Chook dentistry

Even a Veterinarian specializing in the dentistry of chickens would have an easier job than someone trying to get public information from the public repositories of it, as Matthew Moore complains:

With about 1.5 million unemployed, sole parents and disabled people directly affected by the changes, it might seem beyond argument there is considerable public interest in knowing what effect the Government has calculated the policy will have.

Wrong, according to the Government's Department of Employment and Workplace Relations, which crafted the new policy and has now ruled that disclosure of documents explaining its effect "would not, on balance, be in the public interest".

This decision by the department's leader of its administrative law team, Genevieve Davin, is just one more in a flood of examples that together explain deepening disillusionment with the operation of the country's freedom of information laws.

This week the federal Ombudsman outlined a series of entrenched problems with the administration of the Freedom of Information Act, the first such law in Australia and now 24 years old. The Ombudsman's report comes on top of an Australian Law Reform Commission report (1995), an Auditor-General's report (2004), a Senate committee report (2001) and an earlier Commonwealth Ombudsman's report (1999), all of which call for changes to the law and all of which have been ignored by the Federal Government.

The Ombudsman, Professor John McMillan, admitted to a sense of deja vu in producing his latest work, which points out excessive delays, excessive costs, denial of access to information and inconsistent application of the law.

The response to the Herald's request for documents explaining the effect of the welfare-to-work policy well illustrates how difficult it is to use the act for its intended purpose: "to extend as far as possible the right of the Australian community to access to information in the possession of the Government…"

In October, the Herald applied for a spread of documents and then refined the request to find out how many people were affected by the policy, how many expected to get jobs and what was the financial impact on those on welfare.

The department replied that this information was held in 502 documents containing 3435 pages. In a preliminary assessment it estimated 3122 of those pages, or more than 90 per cent, were exempt from release under the various 18 pages of exemption provisions listed in the act.

The cost of applying for the 313 pages is $13,055.50, of which nearly $11,000 is for 546 hours of reading documents at a rate of five minutes a page calculated at $20 an hour.

Because the estimated cost is more than $100, the department has asked for a 25 per cent advance deposit, of $3263.90. But there's a catch. Only after the deposit is paid will the department decide what documents are exempt. Once it has your money it can rule all documents exempt and provide nothing other than a bill for the outstanding 75 per cent or $9792.

This is no idle threat. Just this month the Department of Communications, Information Technology and the Arts did precisely this when the Herald sought access to a report into funding of orchestras. That department's principal lawyer, Lea McAuley, said it would take staff 23 hours to read the 107-page report. She estimated 28 pages would be released at a cost of $464.24. The Herald paid $117.14, a 25 per cent deposit, in order to proceed.

On March 1, McAuley wrote again to say the department's general manager (arts, regional and governance), Mark Taylor, had decided that the whole document was exempt and the Herald could see none of it. Accompanying her letter is a bill for the outstanding 75 per cent or $344.20 (with a $2.80 discount for 22 pages of photocopying no longer required).

Rick Snell, a University of Tasmania academic with 15 years' experience working on all sides of the freedom of information game, says the practice of departments sending big bills for decisions denying all access to information is just one of a host of common techniques used to discourage freedom of information requests.

Another is the arguments about what is and what's not in the public interest. Under the FOI Act, departments can cut fees where the information sought is in the public interest. You might think a major newspaper seeking to explain a new policy might satisfy a basic test of public interest, but not according to the Government's lawyers.

In her five-page letter, Davin said that while the issue pursued by the paper "may be of interest to welfare recipients, and to some other members of the community broadly" she was not satisfied the information would flow "to the public at large".

The problem, she said, was that the Herald had "not indicated how [it] would make the actual documents or their contents available to the public". But pointing out the newspaper intended to publish relevant material in its pages as well as electronically, as it does every day, was not enough.

Davin has another reason the request for a reduced fee was not in the public interest.

"You may choose not to make all of the information contained in the documents available, nor all of the documents themselves available depending on whether or not the documents contain information which you or your employer consider to be newsworthy or of significance."

This notion that a media outlet should publish every piece of information provided in response to an FOI request in order to meet a public interest test was a new one even to Snell. "It's a smart-arse response," he said.

About 40,000 freedom of information requests are lodged with the Federal Government each year, almost all of them by individuals seeking access to their personal records. They generally find the law works reasonably well and, according to Snell, don't hit the obstacles increasingly faced by the media or the Opposition looking for non-personal material.

He says government departments are more and more "playing hardball" as the media and other sections of the community have increased the numbers of applications.

Snell says he's certain the Government will ignore the latest Ombudsman's call to appoint a freedom of information commissioner and implement the rest of his recommendations. That leaves a High Court case later this year as the only real hope for getting better access to government information. In that case, the journalist Michael McKinnon, from The Australian newspaper, is appealing against a decision by the federal Treasurer to issue conclusive certificates to prevent access to documents first sought in 2002 about bracket creep in the tax system and the financial assistance for first-home buyers.

These certificates are a handy insurance policy for politicians, who only have to sign one to stop the release of documents. In McKinnon's case, the Treasurer said disclosing the documents would be contrary to the public interest because they could confuse or mislead the public and would impede frank communication between a minister and staff.

McKinnon appealed against the certificates and lost in the Administrative Appeals Tribunal.

He lost again in a split decision in the Federal Court, where the majority found that provided there was a ground in the certificate that is not irrational, absurd or ridiculous for a claim that releasing documents was against the public interest, then that was sufficient.

The question the High Court must resolve is whether the tribunal, when making the original decision, should have carried out a balancing exercise to decide if there were reasonable grounds for the Treasurer's claim that disclosing the documents was contrary to the public interest.

Whatever happens, the case will shape the future of freedom of information. The court could make a narrow decision or it could set down some guidelines on determining public interest that will influence how effective freedom of information will be across the country for decades.

With the Government's costs already at more than $720,000 and McKinnon's costs something similar, it's unlikely another freedom of information matter will get to the High Court in the near future.

In the meantime, the Government is carrying on just as before. A tribunal hearing in Melbourne last week was told the Treasury Secretary, Ken Henry, would issue two conclusive certificates to prevent access to information on the cost of cutting tax rates to 30 per cent and the indexation of income tax scales. The certificates say such information is not in the public interest, although the public might have a rather different view.