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FEDERAL FOI REFORM AND MEDIA ACCESS TO GOVERNMENT INFORMATION: A TRANSPARENCY REVOLUTION OR JUST A BETTER FOOTHOLD?
Tristan Robinson [*]
Since the early 1980s, governments across Australia have responded to calls for new avenues of accountability through open government and citizen participation by enacting freedom of information (FOI) legislation.[1] The rationale for opening-up public access to government information is multi-dimensional: firstly, greater transparency is viewed as an essential precondition for political accountability and discouraging corruption; and secondly, access to information underlies public participation in government.[2] An accountable government and a properly informed electorate are integral components of a representative democracy.[3]
The ability of citizens to take part in and influence government decision-making is considered to be a fundamental right.[4] The significance of a strong FOI regime lies in the fact that it assists in the more meaningful and effective exercise of this right,[5] by providing citizens with the knowledge and information that make informed commentary, debate and discussion of government action possible.
However, governments have little incentive to disseminate information that conflicts with embedded Westminster notions of executive secrecy and their political interests.[6]
The media has a key role to play here in bridging the gap between the public’s right to information and government’s frequent disinclination towards disclosure. The sheer quantity and complexity of information produced by government means that ‘much of the fact-finding and argumentation [necessary to keep the public informed] has to be conducted vicariously, the public press being the principal instrument’.[7] In this way, the media, as a ‘fourth estate’ of government, acts as both a conduit for information and a watchdog that defends the public interest.[8]
Although the federal FOI regime to date has proved useful to individuals seeking to access or amend their personal information, the media has expressed concerns regarding the effectiveness of FOI as a source for obtaining government-controlled information.[9] Journalists have argued that they are “unable to effectively hold governments to account given the scope of statutory [exemptions] ... for requested documents, the time taken to fulfill requests and the substantial processing costs”.[10] The Australian Law Reform Commission (ALRC) has found that administrative non-compliance with requests for information acts as a major disincentive to the greater use of FOI.[11] The ALRC reported that “some agencies decide immediately not to disclose information and quickly consult the list of exemptions to find some way to justify nondisclosure”.[12] This finding mirrors a broader community perception that federal FOI has failed to give a meaningful right of access to government information and (even by the government’s own admission) has not achieved its broader rationale.[13]
Notwithstanding these criticisms, the Freedom of Information Act 1982 (Cth) (FOI Act) has remained substantially unchanged since its enactment.[14] It is therefore not surprising that the media’s use of FOI mechanisms has remained very low, at around 10 per cent or less of all applications in 2001.[15] This compares unfavourably with other Westminster common law jurisdictions, such as New Zealand, the United Kingdom[16] and Ireland, where requests by media organisations make up a more significant 20 per cent of total requests.[17]
Further, there is evidence that some federal agencies deal differently with requests by the media and are less likely to disclosure politically sensitive information to media applicants.[18] Therefore, in its current form, federal FOI seems to offer the media little with which to deliver the openness and transparency essential to improved accountability and a more robust democracy.
In response to the continued criticism regarding the operation of the FOI Act, the then acting Attorney-General, Duncan Kerr, requested that the ALRC conduct an inquiry into the state of federal FOI, which culminated in the Open Government Report (ALRC 77).[19] ALRC 77 contained 106 extensive recommendations, which have never been acted upon. In March 2009, however, Cabinet Secretary Senator John Faulkner released exposure drafts of the most ambitious attempt at federal FOI reform to date: the Freedom of Information Amendment (Reform) Bill 2009 (Cth) (the Reform Bill) and the Information Commissioner Bill 2009 (Cth) (the Commissioner Bill).
Although these reform proposals represent a significant step forward in improving media access to government-controlled information, they appear to fall short of a broader ‘transparency revolution’.[20] This is because the reforms engage in a fairly limited rethinking of the broader structural problems associated with the FOI Act that make it an unattractive source of information for journalists. FOI will remain premised upon the reactive dissemination of information, that is, through a request, response and appeal process. This is not well suited to journalists’ needs for timely and low-cost access to information.
The reforms are centred upon improving the ‘back-end’ of FOI (the request and document release mechanism) and direct insufficient attention to the ‘front-end’ – that is the need to develop a broader whole of government framework for the management of information that is geared towards creating a pro-disclosure culture in government and the public service. By reconceptualising the management and flow of information away from the ‘back-end’, one-off
document release mechanism, the media will be better able to leverage FOI to keep the public informed on matters of public interest. In turn, this will encourage the discussion, review and scrutiny of government activities that underlie public accountability and citizen participation in government.
It is important for any effort at reform to commence with and converge around the ‘front-end’ of FOI – at least if the government’s information policy is to shift from the existing ‘pull-model’ (centred upon one-off release), to a ‘push-model’, where information is routinely and proactively published by the government without the need for formal FOI request.[21] FOI reform must be broad-based and proceed from the ground (the level of administrators) upwards in encouraging a pro-disclosure culture, in order to ensure that providing access to information becomes a core public service value. Promoting cultural change at the level of administrators needs to be the first step in the reform process because other reform initiatives – such as the creation of a strong pro-access legislative architecture for FOI – can be emasculated by an unsupportive civil service.[22] Unless there is a change in the attitude and ethos of public administrators, legislative reform will be ‘something of a confidence trick’,[23] promising much but delivering little in practice.
In addition, starting the reform process by re-orienting FOI towards a pro-disclosure ‘push-model’ will take some pressure off the ‘back-end’ request and release mechanism and enable it to function more effectively. This is because the broader proactive release of government information will leave FOI law to manage a ‘much smaller holding of government information, representing that which is truly in contest’[24] in terms of the competing public interest for and against disclosure. Similarly, greater proactive publication will leave agencies less backed-up with routine FOI requests and better able to devote their attention to applications for more contentious information. It is this more contentious information that is likely to be of particular interest to the media.
