Freedom of Information - from the Age of Enlightenment to the Digital Age, and Beyond - OIC(WA)
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Freedom of
Information -
from the Age of
Enlightenment to
the Digital Age,
and Beyond
by Catherine Fletcher
Information Commissioner,
Office of the Information Commissioner (WA)
This paper provides an overview of the origins and operation of information access laws that apply to
government-held documents. It discusses some contemporary issues and challenges that face such laws in
the digital age and beyond, with particular reference to the Freedom of Information Act 1992 (WA).
A defining characteristic key antidote to excessive state secrecy. exemptions and/or exceptions, and
FOI law is alternatively, more recently, often include a right to amend or correct
of most governments that sometimes called right to information personal information in government
prevailed well into the (RTI) or right to know (RTK) law, and documents.8 Reformed or recently
twentieth century was the generically such laws are referred to enacted laws also place significant
tendency to protect, rather as information access laws. Such laws emphasis on pro-active disclosure of
are frequently promoted in functional
than share, information. This democracies as a key mechanism for
government information and data. Most
was the concept of ‘arcana information access laws seek to balance
ensuring government accountability and
the right of citizens to information whilst
imperii’ (state secrets) transparency. Some information access
laws explicitly state that government-held also providing protection for some
whereby information in the documents and/or information so that
information and data are public assets,
hands of government was to be managed for public purposes.2 A government can function effectively.
not routinely shared with strong correlation between access to Today governments operate in an
those outside government.1 information and trust in government also
environment that is increasingly
underscores the accelerated growth in
However, unwarranted information rich and digitally enabled.
information access laws, particularly in
secrecy surrounding the final two decades of the twentieth This is often accompanied by, or leads
government policy, decision century. to, changing citizen expectations
of government services. It is now
or action has long been The United States was the first modern commonly understood that information
regarded as the antithesis democracy3 to enact FOI law in 1966.4
and its control play a critical role in the
of good government, with Australia and New Zealand followed in
relationship between governments and
1982.5 WA enacted an FOI Act in 1992.
moves to address it dating Britain did not overturn official secrecy
their citizens9.
from the eighteenth-century until the new millennium.6 In 2020, over Considering the role and significance of
Enlightenment Age. 120 countries across the world now have information access laws in a functional
some form of information access law.7 democracy, this raises the issue of
With the advent of the Information Age In their most basic form, such laws whether reforms are needed for such laws
in the mid twentieth century freedom generally provide a right to access to remain relevant and effective in the
of information (FOI) law emerged as a government documents, subject to certain digital age?
31
The development of information world. Britain finally enacted an FOI Act of purportedly corrupt ‘land deals’
access laws across the world in 2000 but the government delayed its by the Liberal government in its
implementation so that it only became final years. In New South Wales,
During the eighteenth-century fully operational in 2005. Nick Greiner brought in FOI in
Enlightenment Age, Sweden and Finland 1989 after railing about endemic
enacted laws requiring their governments New Zealand was an early adopter of corruption within Neville Wran
to provide citizens with the right to access modern information access laws in and Barrie Unsworth’s Labor
1982.14 The NZ law provides that all governments the 1970s and
official information and related rights to
1980s. In Western Australia, FOI
publish such information.10 government information is to be open
was passed in 1992 in the wake
unless there is “good reason” to protect of the Royal Commission into WA
The impetus for FOI laws in the US it. Absolute exemptions or exclusions Inc, and in Queensland, Labor’s
began in earnest in an era of increasing are minimal, and mostly relate to national Wayne Goss came to power after
government secrecy during the Cold security which must be established his party had been in opposition
War with the Soviet Union. Senator John by those claiming such an exemption. for 32 years. In the furore
Moss, elected to Congress in 1952, Although the laws were initially met surrounding the institutionalised
began advocating for greater government with alarm by some politicians and a corruption revealed by Tony
openness following mass sackings of Fitzgerald QC, in his exhaustive
large number of public servants, the inquiry (which concluded in 1989),
federal employees accused of being prevailing contemporary view is that
communists during the McCarthyism Goss promised to unflinchingly
they significantly changed the culture of implement Fitzgerald’s wide-
period. When Moss asked to see the government to one of openness under ranging reforms, which included
records associated with the dismissals, which a great deal of information is freedom of information. In
the administration refused to hand them now made public as a matter of routine Tasmania, the independent
over. After Moss became chairman and open government is now deeply Green MP Bob Brown seized the
of a congressional subcommittee on opportunity of the Green-Labor
ingrained.15 In 2018 NZ took a significant
government information in 1955, he held accord Government to push
step reforming the cabinet confidentiality through FOI in the early 1990s.”
