F— Off, Idiot:

‘Freedom of Information’ in the Shire of York           James Plumridge                                 

The objects of the FOI Act are to enable the public to participate more effectively in governing the State and to make the persons and bodies that are responsible for State and local government more accountable to the public.  The FOI Act achieves this by creating a general right of access to documents; providing a means to ensure personal information is accurate, complete, up to date and not misleading; and requiring that certain documents concerning State and local government operations be made available to the public.  Dealing with requests under the FOI Act is not merely an administrative process but is a means of dispensing justice to the people of Western Australia.

               

Sven Bluemmel, WA FOI Commissioner: Annual Report 2013-2014

The letter killeth, the spirit giveth life.

St Paul: 2 Corinthians 3:6

A history lesson: CEO Hooper shows his hand and gets a well-deserved slap on the wrist

On 26 February 2014, an exasperated CEO Ray Hooper wrote to the Freedom of Information Commissioner.  He wanted a ‘ruling’ on a person he described as ‘vexatious’.   The person in question had for several years been tormenting the CEO by asking questions in Public Question Time, many of them about expenditure on the CEO’s corporate credit card. 

To make matters worse for Mr. Hooper, that ‘vexatious’ scallywag had persistently and insistently exercised his rights under the Freedom of Information Act 1992 (‘the Act’).  His doing so had allegedly generated heaps of unnecessary work for the Shire administration and constituted a huge drain on the public purse.

Mr. Hooper was always much incensed by questions relating to his corporate credit card.  Until quite recently, it was hard to see why.  Now that information about his credit card usage is leaking into the public domain, we are in a better position to understand his and the Shire’s reluctance to disclose it.

I haven’t seen Mr. Hooper’s letter, but we can safely infer its contents from the polite and carefully reasoned reply dated 13 March 2014 and written by Ms Grace Grandia of the Commission’s Advice and Awareness section.

These are the main points of what Ms Grandia had to say:

·         The Act gives agencies ‘discretion to disclose information outside the processes of the Act’.  Whenever possible, an agency should provide information without forcing an applicant to rely on the Act to get it.

·         The Commissioner can only rule on a matter ‘that comes before him as a complaint under the FOI Act’, not on a person as Mr. Hooper had requested.

·         A person’s right to access information held by an agency is not affected by what that agency believes to be the applicant’s motives for wanting it.

·         Credit card statements for the Commission are published on its website and available for public inspection (a hint, perhaps, that Mr. Hooper should reconsider his attitude to disclosure).

·         The Commissioner has the power to waive a requirement to consult with third parties regarding information that might serve to identify them.

·         If an agency is concerned that an FOI application will divert resources ‘away from its other operations’, it is obliged to help the applicant to narrow its scope.

·         An agency may provide access to information ‘outside the Act’ by allowing a person to inspect it in situ.  This saves time and resources because it sidesteps the need to consult third parties.

·         The Commissioner may decide not to deal with a complaint ‘if it is frivolous, vexatious, misconceived or lacking in substance’.  It is the complaint that is deemed to be vexatious, not the complainant.

It must have seemed obvious to Ms Grandia that Mr. Hooper was not overly familiar with the Act, and had failed to perceive that it is actually about disclosing information, not restricting it.  In that, he was and remains far from alone.

The past never dies: or, the ghost of Hooper present and to come

Why is the sorry tale of CEO Hooper’s failure to grasp the meaning and purpose of the Act still relevant today?  Isn’t it merely one of those ‘historical issues’ that the DLGC and the Commissioner have begged us to cast aside in the interests of ‘moving on’?

The answer to those questions may be found in the latest Briefing Paper to Council as a late report from the Deputy CEO, Tyhscha Cochrane.  Under the rubric ‘4.5.1 Freedom of Information’, Ms Cochrane asks Commissioner Best to consider ‘the current and potential future impact’ on Shire resources of having to deal with FOI applications. 

To support her request, Ms Cochrane produces a flurry of statistics including an estimate that processing FOI applications will cost the Shire $84,986 in (I presume) the next financial year.  She recommends that the Commissioner acknowledge ‘the additional cost associated with Freedom of Information applications, i.e. consultants, staff time and use of legal aid’.  What he’s supposed to do after acknowledging it, Ms Cochrane doesn’t tell us.

I suspect that the real purpose of Ms Cochrane’s report is to shame members of the public into not making FOI applications. Not only would that save the Shire administration tens of thousands of dollars (as she believes); it would also help to perpetuate the Hooperesque culture of secrecy and concealment that has continued to flourish at the Shire into the present day. 

 ‘First thing we do, let’s hang all the lawyers’

In her report, Ms Cochrane cites paying for legal advice and the help of ‘consultants’ as an ‘additional cost’ of FOI applications. 

I have evidence of a payment of $1170.98 to Feinauer Commercial Lawyers dated 27 February 2015 and ascribed to ‘Legal Advice – Freedom of Information’.

It is true that as an agency within the meaning of the Act, the Shire is obliged to comply in every particular with the Act and associated regulations. But why should it need lawyers to advise it on compliance with the Act?