This paper will assess the extent to which the proposed FOI reforms offer the media improved access to government-controlled information. The first part of this paper will examine the ‘front-end’ reform proposals (mostly contained in the Commissioner Bill), concluding that, although they give the media a solid foothold from which to pursue government-controlled information, the reforms suffer from a lack of follow-through. In particular, there is an urgent need to shore up the compliance functions of the Information Commissioner and widen the Information Publication Scheme. The second part of this paper discusses several ‘back-end’ flaws left over from the 1982 FOI Act that are not addressed by the proposed reforms. These are likely to continue to prevent journalists from making greater use of FOI mechanisms and need immediate attention before the final passage of the Bills.[25]
The reform proposals will be measured against ALRC 77, using several of its key recommendations as a reference point. Further, alternative reform proposals (many of which respond to concerns raised at the FOI Reform Forum attended by the author)[26] will be touched upon.
In sum, the reform proposals lay down a strong base for revitalising FOI by inserting the rationale for FOI into the objects of the FOI Act and tying this back into a revised public interest test. Nevertheless, the extent to which this will equate to improved media access to government-controlled information in practice remains unclear. In any case, the reforms leave a great deal to be done by the Freedom of Information Commissioner.
The Reform Bill successfully responds to what is perhaps the most fundamental recommendation of ALRC 77,[27] by establishing a clear legislative bias in favour of disclosure. This has been achieved by removing the reference in the objects of the FOI Act to the right of access to information being ‘subject to’ the exemptions provisions of the Act.[28] Previously, this ‘subject to’ proviso led the courts to interpret the Act as not requiring a ‘leaning' in favour of disclosure.[29] The tendency of courts to adopt a neutral stance in relation to disclosure did little to promote a
right of access and provided significant leeway for administrators to refuse disclosure by asserting an exemption.[30] However, the amended objects contain a guiding ‘principle of availability’,[31] which is unlikely to be diluted because the new objects make no reference to any exemptions.
For the first time, the objects also explicitly refer to the democratic rationale underpinning FOI:
‘The Parliament intends, by these objects, to promote Australia’s representative democracy by ...: (a) increasing public participation in Government processes, with a view to promoting better-informed decision-making; (b) increasing scrutiny, discussion, comment and review of the Government’s activities’.[32]
This leaves little doubt that the courts should now adopt a pro-disclosure interpretation and marks a crucial first step in opening-up access to government-controlled information. A prodisclosure interpretation will support a presumption that the disclosure of government documents is generally in the public interest. It will also reduce the number of situations in which administrators can justifiably claim that information is exempt.[33] The objects clause also recognises that ‘information held by the Government is to be managed for public purposes and is a national resource’.[34] This is the basis of a more open attitude and alleviates an ‘us versus them’ mentality on the part of administrators towards the release of information.[35]
Further, the objects acknowledge the dual nature of FOI (that is, proactive publication at the ‘front-end’ and document disclosure at the ‘back-end’), flagging the important front-end objective of ‘requiring agencies to publish ... information’.[36]
Although the Commissioner Bill offers an inkling of an attempt to open-up access to information, the Government has yet to particularise how the functions undertaken by the Commissioner will help give effect to the objects of the Act. The Bill’s core proposal – the creation of an independent statutory officer and ‘champion of FOI’[37] – marks a very significant step towards promoting more open government and implements ALRC Recommendation 18.[38] Nevertheless, to be effective, the Commissioner will need to play a central role in monitoring closely the administration of FOI and in driving cultural change.
However, the Bill seems to leave the Commissioner with a great deal of work to do to underwrite administrative compliance. This may be a cause for concern, especially since, if the Commissioner fails in this task, the re-casting of the objects clause may be a largely hollow exercise.
Whilst it is difficult to assess the impact of the Commissioner Bill without a fuller picture of the supporting detail, some of the ‘freedom of information functions’[39] set out in the Bill that will be crucial for the Commissioner to promote compliance with the FOI Act, include:
• 'providing awareness and understanding of the ... Act’[40]; however, the Commissioner should go beyond merely promoting understanding and encourage the development of a pro-access attitude to information disclosure.[41] Senator Faulkner has flagged the creation of a culture of disclosure as an important policy objective,[42] yet this does not find clear expression in the Commissioner Bill.
• ‘providing advice, assistance and training to any person or agency’[43]: the relatively complex wording and tests to be applied for certain exemption provisions in the FOI Act suggest that the training of administrators by the Commissioner is crucial.
• ‘collecting information and statistics from agencies and Ministers about freedom of information matters’[44]: the Commissioner should go further than simply collecting and publishing this data in annual reports and should conduct detailed audits of agency records relating to FOI applications, as recommended by ALRC 77.[45] The results of these audits should be provided to the Parliamentary Committee through annual agency report cards.[46] Instituting this as an indicator of agency performance will make agencies more accountable and help to promote FOI compliance.[47]
It is conceded that it is necessary for the powers of a statutory office like the Information Commissioner to be stated in general terms, so as to allow the Commissioner discretion to do as he/she sees fit to carry out his/her functions. However, in providing this degree of flexibility, there is a danger that, should the Commissioner fail to elicit good information management practices from the start, it will be difficult to encourage administrative compliance further down the line. This is because the Commissioner seems to have little power to impose sanctions or to offer incentives to agencies to promote the proper administration of FOI.
Although the Commissioner has been given substantial authority to investigate and review agency compliance,[48] this has not been backed-up by penalty provisions to be applied where an agency is found to have contravened the FOI Act – the most the Commissioner can do is table a written report to the responsible Minister.[49] This compares unfavourably with the draft Open Government Information Bill 2009 (NSW) (the OGI Bill), which creates new offences for knowingly contravening FOI legislation.[50] Importantly, the Reform Bill also makes no provision for complaints to be made to the Commissioner about an agency’s failure to comply with the requirements of the Information Publication Scheme (IPS). Since administrative compliance is a key sticking point to increasing the media’s use of FOI, stronger punitive provisions should be contained in the Commissioner Bill to bolster the monitoring and investigative powers of the Commissioner.[51]
Further, it will be crucial for the Office of the Information Commissioner to be adequately resourced and employ sufficient staff to properly carry out its functions,[52] especially since a lack of funding and governmental support has weakened FOI monitoring in the past.[53]
The IPS provides a good framework for the managed disclosure of information, but it fails to go further and mandate a broader whole of government system for the management of information.