hearings about government transparency exemption so that most cabinet records
and conducted investigations into are now released after only 30 days Changes in the field of administrative
federal agencies withholding information. unless there is a good reason not to.16 law during the 1970s and early 1980s
Newspaper editors, journalists, educators This is in stark contrast to the decades also contributed to the development
and scientists were among those who of protection for cabinet records under of Australian information access laws.
supported Moss’s campaign against state and federal information access The ‘new administrative law’ served to
government secrecy, while many federal laws in Australia. As a world leader in FOI increase openness and transparency in
agencies and their leaders opposed it as laws, this factor plays into a consistently government while also supporting public
being detrimental to their work. In 1966, high rating for New Zealand on various administration and the rights of individual
after more than a decade of effort, Moss international indices that rank countries citizens.18
was able to gather enough support in on transparency measures.
Congress to pass the first United States First generation information access laws
FOI law. The development of federal FOI laws in are often characterised by adoption of
Australia has been described as follows: a ‘pull model’ in which the public must
President Lyndon Johnson, the US pull information out of the government
President at that time, initially believed the It was the passing of freedom
system through an FOI request, subject
proposed FOI law would limit the ability of of information legislation in the
United States in 1966 and the to any relevant exemptions/exceptions
government officials to communicate and applied by a government agency. Second
growth of the consumer rights
function effectively. Ultimately he agreed movement there that prompted generation information access laws more
to the law and, upon signing the Bill, a push for FOI legislation in commonly adopt a ‘push model’ because
said that “I sign this measure with a deep Australia. It is a measure of they encourage or require agencies to
sense of pride that the United States is an the entrenched assumption push information out to the public through
open society”. 11 of secrecy within government proactive release rather than discretionary
and bureaucracy (inherited, no
However the initial US FOI Act lacked doubt, from England) that it access. Qld,19 NSW20 and the ACT21
the necessary force to oblige federal took a decade and half before have clear ‘push model’ style laws which
government agencies to comply. It wasn’t FOI became law in Australia in support broader pro-disclosure public
until 1974 (after the Watergate Scandal December 1982. 17 sector information regimes.22
involving the Nixon administration and Across Australia, FOI laws were often Despite jurisdictional differences,
increasing public concern over the driven by major political events that raised Australian information access laws share
Vietnam war which peaked with the significant public concerns about lack of similar objectives that, at a minimum,
release of the Pentagon Papers) that transparency and corruption. Ricketson provide a right of access to government-
Congress amended the FOI Act with explains this as follows: held documents that is intended to
a series of laws designed to promote enhance government transparency and
greater accountability and transparency in Federally, although the Act was
eventually introduced by the accountability.
government decision making.12
Fraser Coalition Government,
Despite these ground breaking the initial impetus came from
the Whitlam Labor government,
WA FOI Laws
developments in the US, a global
which had spent 23 years in In Western Australia the Freedom of
tendency to default to state secrecy
opposition during the Menzies Information Act 1992 (WA) (FOI Act)
persisted for a long time, particularly in era and beyond. In Victoria, FOI
Britain which did not repeal its broad- is regarded as a hybrid of the push
was introduced by John Cain (in
reaching Official Secrets Act 1911 until 1982), whose Labour Party had and pull models. It operates to provide
1989.13 In 1989, there were still only 13 been in opposition since 1955 a discretionary right of access to
national information access laws in the and who was trenchantly critical documents of state and local government
32 | BRIEF FEBRUARY 2021subject to a valid access application
being made (i.e. documents must be
pulled out). However it also requires
state and local government agencies
to regularly publish an information
statement describing i) what kinds of
documents the agency usually holds
and how they can be accessed; and ii)
information that enables members of
the public to participate in the agency’s
policy formulation and performance of its
functions. The FOI Act also requires that
an agency’s internal manuals are to be
made available to the public.23
The origins of the FOI Act lie in the
1992 seminal report of the WA Royal
Commission into the Commercial
Activities of Government and Other
Matters which dealt with various political system. In connection with ‘open The FOI Act creates a general right of
and financial scandals of the 1980s government’ the COG Commissioners access to government-held documents,
(commonly referred to as the ‘WA Inc. noted the importance of public access to subject to limitations in the Act including
Report’).24 In addition to numerous information in the democratic process.26 exemptions for documents containing
findings and recommendations that certain types of information.
