Bills Digest no. 115 2009–10
Freedom of Information Amendment
(Reform) Bill 2009
WARNING:
This Digest was prepared for debate. It reflects the legislation as introduced
and does not canvass subsequent amendments. This Digest does not have
any official legal status. Other sources should be consulted to determine
the subsequent official status of the Bill.
CONTENTS
Passage history
Purpose
Background
Financial implications
Main provisions
Concluding comments
Contact officer & copyright details
Passage history
Freedom of Information Amendment
(Reform) Bill 2009
Date introduced: 26 November 2009
House: House of Representatives
Portfolio: Cabinet Secretary
Commencement: Clauses 1 to 3 of the Bill commence on Royal Assent. The
main amendments are dependent on passage of the Information Commissioner Act
2010. Schedules 1, 3 (excluding item 15), and 4 to 7 commence immediately
after commencement of section 3 of the Information Commissioner Act.[1] Schedule 2 and item 15 of Schedule 3 (which deal with the agency publication scheme)
commence six months after the commencement of section 3 of the Information
Commissioner Act.
Links: The relevant links to the Bill, Explanatory Memorandum
and second reading speech can be accessed via BillsNet, which is at http://www.aph.gov.au/bills/. When Bills have been passed they can
be found at ComLaw, which is at http://www.comlaw.gov.au/.
The purpose of the Freedom of Information Amendment (Reform)
Bill 2009 (the Bill), together with the accompanying Information Commissioner
Bill 2009, is to introduce a new regime for access to government information.
Background
Freedom of information (FOI), or the statutory right of
access to government documents, is justified on the grounds that it encourages
transparency and political accountability and discourages corruption and other
forms of wrongdoing. At the federal level, the Freedom of Information Act
1982 (the FOI Act) formed part of a broader package of administrative law
reforms in the 1970s and 1980s, and was the first national legislation of its
kind to be introduced into a country with a Westminster-style system of government.
In subsequent years, similar legislation was enacted in all Australian states,
the Australian Capital Territory and the Northern Territory. These FOI Acts had
certain major features in common:
- government is obliged to publish information about its activities
in general, and about whether it holds certain kinds of documents
- every person has a legal right to obtain access to information in
documentary form, which is in the possession of ministers or government
agencies, subject to the operation of specific exemptions and exclusions.
Exemptions can apply to specified agencies (for example, ASIO), or to
categories of documents (such as documents dealing with international relations
and security)
- there is a personal privacy dimension, which enables a person who
has gained access to a document held by government that relates to his or her
personal affairs to:
- request that the document be amended in some respect
- appeal against a refusal to amend the document, and
- even if the appeal is unsuccessful, request that an annotation be
attached to accompany the record when it is shown to any person, and
- there is a right of review in relation to most decisions made
under the Acts, both internal review within the agency and further review by a
body external to the decision maker.
While there have been only minor changes to the federal FOI
Act since 1982, there have been a plethora of reviews. The major review was the Open
Government report by the Australian Law Reform Commission (ALRC) and
the Administrative Review Council (ARC) in 1996.[2] That report made 106 recommendations, some of the more important being:
- creation of a statutory FOI Commissioner to monitor and improve
the administration of the FOI Act and to provide assistance, advice and
education to applicants and agencies about how to use, interpret and administer
the Act
- revision of the Act’s objects clause to promote a pro-disclosure
interpretation of the Act
- rationalisation of the exemption provisions, and publications of
guidelines, so that information is only withheld where this is in the public
interest, and
- FOI charges should be compatible with the objects of the Act—a
scale of charges should be determined by the FOI Commissioner, and access to an
applicant’s personal information should be provided free of charge.
The Howard Government did not formally respond to the Open
Government report. However, two private members’ Bills introduced by
Australian Democrats’ Senator Andrew Murray in 2000[3] and 2003 took up several of its key recommendations. These Bills subsequently
lapsed.
On 24 September 2007, the then Attorney-General, Philip
Ruddock MP, announced that the ALRC would again conduct a review of FOI laws
and practice, although with more limited terms of reference than the 1996 Open
Government report. The ALRC was asked to consider the possible
harmonisation of state and federal FOI laws, and ways of removing the FOI
administrative burden on agencies.[4] That review was suspended by the current Government. The rationale for
suspension being that a more appropriate course of action is to review the FOI
Act after the Government’s reforms come into operation.[5]
The Australian Labor Party’s 2007 election policy document, Government
information: restoring trust and integrity in government information, foreshadowed significant changes to FOI legislation. It stated that a Labor Government
would abolish conclusive certificates and implement the recommendations of the Open
Government report. It would appoint a Freedom of Information Commissioner
designed to make review processes more efficient and cheaper. It would also
create an independent statutory Information Commissioner to act as a
whole-of-government clearing house for complaints, oversight, advice and
reporting for FOI and privacy matters.[6]
Part of that election commitment relating to the abolition
of conclusive certificates, was implemented through the Freedom of
Information (Removal of Conclusive Certificates and Other Measures) Act 2009.[7] The removal of conclusive certificates was, however, a relatively minor and
straightforward part of the bigger picture of FOI reform.
The release of the more substantial reforms, addressing the
Government’s main FOI election objectives, occurred on 24 March 2009 when the
then Cabinet Secretary and Special Minister of State, Senator John Faulkner
released the draft Information Commissioner Bill 2009 and the draft Freedom of
Information Amendment (Reform) Bill 2009 for public consultation. Shortly after
the release the Minister also wrote to departmental secretaries and agency
heads explaining the reforms and asking for agency support in adopting a pro-disclosure
culture. The letter stated:
These [FOI] reforms focus on:
- ensuring that the right of access to documents under the FOI Act
is as comprehensive as it can be, limited only where a stronger public interest
lies in withholding access to documents;
- giving greater weight to the role that the FOI Act serves in the
pro-active publication of government information; and
- introducing structural reforms, including creating a new Office
of the Information Commissioner, designed to provide a platform for system wide
information policy development across government.
The proposed objects for the FOI Act […] provide a clear
statement of the Government’s goals for a revitalised FOI Act. The new objects
clause makes clear the reasons why giving access to information in the
possession of the Government is important to good governance. Significantly,
the reform proposals also include a new framework for the pro-active
publication of information by agencies through information publication
schemes.
These reforms, although important, will not deliver the
openness and transparency so essential to accountability and to a robust
democracy, unless FOI decision-makers embrace the disposition towards
disclosure which informs the FOI Act reforms.
In anticipation of these reforms, the Government is asking secretaries
and agency heads to take a lead role in facilitating the Government’s policy
objective of enhancing a culture of disclosure across agencies. This includes making
it clear to FOI decision makers in your department or agency that the starting
point for considering FOI requests should be a presumption in favour of giving
access to documents.[8]
The period of public consultation on the exposure draft Bills
concluded on 15 May 2009 and on 26 November, some six months later, the Rudd Government
introduced the Bills into Parliament. The Government also released a table
detailing the changes between these Bills and the exposure drafts.[9]
The changes proposed in this Bill and the accompanying
Information Commissioner Bill 2009 coincide with FOI review in a number of
States and are seen as part of a significant shift towards more effective
‘second generation’ FOI laws. Tasmania, Queensland and NSW have enacted new
legislation,[10] although to date, only the Queensland legislation is in force. This new State
legislation shifts the emphasis from reactive release of information in
response to applications towards proactive release of information. The two
federal FOI Bills follows the State models in many respects.
