Information Disclosure Policy: A Toolkit for Pacific Governments (July 2006)
### EXPLANATORY NOTES Complaints Best practice international standards require that an effective access to information regime include a complaints mechanism that is independent of government, as well as cheap, quick and procedurally simple. The Model IDP proposes that an existing Ombudsman could fill this role. In countries where no Ombudsman is in operation, an administrative tribunal, national human rights commission, an anti-corruption agency or another oversight body (with investigative and decision-making powers) may be appropriate. Whatever body is chosen, it needs to be impartial and user-friendly. If this approach is not suitable, at the very least, complaints should be permitted to a senior Minister, who will then be responsible for assessing whether lower level officials have correctly interpreted the Policy. The objective of a complaints mechanism is to ensure that officials are properly applying the Policy. In the early stages in particular, this will be essential because many officials may genuinely be struggling to understand the nuances of the Policy and will be likely to err on the side of caution and withhold information, particularly if this has previously been the common practice. While understandable, such an approach may undermine the effectiveness of the Policy, if it is not identified and altered. The public will also quickly become disillusioned with the Policy if they feel it is being incorrectly applied but they have no-one to complain to. In some countries, before complaints are handled by an independent body, requesters can make a complaint via an internal government complaint mechanism. In practice, this can mean that every organisation will nominate a senior official to handle complaints against decisions made by the Departmental Information Officer. Alternatively, one government agency could be tasked with handling all complaints in the first instance. A simple internal process can be useful where it is envisaged that there may be a lot of complaints. However, in the Pacific, the number of complaints may not warrant this additional layer of procedure. The Model IDP also requires that where complaints uncover cases of potential criminal wrongdoing, those cases will be referred to the necessary authorities for action. This is an important provision in that it makes a direct connection between information disclosure and better governance and public accountability. Although international experience has shown that most information requested by people relates to their personal information or local issues, it has sometimes been the case that records requested by a member of public have uncovered wrongdoing by public officials and others. Such cases need to be followed up, which is why the Model IDP specifically requires that they are referred to the proper authorities. Key questions: How many appeals are anticipated under the Policy? Is the number so large that an internal appeals process should be included in the Policy, to reduce the potential workload on the Ombudsman? If so, should each department nominate a senior official to handle appeals, or could one body - eg. the State Law Office or Attorney General's Office - be designated as a central internal appeals point? Is the Ombudsman the most appropriate body to handle complaints about the Policy? If not, what other independent body has the expertise and resources to perform this role? Can and should additional resources be provided to the complaints body to handle their new responsibilities under the Policy? What body should handle cases of alleged criminal wrongdoing - both in relation to information disclosure (eg. forging documents) and more general criminal acts which come to light when the documents being requested are reviewed (eg. theft, bribery, corruption)? Are the current provisions sufficient and appropriate to ensure that the public can complain about failures to implement the Policy and proper action can and will be taken?
Commissioned by the Pacific Media and Communications Facility, an Australian Government, AusAID initiative managed by MDI International in association with MC Media & Associates