The Freedom of Information

The communication structure in a country should be one which allows for a national and international balance that is beneficial to it and to its people. This could be considered as a balanced flow of information into, out of, and across the country. The press, and for the matter, the public, has a constitutional right to demand the examination of public records as part of freedom of information (Paterson, 2005). It is a public right where the parties concerned are the citizens and they can ask for information as long as it is of public interest. This is the freedom of information. It simply means the access by individuals as a presumptive right to information held by public authorities (Black’s Law Dictionary, 1990).

The object of the Freedom of Information Act is to extend as far as possible the right of access of the Australian community to information in the possession of the government. There are two ways by which this is done. First is to require the annual publication of certain information by each government department or agency and the second is by the creation of an enforceable right of access to specific information held by government departments or agencies (Wallace & Pagone, 1990).

This right, however, does not mean that everyday citizens can just go to public offices and demand right away what they want to know. As is in many other countries, the right to information is subject to such limitations as may be provided by law (Martin, 2008). This means that while access to public records may not be prohibited, it certainly may be regulated by the government depending on the degree of public interest involved. This regulation may be in the form of a law or sometimes by order of the courts. Usually tests are applied such as the public interest test. It can therefore be said that while freedom of information exists as a right, it may be curtailed depending on how confidential the information sought is and how it could affect the security of the country and the safety of the people (Birkinshaw, 2010). The allowable scope of official limitation on access to official records would depend on the laws existing and the interests that are involved.

Information in this sense is very broad and would pertain to records including all books, papers, maps, photographs or other documentary material. Information must be made available promptly to the person requesting it. The law or the courts sometimes exempts, however, certain classes of information related to national security or involving trade secrets, investigatory files, material exempted from disclosure by statutes, reports prepared for use in regulating financial institutions, and other matters considered confidential (Wallace & Pagone, 1990; Corder, 1995).

In this scenario, Max Crane made a Freedom of Information application to the WA Nature Conservation Authority for release of a number of documents relating to the controversial proposed development of a housing estate by Building Big adjacent to the Spinney Wetlands, which is a breeding site for the rare creaking-back frog, as well as being a haven for a number of migratory bird species.

Considering that the proposed development is adjacent to an ecological area where frogs and birds live, this could be in contradiction to one of the sections in Environmental Assessment Act 2004 which states that: A proposed development must be environmentally sustainable and not undermine the ecological integrity of environs adjacent to the development.  One can just imagine how the people who will occupy and dwellings to be developed in the area will affect the ecological balance in the area. It could come to worse that the breeding site for the rare frog as well as a haven for migratory birds may no longer be present in a few years or even just in a span of months. Given this situation, one could say that the issue is one of transcendental importance and indeed affects public interest. As such it should be considered as information that ought to be available to the public.

Additionally, a section in the Environmental Assessment Act 2004 states: Interested members of the public may have access to the documentation lodged in support of a proposed development. This clearly supports freedom of information and is the basis that could be invoked by Max Crane and other concerned citizens in order to get relevant information relating to the development in progress.

As part of his Freedom of Information application, Max applied for access to Professor Bloggs’ draft report which includes criticism of the quality and scientific integrity of the EIR prepared by the consultants, Smith and Jones. This report was however claimed as exempt from disclosure pursuant to clauses 6, and 10 of the Freedom of Information Act. Max’s Freedom of Information application with regards to the draft reports was rejected with the following explanations: Clause 6 – It is contrary to the public interest to disclose the document as it relates to the Agency’s deliberative processes; and  Clause 10 – The document adversely impacts on the interests of a third party.

Government departments and agencies are holders of all kinds of information, some of these are being published in annual reports while some are kept hidden from public view. Freedom of information legislation requires certain information about government policy to be published (Wallace & Pagone, 1990). Freedom of Information schemes may be used to apply access to other unpublished departmental information, as is the case done here by Max Crane when he asked for the draft reports.

The right to access to official records is given as an implementation of people’s freedom to information. Thus the right to information on matters of public concern is both the purpose and the limit of the right of access to public documents. This is therefore where the real problem usually lies. It is difficult to determine what matters are of public concern and what matters are not (Birkinshaw, 2010). It cannot be denied that every act of a public officer in the conduct of a governmental process is a matter of public concern. The right can be asserted against public agencies as well as other agencies which are owned and controlled by the government. In this case, the agency’s deliberative process can therefore be considered as an act of a public office and thus would concern the public in general. There is no reason for the agency to deny providing Max the draft reports that he requested as the very reports are part of the overall development plan which would affect the ecology of the area where the development is to be built.

On the other end of the line, there is the compelling need, especially in matters of national security and foreign relations, of preserving a measure of confidentiality (Carter & Bouris, 2006). It would not do good for a country to release information to just about every citizen matters involving national security and defense. Clearly, the safety of the country and the citizens are at stake. Therefore, the right of the citizens to information must be in balance with other genuine interests necessary for the proper functioning of the government (Mendel, 2008, Cooper, 1991).

Usually a test to balance the interest is also applied. If in a certain situation it would appear that there is urgent necessity for protecting national security or other important national situation against the improvident exercise of freedom of information, then the right to access of information must yield. But if no special justification exists for curtailment of the freedom, the interests of the country not being threatened by its exercise, it is the right to access of information that must prevail (Doyle & Bagaric, 2008). In a way, it is still more inclined to what is more of a public interest. If the welfare of the general public is at stake, then there is compelling reason to release the information that is sought (Carter & Bouris, 2006).

The downside is, as could be seen in this case of Max Crane, it is the government agencies themselves who would decide what concerns public interest and what does not. When the agency denied Max Crane’s application simply because the draft contains a deliberation process which it thinks should be kept confidential and does not concern public welfare, then it has the right to deny access to such information. Max Crane therefore has no choice. If such matter was of national security or foreign investments, it could be well considered privileged and the government has a valid reason not to disclose it. However, it concerns only the development of a structure which could be destructive to the ecology adjacent to the site. As such, it is wrapped with public interest and every information about it should have been made accessible to the public. In this case, there is actually no government administration enhancement that can be seen. More likely, at the worst possible scenario, the involved officials could have been hiding something about the project.

It can be safely concluded that confidentiality alone is therefore not a sufficient reason to withhold information where the interests of justice would require the release of it (Birkinshaw, 2010). One example given is in sex and race discrimination cases, the tribunal chairman is allowed to examine papers on other employees to assess whether discrimination has taken place against the plaintiff in promotions or appointments. Applying such scenarios to the case at bar, the confidentiality of the report due to the fact that it is part of the agency’s deliberative process is therefore not a sufficient reason for the agency to withhold the information sought by Max Crane. There would be no enhancement that can be derived from such withholding. Public interests require that the information sought, even the drafts made by the agency must be made available to the public.

This is a new era in freedom of information because it involves not just the right to spread information but the right of access to information that is within the control of the government. Standards have been developed to regulate the freedom of information. This is but necessary and corollary to the right itself in order to strike out a balance. However, in many cases such as this with Max Crane, the standards created have been left entirely to the discretion of the government agency involved. This is an area where governments must strive to improve and apply without bias the balancing of interests, that which would both enhance the government’s administration and the public’s right to know.