Why FOI matters in the Victorian election

Alison Sandy

OPINION: If voters are undecided leading up to the Victorian election and care about the openness and accountability of Government then that vote should swing Labor’s way.

But you don’t have to take my word for it, you can take theirs – based on the responses to questions put to them by Seven Network.

When asked if they would review the Victorian Freedom of Information Act (1982), which is the oldest in the country, Labor said yes and the Liberals didn’t.

Attorney-General Robert Clark said a re-elected Coalition Government would “continue to examine opportunities for further improvements to the Act”, which isn’t too comforting because let’s face it, if they’re not going to commit to anything leading up to an election, it’s unlikely they will after.

Mr Clark went onto discuss the positive changes already made by the Liberal Party – including the introduction of an FOI Commissioner – basically an independent umpire who has the power to review FOI decisions. However, they failed to give the FOI Commissioner the power to compel Government agencies to release documents if they determine that their decisions don’t comply with the Act.

If successful, the Liberals say they will bolster the FOI Commissioners resources, which admittedly is a good thing, but it’s like fixing a punctured tyre when your car is totaled.

If Labor wins, Opposition Attorney-General spokesman Martin Pakula said the FOI Act will be overhauled to “make it quicker and easier” for information access.

It will expand the powers of the FOI Commissioner so that it can also review FOI decisions made by the ministers’ officers, which currently they cannot.

But probably what’s more telling is the responses provided by both parties when they were asked to rate Victoria in terms of openness and accountability in terms of government agencies’ handling of FOI requests.

Labor gave the Government two out of 10 – citing that just 15 per cent of requests to the offices of Government ministers were granted in full.

However, Mr Clark didn’t give a rating at all, instead replying that they were quicker to provide responses and appeals to VCAT had fallen from 166 in 2012-13 to 86 in 2013-14. This is possibly more reflective of the introduction of the FOI. This decision is to be applauded, but the Liberals shouldn’t rest on their laurels. The FOI Commissioner in Victoria is significantly less effective than its interstate counterparts.

When asked about whether there was room for improvement to FOI in Victoria, Mr Pakula said: “We believe there is room for significant improvement” and cited its press release promising to overhaul the laws.

Whereas Mr Clark discussed an open data strategy negating the need for FOI.

This is a similar policy brought in by Queensland Premier Campbell Newman. The reason this hasn’t worked is the information is of the Government’s choosing, not the applicant’s. And therein lies the problem because FOI is often a last resort when they can’t get the documents they are seeking through the usual channels.

The documents belong to the people and as the Government’s stakeholders, they have a right to know how they are being governed and whether decisions by their leaders are in their best interest.

That’s not to say there aren’t good reasons why some documents should be withheld in the interests of security, law enforcement and diplomacy but that’s why a good FOI Act is necessary.

However, when routine information that the public is entitled to know is hidden and the Government is regularly paying top dollar to lawyers to keep it hidden, there is something seriously wrong.

And that’s what is happening now. Victorians aren’t allowed to know about ambulance response times like other Australians are, or about failures in child protection and healthcare and have spent hundreds of thousands of dollars, if not millions, blocking documents detailing this. To find out exactly how much, I will have to lodge an FOI application.

Also, Victoria is the only state that will not release CCTV under FOI. The Act allows for this, but they are resistant, not because it’s unlawful to provide, but because they just don’t think we should have it.

The Government even had to be dragged kicking and screaming about the relatively innocuous subject of how much it cost taxpayers to repair damage caused by public housing tenants.

Admittedly, the intervention of the Housing Minister’s office facilitated that, which makes me think that it’s not necessarily always the political leaders at fault, but the bureaucracy.
The Ombudsman’s ‘Review of the Freedom of Information Act’ Report found:

  • Many cases of avoidable delay and in several cases notification of the decision to the applicant was deliberately delayed;
  • Cases where the reasons given for refusal of access were incorrect, wrong grounds were claimed for exemption, or statutory criteria were not considered;
  • In many cases reasons given for decision were inadequate, both at first instance and upon internal review;
  • Requests were given a deliberately narrow or unusual construction which caused the request to be found to be invalid or minimised the range of documents produced;
  • Applicants were frequently denied information which would help them in re-formulating their requests or in understanding the response to their request, leading to inappropriate outcomes; and
  • Inappropriate procedures and, in some cases, poor or incorrectly used precedent cases affected the outcome in many cases.

The Liberals say these are the sorts of abuses that flourished under Labor which the establishment of the FOI Commissioner has tackled.
Unfortunately they still have not been fixed.

The Liberals say they have introduced professional standards for agencies, but by all accounts, they are not enforced by many agencies, including the Health, Justice, Transport and Human Services departments.

It’s up to the elected leaders to facilitate and enforce change.

And judging by their responses to questions about the future of FOI, the Labor Party is offering much more hope that Victoria will take the first few steps towards becoming a much more open state rather than one of the nation’s most secretive.