The bulk of the information that agencies are required to publish under the IPS replicates the current s 8-9 of the FOI Act. However, the Reform Bill adds two new publication requirements: agencies will be required to publish on the internet ‘information ... that is routinely provided to the Parliament’[54] and ‘information in documents to which the agency routinely gives access in response to requests’.[55] Providing direct access to this kind of information recognises that ‘beyond the public interest is the applicant’s right to know what information ... government holds, each FOI application is a vehicle for promoting the wider public interest in the enforcement of open government’.[56]
Nevertheless, these two additions to the FOI Act’s publication requirements may be of little significance to journalists, since information routinely released by agencies is unlikely to be of the contentious or ground-breaking sort that is of interest to journalists.[57]
The Commissioner can issue guidelines requiring other classes of information to be published[58] – however, the decision of whether to issue such guidelines is at the discretion of the Commissioner and
it is not mandatory to do so,[59] as is the case under the equivalent UK provision.[60] It is unclear why the issuing of guidelines is only discretionary (even if it is likely that the Commissioner will do so). This provision should be stiffened-up to ensure that agencies are not left to make up their own rules and develop inconsistent approaches to publishing information.
If the Commissioner Bill were to make it mandatory for agencies to proactively release a wider range of information, the ambit of the FOI request and release mechanism would be narrowed and left to deal with only the most sensitive government-held information. Proactive release would make more information directly and immediately available to the media and reduce the formal, one-off release mechanism to an option of last resort.[61]
The ability for FOI to act as a tool for investigative journalism would be improved if the IPS were reconceptualised as a comprehensive electronic record and document management system, within which all successful FOI requests are published and logged in a searchable FOI database.[62] There is no hint of this in the Reform Bill, whereas the NSW OGI Bill requires agencies to create and maintain an electronic reading room[63] that provides web-based access to previously released documents. This has become standard practice in the United States, where agencies publish on their websites recently disclosed information and news material that journalists would have previously had to make a formal FOI request to obtain.[64] To encourage the media to invest in and make use of FOI, the online publication of information provided to requestors should be delayed 24 hours (enabling the requestor to maintain an informational advantage for a 24 hour news cycle).[65] This rewards the requestor for the time and effort involved in making an FOI request, without compromising the benefits of subsequently making this information available more broadly.
A document management and publication system of this kind can also help the ‘back-end’ of FOI to function more efficiently, by providing journalists with better information and more specific detail with which to frame an FOI request.[66] A more precise request is less likely to be
resisted by administrators and will be easier to process in a shorter time frame and at less cost.[67] Better document management can also help turn FOI ‘inside-out’: rather than agencies holding the balance of power (in that they are responsible for making the search and determining whether disclosure is appropriate), documents can be classified in advance (subject to audit by the Commissioner) and journalists can conduct a preliminary search themselves.
The bulk of the proposed reforms are centred upon improving the ‘back-end’ of FOI (the request and release mechanism), rather than directly focusing upon changing the public sector culture of passive resistance towards disclosure and promoting a philosophy of open government.[68] Although some ‘back-end’ proposals are likely to make government-controlled information more accessible to the media, the Bills do not address several obstacles to media access to information left over from the FOI Act.
Although the reference to exemptions in the objects of the Act has been removed, the Reform Bill does not do much to cut-down the broad categories of documents able to be exempt from disclosure. Only two of the rarely used exemptions are abolished (Executive Council documents[69] and documents prepared in accordance with companies and securities legislation)[70], all other 16 exemptions remain in one form or another.
The exemption for Cabinet documents has traditionally been the most problematic for journalists, because it has the effect of ‘placing beyond the reach the very documents that would be of the greatest utility in scrutinising governments and keeping them accountable’.[71] This previously absolute exemption (justified on the grounds of upholding the Westminster ‘Cabinet oyster’)[72] will now contain a qualification – Cabinet documents will need to pass a further test and will only be exempt where they are brought into existence for the dominant purpose of submission for consideration by Cabinet.[73] This gives effect to Recommendation 46 and acknowledges that disclosing documents not brought into existence for the purpose of consideration by Cabinet are not necessarily detrimental to the Cabinet process.[74] Importantly, agencies will no longer be able to abuse this exemption and avoid disclosure simply by attaching these documents to Cabinet submissions.[75]
The addition of a dominant purpose test will improve access to some government information, at least compared with the undiscriminating ‘class classification’[76] that currently operates to protect Cabinet documents from disclosure.[77] The proposed amendments move closer towards the approach taken to exemptions under New Zealand’s Official Information Act,[78] which are worded in ‘consequential terms’.[79] It would be more consistent with providing a right of access to information for documents under the FOI Act to (in parity with the Official Information Act) only be withheld where disclosure would have an adverse effect upon the operation of government.[80]
It is not mandatory to assert an exemption - just because a document can be classified as falling within the bounds of an exemption does not mean that it must be withheld. Nevertheless, some administrators have tended to automatically refuse access if a ground of exemption is technically available.[81] This underscores the need for training and the promotion of a pro-disclosure culture at the ‘front-end’. Senator Faulkner has advised government secretaries and agency heads that the proper operation of a Westminster system of government does not require all information falling within an exemption to be withheld.[82] Rather, the ‘starting point for considering FOI requests should be a presumption in favour ... of access’.[83] It remains to be seen whether this will make agencies less prone to withhold information beyond what is legitimately within the scope of the exemptions.[84]
A long-standing barrier to accessing government information, which is continued by the Reform Bill, is to leave the parliamentary departments outside the scope of FOI (notwithstanding Recommendation 73 to the contrary). This means journalists cannot use FOI mechanisms to access information concerning payments made to individual Members of Parliament or Senators and how these sums have been acquired or spent.[85] Parliamentary departments are included in the coverage of UK FOI, and the Canadian Information Commissioner has made a recommendation to this effect on the basis that:
the public ‘expect[s] all publically funded bodies to be publically accountable under access to information legislation. Therefore, it is recommended that the administrative records of the Senate, the House of Commons, the Library of Parliament ... be covered by the Act, subject to provisions protecting Parliamentary privileges’.[86]
This rationale applies with equal force in Australia. Notwithstanding this and the ALRC’s view that ‘there is no justification for the parliamentary departments to be excluded from the [FOI] Act and ... being subject to the Act will not cause any greater inconvenience for them than is caused to other agencies’[87], the Reform Bill has not addressed this issue.
