Administrative Compliance and Freedom of Information in Three Jurisdictions: Australia, Canada and New Zealand

Rick Snell*

Introduction

The level, type and frequency of administrative compliance is a useful measure of the efficacy and well being of a freedom of information regime. Studies, like those of Roberts, have transformed the traditional and static portrayal of administrative compliance into a more sophisticated model of analysis.¹ The compliance focus has moved from a concentration on raw rejection rates, processing times and anecdotes of shredders and sticky labels to an analysis that allows for variance in compliance in terms of agency, time, requesters and types of requests. More importantly a focus on administrative compliance may take us closer to the promise of freedom of information than previous areas of academic concentration, such as the search for an ideal system of external review or an ideal exemption interpretation, in this field.

The major players will mark the celebration of Ireland's first anniversary of the operation of the Freedom of Information Act 1997 in different ways. The FOI Unit in the Department of Finance will be upbeat and quietly pleased at its relative smooth introduction. The Information Commissioner will be content that his first array of decisions have been generally free of controversy and have avoided major criticisms. Academics have started to shift through the Commissioner's decisions, to catch a hint of the likely jurisprudence and wordplay that will be necessary, to understand the exemption provisions. The press, citizens and opposition TDs will be in the throes of dealing with a mixed bag of wins and losses from their first applications under this new access to information legislation.

This paper argues that in the aftermath of this celebration, based on the experience of three access regimes with a combined experience of 45 years, attention needs to turn towards a monitoring and understanding of administrative compliance in Ireland. The Australian, Canadian and New Zealand experience is a story of persistence, and in recent years a significant shift in the magnitude and type of, non-compliance. The picture in Australia has been described as one of “frustration, delay and the haphazard provision of information.”²

The first section examines why administrative compliance is so problematic in these three access regimes. The question of, and problems about, administrative compliance has perplexed, to varying degrees, law reform and monitoring institutions in all three jurisdictions. The legislative architecture, intention and committed policy positions of the political and bureaucratic leadership seems to leave little option other than administrative compliance at the very least and active compliance as the norm.

Roberts's analysis is used in the second section of the paper, with a significant upgrade in terms of variables and focus, to examine the nature of administrative compliance. Roberts has transformed the previous simplistic approach to the study of compliance with freedom of information legislation. This paper adds further dimensions to the model developed by Roberts.

The final section of the paper explores the contributions that legislative architecture, design principles, review bodies and an active and pluralist freedom of information constituency can make to the level, degree, type and duration of administrative compliance.

Administrative compliance

In any access to information regime administrative compliance, the adherence to the letter and spirit of freedom of information legislation, should be a non-contentious issue. Requests should be processed in a timely fashion by a bureaucracy committed to achieving the maximum disclosure possible in the circumstances prevailing at the time of the request. Decisions on release should be on the merits of the request and free of political and other considerations not specified in the legislation. Public interest considerations as opposed to more narrow political and bureaucratic interests should be the key determinants in the decisionmaking process.

There is not the potential for any doubt about what the default level of administrative compliance should be in these three jurisdictions. The legislation received full and vigorous endorsement by all parliamentary parties and the second reading speeches declared to the world a 100% commitment to the principles of open government. The legislation in each jurisdiction is specific—the objective is greater openness and discretion is to be exercised in favour of release. The exemption structure was hotly debated and carefully designed to be limited and each provision is narrowly worded. The formal training provided to public officials in each jurisdiction was, and continues to be, calculated to encourage release and foster an attitude that exemptions were to be applied in a limited fashion and as a last resort. Agencies in each jurisdiction are keen to be on the public record as not only endorsing freedom of information but promoting the strategies they have adopted to release information outside of the legislation.

