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Access to information builds trust in government

Op-ed by Sven Bluemmel, Victorian Information Commissioner

We often hear that trust in government institutions is in decline. While the situation in Australia is better than in many countries, we are not immune. The harm that can result from this goes to the very foundations of a coherent, fair and inclusive society.

One of my functions as Victoria’s Information Commissioner is to provide independent oversight of our Freedom of Information system. From this perspective, it is clear to me that we must not respond to this decline in trust by being more secretive.

In 1982, ours was the first Australian state to pass FOI legislation. As Victorians, we have certainly embraced it. In 1985 we made 4702 FOI applications to state and local government bodies. By 2018 this had grown to 39,040 applications a year, more than any other Australian jurisdiction.

In 66 per cent of cases, applicants received all the documents they asked for. In a further 30 per cent of cases, applicants received some of them. In fewer than 4 per cent of cases did an applicant receive nothing.

These figures are positive, but they only tell part of the story. As the state’s independent umpire on information rights including FOI, privacy and information security, I have made a number of observations about how government and public servants approach their duty to be accountable and transparent.

The first is that, in some cases, government agencies start from the premise that certain documents need to be secret and then try to find a reason to justify this foregone conclusion. This has to stop. Just because a briefing has been prepared for a minister does not mean it will be exempt from FOI on the basis of cabinet confidentiality.

The mere fact that a document reveals how much money a department is paying to a contractor does not make it exempt on the basis of commercial confidentiality. Agencies should not think of themselves as the owners of government information, but as custodians. Government does not exist for its own benefit, but to serve and govern for the public good.

This needs to be reflected in FOI decisions. From July 1 this year, my office’s independent decisions in disputes between government and FOI applicants are being published at on OVIC’s website. This will be a powerful tool to hold government, and my office, to account.

The second observation is that most of our public servants are aware of the importance of carrying out their duties fairly and effectively. They want to do the right thing when it comes to making FOI decisions, but they don’t always know how to go about it.

My office is addressing this by providing extensive and free FOI training to agency staff. Government agencies also need to ensure that their FOI officers are properly resourced and supported.

The third observation is that some agencies hold the view that if the work of public servants is exposed to the community, those public servants will stop providing the frank and fearless advice on which good government depends. I believe this view is inconsistent with the integrity of our public service and the intelligence of the community.

My final observation is none of these considerations are absolute. There are many instances where refusing access to a document is the right decision. Your neighbour should not be able to access your hospital record. A person fleeing family violence should not have information about their location disclosed to the perpetrator. The FOI Act contains exemptions for such cases. But these need to be applied carefully.

While Victoria was previously a leader, our FOI law has rightly been criticised in the last decade. Much of this criticism was due to our system not providing the kind of strong, effective and independent oversight that is now taken for granted in other jurisdictions. I am pleased to say that the legislative reforms in 2017 that led to the creation of my office have gone some way to rectifying the situation.

The law now gives me, my deputy commissioners and our staff the ability to encourage government decision makers to choose the path of transparency and accountability that Parliament intended.

The law now also gives my office the enforcement powers to take action where government chooses the path of excessive secrecy. As I said at the outset, such a path will not be effective in arresting the declining trust in government.

This op-ed was published in The Age on Monday 2 September 2019. 

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