A significant pro-disclosure feature that will benefit media access to government information is the new over-arching public interest test,[88] which is accompanied by a list of factors for and against disclosure.[89] In line with Recommendation 37,[90] this test is weighted in favour of disclosure:
‘the agency or Minister must give access to the document ... unless (in the circumstances) access to the document at that time would, on balance, be contrary to the public interest’ [emphasis added].[91]
The new public interest test prevents administrators from making ‘class’ claims to exempt documents in that it requires decision-makers to examine the content and context of each individual document in balancing the interests for and against disclosure.[92] The provision also clarifies that the onus is on the respondent agency to establish that the public interest lies in nondisclosure.[93] This gives substance to the notion that the public has access to government information as of right. The Reform Bill thus makes the public interest the central consideration in the determination of an FOI application.
The listing of factors in favour of, and irrelevant to, the public interest in disclosure in ss 11B(2)-(3) will open-up access to information by helping decision-makers to easily identify the relevant public interest factors that need to be balanced. Importantly, the amendments tie the public interest test back to the objects of the Act. Agencies and Ministers must now take explicit account of whether a decision to withhold information would ‘promote the objects of the Act’[94] and ‘inform debate on a matter of public importance’.[95] This bodes well for an improved access regime, since the promotion of open governance is now a direct factor to be considered in processing an FOI application.
The amendments are aimed at framing the public interest test upon these more principled grounds and eliminating the more spurious public interest arguments for non-disclosure. Under s 11B(4), many of the arguments criticised by Hayne J in McKinnon v Secretary, Department of Treasury[96] (the so-called Howard factors justifying non-disclosure)[97] are explicitly stated to be irrelevant considerations in determining whether disclosure would be contrary to the public interest. These include: that access could cause embarrassment to the Commonwealth,[98] or could result in confusion and unnecessary debate.[99] Interestingly, one of the Howard factors has been noticeably omitted from the list of irrelevant factors – that disclosure would inhibit the ‘frankness and candour’ of communication between government and the public service. This seems to leave open the possibility that decision-makers will be able to continue to block access to documents by asserting that ‘frankness and candour’ supports non-disclosure on public interests grounds.
If the need to protect the free flow of honest advice between government and bureaucrats is still a factor relevant to the public interest in non-disclosure, this should be made explicit (rather than leaving the Act silent on the issue). At the FOI Reform Forum, attended by the author, it was suggested that this could be done by redrafting s 11B to take into account those factors set out by Tamberlin J in Haneef and Department of Immigration and Citizenship as favouring non-disclosure.[100]
A potential concern with the universality of the public interest test (that is, its application to all conditional exemptions) arises where the Reform Bill grafts the public interest test onto an ‘unreasonableness’ test. This occurs in the case of the personal privacy conditional exemption[101] and the business affairs conditional exemption.[102] This creates the problem of administrators having to apply a two-stage or double-barrelled test for disclosure decisions (in that they must consider both the broad public interest factors in s 11B and the specific unreasonableness of disclosure). The Reform Bill offers no clear demarcation between what considerations inform each test, nor any guidance upon how they are to be applied jointly. The ALRC has noted that ‘it can be difficult to perform ... [the] balancing exercise’ required by the public interest test,[103] supplementing this with a second, ‘unreasonableness’ test is likely to complicate this exercise even further.
The Reform Bill adds a further tier (on top of the AAT) to the external merits review system, allowing the Commissioner to conduct independent merits review of decisions by agencies and Ministers to refuse requests for access to documents.[104] This introduces an independent body of review for primary FOI decisions, yet the amendments retain internal review as a prerequisite for external review by the Commissioner or AAT.[105] The government’s position is that internal review is inexpensive, efficient and benefits the applicant (with over 50% of primary decisions being varied in some way in favour of the applicant).[106]
However, this rationale does not explain why applicants should not have the option of bypassing internal review and proceeding directly to external review[107] (as recommended by ALRC 77 and proposed in the NSW OGI Bill).[108] If internal review is principally for the benefit of the applicant, there is force in the argument that applicants should be allowed to waive this step in the review process. It seems desirable that there should be a degree of flexibility to take into account the particular circumstances of the applicant.[109] For example, if an applicant has had a hostile or adversarial experience in dealing with an agency to date, they are unlikely to gain much from internal review.[110] Proceeding to internal review in this scenario may simply lead to further delay in the progress of an application, which journalists are at pains to avoid.
