Access to information: The $100m question

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During the 2023 Senate Inquiry into the Operation of Freedom of Information (FOI) Laws, individual senators and various media outlets variously described the Commonwealth’s FOI regime as dysfunctional, broken and a mess. 

It’s not hard to see where they’re coming from – particularly with agencies facing large backlogs and when Office of the Australian Information Commissioner (OAIC) reviews can extend to five years and more. 

But is that the only side to this story? And more importantly, is the FOI system beyond repair?

To answer those questions, it’s important to reduce the noise and hype, along with what could be described as an excessive focus on negative and emotional reactions to the FOI system. 

Rather than accepting these judgments at face value, it’s important to consider objective measures to assess whether the Commonwealth FOI system is, in fact, broken. Examining FOI processing data can help us unpack hyperbole from fact – and add a few layers of understanding to the current state of the federal framework. 

One key measure to consider is cost v outcomes. Across all Commonwealth government agencies, FOI processing costs hit $70.3 million in FY23, with APS staffing accounting for $65.3 million as compared to $60.6 million in FY22 and $58.7 million in FY21. That equates to 903,492 APS staff hours or roughly 452 years in FY23.

Rather than seeing FOI as dysfunctional and broken, we could consider the $70 million investment in FOI processing as indicative of the Commonwealth’s strong commitment to transparency and access to information (ATI). 

Another staggering data point is that Commonwealth agencies processed more than 34,000 FOIs in FY23, with most completed on time and with information being released. 

Arguably, those figures don’t even begin to capture the real cost and time devoted to FOI and ATI regimes, which can run to double or triple the reported figures. Why? Because they only capture designated FOI officers’ time – and not ancillary efforts. 

Those include fruitless searches for documents, records and data, liaising with business units, internal discussions and a host of other activities that are essential to ensuring that agencies make fair and equitable FOI access decisions.

The sheer scale and significance of the resources allocated to FOI and ATI processes should be front of mind when we talk about data governance and ways for the system to operate more efficiently. However, the overriding messaging is often couched in adversarial and emotive terms, like “Big Brother is undertaking covert surveillance, hoarding data and denying people access to information to obfuscate the truth, while scores of Davids fight the good fight to wrestle the truth out of our Goliath government”. 

Those claiming that the FOI system operates in dystopian ways often disregard the fact that Commonwealth agencies not only try to do the right thing, but they succeed in providing access to information – and all while balancing complex public interest considerations. In other words, the truth is very much in between the extremes.

That raises a number of questions, such as: What tools can we use to block out some of that hype, noise and hyperbole? And how can we deploy what behavioural economists call a ‘nudge’ or ‘soft interventions’ that could help reframe the debate and assist Commonwealth agencies, and the wider FOI regime, to operate more efficiently?

Educating the community about balancing competing public interests: for supporters of “open government”, FOI exemptions are often seen as running contrary to the core objects of FOI and ATI regimes, ie to improve transparency and accountability in government actions. The shorthand formulation is generally “more access = better outcomes”. However, that formulation does not take into account the basic design of FOI and ATI regimes, which have an inbuilt and laudable public policy goal, i.e. minimising harm by limiting access to sensitive information. That may be due to national security concerns, commercial sensitivities or seeking to protect personal privacy or someone’s professional reputation. 

What’s the nudge? Agencies could consider ways of challenging their own and the public’s perceptions about FOI frameworks. How? By taking the time to explain to staff, applicants, MPs, the media and wider community that FOI and access decisions are invariably nuanced. 

More importantly, they require a delicate balancing of competing public interests, including protecting the Commonwealth’s ability to operate in the best interests of the wider Australian community.

Celebrating FOI and ATI professionals’ work: it’s easy to have a “hate on” about FOI – and it’s often seen as the bane of the public sector’s existence. And that makes the work of FOI practitioners sound deeply unattractive. Would you want to toil in an environment perceived as high-pressure and time-sensitive, not to mention plagued with frustrated and (potentially) abusive applicants? Those perceptions and working conditions arguably feed into shortages of well-trained and skilled FOI officers and managers. In my experience of working with and talking to FOI officers across the Commonwealth, I have always found them to be dedicated, professional, diligent and to care deeply about supporting FOI and ATI applicants.

What’s the nudge? Celebrate FOI and ATI practitioners and the work they do. Acknowledge that their work is difficult and that they always strive to uphold the very best in public service traditions.

Another nudge could be to uplift training and certification processes – and to establish clear career paths and avenues for advancement.

Reducing “noise” in FOI decision-making: in his seminal book Noise, Nobel prize winner and father of behavioural economics Daniel Kahneman and his co-authors make the simple but powerful point that decision-making can be improved by reducing noise. What is noise? Undesirable variability in the same or similar decision-making processes. The implications for FOI, ATI or any government decision-making processes are obvious, i.e. getting different results for the same question is inherently inefficient and can lead to unfair outcomes. In the context of FOI decision-making, much of the noise relates to delays. Those delays are often driven by Commonwealth agencies’ relative effectiveness at managing not only the number of FOIs on foot, but also the sheer volume of documents at play. The simple equation is – higher numbers of documents translate into longer reviews, extended FOI decision-making periods and inevitable delays.

What’s the nudge? In an article originally published in the Privacy Law Bulletin – Frivolous & Vexatious find a new friend (Unreasonable) through Australia’s privacy reforms – my colleague David Mesman outlines a number of strategies that Commonwealth agencies could potentially deploy to help limit volumes of documents reviewed in ATI requests. Those suggestions could also be used to reduce resourcing commitments, delays in decision-making and turn seemingly inevitable OAIC and AAT reviews into avoidable ones.

The above suggestions are just that – suggestions – and would need to be tailored to individual agencies, organisations and working environments. However, they can go a long way to answering the key questions facing Commonwealth entities, like – how do we do more with less, particularly during periods of fiscal restraint? How do we attract, engage and retain skilled FOI and ATI practitioners? How do we streamline processes that appropriately balance public interests with individual rights? And, as always, there’s the evergreen issue of how to work smarter, rather than harder. 

The answers to these questions aren’t immediately clear. What is clear is that the Commonwealth and the Australian community will continue to make significant investments in FOI and ATI frameworks. 

Where we can filter out ‘noise’ and examine the true state of the FOI landscape in its full context, the better off our decision-making and futures will be.