Mediation smoothes FOI

(CNS): The Information Commissioner’s Office has revealed that the process of mediation following refusals of, or problems with, freedom of information requests has proved invaluable to the system. Smoothing out some of the procedural wrinkles, officials say requesters don’t have to wait till they are formally refused and had an internal review before contacting the office for help with requests. From the inception of the law it has been the information commissioner’s policy to seek a resolution to any FOI dispute, be it by Micky Mouse or a named requester, in the first instance through mediation before moving to a formal hearing. Since the implementation of the law in January 2009, the office has mediated in a range of issues, not just refusals but where the procedures have fallen down.

“Mediation has proven to be an invaluable step when dealing with appeals filed under the FOI law in that it enables the ICO to deal more efficiently with minor issues; some of which may essentially be procedural in nature,” a spokesperson for the office stated. “The mediation phase also allows the ICO to work with the parties in an attempt to help negotiate an amicable outcome before the case proceeds to a formal hearing before the commissioner.”

The office is now reviewing the mediation procedures to make sure that they continue to be effective in processing appeals and the office says an updated version of the policies and procedures will be published in the coming months.

The mediation process can, in some cases, help the two parties reach a compromise over a refusal but the office can intervene at anytime to address the process to help get records released in accordance with the law.

CNS has used the mediation service offered by the ICO on a number of occasions for different reasons. The mediation process helped to find a compromise when the Auditor General’s Office refused to release the list of government authorities that had not met the requirements under the Public Management and Finance Law to provide their year-end accounts to his office by the end of August .

The AG believed the release of the names would compromise his reporting to the Legislative Assembly and give a false impression of the situation as the list would be out of context. CNS believed the information should be public in order to ensure that public authorities knew that the public had expectations of them to abide by the law to provide timely and accurate accounts of public spending. In the end CNS agreed to accept the list with the numbers of ministries and portfolios and statutory authorities that had and had not complied rather than naming the individual public authorities.

As a result CNS was able to publish an article reminding the public of the government’s continuing problems with producing timely and accurate financial accounts, allowing them to put pressure on their political representatives for this important issue to remain at the forefront of public awareness.

On another occasion the office assisted in getting the Ministry of Finance to answer a request made by CNS regarding details of the travel expenses for the premier. Although the ministry had acknowledged the receipt and had made a commitment to respond and release the information, the difficulties finding the necessary documentation as well as staffing issue meant the request went unanswered for several months. The intervention of the ICO and an order by the commissioner compelling the authority to respond resulted in the records finally being released and published on the CNS website.

“I would urge all FOI applicants who are experiencing any issues to contact the ICO’s office as the staff there are extremely helpful,” said Wendy Ledger, CNS’s reporter. “As journalists it’s part of our job to deal with the difficulties that go along with trying to get information from government officials so we are used to the struggles but still find it very frustrating sometimes. We can only imagine how infuriating it must be for the general public when they are seeking information that may be very important to them. A word with the ICO, however, can really help – there is no need for requesters to battle alone."

Other applicants have also been assisted through the mediation process. When the immigration department told an applicant that the documents they wanted relating to an interview conducted by officials was missing, the applicant asked for an internal review. The department did not conduct the review so the requester approached the ICO, which ordered the authority to provide the applicant with the required response to the review. As a result the lost documents were found and given to the requester.

Given the continuing administrative and procedural issues relating to the FOI process, the office encourages applicants to contact the ICO whenever they are facing difficulties as mediation is proving to be a useful tool in smoothing out the on-going FOI wrinkles.

CNS is continuing to build up the FOI library and would ask readers to continue sending us the responses they receive under the law.