Further, if agencies are made immediately accountable to external review, the quality of their initial decisions may improve and they are likely to pay greater attention to their compliance with the FOI Act.[111]
The high costs and the long time frames that apply in obtaining decisions regarding access are major barriers to the media’s effective use of FOI mechanisms. Most journalists seek information whose immediate value is extremely time-sensitive and delays in processing an FOI request can substantially erode the utility of the requested information.[112] Others, such as investigative journalists, are less subject to time constraints, and have found FOI to be a ‘valuable ... tool for obtaining raw information to contribute to an investigation by creating leads or paper trails’.[113]
Nevertheless, FOI in its current form may rarely be an independent generator of public interest stories or political scandals.[114] Many journalists have found it easier to source government-held information from informal leaks than through formal FOI applications.[115]
Further, if FOI mechanisms are to be useful to journalists, the cost of providing information must be reduced. Even relatively well-resourced media organisations can struggle to meet the processing fees imposed by agencies.[116] The difficulty in quantifying the cost of processing requests has provided scope for agencies to impose high charges to deter applicants from pursuing their requests.[117] In 2007-08, the average charge per application increased by approximately 18 per cent from 2005-06, despite a decrease of 30 per cent in the total number of applications.[118] In this way, the right of access ‘is being truncated by the requirement to pay’.[119]
The Reform Bill responds to this concern by abolishing all application fees and providing free processing time (1 hour for all applicants and 5 hours for journalists).[120] However, this does not address the root cause of the high cost of FOI – the scheduling of fees based on decision-making and processing time.[121] There has been no indication that the government will alter the FOI fee structure by implementing Recommendation 88 and charging on the basis of documents actually released.[122] This represents a backwards step from the proposal in the 2003 Bill to only levy charges in respect of documents released.[123] In contrast to the NSW OGI Bill, the Reform Bill does not provide a discount on fees for journalists requesting information that is of special public interest.[124]
As acknowledged in a 1997 Canadian Green Paper, timely access is critical to the media’s use of FOI.[125] In this way, ‘access delayed may be access
denied’.[126] Non-compliance with the statutory prescribed time limits for processing applications has been a persistent problem for FOI and curbs its attractiveness as a source for obtaining government-held information. In 2005-06, 25 per cent of applications to federal agencies for non-personal information took 90 days to process, three times longer than the statutory time limit of 30 days.[127]
The Reform Bill seeks to improve agency compliance with processing times by mandating that an agency waives its right to levy charges if its response to an application is out of time.[128] Nevertheless, the built-in time delay of 30 days is still substantial and the Recommendation to reduce processing time limits to 14 or 21 days has not been acted upon.[129] Rather, the Reform Bill contains new provisions for extensions of time to be made.[130] It is interesting to note that no public dividend has stemmed from the significant improvements in information technology and the digital management of information since the inception of federal FOI in 1982 – the time limit for locating documents and processing requests remains unchanged.
The Reform Bill also contains no provision to fast-track FOI, by allowing applicants to make ‘urgent’ requests, where decision-making is expedited.[131] This procedure would be particularly appealing to journalists operating under time pressures and is available in the United States and New Zealand.[132] Therefore, the Reform Bill does little to reduce the time and cost barriers to using FOI. It is likely to continue to be difficult under the amended Act for journalists to obtain information whilst it remains current and relevant.
It seems antithetical to improving the efficiency of the ‘back-end’ request and release mechanism to continue to charge for the time spent in locating and processing documents – since this provides no incentive for agencies to enhance their document management systems.[133] A substantial proportion of the costs associated with the administration of FOI laws are caused by a weakness in document and records management.[134] Therefore, a better document management
system would minimise the cost and inconvenience of document search and retrieval, in addition to delivering significant operational efficiencies to government.[135]
A related, but largely unexplored issue is the potential for delay that arises from the interplay between the public interest test and the reverse FOI procedures available to third parties.[136] The FOI Act provides a right for third parties to be consulted if documents relating to their affairs are the subject of an FOI request, and to submit a response detailing the projected effect of release upon their affairs.[137] Since the revised public interest test will apply to all conditional exemptions, third parties affected by an FOI request will now have to address public interest issues in addition to the issue of the effect of release.[138] This means that responses submitted by third parties will be more complex, possibly adding time and expense to processing of requests. The Reform Bill has not followed the suggestions made in other jurisdictions that a time limit should be put on third party responses to minimise processing delays.[139]
The proposed federal FOI reforms make a significant step forward in improving media access to government-controlled information. The recasting of the objects of the FOI Act and the fuller development of the public interest test (the addition of factors for and against disclosure) provide the media with a better foothold from which to pursue high-level government information. If enacted, the reforms will give content to the right of access by permitting greater disclosure of documents held by federal agencies that relate to the affairs of government and private businesses.
However, although the media has a stronger, pro-disclosure starting point from which to make requests for access, many of the ‘back-end’ barriers to access remain. The amendments to the
exemption provisions have been mostly ‘tinkering around the edges’ and these still provide a substantial bulwark to the greater release of information. Importantly, the major deterrents to the media’s use of FOI – the high charges for access and the delays in the processing of requests – have not been adequately addressed in line with the ALRC’s recommendations. Therefore, preliminary analysis of the proposed reforms suggests that they are likely to stop short of a broader ‘transparency revolution’ in providing access to information.
In order for the FOI regime to work effectively there needs to be greater follow-through on the ‘front-end’ reform proposals. More work needs to be done to make a wider range of information directly and immediately available so as to narrow the ambit of the ‘back-end’ request and release mechanism, making it an option of last resort. Specifically, the reform proposals in their current form are scant on detail as to how they will produce a pervasive culture of access and disclosure within government and the public service. This means a great deal will turn on the success of the Commissioner in this regard. However, the ability of the Commissioner to effect change is doubtful because the Commissioner Bill lacks strong compliance provisions. The Commissioner should be given broader powers to take whatever steps are necessary to underwrite compliance and promote widespread changes in public service attitudes away from the tradition of secrecy.
Further, the strong framework laid down by the IPS should be followed by a wider, whole of government information management system. Once this is achieved, the ‘back-end’ request and release mechanism will be able to function more effectively, alleviating some of the time and cost pressures in accessing information.
It is important for government to appreciate that improved FOI and the development of a whole of government information management system hold the potential to deliver benefits to the public sphere. FOI provides the government with a significant opportunity to leverage information access and dissemination to consult and develop policy and make closer connections with citizens.[140] Increasing openness through better information flows can advance policy and raise the quality of public administration.[141]
If FOI reform is conceived of in this light, as part of an element in a broadly-cast information policy, it will be easier to achieve acceptance of FOI and its resource costs. As such, the media’s role should extend beyond that of simply end-users of FOI – journalists must continue to educate themselves and the community they serve about the importance of attaining this revised approach to FOI.
Australia’s Right to Know, Report of the Independent Audit into the State of Free Speech in Australia (Canberra: 2007).
Robin Banks, Submission on the Freedom of Information (Removal of Conclusive Certificates and Other Measures) Bill 2008 (Cth): Public Interest Advocacy Centre
(7 January 2007).
Judith Bannister ‘Case Notes: McKinnon v Secretary, Department of Treasury – The Sir Humphrey Clause, Review of Conclusive Certificates in Freedom of Information Applications’ [2006] MelbULawRw 30; (2006) 30 Melbourne University Law Review 961.
