Freedom of Information By Artur Victoria At Isnare.com Ezine Articles

One of the temptations of all government is to restrict Freedom of Information. It sometimes seems that the strongest Freedom of information legislation is always the first Act, introduced by a reformist government before it has secrets to hide. Freedom of Information is one of the most central cogs in integrity systems and should be seen as such. To fulfill this role, the rationale for restrictions should be rethought and the procedures changed to reflect that.

We see the key to reform in emphasizing that the information belongs to the public. It is not the property of the politicians. It is the property of the public they claim to represent and on behalf of whom they are governing. It would be a serious abuse of power to use powers given to them by information legislation to protect themselves from the judgment of the people. It would be an even more serious abuse of power to use legislation such an Official Secrets Act to block the release of information that reflects adversely on their performance or exposes lies that they had told in order to pursue a particular policy or to hold on to office.

This is not to say that there are not some valid reasons for withholding the release of information. However, the presumption should be in favor of release. Rather than requiring someone to apply for the release of information, most documents that get beyond a certain stage in the policy process should be posted on websites (this will incidentally save the cost of handling FOI requests) and all other documents should be available without review in a matter of days at reasonable cost. Those who want to withhold documents should have to justify this decision to an independent body. The body might permit classes of documents to be withheld subject to spot checks of what was in those documents and subject to an FOI application from citizens for particular documents that they want (as is the case now).

It would be up to the official to initiate action to withhold information rather than up to the citizen to seek it. Such an approach would not only make it much easier to get information, it would help change attitudes to documents in government. It would be more difficult to withhold rather than release information and, for once, sloth and lack of time would be on the side of virtue!

Judicial Appointment

Judges perform a critical role in integrity systems. However, the reasons for the appointment of one judge over another are rarely public and sometimes partisan. There are four safeguards against ‘stacking’.

- The first is the possibility of appeal and reversal against decisions made — always a potential embarrassment as well as defeating the purpose of ‘stacking’. This safeguard is, of course, non-existent in ultimate appellate courts.

- The second safeguard is the tenure of judges. Even here there can be problems where judges can be ‘promoted’ to another court.

- The third is that judges are joining a collegial institution where the opinion of their fellow judges is important to them. This works very well where judges have been appointed by different governments with different preferences and, especially, where they have appointed individuals with strong independent views. However, where a government holds power for a long time, stacking becomes a real possibility and the abovementioned safeguards are neutered.

- The fourth safeguard is that their decisions and reasons given are public. While few members of the general public read them, barristers do and judges are generally very keen to be thought to have integrity and ability by those who appear before them. This may seem ironic given the formally obsequious way in which barristers address the bench in many jurisdictions. However, in spite of this, or perhaps because of it, they appear very keen on the respect of their former peers.

Reforming judicial appointments is extremely difficult. Unfortunately, the power to appoint judges is much prized by Attorneys-General and governments. However, an attorney or government that bequeathed an improved system with a judicial commission to consider criteria, recommend appointments, provide judicial education, and recommend on disciplinary action, would be most valuable and in some jurisdictions, critical.

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