This Bill, together with the Information Commissioner Bill
has been referred to the Senate Finance and Public Administration Committee for
inquiry and report by 16 March 2010 (the Senate inquiry). Details are at:
http://www.aph.gov.au/senate/committee/fapa_ctte/foi_ic/index.htm
Submissions to the Senate inquiry are referred to throughout
this Bills Digest.
The Explanatory Memorandum states that the amendments in
this Bill will have minimal financial impact on Government revenue. [11]
However an amount of $19.5 million over four years has been allocated for the
establishment and funding for the Office of the Information Commissioner. In
addition, the resources for the existing Office of the Privacy Commissioner will
be transferred to the Office of the Information Commissioner.[12]
This Bill and the Information Commissioner Bill have
generally been well received and supported, with many submissions to the Senate
inquiry agreeing that the package contains an important set of reforms which
address many of the key deficiencies in the current FOI Act and its
administration.
For example the submission from Australia’s Right to Know[13] states it supports the significant FOI reforms and is confident they will
significantly improve the Australian public’s access to Government information.[14]
The Australian Law Reform Commission also supports
the bulk of the provisions of both Bills. In its view, the amendments represent
a very positive step toward open and accountable government, and substantially
implement the recommendations of the Open Government report.[15]
The Commonwealth Ombudsman, Professor John McMillan,
states that the changes such as the new objects clause, the creation of the
independent statutory Office of Information Commissioner, together with the new
information publication scheme will shift the ground rules for information
disclosure and publication. Professor McMillan believes ‘we are about to enter
a new and different phase in public administration’.[16]
The Press Council states that it is gratified to see that
the Bill contains a number of positive aspects that foster greater access to
information. Its submission praises the objects clause, and notes that the
introduction of an information publication scheme, the new public interest test
to be applied in regard to exemptions, plus the repeal of some of the
categories of exemptions are welcome changes. It also notes that other changes
that advance the cause of FOI include:
- that private sector providers of services to the Commonwealth
will come within the scope of the legislation[17]
- that applicants are no longer required to apply for internal
review of their application prior to applying for external review and can seek
review after 30 days’ deemed refusal, and
- that the public interest test makes it an irrelevant
consideration that any person may misinterpret or not understand the document.
Other submissions also
welcomed these specific reforms.
However, despite this generally positive reaction, a number
of submissions from FOI advocates have also questioned some aspects of the Bill
and suggest that in some areas the reforms do not go far enough.
Some of the more common concerns relate to the exemptions
and exclusions and these are referred to below. Further comment on specific
provisions is included in the Main Provisions section of the Digest. Comment on
the new Information Commissioner role is provided in the Bills Digest for the
Information Commissioner Bill 2009.
In 1996, the Open Government report concluded that
‘the exemption provisions [in the FOI Act] are unclear, open to misuse by
agencies and, because of their prominence, tend to overwhelm the purpose of the
Act’.[18]
The Bill makes significant
amendments relating to the access and exemption provisions of the FOI Act. For
example, the Bill makes it clear that the starting point for considering FOI
requests is the general rule that documents should be disclosed unless they are
(i) exempt documents or (ii) conditionally exempt documents and it is contrary
to the public interest for the documents to be disclosed. Other important
changes to this part of the FOI Act included in the Bill are the introduction
of a list of public interest factors favouring disclosure, the repeal of three
exemption categories, and the recasting of a number of blanket exemptions as
conditional exemptions.[19]
The New South Wales Council of Civil Liberties (CCL)
and other submissions suggest that ideally the public interest test should be
applied to all exemptions in the Bill. CCL states:
Incorporating a single overarching public interest test into
all exemptions would provide greater clarity, and foster a rethinking by
government agencies about the tension between the public interest in disclosure
and the concerns that are reflected in exemptions.
It is true that in some cases it is obvious that the public
interest supports exemptions. But it should not be thought that this justifies
making the exemptions absolute. For making all exemptions subject to an
overarching public interest test delivers a symbolic benefit, making it clear
that the key issue is not whether an exemption applies, but where the balance
of public interest lies. To use a popular phrase, it sends a message.[20]
Professor Moira Paterson, Law Faculty, Monash
University, comments that redesign of the exemption regime has a number of very
positive features, although it arguably does not go far enough to address
issues that inhibit the FOI Act’s potential to make government agencies more
accountable for their activities. In relation to the absolute exemption for
Cabinet documents, Professor Paterson (and others) suggest that this exemption
provision should be subject to some form of public interest test (as is the
case in the United Kingdom and New Zealand) which serves to ensure that
documents are not withheld for longer than necessary to protect the mechanism
of collective responsibility.[21] Failing that, she suggests it would be appropriate to include a time limit of
10 years as is currently used in other FOI legislation. In Paterson’s view, the
de facto time limit of 20 years (resulting from the proposed changes to the
open access period in the Archives Act 1983) is excessively long.[22]
In addition to exempt documents, there are also some
agencies that are currently exempt from the FOI Act entirely (for example ASIO
and ASIS) and other agencies that are exempt in relation to some material (for
example, Telstra is exempt in respect of documents relating to commercial
activities).[23]
The list of exempt agencies (as set out in Schedule 2 of the
FOI Act) remains essentially untouched by the Bills and indeed has been
slightly expanded.[24] Many submissions argued that these Schedule 2 agencies should be pared back in
some way.
For example CCL submits that agencies currently
listed in the Schedule should be required to explain why their exclusion is
warranted, and why conditional exemptions and the public interest test would
not protect documents which should be kept confidential.[25]
The ALRC submission notes that the Open Government report had recommended that the intelligence agencies should remain in Schedule
2 but that all other agencies listed should be required to demonstrate to the
Attorney-General within 12 months that they merited exclusions from the
operation of the Act. The ALRC states that it is not aware that this happened.[26]
Professor Moira Paterson agrees that Schedule 2
exclusions need reform:
I would argue as a matter of principle that it is preferable
to redraft or expand exemption provisions to provide appropriate exemption for
documents that need to be withheld from access rather than excluding specific
bodies from the Act either totally or in relation to specified documents.
Removing a body entirely from coverage under the Act has the
consequence that all aspects of its activities are removed from public scrutiny
irrespective of whether or not their disclosure is likely to cause harm.
