Peter Shoyer
AUSTRALIAN INSTITUTE OF ADMINISTRATIVE LAW
2006 NATIONAL ADMINISTRATIVE LAW FORUM
Administrative
Law: Protection of Individual
and Community Interests
Surfers Paradise Marriott Resort
22-23 June 2006
Peter Shoyer
Information Commissioner, Northern Territory
Peter Shoyer is the inaugural Information Commissioner for the Northern Territory. The Information Commissioner is responsible for independent oversight of the Freedom of Information and Privacy Protection schemes that govern the NT public sector, and also plays a role in relation to Records and Archives Management.
Peter has over 12 years experience dealing with reviews of Freedom of Information decisions in Queensland and in the Northern Territory, having worked in the Office of the Queensland Information Commissioner for 8 years before taking on the role of Northern Territory Information Commissioner in March 2003.
Introduction
With each passing milestone in the ‘Freedom of Information’ era in Australia, we see criticisms and calls for review. Now approaching 25 years of FOI, it is worthwhile to start looking towards the horizon for alternative or additional remedies that promote the fundamental objects behind the legislation.[1]
In this paper, I offer one point of departure that I hope may promote more general discussion. Perhaps another vintage administrative law tool can be dusted off and revitalised to provide, at least in some cases, a more effective means of informing the community about government and the way it functions.
I also explore
potential improved measures to promote agency compliance.
In that regard, I point particularly to the need for more timely, effective and
conclusive measures for independent oversight and review, and for substantial
incentives for agency compliance.
Finally, I submit that consideration of these issues should be undertaken as part of a review of the broader framework of how government collects, creates, handles and discloses information.
FOI in Australia
Since the commencement of the Commonwealth Freedom of Information Act in 1982, each Australian jurisdiction has followed suit to establish access rights along broadly similar lines.
There are three generally recognised rationales for FOI legislation:[2]
In existing schemes, an applicant for access specifies the record or information sought. The relevant government agency then locates the record sought or all records containing the information sought, and makes a decision on access based on exemptions specified in the relevant Act.
The FOI schemes deal with access to ‘records’ or ‘documents’ rather than to information within the knowledge of the agency that has not been recorded in physical form. Even if a document once existed but has been destroyed, there is no right to require the recreation of the contents of the document in order to respond to an FOI application.
This may be contrasted with the approach in New Zealand where an agency can be required to create a record in order to respond to an FOI application:
The Ombudsmen consider that the definition of official information also includes knowledge of a particular fact or state of affairs held by officers in such organisations or Departments in their official capacity. The fact that such information has not yet been reduced to writing does not mean that it does not exist and is not "held" for the purposes of the Act.[3]
However, I am not aware of how frequently New Zealand agencies have actually created new documents in response to an FOI application.
The problem with FOI?
The Commonwealth FOI scheme was subjected to comprehensive but unrequited review by the Australian Law Reform Commission and the Administrative Review Council in 1995.[4] Since then, a number of reviews of particular aspects of the operation of FOI schemes have been undertaken.[5]
There has also been a growing body of literature that points to questions or criticisms of FOI legislation and the FOI process.[6] One comment suffices as an example:
In practice, FOI applicants such as journalists, seeking non-personal information, face excessive delays, exorbitant costs, improperly applied exemptions, political interference, poorly trained and motivated bureaucrats and flawed appeal processes.[7]
Among the chief criticisms of relevance for this paper have been:
· FOI takes too long;
· FOI costs too much;
· You get access to lots of documents that are not what you were really looking for;
· None of the documents tell you why the government did what it did;
· Mechanisms for challenge to agency decisions are complex, time consuming and expensive.
It would be unfair to judge FOI solely on the basis of these criticisms. Many FOI applications are made by ordinary members of the public who are seeking a limited amount of information on a particular topic of interest to them. They get a response that meets their needs within a reasonable time at a limited cost or at no cost.
It is also fair to say that some applicants do not make it easy for themselves, making very broad applications that require extensive searches, consultations and decision-making time, which combine to produce delay and expense.
