Community Alliance Party

Conclusive certificates

As a result of McKinnon in 2006, conclusive certificates remove the capacity for administrative review of exemptions on their merit. There are adequate grounds for protecting sensitive information already in the FOI Act – such as those that relate to matters of law enforcement and national security. The intention is not to remove these grounds, but to allow the legal scrutiny of broader claims of 'public interest' when they are used to withhold documents.

Removing the capacity to issue conclusive certificates will simply allow the Courts and the Tribunal to do their job without interference. Merit review of all exemptions should be permitted as a normal part of ensuring accountable, open and transparent government.

Public interest

The Community Alliance will also include a definition of the term 'public interest' in the FOI Act. This step alone would have to improve the application of the 'public interest' test for exempted documents. The recent Queensland review of that state's freedom of information legislation proposed a list of factors that could be taken into account when determining the public interest, and these are a sensible place to start.

If an approach like that proposed by the Queensland review were adopted, the scope of 'public interest' exemptions would be limited to stop agencies withholding documents just because they could embarrass the government, be taken out of context and lead to misunderstanding or ill-informed debate, or potentially induce mischievous or annoying behaviour by the applicant.

In Canberra, the current arrangements are untenable. In such a small town, all the public interest exemptions do is hide from the public the documents that could lend substance to what people already know, or alternatively quash rumours and gossip. The now-documented use of student performance (ACTAP) results to wrongly target schools for closure is a good example of this exact situation.

Any chance that information could be taken out of context and result in misleading the public is easily addressed by the agency releasing the extra information that provides the necessary context. The Community Alliance does not believe that this paternalistic approach to managing information is adequate in the 21st Century. The public has the right to gain insight into the basis for a proposal or a decision, and the reasoning and factual basis underpinning it.

Cabinet-in-confidence

Limiting the cabinet-in-confidence exemption is a proposal that the Community Alliance would like to have debated in the Assembly and the wider community. Other than direct cabinet documents – such as direct briefs and records of cabinet meetings – there is a good argument for a public debate about the need to withhold deliberative documents that could reveal the deliberations of cabinet. In other words, if information is used by Cabinet to make a decision, why shouldn't the public be able to access the same information? Concerns about disrupting agency processes are easily overcome by releasing the documents once Cabinet has made its decision.

In a small legislature with no Upper House, there is a strong argument that the cabinet-inconfidence exemption could expire at the end of each term of government or be removed altogether. The latter would enable the 12 non-cabinet members of the Assembly to have access to the information they need to properly debate policy and legislative proposals. There are already other provisions in the FOI Act for matters of genuine security, commercial confidentiality and privacy concerns, which when combined with a better definition of public interest, would offering appropriate protection.

Clearly, any political party that thinks it could one day form government might not be too keen on this proposal, but there is another way to look at it. Perhaps the improved flow of information during the policy development process could lead to wider debate and, in the end, better and less politically risky policy.

At the least, and in the context of the small ACT Assembly, it could reduce the risk of five privileged politicians making poor decisions and then finding themselves forced to defend those same decisions for the sake of their political pride. Perhaps it would save them from having to resort to conclusive certificates to cover up the paper trail. It could potentially allow the entire Assembly to share the burden and benefits of governing the ACT.

For agencies that research their policy proposals carefully, and include a well-argued case for a certain position with the various options, risks and consequences, the prospect of improved information flow should be welcomed. They should feel safe in the knowledge that the information could one day become public under FOI, and that they are covered because their work is of a high standard of professionalism. Accordingly, the responsibility for poor decisions, made against agency advice or on the basis of inadequate time or information, is placed fairly and squarely on the political masters.

The oft-quoted counter-argument, that public servants won't write things down because they don't want a paper trail, is dealt with by insisting on improved record taking and compliance with the Territory Records Act 2002. It should already happen, but often doesn't. It will require a change to organisational culture, but 20 years into self-government, it is probably time to accept that the people of the ACT can bear the responsibility not only of voting, but also of having the information to make informed decisions.

The final word

The Community Alliance believes that in a jurisdiction of 320,000 people it is high time that governments accept that better information will improve government decision-making in an open and participatory democracy. It is also time for the public to demand it.