In the Commissioners’ view, information
were particularly scathing of the lack of is the key to accountability and, to fulfil During the second reading speech in
proper documentation for government that purpose, information of or about 1991 the Hon. David Smith, the then
decision-making and associated poor government must be made optimally Minister for Justice, explained how the
record keeping, the Commission referred available or accessible to the public and it exemptions and, more broadly, the Act
to several fundamental principles of must have integrity. 27 were intended to work:
good government, including the ‘trust
The emphasis on ‘optimally’ available “Although the public has an
principle’.25 interest in access to information,
recognised that official secrecy does have
The Commission identified three goals they also have an interest
a place in the conduct of government.
necessary to safeguard the credibility of in the proper functioning of
However, openness should be the government and in protecting
democracy and provide an acceptable norm, with secrecy as the exception. the privacy of individuals and
foundation for public trust and confidence Regarding the ‘integrity’ of information, the commercial interests of
in our system of government: the Commissioners explained that business organisations. The Bill
government information must give a is intended to strike a proper
• government must be conducted
proper picture of the matter to which it balance between competing
openly; interests. Schedule 1 contains a
relates. It must not aim to mislead or to
• public officials and agencies must be limited number of clearly defined
create half-truths. 28
made accountable for their actions; exemptions necessary to protect
and The WA Inc. and COG Reports certain essential public and
significantly enhanced government private interests. However, even
• there must be integrity both in the where an exemption may apply, it
processes of government and in the accountability and transparency by
is not a prohibition on disclosure;
conduct expected of public officials. championing the introduction of the FOI where they can properly do so,
Act, the State Records Act 2000 (WA) and Ministers and agencies are free to
One of the key recommendations was other measures.29 make that information available.
that FOI laws be enacted in WA as a In addition, most exemptions
matter of priority. Other recommendations The FOI Act became operative in 1993. incorporate a public interest
included a review of secrecy laws, The Preamble says it is “(A)n Act to test which specifically requires
establishment of an Administrative provide for public access to documents, a consideration of the public
Appeals Tribunal and an anti-corruption and to enable the public to ensure that interest in disclosure. The Bill
personal information in documents is further protects the privacy of
body, implementation of whistleblowing
accurate, complete, up to date and not individuals and the commercial
procedures, increased powers for interest of businesses about
the Auditor-General, a limitation of misleading, and for related purposes”.30
whom the Government hold
confidentiality agreements in commercial The objects of the FOI Act are to enable information by ensuring that
dealings with government, and the the public to participate more effectively documents containing personal or
establishment of an independent Archives in governing the state, and make the business information about third
Authority (which ultimately became the parties is not given out without the
persons and bodies that are responsible third party being consulted.” 33
State Records Office). for state and local government more
A subsequent Commission on accountable to the public.31 The WA After almost 30 years since its enactment,
Government (COG) was established in Supreme Court has stated that these the FOI Act remains largely unchanged.
response to the recommendations of objects: Access to thousands of government
the Royal Commission. COG delivered documents has been given both within
“form the essential bedrock of
a report in 1995, Part 2 of which open, democratic government. and outside of the FOI process over that
addressed topics of open government, Their policy importance … cannot time. During 12 months over the 2019/20
accountability and the administrative be overstated.” 32 financial period there were more than
18,000 access applications made to WA
33state and local government authorities. of, new and emerging technology as information in WA, the issue arises
Over half of these access applications society moves into the digital age. She whether the FOI Act can continue to fulfil
were for personal information held by suggested that the challenge is to harness its democratic objectives at a time when
health-related agencies (a trend similar these new technologies to better serve most, if not all, documents will be ‘born-
to that seen in many other jurisdictions). the democratic ideals that underpin digital’?
