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International Law

: Open and Shut

Canberra keeps the lid on names of those who don't cut it on food hygiene

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The ACT is the latest battleground regarding transparency and compliance with food hygiene standards.Markus Mannheim in The Canberra Times on 26 February (Let the public digest the truth:it's not always dangerous"-no link available) recounted:

I sought access, under freedom of information law, to ACT Health's food inspection reports, not because Canberrans are succumbing to an epidemic of poisoning but because I believe information produced for the public belongs to the public. This is more than simply a matter of principle: it's the law. The (Territory) FoI Act's object is to extend "as far as possible" the community's access to information held by the Government; a right "limited only by exceptions and exemptions necessary for the protection of essential public interests and the private and business affairs" of people to whom the information relates. It is a noble object that, sadly, bureaucrats rarely live up to in practice, whether in the ACT or elsewhere in Australia. ACT Health censored the names of the businesses that failed hygiene inspections, telling me it had no "legislative authority to publicise them". This is not strictly true; the FoI Act provides all of the authority that is required. Rather, the decision to suppress the names, which was made by health protection services director John Woollard, came down to a question of discretion: he cited his power to protect businesspeople from disclosures that would "unreasonably affect" their "lawful business or professional affairs". The Canberra Times disagrees with his conclusion and has begun the process of challenging it formally. Based on feedback this newspaper and Health Minister Katy Gallagher received, it's almost certain most Canberrans disagree with Woollard, too.

These issues has been raised and fought over in a number of jurisdictions. After what seemed a long battle in NSW where arguments against FOI disclosure included a claimed breach of privacy, that government set the Australian standard by publishing details online, getting closer to best practice such as the UK Scores on Doors scheme and similar in the US and Canada for example. Research in California where I was last week showed a 13 per cent reduction in hospitalisations for two years after the introduction of a restaurant hygiene grading system in Los Angeles in 1998.Impact of Restaurant Hygiene Grade Cards on Foodborne-Disease ... Restaurants there display the latest grading on the window in a notice that states a copy of the latest inspection report is available inside on request.

Mannheim was right to point out:

Transparency can have a powerful transformative effect on businesses and government agencies: those who know their work is open to scrutiny perform better. It is a simple enough concept, yet many public servants especially at senior levels hold the private view that the community, and particularly the media, lacks the maturity to understand the documents they produce on the public's behalf. The media doesn't always help itself, and is at times prone to sensationalist or subjective reporting. Indeed, federal information commissioner Professor John McMillan said recently that the constant complaint he heard from senior bureaucrats was "we believe in open government but it's a pity the media looks only for the bad story". His advice? If a journalist or politician get their facts wrong, public servants should correct them courteously but publicly. Join the debate and improve its quality. Secrecy, on the other hand, simply breeds distrust and misinformation.

On the FOI issues, the decision in one respect illustrates the dated nature of the ACT FOI act which has none of the stronger expressions of the public interest in disclosure generally, now in legislation in the reform jurisdictions. Even then I think it's arguable that information about regulatory compliance with food hygiene standards isn't information concerning the business, commercial or financial affairs of an enterprise, the first step necessary to claim the exemption. Such information tells nothing about the money making activities of an organisation. If wrong on that count, and despite some authority to the contrary, "unreasonable adverse effect" requires consideration of all relevant factors including competing public interests served by disclosure. When it comes to information concerning compliance with public health standards of hygiene in food handling, I can think of quite a few that seem compelling.

Full post as published by Open and Shut on March 02, 2011 (boomark / email).