Yet criticisms recur on a regular basis. One of the problems that can arise with FOI is its inclusive nature. An agency that is asked for “all information about Subject X” is obliged to track down all the information. It may be located in hardcopy files, on various computer systems, on e-mails addressed to numerous individuals, in loose papers, on sticky notes, on back-up tapes, on audio and video tapes, and even on text messages.
This can entail a lot of search time for the agency, a high cost for the applicant and a large amount of ‘relevant’ but not particularly useful information.
Various strategies for enhancing existing FOI schemes have been suggested.[8] There is great value in considering such strategies, particularly in areas that will improve administration and oversight of the schemes. It is important that strategies for improvement be explored and adequate resources be provided to maintain optimal FOI schemes.
However, it is not my intention in this paper to discuss ‘internal’ improvements to FOI. Rather, I seek to look beyond present FOI schemes and to consider whether and how the fundamental objects behind FOI can be promoted by alternate means.
FO Why
On occasion an FOI applicant may be willing to conduct a ‘smoking gun’ search by wading through thousands of documents to find the one page or paragraph that will expose some flaw or wrongdoing in government processes. But the deep pockets and time required to pursue such an approach mean that this is a luxury that few can afford.
Most people who use FOI do not want to search through copious amounts of largely routine paperwork to try to make some sense of the situation. They certainly do not want to devour reams of paper only to discover that it simply does not enlighten them at all.
An FOI application can be a lottery depending on the amount and nature of the records created. If you strike it lucky, a good administrator has recorded all relevant information in one document which is made available to you. If not, you may have to dig through copies and copies of copies before you develop an idea of what happened. In other cases, you may do all the digging you want without clarifying the situation.
The result can therefore depend on the quality of administration in the first instance. Poor administration in the first instance only increases the chances of cost, delay and frustration for the already bewildered or suspicious FOI applicant.
From over 12 years experience working in the field, it is fair to say that most people seeking access to information want to know why government took a particular action or made a particular decision. They feel that government has not done the right thing and frequently feel that the process of decision-making has been flawed. But they feel that government has not given them enough information about the process or the reasons for the outcome.
For many of them, a 4 or 5 page document setting out the reasons for a government decision or action would be far more welcome than a box full of largely or entirely routine documents.[9]
Statements of reasons
The general statement of reasons requirement was introduced as a part of the administrative reforms contained in the Administrative Decisions (Judicial Review Act) 1977 (Cth). It was clearly intended as an aid to the statutory review of administrative decisions introduced by that Act. Similar provisions have subsequently been introduced in other jurisdictions.
Its use to date has been limited to that of an administrative law tool to assist judicial review. It is restricted by the requirement for the applicant to have a sufficient interest in the relevant decision in order to establish standing, and by the qualifying term “decision … made … under an enactment”. The latter restriction has been the subject of considerable discussion in recent times.[10]
The potential for beneficial individual use of statement of reasons requirements has therefore been inextricably bound and limited by its association with the statutory scheme for judicial review.
But the potential benefits of requiring statements of reasons extend beyond use as a supplement to judicial review rights. In 1999, Wayne Martin QC, speaking as a representative of the Administrative Review Council, identified five benefits of requiring statements of reasons for decision:
1. improving the quality of primary decision-making;
2. part of a general due process requirement;
3. assisting applicants to consider whether to exercise their rights of review or appeal;
4. assisting tribunals and courts in providing merits and judicial review;
5. promoting public confidence in the administrative process by disclosing the reasoning process of decision-makers to the public.[11]
Clearly, benefits 1 and 5 accrue to the community whether or not an applicant has standing to seek reasons for decision or judicial review.
Extension beyond an administrative law tool
Indeed, there are numerous potential benefits for both the public and for government in extending the requirement to give statements of reasons:
· Individuals would get their explanation, even if it meant that government had to create a document that explained its actions;
· Government would not have to expend resources searching for countless copies and stray documents (so long as the reasons for decision were readily apparent);
· Better initial decision-making due to a greater potential for scrutiny;
· Better recording of decisions that may be subject to a reasons requirement;
· Better decision-making in the long term because agencies could rely on records of past decisions to guide them in the future.
