Page 644 - Week 02 - Wednesday, 11 February 2009
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certificates were introduced primarily in order to circumvent the objectives of the Freedom of Information Act. Those objects are still contained in the Freedom of Information Act. They are:
… to extend as far as possible the right of the Australian community and, in particular, the citizens of the Territory, to access to information in the possession of the Territory.
When they have a majority, governments seem invariably to imagine that they both own and control public information as one of the spoils of office, but it is not their property. They are custodians of public information and they should withhold information only where there is a clear public interest in doing so.
It is impossible for voters to accurately assess the competence and character of their elected representatives if they do not have access to most of the same raw data, reports and other information on which the ministers and their delegated decision makers base their decisions. In the land of the blind, a one-eyed man is king. In the political environment, information really does translate into power. The relevant facts, rationales and alternatives on which government policy is based should be available for public scrutiny. When that happens, it becomes that much harder for governments and public servants to manage the media by the selective release of information and possible misinformation.
Most FOI requests are made in order to obtain personal information about the applicant, and these requests are generally handled promptly and relevant information is released in full, as it should be. Governments hide behind these fine-sounding statistics to disguise their tendency to hide those documents which reveal the true nature of their administrative competence. The real test of the effectiveness of FOI legislation is how well it facilitates the release of what I would call substantive political information. Conclusive certificates are aimed squarely at restricting access to this kind of politically high-value, potentially embarrassing information.
I am yet to see a convincing argument that existing exemption provisions and review mechanisms are not adequate to protect legitimately confidential information. Does anyone doubt whether, on appeal from ACAT, a Supreme Court judge would not be able to identify information that is truly a cabinet document, commercial-in-confidence or damaging to national security? No, conclusive certificates are intended to stymie requests that seek information about government decision-making processes, such as why, when, who, how much and, critically, what may have been left out of publicly available position papers and policy proposals. Sunlight is the best disinfectant and appropriate transparency in decision making is the best defence against lazy, incompetent or corrupt practices.
When the Western Australia Inc royal commission, the Fitzgerald report on corruption in Queensland and the international corruption watchdog, Transparency International, commend FOI legislation as an efficient and relatively cheap mechanism for encouraging excellent procedural standards, as well as serving as an important safeguard against corruption, they are referring to the ability to obtain what I have called substantive political information from government agencies.
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