The exclusion of bodies based on national security concerns
has assumed greater significance in light of the recent increases in the powers
of security bodies post September 11 and the attendant importance of ensuring
accountability for their activities. […] Increases in the surveillance powers
of security and law enforcement bodies add to the imbalance in power between
citizens and their governments and it is therefore especially important that
such bodies are subject to scrutiny to ensure that they are not abusing their
powers.[27]
The ALRC and other submissions also question why
parliamentary departments have not been brought within the scope of the FOI
Act. As the ALRC notes, the Open Government report recommended that
parliamentary departments should be brought within the scope of the FOI Act on
the basis that documents that warrant protection would be adequately protected
by the exemption provisions (for example section 46, parliamentary privilege).[28]
The ALRC also notes that the Open Government report recommended that the secrecy provisions exemption[29] be removed and that this has not happened. [30]
The Bill, unlike the exposure draft, proposes that documents
containing trade secrets or commercially valuable information should be unconditionally
exempt, that is, not subject to the public interest test (proposed section
47).[31] Many submissions were critical of this change. For example, Nigel Waters from the Cyberspace Law and Policy Centre states that while a case could
perhaps be made for a very strictly defined category of trade secrets, the
other concept of ‘commercially valuable information’ is far too imprecise to be
the grounds for a blanket exemption, and invites abuse both by commercial
entities mentioned in government documents and by agencies seeking excuses not
to release requested information.[32] The submission continues:
The prevalence of outsourcing and of private-public
partnerships means that ‘commercially valuable information’ will routinely be
included in government documents which should, for accountability reasons, be
at least potentially accessible. The qualification in s. 47 that the commercial
value of the information would have to ‘be, or could reasonably be expected to
be, destroyed or diminished if the information were disclosed’ is an
insufficient protection against inappropriate application. By definition, the
value of any commercial information may be diminished by exposure – that in
itself should not be grounds for unconditional exemption.[33]
The Law Council also argues that an absolute
exemption may go too far. It points to Queensland and NSW FOI models and
recommends that the Bill should require that documents which reveal trade
secrets and/or valuable commercial information should not be released unless it
can be shown that, on balance, it is in the public interest to disclose the
relevant documents or information.[34]
Item 1 repeals and replaces the objects clause in the
FOI Act. The new objects clause (proposed subsection 3(1)) states that
the objects of the Act are to give the Australian community access to information
held by the Commonwealth Government by:
- requiring agencies to publish the information, and
- providing for a right of access to documents.
The rationale for this
access is:
- to promote representative democracy by:
- increasing public participation in government processes with a
view to promoting better-informed decision-making, and
- increasing scrutiny, discussion, comment and review of government
activity, and
- to increase recognition that government information is to be
managed for public purposes and is a national resource (proposed subsections
3(2) and 3(3)).
Access to government
information under the FOI Act is to continue to be provided promptly and at the
lowest reasonable cost (proposed subsection 3(4)).
Proposed section 3A confirms the existing situation that the Act does not limit or prevent
disclosure of government information and documents. In other words, an agency
may disclose information without a request under the FOI Act, including
information which would be exempt under the Act.[35] This provision replaces existing section 14 which is repealed by item
2.
Item 3 of Schedule 2 to the Bill repeals and replaces Part II of the FOI Act and introduces a new information publication scheme
for Commonwealth agencies that are subject to the FOI Act.
Proposed section 8 sets out the information that must
be published. Each agency must prepare and publish a plan showing how it
proposes to implement its publication scheme (proposed subsection 8(1) and paragraph 8(2)(a)). Like the existing scheme, an agency must publish a
range of information, including details of the structure and functions of the
agency and information contained in annual reports. There are also new types of
information that must be published. For example, details of statutory
appointments must be published (other than APS employees) (paragraph 8(2)(d)),
operational information[36] of an agency must be published (paragraph 8(2)(j)), and agencies are
required to publish information in documents to which access is routinely given
through FOI requests (paragraph 8(2)(g)). This last requirement is
qualified, so that publishing is not required if it is considered unreasonable
to publish any of the following:
- personal information about any individual
- information about the business or professional affairs of any
person, or
- any other information of a kind determined by the Information
Commissioner through a legislative instrument.
In relation to these
qualifications, the Government’s stated rationale is:
Around 85-90 percent of FOI requests made annually relate
to requests for access to personal information. In many cases the applicant
will be given access to their own personal or business information but that
information would not be released to third parties. An applicant may also
receive access to another person’s personal or business information because
that person consents to disclosure to the applicant. These are examples where
it will normally be unreasonable to publish the information even though the
information is in a class that is regularly disclosed. A discretionary power
is given to the Information Commissioner to exclude other classes of
information from this aspect of the publication scheme requirements if it
would be unreasonable to publish the information.[37]
Proposed section 8D sets out how and to whom information must be published. There is a new
requirement for agencies to publish information on their websites, by either
making the information available for downloading, by providing links to other
websites, or by providing details on the website of how the information may be
obtained (proposed subsection 8D(3)). Charges can only be imposed where
the information is not directly accessible by downloading it from the agency’s
website (or another website) and the charge is to reimburse the agency for
specific reproduction or incidental costs (proposed subsection 8D(4)). A
note reiterates that documents made available through individual FOI requests
(with some exceptions) [38] must then be made available to the general public through the agency’s website.
The new Information Commissioner is to have a role in
assisting agencies with their publishing obligations (proposed section 8E)
and also in reviewing and monitoring agencies’ compliance with the information
publication scheme (proposed section 8F). Agencies and the Information
Commissioner must work together to review the operation of the scheme from time
to time and at least every five years.
Proposed section 9A requires agencies to have regard
to the objects of the Act and to Information Commissioner guidelines in meeting
their publishing obligations.
The Archives Act 1983 has been drafted to dovetail
with the FOI Act. Like the FOI Act, it contains detailed exemption provisions,
and rights to seek review by the Administrative Appeals Tribunal (AAT).[39]
Under the Archives Act 1983, the National Archives of
Australia is responsible for providing that all Commonwealth records, other
than exempt records, are to be made available to the public when they are in
the open access period. Records other than Cabinet notebooks are in the open
access period when a period of 30 years has elapsed since they came into
existence. The open access period for
Cabinet notebooks is 50 years after they came into existence. Part 1 of
Schedule 3 of the Bill proposes changes to these time frames.
Item 2 repeals and replaces subsection 3(7) substituting a new definition for when a record is in the ‘open access period’.
It is set out in table form and its effect is that the open access period is
brought from 30 years to 20 years for most Commonwealth records after a 10 year
transition period commencing from 1 January 2011 and ending 31 December 2020.
Item 3 repeals and replaces subsection 22A(1) substituting a new definition for when a record that is a Cabinet notebook is
in the ‘open access period’. The effect is to bring forward the open access
period for Cabinet notebooks from 50 years to 30 years after a 10 year
transition period commencing from 1 January 2011 and ending 31 December 2020.
Items 4 to 6 are consequential amendments to
the proposal to bring forward the open access period for most records from 30
years to 20 years. For example, item 4 amends paragraph 26(1)(a) so that it is an offence to alter a record that has been in existence for more
than 15 years (instead of 25 years). The reduction by 10 years is consistent
with the proposal to bring forward the open access period by 10 years at item
2.
Under the Archives Act 1983, the types of records
that can be exempt are numerous and are set out in section 33. They include,
for example, information or matters communicated in confidence by a foreign
government to the Commonwealth Government, and disclosure would constitute a
breach of that confidence (paragraph 33(1)(b)). Item 35 repeals
and replaces this paragraph so that where a foreign entity advises that the
document is still confidential, the decision-maker (the Archives) must be
satisfied that a reasonable basis exists for maintaining the confidence of the
information in order to invoke the exemption.
Part 2 of Schedule 3 makes amendments relating
to the access and exemption provisions of the FOI Act. The amendments include:
- a new single form of public interest test which is weighted
towards disclosure
- the new public interest test is to be applied to additional
exemption provisions, specifically the economy, research and personal information
exemptions and in part to the business affairs exemption
- repeal of three exemption categories—Executive Council documents,
documents arising out of companies securities legislation, and documents
relating to the conduct by an agency of industrial relations, and
- re-organisation of Part IV of the FOI Act into two categories:
exemptions and conditional exemptions. The conditional exemptions are subject
to a public interest test, other exemptions are not.
