Forcing Open the Government in Australia

8 March 2012

By David Jean

This article first appeared in The  Advertiser, Adelaide, Australia, on March 6, by staff writer David Jean, and is reprinted with permission.

For Mark Parnell, it was a bittersweet victory.

After a 20-month Freedom of Information battle that included several court appearances, the Greens MLC finally won the right to access documents relating to the controversial Mt Barker redevelopment in late January.

The problem was the State Government had granted developers approval to double Mt Barker’s population long before Mr Parnell won the right to scrutinise the documents – in which developers branded the views of residents and the local council “parochial, conservative and emotional” when they sought special ministerial approval to bypass community concerns and speed up the rezoning.

While Mr Parnell has vowed to continue his fight to have the re-zoning approval overturned, he laments the sheer amount of time it took him to access the documents, which were made public on the front page of The Advertiser last week.

“One of the main problems is the sheer amount of time they (Freedom of Information requests) take,” Mr Parnell said.

“By the time you have gone through the whole system you may as well give the documents to the National Trust because they are so old. Freedom of Information should probably be re-named Freedom from Information.

“Basically it is an unwieldy, expensive, cumbersome system, that is designed to prevent rather than facilitate access to documents.”

Mr Parnell is one of a growing number of politicians using Freedom of Information laws to probe for information they would otherwise have no access to.

Last year State Government agencies received 2301 FOI applications from Members of Parliament, a 27 per cent increase on the previous year.

In 2005/06 just 203 applications were made by MPs.

Of the 205 new FOI decisions Ombudsman Richard Bingham’s office was asked to review last year, 167 related to applications from MPs.

In his latest annual report, Mr Bingham notes that the increase in FOI requests resulted in many government agencies failing to process them in the required timeframe.

FOI applicants who are denied access to documents by departments have the option of appealing to the Ombudsman once an internal review is completed.

Mr Bingham notes “an ongoing issue is that agencies still often provide inadequate reasoning for refusing access to documents”.

“There is a tendency amongst some agencies to look for the exemption provisions first, rather than the objects of the Act.”

One MP fed up by the “increasingly secretive culture developed by the Government” is Family First’s Robert Brokenshire.

Mr Brokenshire, a prolific user of Freedom of Information laws, intends to introduce an FOI (Miscellaneous) Amendment Bill to Parliament.

Among other things his Bill would:

MAKE it invalid to refuse access to documents because they might embarrass the Government, or result in a loss of confidence in government, or could arguably be “misinterpreted”.

PROTECT FOI officers’ independence by guarding them from being directed by ministers.

PREVENT ministerial interference with FOIs.

Mr Brokenshire had six decisions reviewed by the Ombudsman last year and has already had another two reach review stage this year.

One of last year’s successful reviews was to compel the release of documents concerning the cost of the Clipsal 500 State Dinner.

Another was to compel the Department of Premier and Cabinet to release all feedback and submissions received by the Social Inclusion Unit concerning the Parks Community Centre.

This success followed an eight-month battle to access the documents.

Mr Brokenshire said the Government had developed an “increasingly secretive culture”.

He said there had also been occasions where the Government had leaked the results of his FOI probes before he had seen them.

Public Sector Minister Michael O’Brien said the increasing number of FOI requests, mostly made by journalists and MPs, was putting pressure on agencies, both in terms of cost and time.

He said the Government was looking at ways to alleviate this, including publishing information routinely the subject of FOI requests on the internet.

Another idea being considered by the Government was to assign documents a classification at the time of creation, with low-level classified documents made readily available.

He conceded the Ombudsman’s comments indicated some agencies weren’t being as transparent as they should.

“The more open the system the better and if the Ombudsman is saying some agencies are far too cautious then that is an issue we are going to have to look at,” he said.

In Mr Parnell’s case, the Ombudsman declared the documents he sought were of public interest and should be released.

But the developers took the decision to the District Court, creating further delays.

“I asked for the documents in 2009, but I didn’t actually get them until 2012,” Mr Parnell said.

“That’s after all the decisions have been made by government – the re-zoning has gone through and the Parliament has finished looking at it.

“To the extent to which the objective of the developers was to keep these documents out of the public realm for as long as possible, they won.

“There needs to be a much quicker dispute resolution mechanism, the exemptions that are listed in the Act need to be revised.

“What we are talking about is the transparency of our democracy.”

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