Yet in each jurisdiction there is a constant stream of official reports, public statements by formal review bodies and academic studies that depict an alarming level and magnitude of non-compliance.³ The level and type of non-compliance varies within and between the three jurisdictions. On a sliding scale of concern Canada would occupy the highest level of concern. Australia would occupy the next slot although displaying an increasing drift towards a general state of non-compliance. New Zealand would occupy the zone of least concern due to a number of factors contributing to compliance covered in the final section of this paper. These factors include the legislative architecture, history and nature of the freedom of information constituency in New Zealand.⁴

The Roberts model of administrative non-compliance

Roberts analysis has added a powerful dimension to an understanding of freedom of information legislation in practice. Roberts has argued that administrative compliance in freedom of information can be divided into three categories namely malicious non-compliance, adversarialism and compliance.

Malicious non-compliance is defined by Roberts as “a combination of actions, always intentional and sometimes illegal, designed to undermine requests for access to records.”⁵ Examples of this type of non-compliance would include the destruction of records subject to a FOI request, avoiding responding to the request or manipulating or removing compromising information from files.⁶ In Table 1 a number of other practices have been included under the heading of malicious non-compliance including the use of yellow sticky labels, the deliberate non-recording of information and the deliberate manipulation of administrative practices to ensure information, which would normally be releasable under FOI, is covered by an exemption.⁷

The second category of administrative compliance can be “described as adversarialism; a practice of testing the limits of FOI laws, without engaging in obvious illegalities, in an effort to ensure that the interests of governments or departments are adequately protected.”⁸ Roberts indicates that adversarialism can manifest itself in several ways including where

“Officials may adopt very broad interpretation of exemptions and exclusions, or use several exemptions or exclusions to defend the withholding of the same material, with the expectation that information commissioners or ombudsmen will narrow the exemptions and exclusions down to their appropriate scope when the request is appealed.”⁹

Further examples of adversarialism used in Table 1 include; the automatic resort to exemptions instead of trying to facilitate some degree of access, a “us versus them” mentality, deliberate delays until towards the end of mandatory time limits, poor or non-existent statement of reasons, rejection of fee waivers and an agency perspective that views the external reviewer as an adversary. New Zealand is not immune to this type of non-compliance. In 1989 the then Leader of the Opposition, Jim Bolger complained about extensive time wasting and other practices that showed:

“the Government can, and does, flout the intention of the Act with appalling regularity… There is a growing, almost sinister secrecy associated with government departments and especially SOEs [‘State Owned Enterprises’]”¹⁰

The third category adopted by Roberts is administrative non-compliance, in which public bodies undermine the right of access because of inadequate resourcing, deficient record-keeping, or other weaknesses in administration.¹¹ See Table 1 for further indicators of this type of non-compliance.¹²

A shifting focus of academic attention

For a number of years, after the introduction of the legislation, academic analysis of freedom of information in the three jurisdictions was restricted to a study of the text of recent court or tribunal decisions. A new decision would be raked over in the search for interpretational insights and further limitations or exceptions to operation of exemption provisions.¹³

In the next wave of academic interest this case analysis format was supplemented by reference to raw figures dealing with release rates of information, trends in application of exemptions and time taken to process requests. A further layer of studies was devoted to case studies and/or responses to proposed changes or reviews of the legislation.¹⁴ Other studies started to focus on the type, models and methods of external review.¹⁵

In the 1980s and early 1990s academics like Zifcak¹⁶ and Ardagh¹⁷ started to seek an understanding of how freedom of information was operating in relation to different types of requested information. Their studies showed a differential outcome in FOI requests dependent on whether the information being requested was information relating to the personal affairs of the applicant or was non-personal affairs information such as policy documents. Access to the former was timely, unproblematic and generally successful whereas access to the latter was delayed, contested and rarely successful.

Once the varience in outcomes and performance was established the focus changed to a search for the causes and reasons for the differences. Some authors argued that the attainment of an interpretational holy grail would make a fundamental difference.¹⁸ Their argument was that if the judiciary and external review bodies (Ombudsman and Information Commissioners) took a leaning, or pro-disclosure approach, towards interpretation of FOI cases the administration of the legislation would shift towards greater compliance.¹⁹

