[LINK] FOI Good News and Bad News

[Roger Clarke]

[The Bad News:
"When he was working for the Queensland government years ago, Rudd 
was famous for undermining the state's FoI laws, and there are plenty 
of people who've been expecting him to do the same in Canberra."

[The Good News 1:
"Rudd's team promised to change the FoI law within the first term. " 
Rudd's words were "But let me just give you one core example. I'm 
determined to do something about freedom of information. This is 
notoriously seen as something that executive governments don't like 
because it causes information to go out which might be embarrassing. 
I'd like to, by contrast, encourage a culture of disclosure within 
government departments."  [Only "I'd like to", but alsi "I'm 
determined"]

[The Good News 2:
" ... he has appointed ... John Faulkner, a man whose considerable 
attributes include his lack of legal qualifications."


Not just the law but the culture needs fixing
Freedom of Information Column
Matthew Moore
The Sydney Morning Herald
Date: November 29 2007
http://www.smh.com.au/text/articles/2007/11/29/1196037075126.html

POLITICIANS rarely talk about freedom of information, and the few 
that do are usually in opposition. So when a politician in government 
raises the issue, it's worth taking notice, especially when it's the 
new prime minister who's under no pressure to do so.

Have a look at what Kevin Rudd said on the 7.30 Report this week and 
it's hard not to get a bit excited that the obsessive secrecy 
fostered by John Howard's administration might be about to change .

Asked about a recent letter in which former prime ministers Gough 
Whitlam and Malcolm Fraser urged an inquiry into declining standards 
of ministerial accountability, Rudd agreed there were declining 
standards of Westminster government and promised a code of conduct 
with which ministers would be required to comply.

And then he volunteered this: "But let me just give you one core 
example. I'm determined to do something about freedom of information. 
This is notoriously seen as something that executive governments 
don't like because it causes information to go out which might be 
embarrassing. I'd like to, by contrast, encourage a culture of 
disclosure within government departments."

How refreshing is that? When he was working for the Queensland 
government years ago, Rudd was famous for undermining the state's FoI 
laws, and there are plenty of people who've been expecting him to do 
the same in Canberra.

Rudd's remarks and his appointments yesterday are clear signals his 
thinking has now changed. Note the use of the word "core", made 
famous by Howard's description of core and non-core promises. By 
using FoI as his core example in one of his first interviews of what 
must change, Rudd has deliberately reinforced the policy he released 
in Opposition to "drive a culture shift across the bureaucracy to 
promote a pro-disclosure culture".

He's right to identify changing the culture as the critical issue in 
making FoI laws work. It can only happen if the person at the very 
top campaigns for it in public and inside the government. There's not 
much point tinkering with the legislation if government departments 
are encouraged to spend millions on the best legal brains to run 
cases right up to the High Court to stop the release of documents as 
basic as those showing the effect of bracket creep on tax cuts.

Changing the culture is never easy but it will be a huge challenge in 
the Commonwealth bureaucracy Rudd has inherited where some 
departmental heads write conclusive certificates banning the release 
of documents sought under FoI with alacrity.

Rudd has already promised to ban conclusive certificates, which will 
be a good start in changing the culture, but he needs further 
substantial changes to the law as well.

There are far too many exemptions. The notion every document prepared 
for cabinet needs to be exempt is ridiculous. New Zealand's FoI laws 
allow cabinet documents to be routinely released and no one suggests 
that's causing any damage to the country.

Fees need to be contained and perhaps it's time Rudd thought about 
including some penalties in the act so that government departments 
that breach or obstruct the law are punished. Now that might help 
speed up the culture change.

In opposition, Rudd's team promised to change the FoI law within the 
first term. If he's going to change the culture in this notoriously 
difficult area, he should make the changes fast, preferably in the 
first six months.

He'll need advice, and should consult widely, preferably outside the 
public service.
His inclusion in cabinet of a cabinet secretary with specific 
responsibility for "integrity functions within government" and for 
FoI in particular, is another good sign.

One reason FoI has not worked in the past is it has been buried in 
the Attorney-General's Department where it has lacked a champion. By 
giving a minister a specific job of making the FoI law work is a very 
positive move. Even better is the fact the person he has appointed is 
John Faulkner, a man whose considerable attributes include his lack 
of legal qualifications. It's about time we had less law and more 
common sense in deciding what information the public has a right to 
know.


Matthew Moore is the Herald's Freedom of Information Editor. What 
They Won't Tell You returns next year.


-- 
Roger Clarke                  http://www.anu.edu.au/people/Roger.Clarke/
			            
Xamax Consultancy Pty Ltd      78 Sidaway St, Chapman ACT 2611 AUSTRALIA
                    Tel: +61 2 6288 1472, and 6288 6916
mailto:Roger.Clarke at xamax.com.au                http://www.xamax.com.au/

Visiting Professor in Info Science & Eng  Australian National University
Visiting Professor in the eCommerce Program      University of Hong Kong
Visiting Professor in the Cyberspace Law & Policy Centre      Uni of NSW