P Bayne & K Rubenstein ‘The Objects of the Freedom of Information (FOI) Acts and their Interpretation’ (1995) 2 Australian Journal of Administrative Law 114.
Patrick Birkinshaw, Freedom of Information: The Law, the Practice and the Ideal (London: Weidenfeld and Nicholson, 1988).
Benjamin Bogado, Emilene Martinez-Morales, Bethany Noll and Kyle Bell, The Federal Institute for Access to Information and a Culture of Transparency (IFAI), a Follow-up Report (University of Pennsylvania, Annenberg School of Communications, 2007).
Robert Buchanan ‘Cabinet, policy documents and freedom of information: the New Zealand experience’ (1991) 31 FOI Review 2.
Commonwealth Ombudsman, Needs to know: Report on investigation of administration of FOI in Commonwealth agencies (Commonwealth Ombudsman, Canberra: 1999).
Department of Justice (State of Tasmania), Strengthening Trust in Government: everyone’s right to know – Review of Freedom of Information Act 1991 Directions Paper (Department of Justice: 2008).
Department of Premier and Cabinet (NSW), Companion Guide: Open Government Information – FOI Review in New South Wales (Sydney: DPC, May 2009).
Department of Prime Minister & Cabinet (PM&C), FOI Reform Public Forum, Canberra, 7 May 2009.
- Budget: Portfolio Budget Statements 2009-10, Budget Related Paper No 1.1 5A (Canberra: PM&C Portfolio, 2009).
- Freedom of Information (FOI) Reform Companion Guide (Canberra, 2009).
Roger Douglas & Melinda Jones, Douglas & Jones’s Administrative Law (Annandale, NSW: Federation Press, 2006, 5th ed).
Frank Essier, Carsten Reinemann & David Fann ‘Spin Doctoring in British and German Election Campaigns’ (2000) 15(2) European Journal of Communication 209.
Senator John Faulkner, Letter to Secretaries of Federal Agencies (Canberra: Department of Prime Minister & Cabinet, 30 April 2009a).
- Panel Discussion: Australia’s Right to Know Freedom of Speech Conference (Speech Transcript, 24 March 2009b).
Matthew Flinders ‘Freedom of Information and Open Government in the UK’ in A. Sobanska, (ed.) Freedom of Information: A Comparative Perspective (Warsaw: PMC, 2001).
FOI Independent Review Panel, The Right to Information: Reviewing Queensland’s Freedom of Information Act (June 2008).
Jack Herman ‘Reform FoI’ (2004) 16(4) Australian Press Council News, November, 1.
- ‘The urgent need for reform of Freedom of Information in Australia’ (Speech: Australian Press Council, Right to Know Conference, 21 August 2004), at 3.
Graeme Johnson (Freehills), Amendments to the Freedom of Information Act 1982 (Cth),
26 March, 2009 <http://www.freehills.com.au/4791.aspx> (accessed 28 March, 2009).
Seth Kreimer ‘The Freedom of Information Act and the Ecology of Transparency’ (2008) 10(5) The University of Pennsylvania Journal of Constitutional Law 1011.
J MacDonald and C H Jones, The Law of Freedom of Information (London: Oxford University Press, 2003).
Maeve McDonagh ‘FOI in Ireland and Europe: Progress and Regression’ (2001) 29 International Journal of Legal Information 256.
Susan Nevelow Mart ‘The Internet’s Public Domain: Access to Government Information on the Internet’ (2009) 12 Journal of Internet Law (forthcoming).
Denis O’Brien ‘Freedom of Information Law in Need of Overhaul’ (2005) Public Sector Informant, 1 March, Canberra, 1.
Ombudsman Victoria, Review of the Freedom of Information Act – Report of Ombudsman of Victoria (Victorian Government Printer, June 2003).
Moira Paterson ‘The Media Access to Government-held Information in a Democracy’ (2008) 8 Oxford University Commonwealth Law Journal 3, at 3.
- Freedom of Information and Privacy in Australia: government and information access in the modern state (Sydney: Lexisnexis Butterworths, 2005).
New South Wales Ombudsman, Discussion paper: review of the Freedom of Information Act 1989 (NSW Ombudsman, 2008).
New Zealand Committee on Official Information (Danks Committee), Towards Open Government (Government Printer, Wellington: 1980).
Yoram Rabin & Roy Peled ‘Between FOI Law and FOI Culture: The Israeli Experience’ (2005) 1(2) Open Government: a journal on Freedom of Information 1.
Alasdair Roberts ‘Less Government, More Secrecy: Reinvention and the Weakening of Freedom of Information Law’ (2000) 60(4) Public Administration Review 298-310.
John Roberts MP ‘Legislation on Public Access to Government Documents’ Green Paper (Canada: Ottawa Ministry of Supply and Services, 1977).
Senate Standing Committee on Constitutional and Legal Affairs, Report on the Freedom of Information Bill 1978 and Aspects of the Archives Bill 1978 (Canberra: Australian Government Publishing Service, 1979).
Rick Snell, Administrative Compliance and Freedom of Information in Three Jurisdictions: Australia, Canada and New Zealand, Paper presented at the Freedom of Information - One Year On Conference (23 April 1999, Dublin), at 1: <http://www.ucc.ie/law/foi/conference/snell99.html> (accessed 10 April, 2009).
- ‘The Kiwi Paradox: A Comparison of Freedom of Information in Australia and New Zealand’ (2000) 28 Federal Law Review 575.
- ‘Using Comparative Studies to Improve Freedom of Information Analysis: Insights from Australia, Canada and New Zealand’ University of Tasmania Law School Paper (2004): < www.bibliojuridica.org/libros/5/2404/5.pdf> (accessed 10 April, 2009).
FOI reform and media access to government information
- ‘Releasing the potential of FOI – Making the transition from FOI version 1.0 to version 2.0’ Paper presented at the University of Tasmania, November 2008 <www.ricksnell.com.au/Articles/Ottawa%20Info%20Comm.ppt> (accessed 1 May 2009).
- & Peter Sebina ‘Information Flows: the real art of Information Management and Freedom of Information’ (2007) 35(1) Archives and Manuscripts 55.