Almost 90% of all access applications information access laws. 36
Marie Shroff considered the possibility
resulted in the applicant receiving
The increasing relevance of information that digital technology has the potential to
full or partial access to the requested
access and privacy laws in this digital open up and facilitate information access
documents. Only less than one per
paradigm was also the subject of a 2019 to achieve a truly participative democracy.
cent of those agency access decisions
article examining how trust in government She suggested that future FOI reform
were reviewed by the Information
can be maintained at a time of significant must focus on the digital environment
Commissioner. On those measures, the
digital disruption. The author observed: and practical problems of compliance,
FOI Act appears to serve the community
As digital government begins such as multiple versions of a document
reasonably well.
to take shape, the public and the administrative burden of FOI
However, recent national data provided sector is entering a new era of requests.39
by Australian Information Commissioners citizen expectations. Emerging
Proliferation of digital records is already
and Ombudsmen administering FOI/RTI technologies offer opportunities
for collaboration, information an issue of significance. That trend
laws about how such laws are used also
sharing and data analysis, all of will only continue such that questions
reveals some other interesting trends.34
which can support better policy about what records we create, retain
Since 2014 WA has consistently had the
and services. But there are and make accessible will assume far
highest rate of formal access applications growing public concerns about greater importance than ever before. It
per capita, one of the highest rates privacy and security; questions therefore seems obvious that document
of full or partial access to requested about ownership and appropriate governance must be at the front of mind
document/s and the lowest rate of use of personal information. Is
open government still relevant? in the digital age if we are to make sense
external review application in Australia.
Governments worldwide are of, and hold accountable, government
Whilst no published commentary is yet
striving to maintain public trust decision-making.40
available to explain these trends the
at a time of significant disruption.
possibility exists that the high rate of use Agencies are under pressure to Others also point out that when the
of the FOI Act to successfully obtain non- be more transparent about their opportunities of the digital age combine
contentious information may be due to an actions and decision-making with a willingness to be more transparent
overdependence on the formal processes processes. 37 that this allows for a more authentic
of giving access to documents pursuant and deeper form of engagement with
The author went on to consider some of
to the FOI Act as opposed to simpler, less the community and citizens.41 Some
the challenges and opportunities in this
costly and more timely, administrative or countries, like Taiwan for example42, have
changing environment:
informal access obtained outside of the already seized upon these opportunities
FOI Act. Open government has never with significant success particularly in
been more critical for meeting response to the challenges presented by
customer expectations, building the current Covid-19 pandemic.
Information access laws in the confidence and delivering public
Digital Age and beyond value. … Information governance While proactive information and data
by-design can play an important disclosure occurs in some parts of the
A 2018 survey highlights rising levels role in overcoming challenges and WA public sector43 the concept of ‘open
of e-government internationally.35 supporting reform, reducing the by design’ - in which non-sensitive
Governments are, increasingly, large cost and complexity associated
with both proactive and government information and data is, by
collectors and repositories of digital
responsive information release. default, made open and accessible from
data. The use of big data for automated
creation – is not embedded in any state-
decision making is also becoming more All Australian states and territories, wide information management policy or
common. Australia is no exception to this other than Western Australia and South information access law.
global digital trend. Australia, have privacy legislation
governing the handling of personal Whatever legislative or policy reforms
Accompanying digital transformation
information. Some also have data-sharing emerge in the future, it would be in
there is a growing demand for
legislation. While the FOI Act provides keeping with the current objects of the
transparency around government use
some limited protection for personal WA FOI Act for the public sector to
of technologies - particularly in respect
information and a right to amend personal further embrace open and transparent
of artificial intelligence (AI) or machine
information in government records, it is government by proactively pushing out
learning - and accountable management
not a comprehensive privacy framework. (at no or low cost) more administrative
of vast data pools particularly those
and scientific data, and other non-
containing personal or private information. Proposed privacy and data-sharing sensitive digital information, which is
The increasing proliferation of digital legislation for WA appears to be on the both interactive and searchable. The
records and data also raises the issue government’s agenda. It was the subject availability of such information would have
of how we readily locate useful and of a public discussion paper developed by numerous benefits. It would assist in the
relevant data. These are just some of the the Department of Premier and Cabinet in legibility and accountability of government
contemporary challenges for information 2019. To date the Government has yet to decisions thereby engendering public
access laws. decide upon the timing and form of those trust; and provide opportunities for new
Many years ago Marie Shroff, a former proposed laws.38 insights, new services and even other
NZ Privacy Commissioner, forecasted So, even with the prospect of enhanced benefits that the most enlightened and
that information access laws must keep protection for personal and private creative thinkers have yet to imagine.