Over time, a substantial benefit would accrue to agencies that contemporaneously record their reasons for decision to an extent that would allow a formal set of reasons for decision to be prepared if required. The quality of individual decision-making and recording would be enhanced. The ‘corporate memory’ of agencies would be upgraded in a manner that would allow them to benefit from the ability to access the bases for past successes and mistakes rather than ‘reinventing the wheel’ each time a decision must be made.
Agencies that did not improve their records management would be faced with the penalty of undergoing long and expensive processes of digging through all the materials to try to establish why a decision was made.
Perhaps it is time to consider whether the statement of reasons can be freed from its narrow bounds as a judicial review tool, and elevated to a mechanism for enhancing the way that all citizens can access information about government. [12]
How far should the statement of reasons requirement be extended?
I have referred above to concerns expressed about the categories of ‘decision’ with respect to which a statement of reasons can be sought. His Honour Justice Finkelstein has commented:
It is difficult to justify the [Administrative Decisions (Judicial Review)] Act’s restriction to decisions ‘under an enactment’. The practical effect of the test means that the Act draws an unrealistic line between what is ‘public’ and what is ‘private’ such that decisions that are not ‘under an enactment’ are relegated to the private realm and are immune (barring private remedy).
As terms such as ‘administrative’ and ‘under an enactment’ are undefined by the Act, the interpretation of the concepts falls on the courts. So far, the High Court has resisted adopting an interpretation that would broaden the avenues of scrutiny.[13]
Perhaps then one immediate extension could be to base the test on the nature of the function performed, namely whether it is “public in character”.[14]
Beyond that, extension of the statement of reasons requirement to a general right to information along the lines of Freedom of Information, would clearly also entail a right to reasons without establishing standing.
Such a proposal would no doubt bring howls of concern from many government agencies. “If people can ask for a statement of reasons on anything from a decision to buy paperclips to a choice between competing tax policies, how will we be able to respond to the thousands of requests for statements of reasons?”
The level of demand for reasons statements under such a scheme is simply an unknown and it is to be hoped that the scheme would provide resource savings in the form of reduction of costs of complying with diverted FOI applications. However, it may well be appropriate to consider a limitation, at least initially, to more significant government decisions and actions.
Personal
interest in a decision sufficient to establish standing would have to continue
to be an accepted basis for establishing a right to seek reasons.
Otherwise, a threshold could be established whereby any person could seek a
statement of reasons in relation to a ‘significant’ decision.
A ‘significant’ decision might be defined as a decision involving commitment of resources over a certain monetary amount or otherwise of ‘significant public interest’. The threshold need not be set too high. The relevant indicia for such decisions could be clarified by guidelines. Thus there would be a general democratic right to seek reasons in relation to any ‘significant’ decision, supplemented by a similar right on the part of persons with a sufficient stake in any decision.
Downsides
For agencies, there would no doubt remain concern that despite any advantages in terms of reduced FOI costs, there would be additional costs in having to prepare reasons for decision for anyone who asks.
On the other side of the coin, there would be concerns that agencies could simply make up reasons which have only a tenuous connection with the reality of the situation.
I certainly do not have all the answers to these criticisms but I suggest some possible strategies below.
Fees
There is little prospect that such a scheme would be introduced by any government without a fee structure of some sort. Given the objects of the scheme, it is strongly arguable that there should not be a requirement for a full ‘user-pays’ system of cost recovery. However, it is equally open to argument that a modest fee structure should be put in place as a means of regulating demand.
To that end, a fee might be charged based on a proportion of the cost to the agency of producing the statement of reasons.
To simplify
matters, this could be set at a single hourly rate for all agencies.
For the purposes of argument, say that preparing a statement costs an agency
approximately $75 per hour. A proportionate amount of say, $25 per hour, might
be set as the standard rate for an application.
The fee could be limited to the time that a reasonable agency would take to prepare a statement. Additional time spent by agencies due to poor recording of decisions or poor record-keeping generally should not be included in the fee.
This approach would provide an added incentive for agencies to improve and maintain high standard record making and keeping systems, which would also generally enhance government decision-making.