David Solomon AM, The Right to Information: Reviewing Queensland’s Freedom of Information Act, The report by the FOI Independent Review Panel (Queensland: 2008).
J J Spigelman, Secrecy: Political Censorship in Australia (Sydney: Angus & Robertson: 1972).
Standing Committee on Justice and Solicitor General on the Review of the Access to Information Act and the Privacy Act, Open and Shut: Enhancing the Right to Know and the Right to Privacy (Queen’s Printer of Canada: Ottawa, 1987).
- Report of the Access to Information Review Task Force, Access to Information: Making
it Work for Canadians (Queen’s Printer of Canada: Ottawa, 2002).
Rhys Stubbs ‘Freedom of Information and Democracy in Australia and Beyond’ (2008) 43(4) Australian Journal of Political Science 667.
Peter Timmins ‘Who knows what parliamentarians do with our money?’ Open and shut (blog) <http://www.foi-privacy.blogspot.com/> (accessed 10 May, 2009).
- Submission to the Department of Prime Minister and Cabinet Privacy and FOI Policy Branch – Submission on the Exposure Drafts (15 May, 2009)
<http://www.fileden.com/files/2009/4/7/2394470/Freedom%20of%20Information%20 Reform[1].pdf> (accessed: 18 May, 2009).
John Wadham, Jonathan Griffiths and Kelly Harris, Blackstone’s Guide to the Freedom of Information Act 2000 (New York: Oxford University Press, 2000).
Paula Walker ‘The Western Australian FoI experience 1996-1998 – any lessons for reform?’ (1999) 79 FOI Review 7.
Nigel Waters, Print Media Use of Freedom of Information Laws in Australia (Australian Centre for Investigative Journalism, 1999).
Legislation
Electronic Freedom of Information Act Amendments of 1996, Pub. L. No. 104-231 §8, 110 Stat. 2048.
Freedom of Information Act 1982 (Cth).
Freedom of Information Act 1989 (NSW).
Freedom of Information Act 1982 (Vic).
Freedom of Information Act 1992 (Qld).
Freedom of Information Act 1992 (WA).
Freedom of Information Act 1991 (Tas).
Freedom of Information Act 1991 (SA).
Freedom of Information Act 1989 (ACT).
Freedom of InformationAct, 5 U.S.C. § 552 (1986).
Freedom of Information Act 2000 (UK).
Freedom of Information Amendment (Open Government) Bill 2003 (Cth).
Freedom of Information (Open Government) Bill 2001 (Cth).
Freedom of Information Amendment (Reform) Bill 2009 (Cth).
Information Commissioner Bill 2009 (Cth).
Open Government Information Bill 2009 (NSW).
Right to Information Bill (2004) (India).
Cases
Austin v Deputy Secretary, Attorney-General’s Department (1986) 67 ALR 585. Attorney-General v Times Newspapers [1974] A.C. 273
Cleary and Dept of the Treasury [1993] AATA 248; (1993) 31 ALD 214.
Commissioner of Police v District Court of NSW (1993) 3 NSWLR 606.
Haneef and Department of Immigration and Citizenship [2008] AATA 587.
Kavvadias v Commonwealth Ombudsman (No 1) [1984] FCA 55; (1984) 1 FCR 80.
McKinnon v Secretary, Department of Treasury (2006) HCA 45.
National Parks Association New South Wales Inc v Department of Lands [2005] NSW ADT 124.
News Corporation Ltd v National Companies and Securities Commission (1984) 57 ALR 550.
Re Eccleston and Dept of Family Services and Aboriginal and Islander Affairs [1993] QICmr 2; (1993) 1 QAR 60.
Re Fewster and the Dept of the Prime Minister and Cabinet (No. 2) (1987) 13 ALD 139.
Re Howard and the Treasurer of Australia (1985) 7 ALD 645.
Re Porter and the Dept of Community Services and Health (1988) 14 ALD 403.
Re Reith and Minister of State for Aboriginal Affairs [1990] AATA 20; (1988) 20 ALD 264.
Endnotes
[*] Tristan Robinson's article won the AIAL 2009 Essay Prize, when he was a final year LLB student at the University of Sydney. He is about to commence a Master of Laws at Columbia University, NY.
[1] Freedom of Information Act 1982 (Cth); Freedom of Information Act 1989 (NSW); Freedom of Information Act 1982 (Vic); Freedom of Information Act 1992 (Qld); Freedom of Information Act 1992 (WA); Freedom of Information Act 1991 (Tas); Freedom of Information Act 1991 (SA); Freedom of Information Act 1989 (ACT).
[2] This rationale was articulated by the Senate Standing Committee on Constitutional and Legal Affairs, Report on the Freedom of Information Bill 1978 and Aspects of the Archives Bill 1978 (Canberra: Australian Government Publishing Service, 1979).
[3] John Wadham, Jonathan Griffiths and Kelly Harris, Blackstone’s Guide to the Freedom of Information Act 2000 (New York: Oxford University Press, 2000) at 2.
[4] Re Eccleston and Dept of Family Services and Aboriginal and Islander Affairs [1993] QICmr 2; (1993) 1 QAR 60, 82. The democratic basis of freedom of information legislation has been acknowledged by the Administrative Appeals Tribunal: Cleary and Dept of the Treasury [1993] AATA 248; (1993) 31 ALD 214, at 217-18. New South Wales Ombudsman, Discussion paper: review of the Freedom of Information Act 1989 (NSW Ombudsman, 2008), at 27.
[5] NSW Ombudsman, above n4, at 86.
[6] Moira Paterson ‘The Media Access to Government-held Information in a Democracy’ (2008) 8 Oxford University Commonwealth Law Journal 3, at 4. See J J Spigelman, Secrecy: Political Censorship in Australia (Sydney: Angus & Robertson: 1972), at 5.
[7] Attorney-General v Times Newspapers [1974] A.C. 273, at 315 (Lord Simon of Glaisdale).
[8] Moira Paterson (2008), above n6, at 4.