pace with, and embrace the development
34 | BRIEF FEBRUARY 2021In that environment, a formal FOI access information began when FOI bills were introduced into
the Parliament in 1978, 1981 and 1992 but which were
and later enhancements to the Auditor General’s Act
2006.
request to access government - held either defeated or fell away on each occasion. In 1997 30 The FOI Act also informs the way that FOI and
the government published a white paper on Your Right
documents would be a last resort to Know.
information access is practiced by agencies.
reserved for the more contentious or 14 Official Information Act 1982 (NZ)
31 Section 3(1) contains the objects section. Section
3(2) provides for how the objects of the Act are to be
sensitive information where a balancing 15 Paper presented to the FOI Live 2005 Conference achieved. See also further s.3(3) which provides that
of the applicable exemptions and public in London, 16 June 2005, entitled ‘The Official nothing in the Act is intended to prevent or discourage
Information Act and Privacy: New Zealand’s Story’ the publication of information, or the giving of
interest factors under the FOI Act is by Marie Shroff (former Cabinet secretary and NZ access to documents, or the amendment of personal
required. Privacy Commissioner) accessed at https://www. information, otherwise than under the Act if it can
humanrightsinitiative.org/programs/ai/rti/international/ properly be done or is permitted or required by law to
laws_papers/newzealand/official_info_act_privacy_ be done.
newzealand_story.pdf. 32 Martin J in Water Corporation v McKay [2010] WASC
Endnotes
16 ‘In confidence’ cabinet submission papers for 210 at [38] available online at http://www8.austlii.edu.
1 ‘Too much of a good thing? Balancing transparency decisions taken as recently as last week are marked au/cgi-bin/viewdoc/au/cases/wa/WAICmr/2009/35.
and government effectiveness in FOI public interest “proactively released”. html.
decision-making’, Danielle Moon and Carolyn Adams, 17 Ricketson, M 1996, ‘Freedom from Information’, 33 Hansard 28 November 1991, at p. 7170.
AIAL Forum no. 82, at pp. 28 – 39. Freedom of Information Review, 63, pp.26 – 28. 34 Refer to Metrics 2, 3 and 6 in the National Metrics
2 For example, see clause 1 (b) in the Preamble to the 18 G Terrill, Secrecy and openness: the federal on FOI Use sourced on 15.10.20 at https://www.oic.
Right to Information Act 2009 (Qld) and the Objects government from Menzies to Whitlam and beyond, wa.gov.au/Materials/OpenGov/OpenGov_Metrics5.
clause in section 3(3) of the Freedom of Information Melbourne University Press, Melbourne, 2000; and PDF#page=5.
Act 1982 (Cth). M Paterson, Freedom of information and privacy in 35 United Nations E-Government Survey 2018 Report of
3 The US laws were preceded by a much earlier law Australia: Government and information access in the the UN Department of Economic and Social Affairs,
enacted in Sweden in 1766 that required government modern state, Lexis Nexis, Chatswood, 2005, p. 4.cited Gearing E-Government To Support Transformation
to make information available to the press to enable it in Dr Mark Rodrigues, Cabinet Confidentiality (28 May Towards Sustainable And Resilient Societies, accessed
to report on the affairs of State to its citizens. 2010) at: https://www.aph.gov.au/About_Parliament/ at https://publicadministration.un.org/egovkb/
Parliamentary_Departments/Parliamentary_Library/ Portals/egovkb/Documents/un/2018-Survey/E-
4 The Public Information Act 1966 (US) - When the two- pubs/BN/0910/CabinetConfidentiality
page bill was signed into law, it was enacted July 4, Government%20Survey%202018_FINAL%20for%20
1966, but had an effective date of one year later being 19 Right to Information Act 2009. (Qld) web.pdf on 16.10.19.
