Yes, freedom of information laws need updating, but not like the government is proposing
- Written by Maria O'Sullivan, Associate Professor of Law, Member of Deakin Cyber and the Centre for Law as Protection, Deakin University, Deakin University
The issue of open government and Freedom of Information (FOI) is again in the news, after the federal government proposed major reforms to the system.
FOI laws allow people to access government documents (subject to exceptions) and are routinely used by journalists, academics and the general public.
The reforms, which are going to a parliamentary committee for review, raise important questions about how we modernise these decades-old laws while ensuring government is transparent and can be easily held to account.
This proposed reform, which severely threatens government transparency, is not the way to do it.
What is the government proposing?
The government says the FOI Amendment Bill will introduce measures to modernise the FOI system and make it more efficient.
Changes include introducing fees for certain applications, a ban on anonymous FOI requests and stronger powers to deter vexatious, abusive and frivolous requests.
The amount of the application fee is not yet clear, but according to media reports, it is expected to be between A$30 and $58 per application.
This would be in addition to the current costs that people may incur from the department as they gather relevant information.
Personal information requests (where people request information about their own government files) will be exempt from this charge.
In addition, the government is proposing substantial changes to provisions relating to “deliberative” processes and cabinet documents.
Attorney-General Michelle Rowland has stated these changes are necessary due to resourcing pressures being placed on the FOI system. In particular:
modern technology has made it possible to create large volumes of vague, anonymous, vexatious or frivolous requests.
As an example of the resources necessary to operate the FOI system, Rowland said public servants spent “more than a million hours processing FOI requests” in 2023-24.
The changes have therefore been largely justified as a means of addressing frivolous and automated requests.
Is the FOI system being misused?
It is true that various reports by parliamentary inquiries and public organisations have indicated there are shortcomings in the current FOI regime.
For instance, in 2023, a Senate inquiry received evidence suggesting the FOI regime was under-resourced, leading to extensive delays in the processing of requests.
It described the federal FOI system as “dysfunctional and broken”.
However, there does not appear to be specific, concrete evidence that artificial intelligence (AI) bots are being used at scale to overwhelm the system. Nor is there evidence that the ability for people to submit an application under a pseudonym has caused integrity problems in the system.
The latter will significantly affect how people use important FOI help platforms, such as The Right to Know.
As I have argued elsewhere, the FOI system should be reformed to reflect the technological advances that have occurred since the legislation was first introduced in 1982.
The government has said some agencies, such as the Office of the eSafety Commissioner, have received hundreds of automated FOI requests. This is undoubtedly a problem.
But because large changes are now being proposed to limit access to information, citing chatbots and automation as some of the reasons, it would be good to see more evidence of the system being misused in this way.
Secret cabinet business
A substantive change to the exemption of cabinet documents from FOI disclosure requirements also raises some concerns.
Under the current FOI laws, documents that have the “dominant purpose” of going before cabinet for discussion are exempt from being disclosed.
The proposed change alters the wording from “dominant purpose” to “substantive purpose”. This will allow more cabinet documents to be exempt from FOI’s transparency regime.
Unsurprisingly, leading organisations such as the Centre for Public Integrity have raised concerns. Indeed, this is one of the most troubling parts of the current FOI reform package.
The move is in direct conflict with the 2023 Robodebt Royal Commission report. It recommended the cabinet exemption in the FOI be repealed entirely.
The commission made this recommendation because it found affected people and advocacy groups faced significant difficulties in obtaining information about the operation of the Robodebt scheme through FOI.
Despite this, the Albanese government refused to implement this change. It said:
Cabinet must have the benefit of frank and fearless advice from Ministers and senior public servants.
Read more: Governments are becoming increasingly secretive. Here's how they can be made to be more transparent
While recognising the importance of cabinet confidentiality, I and other experts have recommended the cabinet confidentiality exemption in the FOI act be narrowed, not expanded.
Another recommendation, from the Centre for Public Integrity, is cabinet documents should only be exempt for 30 days (unless another valid exemption applies).
Getting the balance right
One of the major obstacles facing people wishing to use Australia’s FOI system is the delay in processing applications and reviews. Greater efficiencies are necessary and welcome.
Against this backdrop, the introduction of a modest application fee for some applicants may be justified as a control mechanism.
Similarly, the strengthening of processes to deal with vexatious applications may improve aspects of the system (where that is warranted).
Of greater concern is the ban on anonymous requests and the expansion of the cabinet document exemption. These changes will make information less accessible to journalists and members of the public.
In addition, there are other means of improving the FOI system which have not been addressed.
For instance, the 2023 Senate report into FOI recommended greater use of proactive disclosure. It recommended personal information could be released directly to the people to which the information pertains, without requiring applicants to use the FOI regime.
This would clearly take some resourcing pressure off public servants.
Australia’s FOI system is a fundamental part of our democracy. It allows journalists, public interest organisations and the Australian people to find out how decisions are being made and hold government accountable.
The current reform package rightly notes that aspects of our FOI regime require modernising. But that shouldn’t come at the expense of a culture of open government and accountability.
Authors: Maria O'Sullivan, Associate Professor of Law, Member of Deakin Cyber and the Centre for Law as Protection, Deakin University, Deakin University