Item 14 inserts proposed sections 11A and 11B and
is a key amendment.
Proposed section 11A sets out the rule that where a
valid request for a document has been made and the relevant charges have been
paid, an agency or Minister must give access to the document except if the
document is an exempt document. Proposed subsections 11A(1) to 11A(4) essentially replicate the existing rule in section 18 (which is to be repealed
by item 16). However proposed subsection 11(5) is new and
introduces a single form of public interest test that applies to ‘conditional
exemptions’. It provides that an agency or Minister must give the person access
to the document if it is conditionally exempt at a particular time unless
access to the document at that time would, on balance, be contrary to the
public interest.
Proposed section 11B sets out the public interest
test to be applied to conditionally exempt documents. Factors favouring access include whether the document would:
- promote the objects of the Act
- inform debate on matters of public importance
- promote effective oversight of public expenditure, or
- allow a person to access his or her own personal information (proposed subsection 11B(3)).
Factors that must not to be taken into account include:
- whether access to the document would result in embarrassment to
the Commonwealth Government, or cause a loss of confidence to the Government
- access to the document could result in any person[40] misinterpreting or misunderstanding the document
- the author of the document is or was of high seniority in the
agency to which the request for access is made, or
- access to the document could result in confusion or unnecessary
debate (proposed subsection 11B(4)).
Both lists are
non-exhaustive, meaning other relevant factors may be considered (proposed subsection 11B(2)).
In working out whether
access to any document would on balance be contrary to the public interest, an
agency or Minister must have regard to any Information Commissioner guidelines
(proposed subsection 11B(5)). The Information Commissioner will
have power to issue guidelines under proposed section 93A (item 57,
Schedule 4).
The Bill does not list
factors which would favour not giving access for the purposes of the public
interest test. However, as the Explanatory Memorandum explains, some public
interest conditional exemptions include criteria which require a finding of harm,
such as disclosure would, or could reasonably be expected to, cause damage to
certain interests, or would have a substantial adverse effect on certain
interests, or would or could reasonably be expected to, prejudice certain
interests. Where a decision-maker is satisfied that an initial harm threshold
is met, that finding will be a factor against giving access to a document.[41]
Item 15 inserts proposed section 11C. It requires
an agency or Minister to publish information which has been disclosed in
response to an FOI request, within 10 working days from when a person is given
access to the document. The requirement does not apply when the information
that is given to a person is:
- personal information about any person, if it would be
unreasonable to publish the information
- information about the business, commercial, financial or
professional affairs of any person, if it would be unreasonable to publish the
information, or
- other information of a kind determined by the Information
Commissioner if it would be unreasonable to publish the information.
These limitations on
publication align with the limitations that apply under the information
publication scheme.[42]There
is an additional limitation (proposed paragraph 11C(d)) which recognises
that in some cases it will not be reasonably practicable to publish because of
the extent to which personal or business information has been deleted (whether
because of the resource implications or because the end result may not hold
sufficient public interest).[43]
The charges and web publication requirements are similar to those under the
publication scheme. The provision will also commence at the same time as the
Part II publication scheme—six months after commencement of the Information
Commissioner Act.
Item 18 amends section 25, which deals with the right
to neither confirm nor deny the existence or non-existence of certain documents
that would be exempt. Such a right currently exists in relation to documents
affecting national security, defence or international relations and documents
affecting relations with States. Item 18 amends section 25 with
the effect that this right would no longer exist in relation to exempt documents
affecting relations with States.[44]
Items 19 and 20 insert proposed paragraph
26(1)(aa) imposing an additional notice requirement when refusing an
FOI request. If access to a conditionally exempt document is to be refused the
written notice of the decision must include the public interest factors taken
into account in making the decision to refuse access. These items implement
recommendation 39 of the Open Government report.
Under the FOI Act there are a number of circumstances where
consultations with third parties are required to occur before the release of
documents. In particular, State Governments, commercial organisations and
private individuals must be consulted where their interests may be affected by
the release of documents (sections 26A, 27 and 27A). Item 21 repeals and
replaces these sections in the following ways:
- proposed section 26A (consultation requirements regarding
documents likely to affect Commonwealth-State relations) and proposed
section 27A (consultation requirements regarding documents affecting a
third party’s personal affairs) are to be redrafted to make them consistent
with the new terminology of conditional exemption and the single public
interest test. The substance of the provisions is not changed, and
- proposed section 27 (dealing with consultation
requirements relating to documents affecting a third party’s business affairs)
is modified more substantially. It provides that consultation with relevant third
parties is required where it appears to the agency or Minister that the business might reasonably wish to argue that the document is exempt under the
that the trade secrets exemption or conditionally exempt under business affairs
exemption. In contrast, the wording of existing section 27 makes consultation
with third parties almost mandatory.[45] Proposed subsection 27(3) provides a non-exhaustive list of matters to
be considered in deciding whether to consult. These qualifications already
exist in section 27A in relation to consultation where a third party’s personal
affairs might be affected.
Part IV of the FOI Act sets out the exemption provisions and
is amended by items 22 to 33 of Schedule 3 of the Bill.
Item 22 inserts a new Division 1 into Part IV
of the FOI Act containing proposed sections 31A and 31B.
Proposed section 31A contains a table providing a
summary on how the FOI Act applies to documents that are exempt, conditionally
exempt or contain exempt matter under the Act.
Proposed section 31B defines when a document is ‘exempt’
for the purposes of Part IV of the FOI Act. A document is ‘exempt’ if:
- it is an exempt document under Division 2, or
- it is conditionally exempt under Division 3, and access to the
document would, on balance, be contrary to the public interest for the purposes
of subsection 11A(5).
Items 24 to 33 rearrange the exemptions in
Part IV so that exemptions not subject to the proposed single public
interest test are grouped together into Division 2 exemptions, and exemptions
that are subject to the test are grouped together into Division 3 public
interest conditional exemptions. These items also repeal a small number of
exemptions and increase the number of conditional exemptions that are subject
to the public interest test.
Section 33A, containing the exemption for documents
affecting relations with States is repealed (item 26) and becomes proposed
section 47B (item 33). It is a conditional public interest exemption
and so fits within Division 3.
Item 26 also repeals section 35, the Executive
Council documents exemption. This exemption is not replaced in the Bill,
the justification for repeal being that Executive Council documents that
warrant exemption can be withheld under other exemption provisions such as the
exemption for personal privacy or the exemption for international relations.[46]
The exemption for documents arising out of companies and
security legislation found in existing section 47 is repealed (item 32).
There is no replacement provision.[47]
The exemption addressed in section 39 (documents
affecting financial or property interests of the Commonwealth) is repealed and
reintroduced in proposed section 47D (item 33) in Division 3. It
remains subject to a public interest test.
