child protection

FOI in Action

As a public servant in Australia, I have personally seen how the Freedom of Information operates in the real world.

In the department where I used to work, a lot of commercial feasibility studies were processed and kept “in confidence” due to the sensitive nature of such deals. A colleague of mine used to handle FOI requests a lot. He would sometimes show me the redacted documents he would photocopy and send back in response to them. Sometimes nearly the entire text of the document would be blocked out due to the private or confidential nature of its contents, and the fact that it was not necessary to know these details to understand the measures being considered.

We were asked to operate by a code of ethics which mandated us to treat such confidential information with utmost care. We were told to maintain correspondences including electronic mail whether internal or external to our department that might be subject of an FOI request. This created disk space issues for us. We had to exercise discretion in determining if these correspondences were important and sensitive enough to require archiving.

Many of the requests would come from the media, but some would come from ordinary citizens. “Joe Blogs” we would call them. There have been a number of instances recently that demonstrate how FOI requests can influence public debate over contentious issues of the day. One request in particular revealed the Federal government’s preparedness (or lack thereof) in dealing with refugees arriving by boat and the lack of appropriate resources deployed to manage the centers for holding them while their applications for asylum were processed.

In a world where the technology exists for the state or as in the case of the News of the World large multinational corporations to spy on its citizens or persons of interest, the FOI is a good tool to make the access of information less asymmetric. Several things are worth noting with regard to this right to information though.

First is that any Freedom of Information Act has to be followed by or work alongside a Privacy Act. As of now, the Philippines neither has one nor the other. There are certain pieces of legislation that protect the privacy of rape victims and of children who are subject to the judicial system or maintain bank secrecy of depositors even from the government (which in my view needs to be lifted for tax purposes). There is also a bill on data privacy that has been flagged as a priority by the president. Nothing other than a very general clause in the constitution however enshrines the rights of citizens to maintain their privacy.

In the US, the FOI was initially a tool for citizens to gain access to their own personal records. In Australia as in the US, an FOI request can be declined if it would lead to an unreasonable disclosure of someone else’s personal information, medical records for instance. These must be obtained with the consent of the individual. Section 8 clause c provides an exception to the FOI when,

the information pertains to the personal information of a third party natural person, unless it forms part of a public record, or the third party is or was an official of a government agency and the information relates to his or her public function.

Rather than dealing with the issue of privacy piecemeal through disparate contexts, there should be a law that applies more broadly this right and what it entails. Furthermore, government departments and businesses in general must be required to have policies covering confidentiality. A privacy act would simply make confidentiality the default setting but allow clients to waive their rights or give permission for their details to be shared under certain conditions.

Second, just as the right to privacy is not absolute, the right to information is not absolute either. The state can surveil or search a private citizen’s residence or belongings under certain provisions. Citizens should also be granted access to information subject to certain caveats as well. None of these rights to request or deny information should be abused however. Judicial review of cases is made possible by the draft bill to ensure that this is the case. An information commission would also help set the proper guidelines as in the case of Australia.

Third, aside from preserving the confidentiality of third party or commercially sensitive information, the FOI bill also exempts the state from disclosing information when there is a national security risk or commercial risk involved (as in foreign negotiations), when it involves matters that are sub judice or when it involves anything obtained by Congress in executive session.

This list should also be expanded to include all deliberations undertaken by Cabinet. In the Westminster system, cabinet, not the prime minister, makes executive decisions. This makes policy making a collegial process. When cabinet is deliberating on an issue, its members should be free to express their views without fear of reprisal. This is sometimes referred to as the Chatham House Rule. In the Australian context, cabinet deliberations are kept confidential for a period of time. Although the presidential system works differently, the same principle can be applied.

The former Australian Prime Minister Kevin Rudd broke his silence recently and exposed the individual views of those within his “kitchen cabinet” on an emissions trading scheme that partially led to his downfall prior to the last election. His statement implied that his successor, the current PM Julia Gillard did not believe in the measure at the time it was considered. This has put her in an awkward position, as she tries to sell a similar scheme to a skeptical audience, something that the confidentiality of Cabinet is meant to shield its members from.

Returning to my original point about seeing the FOI in action, I have to say that in practice, it hardly interferes with the way we conduct business in the public sector, which should provide reassurance to those that fear it being enacted. As someone who works “on the other side of the fence” I would still have to endorse the Freedom of Information particularly because it does aid in making government more transparent.

Sometimes, bureaucrats have their hands tied behind their backs and are unable to speak out or question openly the policies of their political masters. It helps sometimes to have citizens doing their part, advocating changes and seeking clarification on measures undertaken to support a given policy agenda. Towards that end, the FOI in practice has been a very helpful tool.