There may even be scope for establishing a series of set fees (say 3 to 5) based on the complexity of the task. For example, a ‘Simple’ statement might be assumed to take 6 hours work (and on the above figure, cost $150). A ‘Medium’ statement might count as 12 hours work (and so cost $300), and a ‘Complex” statement might count as 20 hours work (and so cost $500).[15]
Independent oversight
However fair and necessary an accountability scheme may appear on paper, mere legislation will not guarantee its successful implementation. It must be accompanied by a will on the part of agencies to implement the scheme in a timely and responsive manner. There must be commitment to the scheme at all levels within public sector agencies.
How to achieve that goal? Commitment can be engendered from within by strong moral and resource support from senior executives. It can be built from the ground up by promoting understanding and awareness by staff at all levels.
A well-resourced oversight body would have a key role to play in informing agency processes by providing advice, clarification and guidance in general terms and on particular issues.
However, while promoting awareness, understanding and acceptance of a scheme is a necessary part of effective implementation, it is rarely sufficient in its own right. Experience suggests that there must be additional elements. A crucial element would be an independent review body that has adequate tools to encourage and require compliance.
I suggest that the best model would be to have one independent oversight body that promotes awareness and understanding, and has powers to review and provide remedies in relation to agency decisions — an oversight body that can act quickly and with authority to promote compliance and resolve disputes.
In terms of review and decision-making, the oversight body would need to make decisions in three broad areas.
First, the oversight body should have authority to determine whether an agency is required to give reasons for decision. This should be a decision that can be made rapidly so that there is no undue delay in the process.
Secondly, the oversight body should have sufficient powers to ensure that agencies act in a responsive manner, and that process issues do not result in unwarranted delays in providing reasons for decision.
Thirdly, there would be substantive questions about the content of particular statements of reasons. In this regard, the oversight body should have a role to play when considering whether a statement adequately reflects the reasons disclosed in the records and evidence.
However, real issues arise as to what should happen if the oversight body considers that a statement is not adequate. No problem should arise if amendments can be agreed with the agency. But what if the agency persists in its views?
It may, at first glance, be an attractive prospect to give the oversight body the power to simply substitute its version of the reasons for decision. However, it must be recognised that a statement amended contrary to the position taken by an agency could have significant negative implications for the agency in future judicial review proceedings or in other forums.
An alternative would be to adapt the present approach[16] and give the oversight body the power to require the agency to provide further and better reasons.
Stopping short of a power to amend reasons for decision, there may be some merit in giving the oversight body the power to append an additional statement which sets out concerns of the oversight body without conclusively attributing particular reasons for decision to the agency.
In addition, it is worth considering whether agencies should be required to include in a statement a reference to any information of arguable significance that was before the decision-maker but which is said not to have been taken into account in making the decision. In that way, information that was potentially beneficial or prejudicial to one view but which is stated not to have been taken into account would at least be brought to the attention of the applicant.
Nature of the independent oversight body
Given the tasks assigned to the oversight body, and the need to promote timely responses to applications, it is my view that existing mechanisms such as generalist appeals tribunals would not provide the best outcome for such a scheme.
A specialist, expert review body which is not bound by the rules of evidence would provide the best chances for success. Examples of independent bodies that perform some or all of the roles envisaged for the oversight body in this paper can be found in the offices of the Federal Privacy Commissioner, the NSW and Victorian Privacy Commissioners, and the Western Australian, Northern Territory and Queensland Information Commissioners.
Locking in adherence
Ultimately, ensuring adherence to the principles of the scheme would be likely to require an additional fillip. How can agencies be encouraged to comply with the scheme in a timely and responsive manner?
One strategy that might prove effective would be to incorporate market principles into the process, by a combination of financial incentives to encourage ready and timely compliance, and financial penalties to punish poor standards of compliance and delay.
I have discussed above a potential fee structure for applicants. This structure could provide the basis for a financial scheme that promotes active compliance and a fair charging regime.
Any new system requires adequate funding if it is to achieve its aims. For this scheme, additional funding could be allocated on the basis of applications dealt with.
In the example discussed above, the applicant would be responsible for a notional 33% of costs of the application. The other 66% of the costs could be allocated as a co-payment from consolidated revenue to the agency in cases where the agency has met its obligations in an adequate and timely manner. Payment would be reliant on good performance.
To further encourage compliance, a third tier could be added whereby an agency that is judged to have fallen significantly short of its obligations would incur a penalty. To provide for different levels of penalty according to the extent of the failing on the part of the agency, a maximum penalty could be set, with the actual penalty being decided according to the particular circumstances.
