Monday, March 30, 2009

Comparing FOI regimes: NZ vs Australia

(Cross-posted from Larvatus Prodeo, and aimed mainly at Australian readers)

A couple of years ago I wanted to trace the government's decision-making process on how forestry and agriculture would be included in its then-planned (and now "suspended") Emissions Trading Scheme. So I wrote to the Minister and asked. Within a couple of months (there was a screwup with the post) I had a thick binder containing every Cabinet paper and minute on the issue over the previous eighteen months - hundreds of pages in total. It cost me nothing.

This is not an unusual experience for me. What makes it possible is New Zealand's freedom of information law: the Official Information Act 1982.

The OIA was passed around the same time as Australia's Freedom of Information Act. But as the above story shows, it produces quite different results. Journalists, academics, lobby groups, opposition politicians and ordinary troublemakers like me are routinely given sensitive documents they would never be allowed to see in Australia. This allows us not only to build a better picture of what our government is doing - it also allows us to hold it to account.

There are two reasons for this difference. The first is a fundamental difference in philosophy. The OIA starts with a principle of availability:

"information shall be made available unless there is good reason for withholding it."

This broad statement shapes the entire Act, and gives it an entirely different structure from its Australian equivalent. The FOIA is class-based, defining types of documents that are exempt: cabinet documents, internal working documents, documents affecting enforcement of law and protection of public safety. The OIA, OTOH, is interest-based, identifying the interests which provide reason for secrecy: national security or foreign relations, privacy, legal privilege, "free and frank" advice, commercial sensitivity (and any of these latter reasons can be overridden by the public interest). One result is that the exemptions are harder to game - the government can't run everything through Cabinet to make it secret, and we've nailed down exactly what those interests are and when they apply (see for example the Ombudsmen's guideline on "free and frank advice" [PDF]). Another is that everything is potentially OIAable; its just a question of which interests apply at the time.

The second reason is that the government has generally got with the program and accepted the Act in the spirit is was intended. A public service that was suspicious and defensive in 1982 has transformed itself into one that is open and accessible. From being a threat, the possibility of advice being subject to an OIA request is now seen as a discipline by public servants: it makes them perform better. For example, here's Marie Shroff, former Secretary to the Cabinet and Clerk of the Executive Council, on the issue [DOC]:

If I, as a civil servant, write a Cabinet paper which I expect to be sought for public release I am going to be extraordinarily careful to get my facts right, to avoid trespassing into politics, to give comprehensive reasons for and against a proposal, and to think very carefully about my recommendations. My advice will therefore be balanced, accurate and comprehensive.

Ministers have been less accepting, but over the years the OIA has become embedded, and they understand they can't get away with hiding things. Its telling that while the Act includes a Cabinet veto on release, it hasn't been used for over twenty years; the government accepts that it is bound by the Act and the decisions of the Ombudsmen - even unto releasing highly sensitive costings of an election policy mere days before an election.

Some other differences:

  • The OIA covers "information" rather than "documents". So it applies to stuff even if it is not written down;
  • charging is the exception rather than the rule, and no charge can be made for deciding whether or not information can be made available. I've made almost a hundred requests, and I've been charged on only two of them (local government, under its equivalent legislation, is much worse at this).
  • The OIA has a shorter time limit - 20 days rather than 30, which is generally adhered to (Ministers get stick if their departments are slack on processing OIAs).
  • NZ's complaints mechanism is mana-based rather than legal. In Australia, you complain to the Administrative Appeals Tribunal, and if you win, the government appeals to the High Court until you run out of money. In New Zealand, you go to the Ombudsmen, who cost nothing, and have both expertise in the Act and the mana to make the decision stick.

The NZ law isn't perfect - it doesn't apply to Parliament, or the courts, the time limits are still too long, and there's no real penalty for non-compliance. But it is highly effective, and has led to tremendous cultural change in government (here's SMH FOI blogger Rick Snell on the issue). While the changes promoted by Faulkner will undoubtedly be an improvement, Australia's legislation will remain lightyears behind the NZ model.