July 4, 1967. 20 Government Information (Public Access) Act 2009 36 See n.14 above.
5 The Freedom of information Act 1982 (Cth); and the (NSW) 37 S. Sherman, ‘How Can The APS Maintain Trust At A
Official Information Act 1982 (NZ) 21 Freedom Of Information Act 2016 (ACT) – this is the Time Of Significant Disruption?’, Mandarin Online,
6 The Freedom of Information Act 2000 (UK) most recent FOI law but it only became fully operative https://www.themandarin.com.au/103784-open-
in 2018. It has a clear emphasis on open access and government/ 11 February 2019
7 Source: https://www.article19.org/issue/access-to- pro-disclosure of government information in the ACT.
information/ accessed on 14.10.2020. 38 Information about the progress of this project is
22 Note that the Freedom of Information Act 1982 (Cth) available at https://www.wa.gov.au/government/
8 In WA, s. 10 creates a right to access documents of an has been partially modernised in this way since it was privacy-and-responsible-information-sharing.
non-exempt agency (subject to and in accordance with amended in 2009/2010.
the FOI Act) and s.45 of the FOI Act creates a right to 39 See n.14 above.
apply to amend personal information in documents of 23 These are manuals used by the agency in connection 40 See the WA State Records Office 2018 publication
an agency if the information is inaccurate, incomplete, with the performance of its functions that affect or are ‘Born Digital – Managing Government Information and
out of date or misleading. likely to affect rights, privileges or other benefits, or Data’ available online at http://www.sro.wa.gov.au/
obligations, penalties or other detriments, to which sites/default/files/born_digital.pdf.
9 Freedom of Information and Privacy in Australia: members of the public may be entitled or otherwise
Information Access 2.0, Patterson Moira, 2015, Reed subjected to. 41 Opening Government – Transparency and Engagement
International Books Australia Pty Ltd trading as LEXIS- ion the Information Age published by ANU Press, 2018,
NEXIS at p. 1 24 The Royal Commission was established in 1990 to edited by Wanna J. and Vincent, S. at page 14.
examine, inter alia, the commercial dealings of the
10 The principal proponent of the Swedish laws was Brian Burke Labor Government. 42 See Hacking the pandemic: how Taiwan’s digital
Anders Chydenius (1729-1803), a member of the democracy holds COVID-19 at bay https://
political establishment, who advocated for openness 25 The ‘trust principle’ was described by the theconversation.com/hacking-the-pandemic-how-
and good governance in government. Commissioners as being the principle that the taiwans-digital-democracy-holds-covid-19-at-
institutions of government, and the officials and bay-145023 accessed on 22.1.21.
11 In his signing statement LBJ attempted to downplay agencies of government, exist for the public to serve
the new FOI law by focusing on the exemptions for the interests of the public. 43 For example see the WA Open Data Portal at https://
national security and the Act’s scope for interpretation. data.wa.gov.au/Blog/open-data-portal.
However the last sentence of his statement is the most 26 The COG Commissioners referred in this regard to the
enduring: sourced from https://www.history.com/ 1980 High Court case of Commonwealth of Australia
topics/1960s/freedom-of-information-act on 15.10.19. and John Fairfax & Sons Ltd (1980) 32 ALR 485 at
493 in which the then Chief Justice said: “…. it is
12 The Government in the Sunshine Act 1976 was one of unacceptable, in our democratic society, that there
these amending acts that provided, with ten specified should be a restraint on the publication of information
exemptions, that ‘every portion of every meeting of an relating to government when the only vice in that
agency shall be open to public observation’. It applied information is that it enables the public to discuss,
to the operations of the federal government, Congress, review and criticise government action.”
federal commissions, and other legally constituted
federal bodies. 27 At [2.1.10] of the COG Report.
13 The Official Secrets Act 1911 made the unauthorised 28 Recommendations 1 and 2 of Chapter 2 of the COG
disclosure of any information on any subject an Report on ‘Open Government’
offence. This remained the law until the early 1970s. 29 These measures included the creation of the Public
Very piecemeal progress towards granting citizens Sector Management Act 1994, a public sector
access to certain or select kinds of government standards commissioner and public sector commission
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