Page 4459 - Week 14 - Thursday, 28 November 2013
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The second most important change in the bill is the adoption of what is commonly referred to as the push model, requiring that certain information must be continually published by ministers and government agencies. The bill sets out a list of proactive publication obligations. The list of “open access information” for government agencies includes policy documents; budgetary information; the agencies’ disclosure log of all information released in response to access requests; scientific and technical studies; information about boards, councils, committees, panels and other bodies established by the agency; and, from three years after they were created, incoming ministerial briefs, parliamentary estimates briefs, annual reports briefs and question time briefs.
In addition to the proscribed information in the bill, agencies will be able to make their own publication undertakings for the proactive disclosure of additional information, and the ombudsman will be able to make declarations requiring the publication of other categories of information.
Whenever FOI reform is discussed, inevitably the issue of the culture of the executive towards the disclosure of information is raised as a significant barrier to reforms. There is no shortage of public criticism of the prevailing cultural approach to the issue by the executive, and the draft bill contains a range of mechanisms to change executive culture and promote leadership from the top. The Chief Minister will be required to make annual statements to set directions for ongoing improvement and reform.
Another important feature of the draft bill is the creation of a dedicated information officer position. This is to promote the role and give it specific statutory responsibilities, as well as fostering a collaborative environment to encourage information and experience sharing and improve decision-making. The independence of the information officer will be protected and they will not be subject to the direction of anybody in their decision-making.
There will be new obligations on ministers to report when agencies have failed to meet the statutory time frames and more detailed reporting of the operation of the scheme to help promote accountability and, hopefully, foster a culture of openness and a real willingness to provide information to members of the community so that they can play a greater role in the decisions of government.
One particular argument sometimes put against reform, and also relevant to the issue of agency culture, is the fear that information or advice that will be made public will lead to a reduction in record keeping by public servants and that this would be contrary to good governance. This is worrying, but manageable, for a number of reasons, not least because public servants have a statutory obligation under part 2 of the Public Sector Management Act to be accountable and act with probity in the best interests of the public. Former High Court Chief Justice Sir Anthony Mason said over 30 years ago that the argument that disclosure will result in want of candour in advice given by public servants “is so slight it may be ignored”.
I do not accept that our public service are not capable of providing robust advice that can be defended in the public debate or that they are not capable of acting
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