Prior to the 1998 study, of Canadian access legislation by Roberts, compliance issues such as time delays, document destruction and yellow sticky slips were largely relegated to marginal notes or anecdotal accounts. The criticism of administrative agencies and their compliance practices was blunt, unrefined and easily dismissed as an isolated lapse in an otherwise exemplary performance pattern. The attempt to study FOI practice encountered a difficulty in reconciling an array of conflicting findings. In a previous paper I argued that there was the paradox of high level commitment to the principles of FOI by FOI officers and agencies coexisiting with what the Canadian Information Commissioner described as, a confrontationial relationship between agencies and requesters.²⁰

The Roberts model transformed

The Roberts analysis allows a consideration of the magnitude, duration and history of administrative compliance and non-compliance. The distinction of malicious non-compliance and adversarialism has also permitted a more sophisticated and accurate discussion to eventuate about administrative compliance. Previously the debate would list a catalogue of administrative sharp practices but fail to differentiate between minor problems (substandard reasons for decisions) and serious practices (document tampering and deliberate delays).

In Table 1 a series of further refinements and dimensions are added to the analysis suggested by Roberts. These refinements include two further categories, namely administrative compliance and administrative activism, to cater for those agencies who have achieved the default level of administrative practice in the area of freedom of information.

These two additional categories not only recognise the positive performance of many agencies but also highlights the aspirational difference between technical compliance and a pursuit of the objectives and spirit of the legislation. This wider spectrum of administrative compliance may also allow for an analysis which can track compliance performance over time. Studies like those of Roberts and this paper have focused on compliance standards in the three jurisdictions 10-15 years since the inception of the legislation. If compliance was examined over time across and within agencies would any pattern or trends emerge? Could a thesis be sustained for Australian FOI practice at the Commonwealth level that there has been a general drift on the compliance spectrum from an active compliance status in 1983 to a general adversarial norm in 1999?

Further dimensions have been added to Roberts' basic model to accommodate the type of requester and type of information requested. In previous papers it has been argued that agencies and jurisdictions seem to have variable responses to different applicants and the types of information being requested.²¹ This marked differential in FOI performance could be seen as a complicated interrelationship between several factors;

Design principles X type of administrative compliance X type of requester = extent to which FOI applications dealt within accordance to objects of legislation.²²

Agency responses often seem dependent upon whether the request is from certain applicant categories such as journalists, members of parliament, non-government organisations or individuals and whether the information being requested is personal affairs information or more contentious information in terms of its political or administrative sensitivity. In New Zealand it appears that the government and bureaucracy have engaged in gamemanship and information management to offset the effectiveness of FOI for politicians and journalists.²³

Lessons for Ireland

Kearney and Stapleton have observed in the context of Ireland that “on reflection, the single critical factor overlooked by us when first approaching FOI was that it was a change process, not just a legislating matter.”.²⁴ Canadians and Australians had paid lip service to this concept but always deep down believing that a magic mix of watertight exemptions, the right interpretative approach and an appropriate mechanism of judicial review would suffice. If necessary a degree of training might complete the process.

It is likely then that Ireland will, like New Zealand, be ideally placed to achieve a higher and more lasting degree of administrative compliance than experienced in Australia and Canada. The key policy dynamic associated with the implementation of right to know legislation is how a radical culture shift for officials is to be implemented and then maintained in terms of short and long term administrative compliance with the legislation.

Several steps can be taken to assist with compliance. The first is leadership endorsement of the letter and intent of the legislation. The circulation of the Reno Memo, endorsed by President Clinton, produced a significant cultural change in the handling and determination of US FOI requests. The leadership support needs to be from both the political and administrative branches of government.

The second step is a careful consideration of the level and type and power of the position to which FOI decisionmaking is assigned to within an agency. The allocation of FOI duties to low level officers, with little status or experience and no career path is a recipe designed to foster weak compliance. The decision of where to place FOI functions needs to be based on the internal dynamics, operations and culture of each agency. In some agencies the FOI function will mesh ideally with records management. In other agencies where record management is a dead end file handling function such an assignment will consign FOI to a marginal position.

Third, the position of an FOI officer should be gazetted or have explicit statutory delegations of authority. The exercise of decisions on release or non-release should be the responsibility, and seen as such, of statutory powers by an independent officer. An FOI officer should be empowered and be under a statutory obligation to say to a Minister's minder “Yes I will let you know what requests for information have been made to this agency. No I will not forward the request to your office to be decided and I will make my own judgement on release.”

