Since the Commonwealth enacted Freedom of Information [FOI] legislation in 1982, the States and Territories have followed suit with their own Freedom of Information legislation in that odd homogeneous manner in which government is conducted in Australia. In NSW the Freedom of Information Act was introduced by the Greiner Government in 1989 and it has since been amended a few times to incorporate local government and to reduce wait times.

In NSW the Ombudsman deals with FOI inquiries about other departments not responding to FOI requests. This function of the NSW Ombudsman was placed under Schedule 2 of the NSW FOI act effectively removing it from the public eyes. From the NSW Ombudsman site;

Why you can't get access to some documents held by the Ombudsman

In January 1991 the Ombudsman's office was included in Schedule 2 of the FOI Act. This means that we are no longer required to determine FOI applications for information about our investigative, complaint handling and reporting functions.

Some of our documents do not fall into the categories of investigative, complaint handling and reporting functions and are therefore still subject to the FOI Act.

Which seems a pretty cynical move by the government. In the mid-90s the NSW Ombudsman's office was fairly critical of the FOI and released several reports on the FOI including; Freedom of Information - the way ahead. Which is sadly not on the internet.

There is surprisingly little information around on the NSW FOI and how it is going or being conducted. It was enacted prior to the internet kicking as an informational archive and even recent discussion of it in the NSW Hansard is pretty sparse. Though Ian Armstrong in 2003 made a speech of public importance and the following debate which describes the purpose of the FOI well;

I raise a matter of extreme importance to the people of New South Wales and point out the responsibilities of government and the Parliament. Many things are incumbent upon members of Parliament, the Parliament itself and particularly the Government of the day, irrespective of its persuasion. A primary responsibility is communication between people and those elected to power: the Government. That communication must be open, honest and in a form that is understood by the average person. Proper communication is necessary for the good conduct of business, commerce, culture and recreation. It will help to improve the quality of life, to ensure that New South Wales prospers and that people receive what they are reasonably entitled to expect.

Business cannot operate properly without co-operation between the customer and business. The art of communication is extremely important; that is, communication between a service station attendant, a butcher, a doctor, factory operators or officers of the local shire to ensure that the shire and ratepayers have a good relationship and that the system works. The former conservative Government introduced the Freedom of Information Act. Under that legislation any citizen may apply to have information made available about a particular event, legislation or responsibilities under the management of the Government of the day. The Act is voluminous and contains certain exclusions.

These exemptions are primarily matters of significance in that they may compromise the Government in the exercise of its responsibilities, such as a matter of national or local security. Also, the legislation seeks to respect the privacy of individuals who deal with government matters on a daily basis. Those matters, quite rightly, are protected through the freedom of information legislation. However, since the introduction of the Act, from time to time successive governments have refused certain applications, but only very few.

Sinclair complains about a refusal which he believes expands the meaning of confidence and internal debate on decision making. The next day there was a debate, or more accurately a 'politics as sport' spat. Ian Armstrong summates with;

I simply reinforce that the matter of public importance is clear: It is accessing government information. That allows for the canvassing of any information for which the Government might be responsible and over which it has jurisdiction. Effectively, that is all matters which affect government, commerce and industry in this State.

A research paper from 2000 states that the aim of FOI legislation is;

The fundamental aim of FOI legislation is to promote and enhance the processes of democracy and representative government by increasing access to government information. FOI legislation aims to: provide open and accountable government; increase public participation in government decision-making; ensure that personal information held by the government is relevant, accurate, up to date and complete; and enable individuals to be kept informed of government decision-making processes that affect them.

It has also been recognised that government information is a valuable public resource that is collected and created with public money for public purposes. In this sense, government information belongs to the public, and governments are "trustees" of that information on behalf of the public. It follows from this that government information should generally be accessible to the public.

Further, it has been recognised that inappropriate government secrecy can allow corrupt practices to flourish, and that FOI and other accountability mechanisms help to protect against corruption.

One of the questions is whether it has achieved those objectives, Abigail Rath's research paper;

There appears to be consensus that the FOI Act has worked well in relation to providing access to personal information. More controversial is the question of whether the Act has achieved the objectives of open and accountable government and public participation in government decision-making. Many commentators, including the Ombudsman, Auditor-General, politicians, journalists and academics have expressed the view that too much government secrecy still exists.

Lee Rhiannon of the NSW Greens recently released a statement which stated that over the last ten years the percentage of documents that have been released in full has dropped from 84% to 63%.

So it looks like on the open and transparent government side of things there could be improvement.

More Information

• NSW Council for Civil Liberties - Freedom of Information
• NSW Research Paper: Freedom of Information and Open Government

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