The Mercury: Tasmania: Thursday, September 28, 2017.
RIGHT to Know
Day is marked around the world each year on September 28. The event promotes
access to government information as essential to democracy and good governance.
This is also recognised in the statutory objectives of Tasmania’s Right to
Information Act 2009, or RTI Act.
Despite these
clear objectives, the Hodgman Liberal Government has presided over a steady
deterioration in Tasmania’s right to information framework.
In terms of
its design, intent and structure, the Tasmanian RTI Act has a deserved
reputation of being one of the best of its kind. It arose out of the
dissatisfaction with its predecessor, the Freedom of Information Act 1991.
The FOI Act
was limited by legislative changes made before it even commenced, a hostile
administration by senior bureaucrats, an ombudsman restricted by funding cuts
and gamesmanship by the first two generations of spin doctors (Liberal then
Labor apparatchiks) dedicated to managing the adverse impact of information
released under the Act.
Premier David
Bartlett was persuaded that a dysfunctional FOI Act designed on principles and
ideas pre-dating the digital age was a major source of undermining trust
between governments, the bureaucracy and citizens.
The review of
the FOI Act produced new legislation in 2009 that was designed to improve
democratic government, increase accountability, make public information an
asset managed by the state for the people and discretions that were meant to be
exercised “to facilitate and promote, promptly and at the lowest reasonable
cost, the provision of the maximum amount of official information”.
This ambition
has failed because of an achilles heel, the lack of a fully resourced
ombudsman. This weakness has been taken advantage of by both the Giddings and
Hodgman governments.
An ombudsman
is able to exercise an active oversight set down and maintain best practices in
terms of application of the Act, to keep the spin doctors at bay, inspire RTI
officers to aggressively apply the public interest test for the release of
information and deliver timely and high quality information that achieves the
objects set out in Section 3.
In every
Ombudsman Annual Report since 2010, Tasmanian ombudsmen have warned they do not
have enough resources and staff to perform these roles.
Every year the
performance and oversight by the ombudsman has become more restrained. The
consequences of limited resources have been dramatic. Many RTI officers have
received little training from the ombudsman in the fundamentals of the Act.
Agencies, especially when they are dealing with the media, parliamentarians and
concerned citizens, have been able to drag out requests to the maximum time
limit of 20 working days and in many cases longer.
In a digital
age, where most government information is online, it is simply implausible that
any but the rarest of requests take longer than a few days to find the
information, determine its status under the RTI Act and convey those findings
to applicants.
Many agencies
pay lip service to the requirements in the Act to identify, balance and
articulate the public interest in both releasing and not releasing information.
And like a
grand old institution that has fallen on hard times, the ombudsman offers
little solace to those willing to seek review of poorly argued, delayed decisions
where little effort has been devoted to achieve the objects of Section 3.
The
Ombudsman, after several years of not doing so because of costs, has started to
publish online his limited output of reasons for decisions. A mere eight
decisions have been published this year.
The shortest
time, with one exception, to make a determination in this group of reasons is
nine months. The average time is 20 months for an applicant to be told whether
any further information will be released.
Many users,
especially journalists, will simply walk away from using the RTI Act under an
ombudsman forced into a minimalist caretaker role. Every journalist and citizen
who walks away from the RTI Act is a victory for the spin doctors and those
senior public servants who prefer to avoid blame, or the wrath of a minister
(or minder) because the public is more informed.
There is a
simple solution, one that is in Premier Hodgman’s hands. Give the ombudsman the
resources needed to fulfil his statutory duties under the RTI Act.
The
objectives of the RTI Act:
3. Object of
Act
(1) The
object of this Act is to improve democratic government in Tasmania
(a) by
increasing the accountability of the executive to the people of Tasmania; and
(b) by
increasing the ability of the people of Tasmania to participate in their
governance; and
(c) by
acknowledging that information collected by public authorities is collected for
and on behalf of the people of Tasmania and is the property of the State.
(2) This
object is to be pursued by giving members of the public the right to obtain
information held by public authorities and Ministers.
(3) This
object is also to be pursued by giving members of the public the right to
obtain information about the operations of Government.
(4) It is the
intention of Parliament
(a) that this
Act be interpreted so as to further the object set out in subsection (1); and
(b) that
discretions conferred by this Act be exercised so as to facilitate and promote,
promptly and at the lowest reasonable cost, the provision of the maximum amount
of official information.
Associate
Professor Rick Snell is Acting Dean of the University of Tasmania School of
Law. He has particular interest in the areas of access to information and
ombudsman studies.
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