NSW drags its feet on FoI reform

[ganpat1956]

An Article by Mathew Moore (Sept 06, 2008)

WHAT THEY WON'T TELL YOU

What a difference a premier makes. The NSW Ombudsman released a discussion paper on fixing the Freedom of Information Act this week and you don't need to browse it for long to see it suffers from Morris Iemma's failure to show a hint of leadership in the area.

It even comes with an apology where the Ombudsman offers his "regrets" the document suffers from "a legal or technical feel". He got that right.

What a contrast is Queensland. The Premier there, Anna Bligh, commissioned a similar paper last year when she called for a radical rewriting of her state's FoI Act within days of taking over the top job.

The Queensland paper, Enhancing Open and Accountable Government, paved the way for the most progressive FoI changes in the country, changes Bligh has now promised to make law.

Bligh drove the changes from the outset, while Iemma and his predecessor, Bob Carr, ignored nearly 15 years of requests by the Ombudsman for a review of the NSW act.

In the end, the Ombudsman, Bruce Barbour, had no choice but embark on this review himself.

Despite the hostility of the Government, it's a broad and thorough document; but as the Ombudsman rightly warned, it suffers from an overly legalistic approach. Queensland is attempting to make freedom of information more of an administrative process, where the emphasis falls on public servants to make the system work rather than letting the lawyers take control as has long happened in NSW.

Queensland is pursuing fundamental change to the way governments make information available. Bligh has agreed that departments must push information into the public arena regardless of whether anyone has asked for it. And when requests for information are received, the presumption is that applicants will get it. If public servants want to keep a document secret, they'll have to go to considerable lengths building a case why it can't be released.

In NSW, once they find an exemption that might apply they can simply refuse to disclose and rely on the ever expanding array of case law to defend their decisions.

With no support from Government, the Ombudsman has opted to work through each of the relevant sections of the act and ask whether change is needed. You can understand this cautious and methodical approach, but there's little sense it will result in the sort of wholesale philosophical change occurring in Queensland.

Because the Ombudsman hears appeals on FoI matters as part of his regular work, you also need to wonder whether his is the ideal body to undertake this review. Is he really going to recommend dealing himself out of the appeal process and give the work to some new body? An independent review panel like that in Queensland might go that way, but don't expect full-time public servants to do it.

Still, at least there is a review under way that should touch on all the major shortcomings while providing an opportunity to pick up good bits of the Queensland and international laws.

Of course, the big question remains: what will happen to any final report the Ombudsman eventually brings down? On Iemma's form it would go straight to the bottom drawer before even being opened, but with Nathan Rees we can only wait and see.

(Mr Mathew Moore is the FOI editor for The Sydney Morning Herald)
NSW drags its feet on FoI reform - Opinion - smh.com.au