which to reject your arguments for release of the information, then there needed to be more solid evidence than just an assertion by a secondary source, ie the Department.
It’s certainly in the Department of Economic Development’s interest, to keep that information to themselves.
It seems to be, and given the nature of the political controversy surrounding the Maria Island development, and the steps that the agency took to refuse you access to this information, then of course they would interpret the Act in such a way as to exempt the information from release.
In other cases and in other jurisdictions there has been evidence given that government agencies are often the ones that tell the third party (such as a Chamber of Commerce) about commercial in confidence, and make suggestions that the information could be claimed as exempt information under the Freedom of Information Act if it was considered to be commercial in confidence. They ask the third party: “ you really only gave this to us on a commercial in confidence basis – didn’t you?”
That’s what the Ombudsman has to be alert to, and you can’t just rely on the agency to faithfully detail the nature of communications with the third party - especially in a small place like Tasmania. It wouldn’t have been much effort to send an email, a fax or a letter to the Triabunna Chamber of Commerce, especially given the time taken to make the decisions. The Chamber is not a huge organization, and it’s not too far away. They could have driven there and back in half a day if they had really wanted to.
In justifying her decision not to release the information I requested, the Ombudsman cited some very old case law - Re Waterford (1984) and Re Brog (1989). Tasmania didn’t have a FoI Act in 1989, so are these references to Commonwealth cases?
Some of them are Commonwealth cases and some of them are Victorian cases. Especially in the very early years of FoI jurisprudence in Tasmania, those types of cases were relied upon. However since 1995 at the very latest, there has been a significant corpus of material and high-level FoI decision-making which have put forward a multitude of cases on FoI exemption provisions. These have come from the Queensland Information Commissioner, especially, and to a lesser extent from the Western Australian Information Commissioner, the Administrative Decisions Tribunal in New South Wales, and the Victorian Civil Administrative Tribunal.
Across Australia, some of the exemption provisions are worded slightly differently, but as a whole there is a vast volume of informative material out there that will assist any reasonable and competent decision-maker to interpret FoI Acts on any particular provision, whether those decision-makers be FoI officers in government departments, review officers and officers in the Ombudsman’s office.
So with the number of provisions that applied to your request, there was a plethora of good case law out there that could be utilised to inform the decision-making process.
I imagine that the nature of government would have changed quite a lot over the last 20 years as well.
Fundamentally. Anyone who comes along to my basic third year administrative law lectures will know that the whole nature of government - in its structure, organization, functioning - has gone through a rapid revolution.
While some of the core ideas in those cases you mentioned could possibly also apply in 2004, more likely than not there have been significant changes to government thought-processes and operation practises, which requires at least a more up-to-date rethinking of those case laws.
So if you’re using old case law and nothing else, the fundamental question is why?
Any law student undertaking this as a mock exercise for a law school assignment would automatically refer to more recent case law and literature to get an idea about how to interpret the Act.
It’s hard to believe the Ombudsman doesn’t have an internal body of knowledge that the office has developed on a consistent, coherent basis over the last ten years, that they use to inform each of their decisions.
The Queensland Information Commissioner effectively has template decisions. A lot of time and effort is invested in the first decision: to get it right, to do the research, to get the arguments in place and to get the structure in place. Following decisions are also put through that process, in reference to the template.
The Tasmanian Ombudsman’s decision on your appeal shows no indication of such a template or research effort.
When you’ve got limited staff, money and equipment then you’ve got to be smart about how you use them. The smart way is to make sure you don’t reinvent the wheel with each decision, and to piggy-back off other jurisdictions.
Western Australia is a good example. The Queensland Information Commissioner’s decisions are normally 30 to one hundred pages long. The Western Australian Information Commissioner lets the Queensland Information Commissioner do all the hard work and then refers to the Queensland decisions, summarising them in ten or 15 pages, and then discusses how the Queensland precedent applies in any particular Western Australia case. So Western Australia may agree with the Queensland Information Commissioner on some points and not on others.
