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International Law

: Open and Shut

KIwis trumps in this international FOI performance study

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In Government Information Quarterly 27 (2010) 352?359, available on a pay for view basis), Robert Hazell and Ben Worthy of the Constitution Unit University College London discuss performance measures for FOI regimes in reaching the conclusion the UK act has performed reasonably well in the first four years of operation. They examine statistics that reflect performance of FOI in the UK, Australia, New Zealand, Canada, and Ireland, and also undertake a broader assessment that takes into account the political environment.

The statistics used are dated (for ease of comparison with the UK, the first three years of the operation of each act), focus on national government only, don't reflect changes that may have occurred recently ( for example, Australia's use of executive veto-conclusive certificates-gets a special bad mark, but they were abolished last September), or issues emerging in the FOI/Gov 2.0 era. With all the caveats, acknowledged by the authors, Australia is in the middle of the field on the statistics, and in the broader assessment, shares third place with Ireland, behind New Zealand and the UK, and ahead of only Canada.

The statistical comparison looks at

"different proxy measures of good performance. A positive combination of .. factors, such as high levels of awareness and use, high rates of successful requests resulting in disclosure, and a strong appeals process potentially locks FOI into a positive cycle of use, learning, and improvement, in which the request process and appeal system improve and the exemptions are clarified through interpretation. Such a finding would be a sign of an Act performing well. Conversely, if FOI is not used or the appeal system is weak FOI may become locked into a negative cycle of disuse, neglect and stagnation"

But Hazell and Worthy note that numbers don't tell the full story:

"Governments seeking to improve their performance will not achieve that by focusing on the numbers alone. This is where the political context is so important. Above all, an effective FOI regime requires strong government commitment and political will. Officials cannot do it on their own. Given strong political support, it is much easier to put other supportive factors in place: a strong lead department, with authority across government; central support and training (often removed after the early years); an effective appeals mechanism and related clear case law; an effective fees regime, which helps to control demand and reduce administrative costs (though what constitutes a ?balanced? regime is difficult to determine).

The New Zealand FOI regime probably fares best, given its progressive openness and high level of political and official support, sustained by a wider pluralistic political culture. The UK follows New Zealand, with reasonably high rates of disclosure, a strong Information Commissioner, single use of the veto, and some explicit political support. Third is Ireland and fourth Australia, both of which, despite high levels of use and disclosure, suffer from a high level of appeals, a lack of political support and consequent restrictive reform. Canada comes last as it has continually suffered from a combination of low use, low political support and a weak Information Commissioner since its inception."

The Australian law is about to be different (from 1 November) and all the right things are being said about the importance of more open government, so our standing might be on the move. Watch out Kiwis!

What is needed in all Australian reform jurisdictions are appropriate measures of progress towards long range and intermediate goals that include not just responding to requests, reducing delays, improving the quality of decisions, but changing cultures, increasing participation in government, pro-active publication etc.

Queensland has kicked things off.

The White House Leading Practices for Agency Open Government Plans and individual agency plans available here are good input into Australian consideration.

Full post as published by Open and Shut on October 18, 2010 (boomark / email).