The Backlog Is the Policy

A disclosure statute is the most direct accountability instrument a state gives a citizen. It does not require a lawyer, a legislator or an editor. Anyone may ask.

The statute sets out what must be released, what may be withheld, and how quickly a request must be answered.

The exemptions are the part that gets litigated and the part that gets reported, and they are not where most requests actually die.

Most requests die of time. A response that arrives after the decision it concerned has been taken is not a refusal, and it is not a disclosure either.

There is a self-defeating dynamic in how the law is used that receives too little attention from its defenders.

The published statistics record processing times and backlogs across agencies, and the distribution is wide enough that the average conceals the problem.

Because the process is slow, sophisticated requesters file broadly and speculatively, on the reasoning that a request made now may be answered by the time it is needed.

A routine request is answered reasonably quickly. A request touching anything contested enters a queue whose length has no relationship to the complexity of the search.

Broad speculative requests are exactly what clogs the queue, so the rational response to delay makes the delay worse for everyone including the requester.

Nobody decides to delay. A request is assigned, reviewed, referred to another component for consultation, and returns, and each step is legitimate.

Agencies respond by prioritising narrow requests, which rewards requesters who already know what document exists, which is a small and well-resourced group.

The consultation step is the one that does most of the work. A document originating elsewhere must be referred, and the referral has no deadline of its own.

The law therefore works best for people who least need it and worst for the citizen with a general question, which inverts its stated purpose completely.

So the statutory clock applies to the office holding the file and not to the sequence the file travels through, which is where the time is spent.

None of that requires anyone to act in bad faith, and it would persist unchanged under an administration entirely committed to openness.

The remedy the statute provides is litigation, which is the mechanism least available to the people the law was written for.

Suing takes money and years, and it is worth doing only where the value of the record is large and durable, which describes very few requests.

The consequence is that the enforcement mechanism is used almost exclusively by organisations with legal budgets, and the law functions well for them and poorly for everyone else.

The records authority governs what must be kept in the first place, which is upstream of all of this and receives even less attention.

A record that was never preserved cannot be delayed or exempted, and retention schedules are set administratively with essentially no public participation.

Communications practice has moved faster than those schedules. Decisions that would once have generated a memo now generate a chat message with a short retention period.

That is not evasion; it is ordinary technology adoption, and its effect on the public record is the same as evasion would have been.

The register shows agencies periodically updating their disclosure regulations, and those updates concern fees and formats rather than the queue.

Fees are a real barrier and a smaller one than time, and they receive more attention because they are a number somebody set rather than a duration nobody chose.

The reform that would change the picture is not a shorter deadline, which already exists and is already missed without consequence.

It is a consequence: a request unanswered past the statutory period is released in full by operation of law, with the burden on the agency to go to court to prevent it.

That would be disruptive and would produce mistakes, and it is the only proposal that puts the cost of delay on the party that controls it.

At present that cost falls entirely on the requester, which is why the backlog persists across administrations of every description and why calling it a backlog is generous.