In Tasmania, the Ombudsman hasn’t demonstrated to me, especially in your decision, that (1) they’ve got such internal resources built up over time to help off-set their lack of resources. And (2) they haven’t made us of some of the magnificent resources for interpreting the Act externally. That doesn’t cost them anything, apart from reading it and thinking about it.
Re Howard was another example. How much legitimacy would that have at a state level in Australia now?
Re Howard is a blessing for any agency that wants to deny access to information. It is one of the worst cases in Australian FoI history. Largely it has been ignored by people who are dedicated to the objectives of the FoI Act, including review bodies like the Western Australian Information Commissioner, or the Queensland Information Commissioner - who has been scathing of Re Howard. In the early days the Tasmanian Ombudsman’s office ignored it too. At later dates they resurrected it to a degree and gave it a bit more plausibility than it deserved.
But at an agency level, if you want good arguments to deny release, the Re Howard factors just lend themselves to your arguments.
It isn’t binding in Tasmania. The Re Howard decision was made by the Administrative Appeals Tribunal at the Federal level. This is state law here and the Tasmanian Ombudsman can create her own interpretation of the Tasmanian FoI Act.
Also, Section 27 of the Tasmanian Act specifically removes two of the Re Howard factors, that: (1) communication between high-level offices by itself should be a factor that mitigates against release; (2) the tentative nature of policy advice and the possibility of speculation and public debate also are not taken into account in refusing release of information.
Two provisions were designed specifically to wipe out at least two of the factors in the Re Howard argument. But in your particular FoI application, they came back again in spades.
So they’re referring not only to an antiquated argument, but also a crippled antiquated argument, crippled by the Tasmanian Act.
And one which I don’t think can be substantiated by the actual wording of the FoI Act. I’m quite happy for the Ombudsman’s office to say that their interpretation of Section 27 is far different from mine. But at the very least they ought to articulate that in the reasons they give to applicants like yourself, to say: “our interpretation of Section 27 with regards to the Re Howard factors is the following…” Or if they’d done that five years ago then they should refer to the decision that they did it in, and apply it.
What are the similarities and differences between my request for external review to the Ombudsman in Tasmania, and Michael McKinnon's appeal to the Administrative Appeals Tribunal in Canberra? (He is appealing against the "uneccesary debate" exemption).
I think there is no difference except that in the Canberra circumstance, and even leading up to it, he got at least a well-articulated argument about unnecessary public debate.
What you got was one of the most inadequate justifications I’ve read. It was effectively just that it will lead to unnecessary debate, therefore you can’t have it. As I’ve explained in my answer to the previous question, I don’t think the statute actually supports that interpretation. But even if it does support that interpretation, it is a fundamentally anti-democratic argument. Given the nature of Section 3 of the Tasmanian Freedom of Information Act, that sets out that the primary objective of the Act is to encourage democracy and public debate and good governance in Tasmania, any argument that gives a modicum of respectability to this idea that information can lead to unnecessary speculation, uninformed debate, shouldn’t be tolerated, especially by the Ombudsman.
I think that needs to be given minimal consideration, given the question – “what is unnecessary debate?”
For example, it may be debate that is upsetting, such as the Flanagan-Paul Lennon debate that’s going on, that upsets sensibilities and sensitivities in particular areas.
Something like the Intelligent Island programme is another example. Many people will argue that if we release information about the planning, policy and development of Intelligent Island, that will lead to unnecessary debate and that would upset people. But we all see the delay. We all see the non-delivery.
There may be good reasons for it. Those reasons should be at least articulated and that’s the same as with the argument that was used against you.
What message does it send to Tasmanian government agencies when the Ombudsman agrees with their decisions not to release information, and doesn’t appear to investigate the matter independently?
I would argue that the Ombudsman’s decisions, just like all review body decisions around Australia or elsewhere in the world, whether it’s courts, information commissioners or whatever – the final review body is crucial and fundamental to the healthy administration of Freedom of Information in any jurisdiction. The way they make their decisions, the way they determine and articulate their decisions, have immeasurable impact upon the way FoI is interpreted at the agency level – both by the agency itself as an institution, and by the individual decision-makers, the FoI officers and officers within that organisation.
