FOI & THE OMBUDSMAN: THE YING & YANG OF GOOD ADMINISTRATION This essay argues that both FOI 1 and the Ombudsman are the ying and yang of good administration. Both these systems need to operate concurrently to achieve good administration. It is suggested that these systems need to operate functionally alongside each other so that a good balance is achieved. Looking at both FOI and the Ombudsman in isolation, they each have their own benefits as well as areas for improvement. However together they can supplement each other and fill in the gaps that is left by the other. In this essay, the idea of good administration will also be addressed and the roles that FOI and the Ombudsman play in achieving a better system of administration. Further reforms to FOI and the ombudsman need to be made to ensure a better system of administration for the future. This essay aims to critically assess both systems, proving that the Ombudsman is a more effective mechanism at present. This will be done through looking at the evolution of the ombudsman since its implementation in Australia during the 1970s. When FOI and the Ombudsmen were introduced into Australia, they were implemented in a system marred with structural imbalances and limitations that leant towards favouring the government. While modern reforms have contributed somewhat to the improvement of FOI and the Ombudsman, it is apparent that the role of the Ombudsman has morphed at an accelerated rate to adapt to the Westminster system. 2 INTRODUCTION TO ACCOUNTABILITY MEASURES IN AUSTRALIA When FOI and Ombudsman were introduced in Australia it kick started great changes for the nation. FOI was introduced during a time of great secrecy which was adopted from England 3. It was also a time when public disclosure was seen as undermining good administration. The intended purpose of FOI was to create opportunities for individuals to legally request for information from government departments.4 On the other hand, the ombudsman was established to act as a 'watch dog', addressing grievances and complaints with regards to administration in government organizations. 5 The implementation of the two systems evoked great expectations but seemed to disappoint when considering the system of 'closed government' it was implemented in and much valued government secrecy. Due to the fact that both FOI and the ombudsman were introduced in such a context surrounded with contradicting political values to their intended purpose, it would be obvious that 1 Due to the word restriction in this essay, Freedom of Information will be referred to as FOI. 2 Groves, Matthew, Modern administrative law in Australia : concepts and context / edited by Matthew Groves (Victoria Cambridge University Press, 2014). 3 Osland v R (2008) 234 CLR, 275, 303. 4 Australian Government Attorney-General’s Department, Freedom of Information <http://www.ag.gov.au/RightsAndProtections/FOI/Pages/default.aspx>. 5 Robin Creyke and John McMillan, ‘Administrative Law Assumptions… Then and Now’ (1998) The Kerr Vision of Australian Administrative Law At the Twenty-Five Year Mark 1-34. these systems would face obstacles which would be challenging to overcome. These obstacles would in turn limit the amount of effectiveness that FOI and ombudsman would have on government accountability. STRUCTURAL IMBALANCES: FOI Westminster system- public disclosure is not looked to kindly 6 FOI was initially thought to be an important advancement, but almost from its inception the legislation was criticised for not being able to meet its proclaimed ideals. 7 ACCOUNTABILITY: MADE UP OF TRUST AND TRANSPARENCY Government accountability should be made up of trust and transparency, both are needed. What is trust? Trust is what the citizens feel when they have means like FOI and Ombudsman to air their complaints and grievances BENEFITS OF THE OMBUDSMAN: MORE THAN JUST A WTCHDOG I can say that the ombudsman is effective in breaking down the barriers of Structural imbalance by acting as the 'go between' citizens and the government as opposed to FOI when individuals take on the bureaucracy. Especially since the role of the ombudsman has evolved from reactive to proactive Bigger scope of duties by the ombudsman and the fact that ombudsman can do their own motion investigations- eventually writing to the parliament s17 and PM s16 when an agency has not acted upon the Office recommendations. Although the Ombudsman's ultimate power is that of persuasion and suggestion (not binding), no organization would like to open themselves up to an investigation by the ombudsman as it "airs their dirty laundry" per say. One could also say that it tarnishes the reputation of the agency A toothless watchdog is better than no watchdog, makes the citizens feel that at least there is something or someone in place to fight for them. 6 Rick Snell and James Upcher, ‘Freedom of information and parliament: a limited accountability tool for a key constituency?’ Freedom of Information Review 35–41. 