Section 40 (documents concerning certain operations
of agencies) is repealed by item 27 and becomes proposed section 47E (item 33). It is a conditional public interest exemption so fits within
Division 3. It is also modified slightly in that one ground for exemption is
removed, namely where disclosure would, or could reasonably be expected to have
a substantial adverse effect on the conduct by or on behalf of the Commonwealth
or an agency of industrial relations. The rationale for this removal is that
other exemptions would be available if protection from disclosure is needed.[48]
Section 41, containing an exemption for documents
affecting personal privacy, is also repealed by item 27. It is
reintroduced as proposed section 47F (item 33) and is modified to
become a conditional public interest exemption within Division 3. Proposed
subsection 47F(2) provides a non-exhaustive list of matters to be
considered before disclosure.
Section 43A, the exemption for documents
relating to research which can be claimed by the Commonwealth Scientific and
Industrial Research Organisation and the Australian National University in
certain circumstances, is repealed by item 29. It becomes proposed
section 47H (item 33) and is modified to become a conditional
exemption subject to the public interest test.
Section 36, containing the internal working documents
exemption, is repealed (item 26) and becomes proposed section 47C (item 33). It is a conditional public interest exemption so fits within
Division 3. It is also renamed the deliberative processes exemption.
The exemption for documents affecting the economy (existing section
44) is repealed and reinserted as proposed section 47J in Division 3
(item 33). It is modified to be made a conditional exemption subject to
the public interest test and the wording is also updated. A document is
conditionally exempt under this provision if its disclosure under the Act would,
or could be reasonably expected to, have a substantial adverse effect on
Australia’s economy by:
- influencing a decision or action of a person or entity, or
- giving a person (or class of persons) an undue benefit or
detriment in relation to his or her business by providing premature knowledge
of proposed or possible action or inaction of a person or entity.
Item 28 amends the exemption for documents covered by
legal professional privilege contained in section 42. Proposed subsection
42(2) introduces a new qualification and has the effect of confirming that
the legal professional privilege exemption is not available if privilege has
been waived.[49]
Existing section 43 contains an exemption for:
- documents that would disclose trade secrets or any other
information having a commercial value that would be, or could reasonably be
expected to be, destroyed or diminished if the information were disclosed, or
- documents related to business affairs.
Item 29 repeals section 43. These exemptions
are retained but split into two new and different provisions namely:
- proposed section 47G (item 33) which retains the
exemption for documents dealing with business affairs. The business affairs
exemption becomes a conditional exemption subject to the public interest test,
and
- proposed section 47 (item 32) which retains the
exemption for documents that would disclose trade secrets or commercially
valuable information. These would be blanket exemptions not subject to the
public interest test and therefore are slotted into Division 2.
Note that the trade
secrets and commercially valuable information exemptions were to be conditional
exemptions in the exposure draft Bill. The Government states that the variation
implements a suggestion made in submissions on the draft Bill,[50] although some submissions to the current Senate Committee inquiry query this
change. Professor Moira Paterson, for example, states there are very good
reasons for retaining the original version in the draft model Bill and she
rejects the argument that trade secrets always warrant protection from
disclosure even where there are strong public interest factors favouring their
disclosure.[51] Professor Paterson provides examples to indicate that the blanket exemption
could have the effect of potentially operating to protect information of a
trivial character in circumstances where the agency has an interest in
non-disclosure.[52] The Law Council also notes that while it had recommended change to this
provision, it is concerned that it has become a blanket exemption.[53]
Item 26 also repeals and replaces section
34, the Cabinet documents exemption provision. The new exemption remains as
a blanket exemption but is narrower in scope due to the introduction of a
dominant purpose test. Proposed section 34 will apply the exemption to:
- Cabinet submissions or submissions that are proposed for
submission to Cabinet but are never submitted (subparagraph 34(1)(a))
- official records of Cabinet (subparagraph 34(1)(b))
- a document that is a briefing prepared for a Minister on a
Cabinet submission (proposed paragraph 34(1)(c)), and
- a document that is a draft of a Cabinet submission, official
record of the Cabinet or a briefing prepared for a Minister on a Cabinet
submission (proposed paragraph 34(1)(d)).
However, A Cabinet submission will only be exempt if it was
brought into existence for the dominant purpose of submission to the Cabinet
for its consideration. A briefing will only be exempt if it was brought into
existence for the dominant purpose of briefing a Minister on a Cabinet
submission. Proposed subsection 34(4) further clarifies this limitation
by stating that a document is not an exempt document because it is attached to
a Cabinet submission, briefing or document containing information that would
reveal a Cabinet deliberation or decision.
Other parts of the Cabinet exemption provision remain the
same as in the present exemption. For example, copies or extracts of exempt
documents will be exempt (proposed subsection 34(2)), official
publications of decisions of Cabinet (eg media releases) will not be exempt (proposed
subsection 34(5)) and purely factual information will not be exempt unless
disclosure of the information would reveal an undisclosed Cabinet deliberation
or decision (proposed subsection 34(6)).
Schedule 4 amends the FOI Act and inserts new
provisions dealing with review of decisions. Amongst other things it:
- amends the provisions dealing with internal agency review and
reorganises them into a separate new Part VI
- introduces a new layer of external merits review to be undertaken
by the Information Commissioner (new Part VII)
- makes internal agency review optional, meaning internal review
will not be a pre-requisite to external review by the Information Commissioner
- reorganises the provisions dealing with AAT review into a new
Part VIIA, and
- gives the Information Commissioner the function of investigating
actions by an agency relating to the handling of FOI matters under the Act (new
Part VIIB).
Item 34 introduces new terms to describe the types of
decisions that are subject to review. These terms are relied on in the
provisions dealing with internal review, Information Commission review and AAT
review.
Proposed section 53A defines an ‘access refusal
decision’ and is concerned with the review rights for applicants whose FOI
requests have been refused. The types of decisions that can be reviewed are
essentially the same as in the existing provisions,[54] including for example, decisions refusing to give access, decisions to give
only partial access and decisions refusing to amend or annotate records of
personal information in accordance section 48 applications.
Proposed section 53B defines an ‘access grant
decision’ and is concerned with the review rights for certain third parties
affected by a decision to give access to a document.[55] ‘Access grant decisions’ are decisions where there is a right of review by a
State concerning a decision to give access to State-related information; right
of review by a person or organisation concerning a decision to give access to
business information; and right of review by a person concerning a decision to
give access to personal information.
Section 54, the existing provision dealing with internal
agency review, is repealed (item 34). The replacement provisions (proposed
sections 54 to 54E) are reworded and re-organised but have substantially
the same effect with some modifications to take account of the new role for the
Information Commissioner in reviewing decisions and dealing with complaints.
Proposed section 54 allows applicants to apply for agency
review of access refusal decisions. Proposed section 54A allows affected
third parties to apply for agency review of access grant decisions.
Other aspects of the new internal review provisions include:
- no internal review applications can be made for decisions made by
a Minister or made personally by a principal officer of an agency (proposed
subsections 54(1) and 54A(1))
- proposed section 54B deals with the application for
review— the requirement to pay an application fee for internal review is not
preserved.