So if the agency knows that an external review body will test the validity of their arguments with a great degree of scrutiny and rigour, that their assumptions will be tested; and where the agency has weak arguments but the Ombudsman still thinks there’s good reason not to release the information they’ll actually fix up the arguments and make it more concrete - that sends a clear message that information that needs to be protected will be protected. And where there are strong arguments about the non-release of information but there are even better arguments for the release of information, then the Ombudsman releases the information.
That’s saying to the agency that it’s not good enough just to come up with an argument against release, the Act requires arguments for and against to be balanced up. So if someone in your particular case spends a number of pages articulating a number of major public interest arguments, it’s not necessary that I or the Ombudsman or the agency agrees with every single argument that you make, but the nature of the quality of the arguments that you’ve put forward were worthy of some degree of consideration and debate.
Or perhaps even acknowledgement.
Well, to be the devil’s advocate here, the Ombudsman did summarise them into six or seven dot-points for you at the start of the reply, and they occasionally made a cameo appearance here and there throughout the document, but not in any great detail.
If you deconstruct the Queensland Information Commissioner’s decisions, you get a very good idea of what the nature, quality and weight of the agency and the applicant’s arguments were in that decision-making process. If you did the same for the response to your application we would be pushed to fully understand what your arguments were. In fact, someone reading your original appeal decision would probably be startled by some of the arguments put forward, compared to what was considered in the written decision. The agency on the other hand, got a lot of benefit because the majority of their arguments got in, even though they didn’t have many to start off with.
In may ways I’ve got to be careful about what I say because I’m just talking about one decision, but one decision in itself can be symptomatic of major defects in the process.
What appals me about the decision you’ve received is that it says to the government agency that they can get away with low grade debates, very low quality arguments, and if they raise the spectre of uninformed speculative debate then the Ombudsman seems to be prepared and give credence to that, despite of how well articulated the opposing viewpoints put forward by an applicant are.
The positions you put forward were well put forward, very well researched, and carefully considered. You’re not going to get much better arguments on the side of the debate for release of information. You’ve summarised the parts of the Act with the best interest, read the major documentation and reports etcetera, and show how this is a case of major public interest.
So if the Ombudsman is saying that the agency when making decisions about commercialisation of a national park with a secret agreement, can get away with the miniscule arguments and material that they’ve presented to support their reason for non-release, well what’s the threshold for much lesser matters of importance?
If I was the agency, there would be no lower threshold. That’s part of what’s produced part of the savage reaction that I’ve had from your request. It’s not so much the subject matter of your request, it’s the way the request has been handled by the Ombudsman’s office because I think it sets a damning precedent and send a wrong message to the agencies and decision-makers, the agencies, about how much effort to put into FoI requests, either in terms of the time taken to process the request, or the time taken to think up good arguments about not releasing, and the time taken to address applicants’ arguments.
Does a regular Joe, with no law background (like me) need a law degree before he or she can embark upon utilisation of Freedom of Information legislation?
The simple answer is no. It was never envisaged that the FoI Act would become a revenue earner for lawyers or only the exclusive playing field of lawyers. Yes, the provisions of the legislation are not simple or easy to understand to the lay person without much background. But there are a number of provisions and a number of things that are put into place to remedy that, in part.
First and foremost is that the basic default position is supposed to be release of the information. So theoretically, every time an individual requests information under the Freedom of Information Act, more likely than not the outcome ought to be the release of the information. The onus is meant to be on the agency who denies access to the information to justify their position. So if anyone is going to pull out the case law, if anyone is going to articulate the arguments about release or non-release, it’s meant to be the agency.
As a consequence, once an individual has been told that the agency’s decided not to release the information to them, the applicant can go off and get advice from a lawyer, an academic or a law student, and possibly do some background research and respond in kind to that. But if they want to appeal, the Ombudsman is then meant to be the institution that levels up the playing field. Because the Ombudsman is not meant to take sides, to support the agency against the applicant, or the applicant against the agency. The Ombudsman is supposed to reconsider the information that has been contested, afresh, using their knowledge of the case law, administrative practise and the public interest, by listening to the arguments of both sides and coming to a fresh determination.