This approach would add real incentives for agencies to ‘get it right’ both in terms of their compliance with the statement of reasons obligation, and records management generally.
Again, if these measures were to have real teeth there would be a need for a timely and conclusive review mechanism to ensure that decisions to allocate or refuse fees are made effectively. And again, I believe that the oversight body should have the power to make such decisions.
The oversight body could have the discretion to waive or reduce the applicant’s fee, and the agency co-payment, and to impose a penalty on the agency, depending on the circumstances of the case. Factors to be taken into account would include delay in compliance, other evidence of reticence in compliance, the adequacy of the statement of reasons, and the need to refer a statement back for further and better reasons.
Some may suggest that the system would encourage agencies to overcharge applicants, overstating the time taken or the complexity of the matter, particularly if additional funding is linked to the amount of the application fee.
Decisions on the level of fees should, of course, be subject to review by the oversight body. However, the co-payment system would bring in an additional element to safeguard the interests of applicants. Assuming the relevant Treasury department is charged with allocating resources to agencies based on the level of application fees, a close watch on the level of fees charged and co-payments made would be guaranteed.
The level of fees would therefore be safeguarded by both a right for applicants to complain to the oversight body and by Treasury monitoring and audit.
Such a system would entrench financial checks and balances that would encourage compliance by agencies at a reasonable cost to applicants.
An additional measure to safeguard fees would be to calculate the maximum penalty for non-compliance as a multiple of the particular application fee. It would then be in the interests of the agency to minimise the application fee in order to minimise the potential penalty for failure to comply.
Timely and conclusive decisions
One criticism of FOI has been delay in review processes, particularly with the prospect of appeal upon appeal through the tribunal and court system. To reduce the scope for such delays, it is important that governments carefully assess the sense in agencies being able to expend large amounts of public money in challenging decisions of the independent reviewer.
Bearing that in mind, I suggest that there would be significant advantages in terms of resource savings and avoidance of delay in barring agency challenges to decisions of the oversight body, in respect of at least the following review decisions:
· Decision requiring an agency to give reasons. This would merely be a decision that reasons are required, not a decision on their content. As such, one must question whether public resources should be expended on agency challenges in the courts.
· Decision to waive or reduce an application fee. Any one decision would involve a relatively minor sum from an agency’s point of view.
· Decision to reduce an agency co-payment or impose a penalty on an agency for non-compliance. These would be decisions about allocation of money within government. Such decisions should not form a basis for court actions that cost the taxpayer significant sums of money.
Limits on the scheme
Clearly, there would still be reasons why an agency might refuse to give reasons in a particular case or refuse to disclose certain information in a statement of reasons.
However, statements could, in most cases, be crafted in a way that provided an adequate explanation for the decision while providing appropriate protection for sensitive information. Any dispute on the extent of non-disclosure could be a subject for complaint to the independent oversight body.
The bigger picture
Whatever direction debate about access to government information may take in the future, I submit that it should be viewed as part of a bigger picture.
Governments are, on an almost daily basis, collecting, handling, creating and disclosing more and more information. Issues about the collection and flow of information need to be considered as part of the broader picture of how government manages information.
Issues surrounding collection, creation and management of information, as well as access to information and protection of essential public and private interests in information should be considered together. One example of such an approach is the Northern Territory Information Act, which deals with Freedom of Information, Privacy Protection and Records and Archives Management in one statute.
Ideally, an expanded statement of reasons scheme of the type mooted should be considered as part of a general approach, and perhaps as part of consolidated legislation, that deals with a broad range of issues concerning government information management in an integrated manner.
Conclusion
In closing, I suggest that an expanded statement of reasons requirement would fill a gap that presently exists in ‘records-based’ FOI schemes. In many instances, it would be a preferable alternative for applicants who want to know the ‘Why’ of decisions without wading through a plethora of documents which may or may not provide the answer sought.
Likewise, it would be beneficial for agencies. It would lessen the need for agencies to conduct extensive searches through various types of media to track down every slip of paper, diary note, e-mail or text message that might touch on a subject. It would also act as a significant incentive for agencies to improve record making and records management practices.