I don’t know what application or applications that payment applied to, but I’m sure there have been other such payments.  I’m also sure that consulting Feinauer Lawyers was unnecessary, as all such consultations must have been.

The Shire is obliged to appoint an FOI coordinator.  That’s a responsible job.  It requires training in the requirements of the FOI Act and regulations.  It also requires a grasp of the spirit as well as the letter of the law.  The FOI coordinator should know enough to advise colleagues on most of the legal, technical and even moral issues that may arise from processing FOI applications.

If issues crop up that are too complex for the FOI Coordinator, that officer can take a leaf out of CEO Hooper’s book and seek advice from the FOI Commissioner’s office.

Advice from that source is given readily, costs nothing and as Ms Grandia’s letter demonstrates reflects the spirit as well as the letter of the law.  Why shell out ratepayers’ money if you can get what you need gratis from the State’s leading experts in the field?

Scurrying off to lawyers to get advice on how to obstruct an application—I doubt that it’s ever to get advice on how better to assist the applicant—is not only expensive, it’s also contrary to the spirit of the Act.  

What ‘consultants’ who are not lawyers can usefully tell the Shire about FOI is not clear to me.  Perhaps Ms Cochrane would care to explain, with suitable examples, before she toddles off on leave.

The Act provides scope for exemption, for example of documents containing legally privileged material, but exemptions are not mandatory.  Like all other ‘agencies’, the Shire has a choice: it can decide to provide information whether or not that information is technically exempt.

In short, the Act emphasises the public’s right to obtain information, not an agency’s ability to withhold it.

Local government agencies thumbing their noses at the Act

It is clear from the FOI Commissioner’s latest report that he isn’t happy with ‘a small number of local government agencies’ that have ‘a disappointing attitude towards compliance with the Act’. I’d be surprised if the Shire of York isn’t one of them.

According to the Commissioner, an FOI decision made by a local government agency is 8 times more likely to be the subject of external review than one made by a State government agency.

He considers it ‘good practice’ for an agency ‘to make as much material as possible publicly available on [its] website, for example information relating to credit card expenditure’.

Just imagine if the Shire of York administration, under Mr. Hooper’s leadership, had engaged in ‘good practice’ of that kind.  How much anguish would have been avoided over the past 10 years, and how much public money saved!

In 2013-2014, local government agencies were responsible for 28 requests for external reviews to the FOI Commissioner.  Four of them, a startling 15%, emanated from the Shire of York.  In the same period, the Shire of York (population 3500) received 16 FOI applications.  Compare that with the 17 applications received by the City of Gosnells (population 120,000).

Something funny in York’s water, or something rotten in the Shire?

Saving money: or, a walk on the wild side

Ms Cochrane’s report would cease to have much relevance to the Shire’s budget if the Shire were to adopt a strategy of cooperation with FOI applicants instead of one based on the supposition that anyone asking for information is an enemy who should be cut down.

Here are some suggestions that might help:

1.                   On receiving an application, begin by assuming that the applicant should be given every document they ask for, instead of automatically looking for ways to limit what they can have. This will save time and money by doing away in many instances with the need for internal as well as external reviews.

2.                   Nothing connected with the expenditure of public money should ever be regarded as exempt from disclosure.  That includes staff appointments, staff salaries and related costs.  It includes expenditure on public works of every kind as well as corporate credit cards.  It includes tenders for contracts, too—but only after the contracts are awarded.

3.                    Put everything to do with expenditure of public money online—every estimate, invoice, payment, receipt, data entry.  That will save the Shire a fortune, because many FOI applications have to do with such expenditure and the Act says in effect that an agency doesn’t have to provide information an applicant can obtain elsewhere.

4.                   Never fight or obstruct an application because disclosure would reveal incompetence, corruption, wrong-doing generally or even an honest mistake.

5.                   Where possible, invite enquirers to inspect documents at the Shire office.  Install a photocopier they can use for a suitable fee.

6.                   Remember that there is nothing in the Shire’s mandate even remotely resembling an issue of national security or prestige.  The only justification for secrecy in government at any level is that releasing information would put individuals or society as a whole in harm’s way.  The fact that disclosure might damage your own or a friend or colleague’s feelings or career prospects is completely irrelevant to the task of processing an FOI application.

I doubt these suggestions would be embraced with any enthusiasm by many local authorities—even though, or perhaps because, they would help to make nepotism, patronage and other forms of corruption difficult if not impossible to sustain.

Readers may have their own suggestions.  I hope they will share them on the blog.   This is where a bit of ‘visioning’ might come in handy.

The culture of an agency in regard to attitudes about concepts of openness, accountability and transparency is considered inextricably linked to how well FOI applications are administered by the agency and whether the intent of the FOI Act is met.  For FOI to be administered effectively, efficiently and fairly within agencies, it is important for Ministers, CEOs and FOI Coordinators to have a strong commitment to the principles and promotion of openness, accountability and transparency.

   Sven Bluemmel, WA FOI Commissioner: Annual Report 2013-2014

I only ask for information.

  ‘Rosa Dartle’, in Charles Dickens: David Copperfield