In addition, there were meant to be resources. In 1993 the government’s FoI Unit released a booklet of guidelines for sale. For $30 you could buy a fairly easy to understand set of guidelines – even for journalists and journalism students - for public servants and citizens to be able to apply fairly basic FoI law to FoI requests. One of the damning indictments of this particular decision of yours, is when you go back and read the public interest sections - which only runs to three pages, it’s not in any great detail and doesn’t require a law degree to decypher – the decision that you received is in contravention of most of the basic principles set out in those guidelines.
Now, they were withdrawn by the end of 1993/beginning of 1994, theoretically to be re-written, modified and updated, but they haven’t been re-released since that date. And it’s a major resource that’s not out there in the public. But I would have expected that the Ombudsman’s office would have still had a dog-eared copy, possibly with some pencilled notes of updates in it, and if they had only looked at that particular section, in relation to your request, I think they would have had to have done a little bit better job than they did, in the way that they determined your request.
Did the Ombudsman ignore the FoI Act when making her decision?
I can’t say. I would say not, and I couldn’t even contemplate the circumstances in which a statutory office holder or her subordinates would be in a position where they ignored the Act.
However if you’d asked me did they give it the due contemplation and consideration that that Act deserved, I’d argue probably not.
I think there is something special about the Freedom of Information Act, given the objectives of the Act, about increasing democratic accountability, good governance etcetera. The fact that it deals with legal rights to information and information being the basic fodder of democracy and civil society, the FoI Act requires a special stewardship.
Not all Ombudsmen in Tasmania over the last ten years have particularly endorsed that particular point of view, partly possibly because of resource considerations, partly possibly because of philosophical orientations. But never the less I think Ombudsmen have a duty to put at the forefront of their consideration that objects clause in the Freedom of Information Act.
To encourage democracy, public debate and good governance in Tasmania was the whole purpose of the Act, and everything else including the interpretation of the Act should flow from that. Those objects clauses set the tempo and rhythm in which the Act lives and breathes in Tasmania.
One of the things you’ve got to take into account with the Ombudsman’s office is that the Ombudsman is the health complaints commissioner, the electricity Ombudsman (soon to be the energy Ombudsman), the office handles public interest disclosures, and most likely it will get some type of privacy function in the near future.
And at the same time the government, both Liberal and Labour, have refused to give the Ombudsman’s office the resources necessary to carry out it’s functions. When the FoI Act was originally going to be brought into place, the Ombudsman’s office was promised a fairly significant staff increase to deal with the FoI load. Instead, the Ombudsman’s office was cut because of general budgetary cutbacks at that particular time, by 33 per cent. It has never recovered from that initial onslaught of staffing cutbacks, and I think that as a consequence it has always been behind the eight-ball in terms of building up a good, reliable, consistent monitoring and performance process. And we’re paying the price now, ten years down the track, the Ombudsman’s office is still trying to catch up.
Freedom of Information more often than not has been the poor cousin of all the other portfolios in the Ombudsman’s office. You can see that because often it has been staffed by part-time officers or officers that haven’t received as much training as they could be expected to receive because they are making do with what they had to hand.
That’s not to belittle the contributions of individual officers in the organization, just that they haven’t been given the due care, attention and resourcing necessary. They’ve cut corners.
Is it just that it’s easier to refuse me than it is to refuse the Tasmanian State Government?
A cynic would say yes. A more level-headed person would argue that it’s highly unlikely and to make that assertion I would need more proof than your particular FoI application.
However, here’s something to consider that I’ve put forward in public submissions in regards to review of the Ombudsman’s office: where the Ombudsman has been staffed as just a sub-unit of a government department, in this case the Department of Justice, it’s of little surprise that the Ombudsman’s office is very sensitive to resource considerations and possible reactions by government departments and agencies. It is contending for funds with other parts of the Justice Department, including the prison system, which soaks up funds.
The Ombudsman’s office is in a position where it is far better not to rock the boat, to avoid adverse reactions from various government agencies. Given the number of portfolios that the Ombudsman’s got, given the number of staff that she’s got to deal with everything, the number of issues that she’d dealing with, why pick unnecessary fights and produce unnecessary reactions from government departments?
