Changes Coming November 1 With Revised Australian FOIA

25 October 2010

By Peter Timmins

(Australian lawyer and consultant Peter Timmins writes Open and Shut, a blog about FOI and privacy protection in Australia. He has Arts and Laws (Honours) degrees from the University of Sydney, is a former diplomat, and has been involved in the FOI field on both sides for 25 years.)

Changes to the Australian Government’s Freedom of Information Act come into force on 1 November 2010. The reforms give effect to commitments made before the 2007 election by the incoming Labor government, now in office for another term under new leader Julia Gillard.

These changes and recent reform of state FOI laws in Queensland, New South Wales and Tasmania follow a similar pattern: a greater emphasis on proactive publication; disclosure unless contrary to the public interest; release of information in response to informal requests; formal applications as a last resort; and a new or enhanced role for an independent office holder to provide leadership and guidance, to monitor performance, and to undertake merits review.

The Australian FOI scheme enacted in 1982 will now be subject to leadership and oversight by the independent statutory office of Australian Information Commissioner.

The Commissioner, Professor John McMillan, was Commonwealth Ombudsman until appointed to this position which combines FOI responsibilities with privacy, and government wide information policy based on the principle that information is a national resource. Long-time Deputy Privacy Commissioner Timothy Pilgrim has been appointed Privacy Commissioner. The position of Freedom of Information Commissioner is yet to be filled.

Professor McMillan had a distinguished academic career and a long history of advocacy for FOI in Australia prior to these appointments. In an interview he predicted the changes would ”transform government” as departments realised old rules were gone and there was a new emphasis on ”pro-disclosure.’

The reforms follow legislation in October 2009 that abolished powers to issue conclusive certificates that disclosure of a document was contrary to the public interest, and limited the right to review of such a decision.

Other important changes to the federal law as a result of the commencement of the Freedom of Information Amendment (Reform) Act include:

New objects

The act gives the right of access to government information a purpose: to promote representative democracy by increasing public participation in government processes, with a view to promoting better-informed decision-making; 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.

This last stated purpose needs to be read in conjunction with the Government’s Declaration of Open Government issued in July 2010 following a recommendation of the Government 2.0 Taskforce that commits to open government based on a culture of engagement, built on better access to and use of government held information, and sustained by the innovative use of technology.

The FOI reform act states that documents should be published, released in accordance with administrative arrangements or in response to an access application unless contrary to the public interest.

Fees and charges

Application fees for FOI requests have been abolished and there will be no charge for search and provision of access when dealing with a request for the applicant’s personal information. All applicants for other documents are entitled to up to five hours decision-making time without charge. Additional charge concessions are available on financial hardship and public interest grounds.

There is no charge where an application is not dealt with within the statutory time frame, any extended time agreed with the applicant or, where time has been extended by the Information Commissioner.

Time limits are unchanged: a maximum of 30 days for dealing with requests and up to an additional 30 days where the act requires consultation with a third party prior to disclosure.

Extended scope

The act will extend beyond a document held by a minister or agency to a document held by a contractor performing a service for the public on behalf of an agency. An agency must take contractual measures to ensure that if an FOI request is made, the agency can insist on access to documents that relate to the performance of the contract.

The act makes no substantial change to provisions that exclude some government agencies for example intelligence agencies from the operation of the act, or provide a blanket exemption for types of documents held by specified agencies, except to exempt a summary of or an extract from an intelligence agency document held by any other government agency. The Department of Defence has been excluded from the act in relation to documents containing operational intelligence, and “special access programs under which a foreign government provides restricted access to technologies.

Exemptions

The law largely retains the existing FOI exemptions, with some modifications. Exemption categories for Executive Council documents and documents relating to an agency’s conduct of industrial relations have been repealed.

Some documents are subject to an absolute exemption, others to a conditional exemption that incorporates a public interest test.

Absolute exempt categories include cabinet documents, and information impacting on law enforcement, information that would endanger national security or international relations, subject to a claim of legal privilege, or where disclosure would give rise to an action for breach of confidence. There is no change to the list of secrecy provisions in other acts that have the effect of overriding the FOI act. Trade secrets and information of commercial value that would be diminished if disclosed remain subject to an absolute exemption.

The cabinet document exemption has been modified to cover a document prepared for submission to cabinet only where it has been or is proposed to be submitted and was brought into existence for the dominant purpose of submission for consideration by the cabinet. A new subsection exempts a document brought into existence for the dominant purpose of briefing a Minister on a document to be submitted to cabinet.

Conditional exemptions are linked to a new standard provision that the agency “must disclose unless at the time disclosure would on balance be contrary to the public interest”.