- a decision on an internal review is to be made within 30 days
after the application was received by an agency (proposed subsection 54C(3))
- an agency is deemed to have affirmed the original decision if the
agency has not given notice of a decision on an internal review application within
30 days of receiving the application (proposed section 54D). A deemed
affirmation decision means that an applicant may directly make an application
for Information Commissioner review (proposed section 54Y)
- the Information Commissioner is given discretionary power to
extend the period for making an internal review decision, upon application from
an agency (proposed subsections 54D(3) to (5)), and
- in contrast to the existing provisions, an applicant does not
have to apply for internal review before applying for external review by the
Information Commissioner— the stated rationale being that agencies should be
encouraged to make the best decision at first instance.[56]
Existing section 56 which deals with applications to the
AAT regarding delayed decisions and section 57 which deals with
complaints to the Ombudsman are both repealed by item 34. The repeal is
a consequence of the proposal to give the Information Commissioner the functions
of reviewing FOI decisions and investigating complaints about the handling of
FOI requests.[57]
Proposed Part VII, also inserted by item 34,
sets up the process for enabling review of decisions by the Information
Commissioner.
Proposed section 54L establishes the right for an applicant
(who has requested access to a document) to apply to the Information
Commissioner for review in respect of the access refusal decisions listed in proposed
subsection 54L(2). Information Commissioner review is generally available
for all decisions that are currently amenable to AAT review under subsection
55(1) of the FOI Act.
In contrast to the existing Act, an applicant is not
required to apply to an agency for internal review before making an application
for review by the Information Commissioner (proposed paragraph
54L(2)(a)) Optional internal review was inserted following submissions made
on the exposure draft Bill.[58] Submissions to the Senate inquiry have commented favourably on this change.
Proposed section 54M establishes the right for
certain third parties (who are affected by a decision to give access to a
document) to apply for Information Commissioner review. The access grant
decisions which are amenable to Information Commissioner review listed in proposed
subsection 54M(2) are the same decisions that are presently subject to AAT
review.[59]
Internal review is not a pre-requisite for Information Commissioner review.
Proposed section 54N sets out the content required
for Information Commissioner review applications. Amongst other things,
the applicant is required to include a copy of the decision made by an agency
or Minister (proposed subsection 54N(1)), and the Office of the
Information Commissioner is to provide assistance to an applicant to prepare a
valid application (proposed subsection 54N(3)).
Proposed section 54P requires an agency or Minister
to notify affected third parties if an FOI applicant seeks review of a decision
to refuse access to the third party information. However, an agency or Minister
is not required to notify the affected third party if the Information Commissioner
orders that it is not appropriate to do so in the circumstances. Proposed
section 54Q sets out these circumstances, which include prejudicing the
conduct of a criminal investigation.
Proposed section 54S deals with the time periods within
which an application must be made for Information Commissioner review—60 days
from the time of receiving notice of a decision to refuse an FOI request; or in
the case of affected third parties, 30 days from the date of the decision or 30
days of receiving notice that an agency or Minister proposes to give access to
a document containing information related to the third party.
Proposed section 54T gives the Information
Commissioner discretionary power to extend the time for making an application
for Information Commissioner review if the Commissioner is satisfied that it is
reasonable to do so in all the circumstances.
Proposed sections 54U to 54Y deal with the
decision to undertake a review. Under proposed section 54W, the
Information Commissioner has a discretion not to undertake a review or not to
continue a review, in certain limited circumstances, namely where the
application is misconceived or vexatious; the review applicant is uncooperative
or cannot be contacted; where the Information Commissioner is satisfied the
reviewable decision should be reviewed by the AAT; or where the applicant fails
to comply with a direction of the Information Commissioner (proposed
paragraphs 54W(a) to 54W(c)).
Proposed sections 54Z to 55J deal with Information
Commissioner review procedures. Proposed section 55 is a central
provision and establishes that the Information Commissioner may review a
decision by considering the documents or other material lodged without holding
a hearing; may conduct a review in whatever way considered appropriate (for
example dispute resolution processes); and is to use as little formality and
technicality as possible. While a hearing is not required, one can be
conducted and the parties to a review can also request one (proposed section
55B). It is intended that most applications will be determined on the
papers (without a hearing).[60] Parties to proceedings are the review applicant, the principal officer of the
agency or the Minister, and affected third parties, including those third
parties who have special approval from the Commissioner under proposed
subsection 55A(3). A party may be represented by another person at a
hearing (for example, a legal representative) (proposed section 55C).
The effect of proposed section 55F is that the
Information Commissioner has discretion to resolve an application, in whole or
in part, by giving effect to terms reached in agreement between the parties.
Under proposed section 55H, the Information
Commissioner may at any time during a review refer a question of law to the
Federal Court for determination.
Proposed sections 55K to 55Q deal with the decision-making
powers of the Information Commissioner. Proposed section 55K establishes
the power for the Information Commissioner to determine review applications—the
Commissioner can make a fresh decision, affirm the decision or vary the
decision of the agency or Minister. These are full merits review powers and
are similar to the powers of the AAT under subsection 43(1) of the Administrative
Appeals Tribunal Act 1975 (AAT Act).
Proposed section 55L provides that upon finding a
document to be exempt, the Information Commissioner has no power to order that
access be given to the exempt material. A similar restriction is placed on the
AAT under existing subsection 58(2) of the FOI Act. The stated rationale for
this provision is that it would defeat the purpose of the exemption rules if
the Information Commissioner could order that access be given notwithstanding
that a document is found to be exempt.[61] This is in contrast to subsection 18(2) of the FOI Act that enables the
original decision-maker to release a document found to be exempt.
The Law Council considers that there is no reason why an
independent merits review tribunal of considerable experience should not
possess all the powers and functions of the original decision-maker in
reviewing FOI matters:
It is a fundamental principle of proper and effective merits
review generally that the reviewing authority be empowered to stand in the
shoes of the decision maker [Shi v Migration Agents Registration Authority (2008) 235 CLR 286]. [62]
Proposed sections 55R to 55Z set out the
Information Commission’s information gathering powers in relation to a review. These
are similar to the existing powers of the AAT in FOI review proceedings. They include
the power to compulsorily require production of information and documents (proposed
section 55R) and the power to require persons to appear and answer
questions (proposed section 55W). Failure to comply is an offence
subject to a maximum penalty of 6 months’ imprisonment.[63]
Proposed section 55T gives the Information
Commissioner a power to require production of a document claimed to be exempt
for the purposes of determining whether the document is exempt. In the case of a
national security or Cabinet exemption claim, the Commissioner can only require
production of the document if not satisfied on affidavit or other evidence that
the document is exempt (proposed section 55U).[64]
Proposed sections 55ZA to 55ZD relate to the
giving of evidence by the Inspector-General of Intelligence and Security (the
Inspector-General) in proceedings involving review of a decision relating to a
national security exemption. Before making a determination that a document is not
exempt the Information Commissioner would be required to request the
Inspector-General to appear personally and give evidence on the possible damage
that would or could reasonably be expected to be caused should such an exempt
document be released (proposed subsection 55ZB(2)). The Inspector-General
must comply with such requests unless of the opinion that he/she is not
appropriately qualified to give such evidence (proposed section 55ZC).
The Information Commissioner is not bound by any opinion of the Inspector-General
(proposed subsection 55ZB(4)).[65]
Proposed sections 56 and 56A deal with appeal
rights to the Federal Court. Parties to a review may appeal to the Federal
Court on a question of law from a decision of the Information Commissioner.
Proposed Part VIIA deals with review of FOI decisions
by the AAT. The existing provisions are re-organised (and in some cases
redrafted) to take account of the proposal to interpose Information
Commissioner review before AAT review. In most other respects, AAT review powers
and procedures are not altered.
