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Instrument, culture and myth: disclosure of 'thinking process material' under the Freedom of Information Act 1982 (Cth)

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posted on 2022-11-18, 04:00 authored by Danielle MoonDanielle Moon

Transparency is at the heart of modern democracy. Transparency in relation to how government makes decisions and develops policy is particularly important. It underpins accountability, combats corruption and enhances the ability of the public to participate in democratic processes. In Australia one way to access this information is by making a request under the Freedom of Information Act 1982. However, this right of access is not unlimited, and the effectiveness of Freedom of Information (FOI) law depends in key ways on public servants, who are responsible both for creating much of the material upon which FOI law ‘bites’ and for deciding whether it should be disclosed according to the legal framework. Little is known about how public servants approach these tasks. This thesis, therefore, explores how Australian Government public servants respond to freedom of information (FOI) requests for documents showing the ‘thinking process’ of government. This thesis uses doctrinal analysis, an FOI case study and interviews with public servants and other key figures to examine the factors that influence FOI practice and decision-making. Through the lens of organisational theory, it recognises that FOI decisions are not made in a vacuum and may be influenced by the context in which they are made as well as by the law. This thesis concludes that the way that public servants interpret and apply FOI law is influenced by a combination of factors, including the legislative framework, cultural norms and values and the principles of Public Value Management. This thesis finds that in some cases, the legal obligation to disclose thinking process material is viewed as ‘out of step’ with the values, norms and working practices of public servants. In such cases, public servants have found ways to work around the legislation. This thesis concludes, therefore, that current FOI law is a ‘myth’. It is symbolically important as a way of representing the Government’s commitment to transparency, but is in practice an ineffective tool for promoting the disclosure of thinking process material.

History

Table of Contents

1 Introduction -- 2 FOI Act 1982 - Background -- 3 Methodology: Literature and Conceptual Framework -- 4 Methodology: Methods -- 5 Doctrinal Analysis - the Legal Framework -- 6 FOI Case Study: The Law in Practice -- 7 Interviews: Factors that Influence FOI Decision-making -- 8 Conclusion: Instrument, Culture and Myth -- Annex 1: Ethics Approval -- Annex 2 Interview Questions -- Annex 3: FOI Case Study -- Bibliography

Notes

Thesis submitted in fulfilment of the requirements for the degree of Doctor of Philosophy

Awarding Institution

Macquarie University

Degree Type

Thesis PhD

Degree

Thesis (PhD), Macquarie Law School, Faculty of Arts, Macquarie University

Department, Centre or School

Macquarie Law School

Year of Award

2020

Principal Supervisor

Carolyn Adams

Additional Supervisor 1

Adam Stebbing

Rights

Copyright: The Author Copyright disclaimer: https://www.mq.edu.au/copyright-disclaimer

Language

English

Extent

331 pages