Fourth, publicly and awareness of FOI should not be seen as a short term necessity but as a long term strategic commitment by governments to the legislation. Most Australian jurisdictions have assigned these functions to small dedicated units, within the bureaucracy, who had an enormous positive impact but had a very limited operational tenure. Western Australia has ensured the longevity of these functions by placing the awareness and education functions with the Information Commissioner.

Fifth, the training and resourcing of FOI officers must be done on the basis that the original corps of officers will eventually be replaced. The experience in most jurisdictions has been a heavy outlay in terms of training and other resources to a cadre of motivated and enthusiastic officers with little systematic follow-up. Training and FOI officer development in Australia has become ad hoc, optional and a low priority consideration for public sector managers.

The Office of the Information Commissioner in Western Australia has demonstrated what can be achieved in compliance terms when the education and development of FOI officers is treated as a continuing function and necessity. In May 1998 the Information Commissioner, in conjunction with the FOI co-ordinator's network in that state, conducted a workshop which produced a series of “FOI Standards and Performance Measures” designed to achieve 3 aims:

Leadership

• That the WA public sector becomes a leader in applying the processes required by FOI legislation and the objects and intent of the Act.

Community Respect

• To enhance the profile of each agency and the WA Government within the community.
• To demonstrate to the community and staff in agencies that FOI is taken seriously.
• To focus on the customers of public sector agencies.
• To demonstrate accountability, credibility and integrity.

Continual Improvement

• To achieve best practice.
• To introduce consistency so that meaningful comparisons of performance can be made.
• To understand the factors that underpin the success of FOI in agencies, including resources, education and policy issues, and to identify changes to the legislation that may be required.

To support these three major aims the Western Australian FOI officers developed a series of performance standards and measures under four key activities that included managing the FOI process, assist and advise parties, agency policy and education and evaluation of performance. The importance of this development is that the FOI officers have developed and articulated performance standards against which their, and the agency's, compliance with FOI can be judged. A number of the standards are clearly linked to compliance concerns including processing times, adequacy of searches, decision-making process consistent with the objectives of the legislation and adequacy of reasons.

The sixth step would be the adoption of the Australian Law Reform Commission and Administrative Review Council proposal for an “auditing” or monitoring role to be undertaken by an independent body to the agency.²⁵ This monitoring role would include audits of the handling of previous FOI requests. In addition the ALRC/ARC felt that such a body could also work as a circuit breaker where FOI requests have deteriorated into adversarial disputes. The Queensland Information Commissioner commented in regards to this circuit breaker function that:

“Generally speaking, I favour the concept of a facilitator. I have seen many cases where there has been a lack of trust exhibited by an applicant for access toward an FOI administrator who was attempting to negotiate to narrow, so as to make more manageable, the terms of an FOI access application: the participation of an ‘honest broker’ may resolve an impasse to the benefit of all parties.”²⁶

The final step would be to institute an annual awards program that publicly rewarded or recognised significant agency achievements in compliance and active pursuit of the objectives of an FOI Act. Australian agencies have displayed a surprising responsiveness to non-monetary award programs (for instance annual report standards). In this area the adoption of an approach like the UK Campaign for Freedom of Information annual awards would be a positive step.

Building a FOI constituency

Freedom of Information legislation is designed and operated on the assumption that there is an active constituency of users and supporters. It is expected that compliance problems will be uncovered and reported by the media and that negative pressures to amend the legislation from within the government and/or bureaucracy will be offset by counterpressure from applicants and their support groups both within and external to parliament. Ralph Nader argued that

“there need to be institutions, be they universities, law reviews, public interest law firms, citizen groups, newspapers, magazines, or the electronic media who systematically follow through the courts on denials of agency information.”²⁷