To what extent that flows down into individual staff decision making I don’t know and I would speculate, given what I know about the current Ombudsman and her predecessor, I would hope that it would be not very far. But I don’t believe that an institution would not be influenced – implicitly, rather than explicitly – about possible considerations about when to fight, when to roll over, when to push things.
If the Ombudsman had decided to release the information, it would have most likely produced a major kerfuffle with the Department of Economic Development, who might have dug in their heels and disputed the Ombudsman’s decision.
In my view the Act is quite clear, the Ombudsman has the power to force the release of information.
The Ombudsman’s office has received crown law knowledge, to the best of my knowledge, that said they can recommend release but it’s up to the agency itself to release the information. As an Ombudsman, you take the crown law advice in that particular process.
I think it takes initiative and a bit of a mission for an information commissioner or an Ombudsman to achieve the objectives of the Act. Given the nature of the office, the institutional history over the last ten years, resourcing, it’s position within government, this means it’s been more timid in it’s decision-making processes than it ought to be. That’s not a criticism of this particular Ombudsman, I think it’s a criticism that can be made of the institution over the last ten years or so.
When we spoke last week you described the wider issue in relation to treatment of FoI requests as a "creeping cancer". Do you have any further comments on that?
Yeah, well I think the tone and the nature of some of the comments that have been made today kind of indicate that.
I think there is a kind of entropy that enters the system and FoI, whether through neglect or abuse or whatever else, becomes dysfunctional.
There are certain indicators of that.
One is the extent to which FoI officers are prepared to set down well-articulated reasons for decisions about denying release. I think another indicator is the time taken to process FoI requests, whether they are simple requests or complicated requests. Giving the benefit of the doubt to FoI officers, there are some requests that are voluminous and complicated and do take more than the thirty days to process. But in those circumstances you would expect them at least to have the courtesy to get in contact, to explain to release part of the information that they can release.
It’s an indicator of the health of a FoI system when an applicant appeals internally under the Act for a senior decision-maker to re-look at the decision, and they are tempted and sometimes do release information whereas their subordinates were a little bit more hesitant to do so.
You would expect the quality of the reviewer’s arguments to be up a level. They are more senior, they are more versed in the Act, they have more resources, they’re able to give more consideration, they have better decision-making powers. You would expect them to be better articulators of the public interest about non-release, and have a better understanding of the Act and know that the objects of the Act are all about proactive release and making release as wide as possible.
But that doesn’t seem to happen, and it seems to be happening less in Tasmania over the last three to four years. You would expect that a review institution like the Ombudsman would be able either to a) match its 30 day statutory time period, or b) it would make every effort possible and leave no stone unturned, with the limited resources it may have, to do it as soon as possible – or at least have the common courtesy to negotiate with the applicant involved, to give them a clear timeline, whether it’s going to be two weeks, five weeks, ten weeks, three months or four months. You would also expect the Ombudsman to use the resources they have, limited as they may be, to build up a good internal research capacity, or basis of case law, or precedents, or form decisions, and apply them in a well-articulated and reasoned way.
And you would expect that the Ombudsman’s office would take some proactive steps, which they have done from time to time but I’m not quite sure how often in previous years, to run training courses to encourage and train FoI officers about the Act. It is a difficult choice between trying to pump out the decisions and trying to be proactive about the release of information.
I don’t think that the Ombudsman’s office has been as forthright, fulsome and as energetic as they could be in pushing for better resources. For example, I was astounded that the Ombudsman hadn’t used the opportunity of that review of the Ombudsman’s office, reporting to a parliamentary committee, to raise questions about resources and the independence of her office, so that it had an independent line of funding and independence of reporting and accountability outside of a normal bureaucratic system.
If you don’t push for those types of aspects, then I think that the idea that there is a creeping cancer, or that the system is in a state of entropy where it’s falling apart at the edges, is probably justifiable, at least defensible.
Taylor Bildstein is studying a Masters in Journalism and Media Studies and Rick Snell is her supervisor.
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Monday, August 16, 2004