However, there is little point in implementing a scheme that may itself provide half-answers after lengthy delays. Agencies and staff must be convinced to provide a high level of support for the scheme. Part of that process would involve a high level of training and awareness building within agencies.
But there must be more. It must be patently in the interests of agencies to comply with the scheme. And the scheme must provide for fast and effective, independent oversight and review, which as far as possible, is not encumbered by the potential for layer upon layer of further review.
[1] The views expressed in this paper are those of the author. They should not be attributed to the Northern Territory Government. Nor should particular criticisms referred to in the paper be attributed to the FOI scheme operating in the Northern Territory.
[2] See for example, Senate Committee on Constitutional and Legal Affairs, Report on the Freedom of Information Bill 1978 , and aspects of the Archives Bill 1978, 1979, paragraphs 3.3-3.6.
[3] New Zealand Ombudsmen, Guide A3: Is the information held "official information"?, http://www.ombudsmen.govt.nz/guideA3.htm.
[4] Open Government: a review of the federal Freedom of Information Act 1982, Australian Law Reform Commission, Report No 77, and Administrative Review Council, Report No 40, AGPS, 1995.
[5] For example, Commonwealth Ombudsman, Scrutinising government: Administration of the Freedom of Information Act 1982 in Australian Government Agencies, March 2006; Commonwealth Ombudsman, Needs to Know: an own motion investigation into the administration of the Freedom of Information Act 1982 in Commonwealth Agencies, June 1999; Australian National Audit Office, Administration of Freedom of Information requests, Audit Report No 57 of 2003-04, June 2004; NSW Auditor–General, Performance Audit Freedom of Information, August 2003.
[6] For example, M McKinnon, ‘FOI, Conclusive Certificates, Public Interest and Security’, in C Finn (ed), Shaping Administrative Law for the Next Generation: Fresh Perspectives 159, 160 (Australian Institute of Administrative Law Inc, Canberra, 2005); R Mcleod, ‘Freedom of Information – An Ombudsman’s Perspective’ [2001] Federal Law Review 16; J R Herman & I Ryan, ‘The urgent need for reform of Freedom of Information in Australia’ (2004) 114 Freedom of Information Review 62; B Evans, ‘The use by journalists of the Australian freedom of information regime’ (2003) 103 Freedom of Information Review 8.
[7] McKinnon, n 6, 160.
[8] See for example, R Snell, ‘Freedom of Information: The Experience of the Australian States – An Epiphany?’ [2001] Federal Law Review 15; R Fraser, ‘The need for FOI renewal – digging in, not giving up’ (2003) 103 Freedom of Information Review 2; Commonwealth Ombudsman, Scrutinising government: Administration of the Freedom of Information Act 1982 in Australian Government Agencies, March 2006.
[9] In fact, most people would probably prefer a face-to-face explanation backed by a written document.
[10] For discussion of two recent High Court cases that have interpreted the term, see M Will, ‘Judicial Review of Statutory Authorities (2005) 47 AIAL Forum 1; G Hill, ‘Griffith University v Tang – Comparison with NEAT Domestic, and the relevance of constitutional factors’ (2005) 47 AIAL Forum 6; Justice R Finkelstein, ‘Crossing the Intersection: How Courts are Navigating the ‘Public’ and ‘Private’ in Judicial Review’ (2006) 48 AIAL Forum 1.
[11] W Martin, ‘The decision-maker’s obligation to provide a statement of reasons, fact and evidence. The Law’, Address to the AIJA Tribunals Conference, 10 September 1999.
[12] I should here acknowledge a proposal for extension of the role of the statement of reasons that I found in the course of research for this paper: J Roberts, ‘Concerning a duty to give reasons for decisions, and the switch to an information-based freedom of information regime’ (2003) 108 Freedom of Information Review 99. I suspect acknowledgement may also be due to Rick Snell for guidance in the development of that paper.
[13] Finkelstein, n 10, 6.
[14] Finkelstein, n 10, 8.
[15] Special considerations might be necessary with respect to applicants who presently enjoy a right to a statement of reasons without payment a fee.
[16] Administrative Decisions (Judicial Review) Act 1977 (Cth), s.13(7).