Categories of conditionally exempt documents subject to this test include documents concerning:

Commonwealth-State relations;

Deliberative process (a new name for internal working documents);

Financial or property interests of the Commonwealth;

Certain operations of agencies;

Personal privacy (a new subsection lists matters that a decision-maker must take into account in deciding whether disclosure would be unreasonable including, whether the information is well known or available from publicly accessible sources, and “any other matters” considered relevant);

Business documents;

Research;

The economy (part repealed).

Public interest considerations

The act lists considerations that must be taken into account concerning the public interest in disclosure: whether disclosure 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.

It also lists factors that must not to be taken into account: that access would result in embarrassment, confusion or unnecessary debate, cause a loss of confidence or result in misunderstanding; or that that the author of the document is or was of high seniority.

To guide decision making on 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. None have been issued to date.

Review rights

The act makes internal review optional. An aggrieved person may seek external review by the Information Commissioner. An agency, applicant, or third party may subsequently seek further review by the Administrative Appeals Tribunal on the basis the Commissioner’s decision is wrong. In an IC review, the agency or minister must establish that their decision was justified. In AAT proceedings, the agency or minister must establish that a decision adverse to the FOI applicant should be given.

Vexatious applicant

The Information Commissioner can restrict an applicant’s access rights by declaring the person to be a vexatious applicant. Such a decision requires a finding of “abuse of process”(as defined) or a “manifestly unreasonable” request or application (sections 89K-89N).

New publication requirements

Provisions in the act that require proactive publication on the internet of certain documents will commence on 1 May 2011. The requirement extends existing publication requirements and will include publication of information released to an applicant subject to limitations on information that has a privacy or commercial character or information the Commissioner determines would be unreasonable to publish.

Comment

The reforms constitute good, positive and welcome change.

Australia in 1982 was an “early adopter” of freedom of information law, but while the FOI act has been valuable particularly to those seeking access to information about their dealings with a government agency the evidence was strong that the higher ambition of extending as far as possible rights of access to government information had failed. The leadership vacuum that left FOI without a voice and allowed a culture of secrecy to remain in some agencies and ministers’ offices for much of the last 28 years is now to be filled by a highly respected commissioner with extensive knowledge and experience in the field.

One requirement of the new law is for a comprehensive review in two years. This in some ways meets criticism:

that the new publication requirements are modest in scope,
that in grafting changes (extending to 130 pages) onto the existing act the opportunity was missed to rewrite the law in modern plain and comprehensive English,
that secrecy provisions in other acts have not been reviewed, and
that some best practice standards adopted by the Australian reform states have not been followed, for example the creation of certain offences for improper interference in handling applications.

For now it’s a matter of seeing whether this first phase of the promise of more open transparent and accountable government is realised.

RESOURCES: Australia’s Information Access Laws

Commonwealth/Federal Government

Freedom of Information Act 1982

as amended by:

The Freedom of Information (Removal of Conclusive Certificates and Other Measures) Act 2009 commenced on 7 October 2009. The Act repealed the power to issue conclusive certificates in the FOI Act and the Archives Act 1983.

The Australian Information Commissioner Act 2010

and the Freedom of Information Amendment (Reform) Act 2010

(Both acts passed through the Parliament on 13 May 2010. Both received Royal Assent on 31 May 2010.)

Commencement Details

The majority of the measures, including the establishment of the new Office of the Australian Information Commissioner, will commence on 1 November 2010.

Commencement details are:

* the Information Publication Scheme (new Part II of the FOI Act), which will commence on 1 May 2011,

* a requirement for agencies to publish information where access has been given under Part III of the FOI Act (new section 11C FOI Act) which will commence on 1 May 2011;

* changes to bring forward the ‘open access period’ in the Archives Act 1983 for most records from 30 years to 20 years which will begin on 1 January 2011 (records created in 1980 or 1981) and will be phased in over a ten year period so that a record created in 2000 will be in the open access period on 1 January 2021;

* changes to bring forward the ‘open access period’ in the Archives Act for Cabinet notebooks from 50 years to 30 years, which will begin on 1 January 2011 and will be phased in over a ten year period so that a Cabinet notebook created in 1990 will be in the open access period on 1 January 2021.

State and territory laws

Queensland

Freedom of Information Act 1991 repealed, replaced by Right to Information Act, commenced 1 July 2009.

New South Wales

Freedom of Information Act 1989 repealed, replaced by Government Information (Public Access) Act, commenced 1 July 2010.

Tasmania

Freedom of Information Act 1991 repealed, replaced by Right to Information Act, commenced 1 July 2010

Western Australia

Freedom of Information Act 1992

South Australia

Freedom of Information Act 1991

Victoria