Yet the evidence of a strong, active and widespread constituency existing in countries like Australia, Canada and New Zealand is difficult to find. Roberts has reached the conclusion that urgent steps need to be taken to revive the vitality of the Canadian constituency.²⁸ Snell has argued that the Australian experience has shown that core components of this constituency are underperforming and that “I have the feeling that the Australian constituency is not active, and this weakness plays a critical part in the general malaise that grips Australian FOI practice.”²⁹

In Australia FOI officers have proven in several jurisdictions to be the most active and organised members of the constituency. FOI co-ordinator networks are an important and almost institutional feature of FOI practice in New South Wales and Western Australia. In other jurisdictions the networks tend to be more informal and have tended to become inactive. An intriguing aspect of the two major national FOI conferences in Australia has been the dominance in organisation, attendance and speakers of FOI officers and the notable absence of media, lawyers and community organisations.

Sustained and committed effort should be devoted to fostering an active and widespread FOI constituency in Ireland. The objective should not be to install a central co-ordinating body or to transform an activist, albeit small, campaign group like Let There Be Light into a tame public relations vehicle for the new act. The objective should be to encourage various groups such as journalists, academics, community organisations, lawyers and FOI officers to appreciate FOI as an important element of their activities that needs attention, monitoring and support.

A solid research and knowledge base needs to be established to assess both the short term and long term operations of FOI in Ireland. This is a major social and administration experiment that not only has significant implications for the public purse but for the democratic well being of Ireland. Research funding should be made available to encourage academic research, both single and multi-discipline, into various areas of FOI operation. FOI research has tended, in Australia and other countries, to fall to legal academics by default. The Canadian experience has seen political scientists and public administration academics take up the research with legal academic interest relatively low. Whilst case law analysis is important the research ought to be widen to include compliance, impact and usage (by journalists, community groups and individuals) studies.

The first two major conferences on FOI, and other publishing efforts, in Ireland have demonstrated that the University College Cork is ideally positioned to provide the nucleus of such a research effort. It has the promise of a multidisciplinary approach and the early cooperation of government agencies. However that promising beginning needs to extended beyond UCC to other institutions and disciplines (outside of Law and History) and to a wider involvement not only with government agencies but with a range of professional associations and individuals.

Lawyers and their associations have tended in most Commonwealth jurisdictions to give FOI a minor degree of attention and support. Law associations and firms have responded to threats to the legislation and to a much lesser degree made submissions for positive reforms. However the involvement has largely been reactive, ad hoc and a preference to deal with technicalities in the current legislation then a concern with operational practice or reforms. The training of legal professionals, both at undergraduate and continuing legal education levels, should not only concentrate on the intricacies of the legislation and the developing case law but on an awareness of the importance of administrative compliance.

The Irish media, organisations and individuals, must learn from the experiences elsewhere. Nigel Waters in a recent study has concluded that the Australian media needed to be encouraged to work on a more collaborative basis in sharing resources, ideas and materials about FOI.³⁰ A greater need was seen for centres like the US Brechner Centre on FOI and organisations like FOI Coalitions involving journalists, news organisations and journalist associations. Governments and bureaucrats committed to FOI must encourage the media to play its role which has been well articulated by Paul Chadwick who argued:

“It is difficult to overstate the importance of the media in freedom of information. Both as individual professionals and as organisations, journalists to my mind have a responsibility to educate themselves and the community they serve about FOI. Their role goes far beyond merely using FOI.”³¹

A government committed to access to official information should adopt the suggestions made in the previous section about the needs and requirements of FOI officers. An active, resourced and informed FOI constituency within the ranks of the bureaucracy can be a very powerful and positive contributor to the success of this type of legislation. The development of the performance measures and FOI standards in Western Australia are a exemplary example of this contribution.

Community groups, and their wider umbrella associations, need to be encouraged to not only use FOI for their own specific interests but to have a wider strategic interest in the topic. A general breakdown in administrative compliance or the development of an adversarial approach by a particular agency can impact upon the specific interests of a tenant organisation or environmental interest group. The fostering of aims like those in Western Australia of leadership, community respect and continual improvement will have a flow on effect that will help special interest groups gain timely and co-operative access to the information they need.

Sins of Commission and Omission ­ Examples of Administrative non-compliance