Nationals WA leader Brendon Grylls’ recent spat with Labor over FOI has raised plenty of concerns over the legislation and what is the ‘public interest’.
AS the managing director of a consultancy firm that specialises in records and information management, I can appreciate that government must ensure that commercial-in-confidence information and personal information is protected.
However, I also believe government must ensure openness and accountability for all actions and decisions. This is just good governance.
The Freedom of Information (FOI) legislation clearly allows government agencies and ministers to refuse access to information on the basis of confidentiality, be that personal or commercial. It also allows for the public to appeal any decisions to withhold information to the FOI commissioner and for the commissioner to determine the outcome. This is only fair and correct.
For many years those of us who work in this field have argued for and pursued the need to develop records and information systems that support good governance, as well as ensuring open and accountable decision making, in both the public and private sectors.
We only have to consider HIH, Enron and British Tobacco as evidence of the need for managing records and information.
For the Western Australian government, the State Records Act 2000 (SRA) is supposed to detail and legislate for a comprehensive framework of record keeping in the public sector.
The SRA does not refer to public records but defines government and parliamentary records and how those records should be managed.
Within the schedules of the act it identifies what is and isn’t a government organisation. Those of us who work in this field use the generic term ‘public records’ to define all records created or received by government agencies, parliamentary departments and local governments included.
The grey area within the SRA is what is excluded from being a government organisation. What happens to records created or received by elected members, be they state or local, which result in actions/decisions of that elected member in their capacity as a minister or committee member?
The problem is that the SRA excludes records held by an ... organisation (read office/department), controlled by a member of parliament, that is concerned with dealing with constituency matters of the member, even if it includes an electorate officer ... to assist the member (SRA, Schedule2).
This means that a constituent can write to their elected member of parliament about an issue covered in that member’s portfolio and this record may result in decisions and actions of the government, and the original record, may not be considered to be a public record.
One could argue that this is correct, otherwise no members of the public would write to their elected member about sensitive issues but let’s be honest, most members of the public write to their elected members about issues that directly affect them and these issues are not usually associated with that member’s portfolio. In this case the normal process is that the issue is passed on, by the elected member, to the office of the appropriate minister, who then usually passes it on to the government agency for action or response.
This means that the original record may or may not become a public record but there will be a public record created when the issue is passed through to the appropriate agency for action or response. This scenario applies equally to elected members of local government.
So should the SRA be amended to remove any uncertainty that elected members may have as to whether information they receive from constituents may or may not be a public record?
I believe that, as an elected member, they are serving the public and they need to be open and accountable. As such I could argue that the records of the elected member should be considered public records, but I’d be satisfied if the definition of a public record included recorded information from elected members’ constituents if that information has influenced government actions and decisions.
There are those who would argue that this would drive record keeping underground – people wouldn’t keep records. Remember that a record by definition is any recorded information; it includes email, voice mail, and text messages to name just a few formats.
It would be hard to imagine people not keeping records, and as we have seen the FOI legislation will not only allow access to the records by the public, on request, but will also allow for the government and elected members to keep in confidence commercial and personal information. Not all records have to be released – there just needs to be adequate justification as to why they should not be released.
• Shirley Cowcher is managing director of Information Enterprises Australia Pty Ltd.