Proposed section 57A establishes a right of review to
the AAT, the effect being that the AAT may review any decision that is amenable
to review by the Information Commissioner. Review would involve a full
reconsideration of the Information Commissioner decision in a merits review. The
person who applies for review (either the applicant, the agency or the
Minister) has the onus of establishing that the Information Commissioner made
the wrong decision (item 42, proposed subsection 61(1)).
Some submissions to the Senate inquiry are critical of this
reversal of the existing onus of proof and note that this is contrary to
existing provisions and also contrary to the exposure draft bill. Australia’s
Right to Know argues this is contrary to the new objects of the Act centred
on giving the Australian community access to information held by the
government:
[…]A new central principle of the FOI regime is that
government documents are presumed to be available to the public unless good
reason is shown to the contrary.
In light of this, agencies should be required to justify and
prove the reasons for secrecy by withholding release. They should be required
to provide the evidence relevant to their claims.
It should not be the responsibility of an applicant to
disprove a refusal to release particularly when the applicant is faced with the
expert, government-funded legal teams typically used in that jurisdiction on
appeals.[66]
Item 49 inserts Part VIIB into the FOI Act
which deals with investigations by and complaints to the Information
Commissioner and the Ombudsman. Division 2 sets out the system for
investigations by the Information Commissioner.
The effect of proposed subsection 69(1) is to give
the Information Commissioner the power to investigate complaints about an
action taken by an agency in the performance of functions, or the exercise of
powers, under the FOI Act. The Information Commissioner may also at his/her own
initiative undertake such investigations (proposed subsection 69(2).
Proposed section 73 gives the Information
Commissioner a discretionary power not to investigate, or not to continue to
investigate, a complaint in certain circumstances, for example where there are
other more suitable avenues of action;[67] where the complaint is frivolous or vexatious; where there has been
insufficient time for the relevant agency to address the complaint; or where
the complainant does not have sufficient interest in the matter. Proposed
section 74 permits the Information Commissioner to transfer a complaint to
the Ombudsman in certain circumstances, for example where the complaint is
about the way in which the Information Commissioner has dealt with an Information
Commissioner review. Note also that while the powers of the Ombudsman in
dealing with FOI complaints are specifically preserved (proposed section 89F),
the Explanatory Memorandum states that the intention is that most complaints
will be dealt with by the Information Commissioner rather than the Ombudsman.[68]
Proposed sections 76 to 85 deal with
investigation procedures. Many of the provisions replicate the investigation
procedures for FOI review, for example the power to compulsorily require
production of information and documents (proposed section 79), the power
to require persons to appear and answer questions (proposed section 82), and the power to require production of exempt documents (proposed section 81).
In addition, proposed section 77 empowers persons authorised by the
Information Commissioner (and authorised officers) to enter premises occupied
by an agency (or a contracted service provider in certain circumstances) for
the purposes of an investigation. The power is conditional upon the consent of
the relevant authority who in most cases would be the principal officer of the
agency (proposed subsection 77(3) and section 78).
Upon completing an investigation, the Information
Commissioner is required by proposed section 86 to notify the agency of
the outcome of the investigation and the Commissioner’s recommendations (if
any). The Commissioner must also give a copy of the notice to the complainant.
If the Information Commissioner makes an investigation
recommendation (within the meaning of proposed section 88), the Commissioner may subsequently report to the Minister responsible for the agency, and to the
Minister responsible for the FOI Act, if the Commissioner is not satisfied that
the agency has taken adequate action to implement the recommendation (proposed
section 89A). The Minister responsible for the FOI Act is required to table
a report of this kind before each House of the Parliament (proposed
subsection 89A(5)).
Proposed section 89E provides immunity to a
complainant from civil proceedings, provided that the person made the complaint
under proposed section 70 in good faith.
Item 50 inserts proposed sections 89K to 89N which deal with vexatious applicants. Under proposed section 89K, the Information Commissioner may by written instrument declare a person to be a
vexatious applicant, either upon the Commissioner’s own motion or upon
application by an agency or Minister. Proposed section 89L sets out the
grounds on which a declaration may be made, including where the person has
repeatedly engaged in access actions that involve an abuse of process. Before
making a declaration, the Information Commissioner is required to give the
person an opportunity to make submissions (proposed subsection 89L(3))
and a person who is declared vexatious may apply to the AAT for review of that
decision (proposed section 89N).
Proposed section 90 extends the immunity given to
officers and Ministers from certain civil actions. Immunity would extend
to cover:
- discretionary disclosure outside the FOI Act
- disclosure of exempt documents, and
- disclosures made in relation to the information publication
scheme
where these disclosures are made in good faith (proposed
subsection 90(1)).
Item 56 repeals existing section 92 and substitutes a new section 92 that extends the immunity given to officers and Ministers
from criminal offences. Immunity would extend to cover:
- discretionary disclosure outside the FOI Act
- disclosure of exempt documents, and
- disclosures made in relation to the information publication
scheme
where these disclosures are made in good faith (proposed
subsection 92(1)).
Submissions to the Senate Committee inquiry welcomed these
amendments. Professor Moira Paterson stated that it is long overdue aspect of
reform which removes an important disincentive to the provision of informal
access and the exercise of discretion which resides in FOI officers to provide
access to documents which may be technically exempt in circumstances where
disclosure is unlikely to result in any harm.[69]
Proposed section 93A (item 57) gives the
Information Commissioner a discretionary power of issuing guidelines for the
purposes of the FOI Act and agencies. Persons (including Ministers) exercising
powers or functions under the Act must have regard to any such guidelines.
Proposed section 93B (item 57) requires a Minister
to cause a review to be undertaken of the operation of the FOI Act two years
after the commencement of the reform measures in the Bill. There is also provision
for similar review of the Information Commissioner Act at clause 33 of the Bill
for that Act.
Most of the items in Schedule 5 are amendments
consequential on the establishment of the Office of the Information
Commissioner and, the proposal to bring the Privacy Commissioner and the Office
of the Privacy Commissioner into the Office of the Information Commissioner. Many
items remove references to the Privacy Commissioner in existing legislation and
substitute references to the Information Commissioner (for example items
3–9, 20–26, 46–53, 57–63, and 64–69).
Several submissions to the Senate inquiry are critical of
this change arguing that it is both unnecessary and unhelpful.[70]
Item 54 repeals Division 1 of Part IV of the Privacy
Act 1988, which establishes the Office of the Privacy Commissioner. This
Division would become redundant in light of the proposal to bring the Office of
the Privacy Commissioner into the Office of the Information Commissioner and to
appoint the Privacy Commissioner under the proposed Information Commissioner Act.
Item 56 repeals other sections of the Privacy Act
1988 dealing with the non-disclosure of private information, preparation of
an annual report and a delegation power. These sections relate to the
operation of the Office of the Privacy Commissioner and will become redundant in
light of the new arrangements under the proposed Information Commissioner Act.
Item 19 of Schedule 6 inserts proposed section 6C into the FOI Act. Proposed subsection 6C(2) requires an agency to take contractual measures to ensure it receives a document
held by a contracted service provider (or subcontractor) relating to the
performance of the Commonwealth contract when the agency receives an FOI request.
