FOI and implications for collaborative, crowd sourced environments

I heard a story recently about a boss who was afraid to use a wiki, even inside the walls, because it didn’t fall under the strict editorial control processes normally required for their conventional paper documents or even the organisation’s intranet. Specifically, this fear came from the Freedom of Information Act.

This made me recall similar feelings of fear about FOI from an organisation who no longer recorded the audio from meetings because of fear that the tapes could be requested under FOI.

It’s always good to go to the source material when these issues and fear arise in order to determine exactly what the law says is able to be released when an FOI request comes knocking:

“Electronic documents

3.57 An agency may provide an applicant with electronic documents in response to an FOI request.

3.58 Security and privacy issues relating to information stored as metadata held within Microsoft Office documents have been identified. Usually an agency will not intend to provide access to a document with information that has been designated as ‘hidden’ (eg personal details of authors, revision history, review comments) or information that allows collaboration on writing and editing the document. Therefore, it is preferable that all Microsoft Office documents are converted into PDF format, or have their metadata cleansed using an agency approved process, prior to being sent outside the agency network.” [1]

I’m not a lawyer, but this statement suggests that only the final document and not its versions created under collaborative environments can be considered under FOI. In environments where information is constantly being updated, like in wikis, only the current version minus its discussion could therefore be requested under FOI. Moreover, an FOI request, as I understand it from the Attorney-General’s Department paper on FOI Fundamental Principles and Procedures, only pertains to either the public interest (e.g. how public money has been spent) or details about a specific person or entity (like a business) requested by that person (or business).

In further exploring this issue, I came across Mahony versus the City of Melville — a judgement on denial of an FOI request.

“Following the receipt of my preliminary view, the complainant queried whether draft versions of Document 9(b) or other documents considered by the ORC had been disclosed. However, in my opinion, only draft versions of Document 9(b), rather than other documents considered by the ORC, come within the scope of the complainant’s access application which was for performance review reports relating to the CEO’s position and the report prepared by the independent consultant “together with all notes, records of meetings and other documents prepared in relation to that report during the period of the consultancy” ” [2]

The outcome suggests that, in Mahony’s case, draft documents can be requested under FOI. So, regardless of whether a document has gone through the strict editorial control processes and was approved of a senior public servant, all the drafts could be accessed under FOI.

Interestingly, in reporting on FOI, the Commonwealth Ombudsman observed:

“The investigation also identified a more pervasive malaise in the administration of FOI: a growing culture of indifference or resentment towards the disclosure of information, ailing standards of training and development and a profound lack of understanding of or commitment to the ethos and purpose of the legislation. It appeared that, although the FOI Act had wrought some change in the culture of public administration, its goals had been imperfectly achieved. Many of the early FOI practitioners were advocates of open government, but had, over time, been replaced by staff who had grown up in a very different environment, with FOI just one of a number of competing demands on agency time and resources.”

“[Today] staff with FOI decision-making delegations were at an appropriate level but did not
always have to demonstrate that they had the requisite skills and an understanding of
the FOI Act, prior to being appointed a delegate” [3]

It’s always good to turn fear of FOI and unwanted behaviour in document creation into an assessment of risk and consider what mitigation strategies you might put in place to limit its occurrence or reduce its impact if it does happen. Obviously, editorial control in this case won’t stop someone requesting the drafts. Fortunately, though, the Public Service Code of Conduct is the foundation of mitigation for risky behaviour in the public sector and, essentially, requires that all public servants behave like adults and treat people with respect and equality. If they behave like adults then there’s nothing to fear, even if what they write (e.g. in a wiki or a blog) doesn’t go through a strictly controlled editorial process. If they don’t behave like adults then perhaps you shouldn’t have hired them in the first place?

If you’re a lawyer or law-junkie (and I know there are some of you out there who read my blog), I’d love to hear your opinion and learned thoughts on this one.

M

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1. Attorney-General’s Department, 2005. Freedom of Information Act 1982: Fundamental Principles and Procedures. Online at: http://www.pmc.gov.au/foi/docs/FOI_principles_procedures.pdf

2. Office of the Information Commissioner (W.A.), 2005. Graham David Mahony v. City of Melville. Decision and reasons for decision. Online at: http://www.foi.wa.gov.au/PDF_Decs/d0042005.pdf

3. Commonwealth Ombudsman, 2006. Scrutinising government administration of the Freedom of Information Act 1982 in Australian Government Agencies. Online at: http://www.ombudsman.gov.au/…_March2006.pdf