7 Commonwealth Attorney-General, Freedom of Information Act 1982: Annual Report for the period of December 1982- June 1983 (1983) (xi). It shows that the Government is not putting the citizens at arm's length when they have these mechanisms and means in place. WHAT AM I ESSENTIALLY SAYING??? FOI and Ombudsman, although flawed systems are better than no systems at all Like individually they're flawed with there being limitations on FOI and the amount of information that can be released. But having these systems available is better than not having these systems available Why? Because then the people feel like they can actually be part of the nation and not set apart from the government Why? Because these systems promote trust and transparency and this is essential for good government. HOW AM I LINKING SINGAPORE INTO THE PICTURE? There have been calls for an Ombudsman by many esteemed individuals in Singapore such as H.E Tommy Koh and J.B Jeyaratnam- especially in the banking sector. However as mentioned by the PM of singapore there is no need for an ombudsman because there are other mechanisms in place to conduct the checks and balances and hold the banks accountable. Customers who are dissatisfied may address their complaint to the Association of Banks and bring forth their complaints there. It would promote transparency and trust between the government and citizens The culture is not ready for these systems, especially since the nation is conservative, these systems would overwhelm the citizens. But it would provide the marginalized population with cheaper means to solve their complaints and grievances pertaining to Administrative law. Not to mention that these mechanisms would be cheaper and much more approachable than the courts. NOTES TAKEN FROM AUSTRALIAN JOURNAL OF ADMINISTRATIVE LAW VOLUME 22/1 NOVEMBER 2014 Someone to watch over me: use of FOI requests by the tobacco industry by Andrew Mitchell and Tania Voon The introduction of FOI legislation in 1982 at a federal level and state level FOI legislation has led to vast improvements in the access to government information. 8 FOI legislation enables citizens to acquire information about the government and from the government with the underlying presumption that favours disclosure. 9 In 2010, amendments to FOI legislation have tried to establish a sense of open culture across the government.10 Under FOI Act 1982, cth, access to documents must be allowed irrespective of the intended purpose for which one seeks those documents- there are 2 exceptions to this however: documents are exempted from disclosure purely on the basis of their content not on the basis of the nature of the request of identity of the applicant or the purpose of seeking disclosure. Documents would not be disclosed if the requests would substantially and unreasonably divert an agency's resources and if the requests are made by vexatious applicants. Negative aspects of FOI include prolonged delays, charges for the requests s94 (2)(a) and the ability for departments to refuse a request under s24, s24AA and s24AB of the FOI Act. "Holes" in FOI which require reforms pertain to charging for FOI requests, mention the reforms as proposed by the commissioner; tiered charge structure- no charge for the first 5 hours of processing time- a flat fee of 50 dollars applies to the next 5 hours and a further $30 per hour for further time required. FOI contributes to an important public good- accountability of the government and equal access to government information. BUT- FOI is vulnerable to abuse due to the principles of openness upon which it is based. ALTHOUGH REFORMS ARE NEEDED- values of the FOI regime remain important and should be upheld as it is one of the great strengths of Australian democracy "for the people". CONCLUSION We need both the systems to run concurrently as they contribute to democracy They also contribute to the amount of trust between government officials and the citizens In turn creating an open culture and open government. Holding the government accountable for their decisions. 8 CITE THE JOURNAL ARTICLE I KNOW YOU DON'T HAVE TIME TO DO IT NOW THOUGH... 9 Ibid. 10 Ibid. Although based on the time line and the evolution of the systems- possible reforms to the systems would only enhance the good administration of the country Following the timeline from the introduction of the systems to present- things have been progressing at a constant rate.
Gellhorn-Sargentich Law Student Essay Competition: Recipients
Laura Dolbow, Vanderbilt University Law School, “Appropriating Agencies: How Congress Leverages Legislative History to Direct Agency Action”
Gugandeep Kaur, Boston University School of Law,“Indian Pharmaceutical Industry’s Compliance Problems with the United States Food and Drug Administration and Proposed Solutions”
Brian T. Apel, University of Michigan Law School, Class of 2016, “An Administrative Meter Maid: Using Inter Partes Review and Post-Grant Review to Curb Exclusivity Parking Via the Failure to Market Provision of the Hatch-Waxman Act.”
Matthew P. Downer, Vanderbilt University Law School, “Tentative Interpretations: The Abracadabra of Administrative Rulemaking and the End of Alaska Hunters”
Taylor M. Owings, Vanderbilt University Law School,Identifying a Maverick: When Antitrust Law Should Protect a Low-Cost Competitor
Daniel Kazhdan, University of California, Berkeley, Boalt Hall School of Law, Wyeth and PLIVA: The Law of Inadequate Drug Labeling
Aaron Moore, American University Washington College of Law, "Preserving the Ark of Our Safety: How a Stronger Administrative Approach Could Save Section 5 of the Voting Rights Act"
Jasmine C. Hites, University of Oregon School of Law, "NERC: Nuked by Constitutional Flaw?"
Connor Raso, Yale Law School, "Do Agencies Use Guidance Documents to Avoid Presidential Control?"
Karen Weathersbee, University of Baltimore School of Law,"Quarantine: Its Use and Limitations"
Scott Keller, University of Texas School of Law, "Expanding Federalism Clear Statement Canons Instead of Chevron Step Zero"
Kari Bergeron, Southern University Law Center, "Singing the Blues: Muddy Waters and the Scope of Federal Authority Over Isolated, Inland Wetlands under the Clean Water Act"