Its effect is to extend the scope of the FOI Act so that requests for access
may be made for documents held by contracted service providers (and subcontractors)
delivering services for or on behalf of an agency to persons in the community.
Related to this provision is item 33, which repeals
and replaces section 24A. It currently deals with requests that may be
refused on the grounds that documents cannot be found or do not exist. The new
provision is expanded to enable an agency or Minister to refuse a
request if all reasonable steps have been taken to obtain a relevant document
in exercise of a contractual right and the document has not been received by
the agency from the contracted service provider (or subcontractor).
Amendments relating to Commonwealth contracts apply only to
those contracts entered into at or after the commencement of these provisions (item
40).
Professor Moira Paterson comments that this is a
positive feature of the Bill, given the extent of outsourcing of government
functions, including the provision of core government services and facilities
such as welfare services.[71] However she suggests that the Bill should go further to provide added
incentives (such as informing the Information Commissioner) where the agency
has failed to implement the required contractual measures or where it is unable
to recover a document from a contractor despite taking reasonable steps to do
so.[72]
Item 30 inserts new provisions relating to the
extensions of processing periods for FOI requests. Proposed section 15AA permits an agency or Minister to extend the initial period for making a
decision by 30 days if the written agreement of the applicant is obtained. The
Information Commissioner must be notified of such an extension. Proposed
section 15AB relates to large or complex FOI requests and would allow an
agency or Minister to apply to the Information Commission for a further
extension beyond this additional 30 days.[73] The effect of proposed section 15AC is that an agency or Minister is
deemed to have refused access to a document if the agency or Minister has not
given notice of a request for access within 30 days of receiving the
request (or the agreed extended period). A deemed refusal decision means that
an applicant may directly make an application for Information Commissioner
review. Proposed subsections 15AC(4)-15AC(6) give the Information
Commissioner a discretionary power to extend the period for making a decision
on an FOI request upon application from the agency or Minister. The Information
Commissioner may also impose conditions on such an extension.
Existing section 24 permits an access request to be refused
if the work involved in processing the request would substantially and
unreasonably divert the resources of an agency, or would substantially and
unreasonably interfere with the performance of a Minister’s agency. Item 32 repeals section 24 and replaces it with proposed sections 24, 24AA and 24AB. The new provisions have the same scope as existing section 24 but are
extended so that multiple requests seeking access to the same or substantially
the same documents may also be refused on the grounds of diverting resources or
interfering with performance (proposed subsection 24(2)). The proposed
amendments also enhance the consultation scheme so that onerous requests may be
narrowed (proposed section 24AB).
Items 17, 24, 34 and 35 of Schedule 6 make
amendments removing references to application fees. Application fees are
proposed to be abolished for all applications under the FOI Act (other than for
applications to the AAT).
Item 37 removes words from existing section 94 (the regulation-making power) which limit the ability for regulations to be
made that vary charges according to whether the applicant is in a particular
class. This is in line with the Government’s announcement that the first five
hours of decision-making time for journalists and not-for profit community
groups would be free of charge.[74]
Items 20 and 21 deal with exemptions for
documents produced by exempt agencies and propose two new exemptions. As noted above,[75] subsection 7(1) and Part II of Schedule 2 provide that certain agencies (that
is ASIS, ASIO, the Auditor-General, the Aboriginal Land Councils and Land
Trusts etc) are exempt from the operation of the FOI Act. A further exclusion
is provided in subsections 7(2A) and 7(2B) which provide that agencies and
Ministers in possession of documents originating with or received from ASIS,
ASIO, the Office of National Assessments, the Defence Intelligence
Organisation, the Defence Signals Directorate or the Inspector-General of
Intelligence and Security are exempt in respect of those documents. Items 20 and 21 extend the exemption to cover documents that contain a summary
or extract of such documents.
Related to these amendments is item 38, which
provides that Department of Defence is be excluded from the operation of the
FOI Act for documents in respect of its collection, reporting or analysis of
operational intelligence and special access programs under which a foreign
government provides restricted access to technologies. Item 21 would extend
this exemption so that agencies and Ministers in possession of such documents
or summaries or extracts of such documents) would also be excluded.
The Public Interest Advocacy Centre (PIAC) opposes these
amendments for the same reasons that it strongly opposed the related reforms,
introduced only last year that excluded all ‘intelligence agency’ documents in
the hands of the Minister.[76] The Bills Digest for the Freedom of Information (Removal of Conclusive
Certificates and Other Measures) Bill 2008 quotes PIAC:
The Public Interest Advocacy Centre (PIAC) considers that
entirely excluding a new category of documents, not presently excluded from the
operation of the FOI Act, is contrary to the principle of open and transparent
government and winds back, in relation to defence and security documents, the
advances of this principle made by the abolition of conclusive certificates.
PIAC argues the proposed amendments fail to leave open any avenue to
distinguish between documents the disclosure of which might pose a genuine
threat to security or to the national interest, and those that merely have the
potential to embarrass an agency, or the government of the day. The submission
continues:
The Haneef case and subsequent visa revocation turning as
they did on inconsistencies between reports and threat assessments issued by
the Australian Security and Intelligence Organisation (ASIO) and the Australian
Federal Police respectively, and the extent of awareness at Ministerial level
of those inconsistencies, demonstrate the importance of retaining a potential
avenue for disclosure of such documents under the FOI Act.[77]
Schedule 7 contains amendments to address
transitional issues for the new Office of the Information Commissioner,
including bringing the Office of the Privacy Commissioner into the new Office.
Concluding
comments
Both this Bill and the accompanying Information Commissioner
Bill 2009 have generally been well received and supported, with many key FOI
advocates agreeing that the package contains an important set of reforms which
address many of the key deficiencies in the current FOI Act and its administration.
As Professor Paterson states, provided they are accompanied by a pro-disclosure
cultural shift within agencies, the reforms have the potential to substantially
invigorate the Act’s operation and better enable it to achieve its democratic
objectives.[78]
However, there is also argument that in a number of areas
the reforms do not go far enough. A common theme in submissions to the Senate
inquiry is that while the Bill repeals a small number of exemptions, it retains
an almost entirely untouched list of excluded agencies and documents held by
certain agencies listed in Schedule 2 to the FOI Act.
The two Bills are not the end of the story. In relation to
two key aspects of the FOI Act, namely access to and amendment of one’s own
personal information and the imposition of processing charges for FOI requests,
the Government has promised further reform.[79] Some argue that leaving these two key aspects out of this round, may undermine
the ‘sea change’ that the reforms are intended to create.[80]
Despite these reservations, the reforms are substantial. There
is general optimism that the creation of the new role of Information
Commissioner, together with the new rules of disclosure and publication, will
go some way to improving the culture of FOI and possibly ushering in a new and
different phase in public administration.[81]
For those not completely satisfied with the Bills, they too
seem keen that the two Bills progress. As noted at the outset, despite a
plethora of reviews, there have been only minor changes to the FOI Act since
1982. There is, therefore, a sense that this opportunity should not be lost—that
it is important to hasten to ensure these reforms are implemented before the
completion of this Parliament.
Members, Senators and
Parliamentary staff can obtain further information from the Parliamentary
Library on (02) 6277 2438.
Mary Anne Neilsen
23 February 2010
Bills Digest Service
Parliamentary Library
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