Australia's FOI Act not fit for purpose in age of automation

In an upcoming paper, set to be part of a Australian Journal of Administrative Law special issue focussed on Robodebt, authors argue that the rise of AI and related technologies will likely see an increase in automated decision making by governments and the public sector. They say this makes public oversight and transparency of such decision making even more crucial.

Lead author Associate Professor Maria O'Sullivan, from Deakin Law School, said it was striking that the Robodebt Royal Commission's only recommendation not adopted by the government involved a suggested amendment to the FOI Act.

The contentious 57th recommendation of the Robodebt Royal Commission argued that Section 34 of the Commonwealth FOI Act should be repealed so that classification of a document as a 'Cabinet document' is no longer itself justification for maintaining confidentiality of that document.

Currently, any document that has been stamped as a 'Cabinet document' cannot be the subject of an FOI request, simply because of its protected designation.

Associate Professor O'Sullivan said that protected status had meant affected members of the public, advocacy groups and journalists were unable to access cabinet briefings related to the Robodebt scheme to better understand what was known about its legality and operation.

"The over-classification of government information is one very critical reason Robodebt was allowed to continue with impunity for so long. Even the Royal Commission itself noted it had trouble obtaining information as part of its inquiry," she said.

Associate Professor O’Sullivan and her co-author Associate Professor Yee-Fui Ng, from Monash University, evaluate the case for and against repealing Section 34 in their paper.

They identify some potential negative consequences that would need to be mitigated, such as the stifling of debate in Cabinet or a lack of forthright written advice by the public service.

"There's always a risk when you open up these things. If you say that cabinet documents are disclosable then you risk people not writing things down, leading to a culture of post-it notes or oral briefings," Associate Professor O’Sullivan said.

"There is a record keeping obligation, but the danger is that politicians and public servants will try to get around this. They might use message encryption apps, as was shown in the covid enquiry in the UK."

But Associate Professor O'Sullivan said on balance these risks were outweighed by a greater danger if FOI legislation, an important check on state power, couldn't appropriately enable transparency and open government.

"We believe that Section 34 should be amended but that appropriate care should be taken to ensure all the implications are considered," she said.

"What we are proposing is more modest than the Royal Commission recommendation: for the Cabinet exemption to be supplemented with a legislated public interest test, and appeal to the Information Commissioner. This mirrors UK FOI legislation and strikes a balance between Cabinet confidentiality and the public interest in disclosure.

"We also argue for a narrowing of the scope of documents covered by Cabinet confidentiality, and we contend there should be a reduction of the timeframe of disclosure from 30 years to 10 years."

Associate Professor O'Sullivan said these changes must be part of a much larger review and modernisation of the FOI Act.

"FOI has always been a touchy issue. There has been some tinkering since it was passed in 1982, when hard copy documents were the norm and government online processes were in their infancy, but no proper overhaul to recognise the enormous technological advances that have occurred in that time," she said.

"The Australian administrative state has reached a critical juncture where the use of automated technologies and artificial intelligence is becoming increasingly widespread and pervasive, without compensating safeguards.

"Automation results in impenetrable decisions made at a large-scale, which ramps up the risk of widespread systemic harm. More than half a million people were affected by Robodebt because it could be implemented quickly due to automation.

"We need something in the Act to directly cover automated government decision-making, including requiring proactive disclosure of all government algorithmic tools on a centralised website.

"The increasing rise of automation in government necessitates a greater openness in government."