[9] Australia’s Right to Know, Report of the Independent Audit into the State of Free Speech in Australia (Canberra: 2007), at 3.
[10] Ibid.
[11] Australian Law Reform Commission and Administrative Review Council, ALRC/ARC Report 77 – Open Government: a review of the federal Freedom of Information Act 1982 (ALRC, 1995).
[12] ALRC/ARC, above n11, quoted in Rick Snell & Peter Sebina ‘Information Flows: the real art of Information Management and Freedom of Information’ (2007) 35(1) Archives and Manuscripts 55, at 59.
[13] Senator John Faulkner, Letter to Secretaries of Federal Agencies (Canberra: Department of Prime Minister & Cabinet, 30 April 2009a), at 1.
[14] There have been a few recent attempts at reform put forward by Senator Andrew Murray, including the Freedom of Information (Open Government) Bill 2001 (Cth) and the Freedom of Information Amendment (Open Government) Bill 2003 (Cth).
[15] Paula Walker ‘The Western Australian FoI experience 1996 -1998 – any lessons for reform?’ (1999) 79 FOI Review 7. Nigel Waters, Print Media Use of Freedom of Information Laws in Australia (Australian Centre for Investigative Journalism, 1999).
[16] Stephen Lamble draws this conclusion, although he does not specify the number of media requests versus public requests for these two jurisdictions. Stephen Lamble ‘Media use of FoI surveyed: New Zealand puts Australia and Canada to shame’ (2004) 109 FOI Review 5, at 8.
[17] J MacDonald and C H Jones, The Law of Freedom of Information (London: Oxford University Press, 2003), at [9.10].
[18] Moira Paterson, Freedom of Information and Privacy in Australia: government and information access in the modern state (Sydney: LexisNexis Butterworths, 2005), at 499.
[19] ALRC/ARC, above n11.
[20] Yoram Rabin & Roy Peled ‘Between FOI Law and FOI Culture: The Israeli Experience’ (2005) 1(2) Open Government: a journal on Freedom of Information 1, at 39.
[21] Ibid.
[22] Maeve McDonagh ‘FOI in Ireland and Europe: Progress and Regression’ (2001) 29 International Journal of Legal Information 256, at 264.
[23] Patrick Birkinshaw, Freedom of Information: The Law, the Practice and the Ideal (London: Weidenfeld and Nicholson, 1988), at 238.
[24] FOI Independent Review Panel, The Right to Information: Reviewing Queensland's Freedom of Information Act (June 2008), at 17.
[25] The Government has indicated that it intends to introduce both Bills in the forthcoming winter sitting period for Federal Parliament (ending 22 June, 2009). Department of Prime Minister & Cabinet (PM&C), FOI Reform Public Forum, Canberra, 7 May 2009.
[26] Ibid.
[27] ALRC 77, above n11, Recommendation 3.
[28] See the FOI Act, above n1, s 3.
[29] News Corporation Ltd v National Companies and Securities Commission (1984) 57 ALR 550, at 559 (Bowen CJ & Fisher J); Kavvadias v Commonwealth Ombudsman (No 1) [1984] FCA 55; (1984) 1 FCR 80; Austin v Deputy Secretary, Attorney-General’s Department (1986) 67 ALR 585. P Bayne & K Rubenstein ‘The Objects of the Freedom of Information (FOI) Acts and their Interpretation’ (1995) 2 Australian Journal of Administrative Law 114, at 116.
[30] Moira Paterson (2005), above n18, at 42.
[31] See the New Zealand Committee on Official Information (Danks Committee), Towards Open Government (Government Printer, Wellington: 1980), at 20 .
[32] Freedom of Information Amendment (Reform) Bill 2009 (Cth), ss 3(2)(a)-(b).
[33] Rhys Stubbs ‘Freedom of Information and Democracy in Australia and Beyond’ (2008) 43(4) Australian Journal of Political Science 667, at 675. Compare Commissioner of Police v District Court of NSW (1993) 3 NSWLR 606 at 639 (Kirby P).
[34] Reform Bill, above n31, s 3(3).
[35] Rick Snell, Administrative Compliance and Freedom of Information in Three Jurisdictions: Australia, Canada and New Zealand, Paper presented at the Freedom of Information - One Year On Conference (23 April 1999, Dublin), at 1: <http://www.ucc.ie/law/foi/conference/snell99.html> (accessed 10 April 2009).
[36] Reform Bill, above n31, s 3(1)(a).
[37] Senator John Faulkner, Panel Discussion: Australia’s Right to Know Freedom of Speech Conference (Speech Transcript, 24 March 2009), at 1.
[38] Information Commissioner Bill (2009) Cth, s 4.
[39] Id, s 10.
[40] Id, s 10(a).
[41] Jack Herman ‘Reform FoI’ (2004) 16(4) Australian Press Council News, November, 1, at 5.
[42] Senator John Faulkner (2009b), above n36, at 1. Senator John Faulkner (2009a), above n13, at 1.
[43] Commissioner Bill, above n37, s 10(d).
[44] Id, s 10(j).
[45] Recommendation 19, ALRC 77, above n11.
[46] Commissioner Bill s 33 provides that the Commissioner must prepare an annual report for the Minister on the operations of the Office of the Information Commissioner, but the Commissioner is not required to report upon the specific operations and FOI compliance of individual agencies. David Solomon AM, The Right to Information: Reviewing Queensland's Freedom of Information Act, The report by the FOI Independent Review Panel (Queensland: 2008), at 6.
[47] For example, the Western Australian Commissioner has established an ‘FOI Standards and Performance Measures’ guide to encourage administrative compliance with FOI. See Office of the Information Commissioner Western Australia: <http://www.foi.wa.gov.au/> (accessed: 1 May 2009).
[48] See new Pt VIIB of the Reform Bill, above n31. However, the proposed investigatory powers of the NSW Commissioner are perhaps more robust, extending to the inquiry powers of a Royal Commission: Department of Premier and Cabinet (NSW), Companion Guide: Open Government Information – FOI Review in New South Wales (Sydney: DPC, May 2009), at 5.
[49] Reform Bill, above n31, s 89A(2). The only substantive offences created by the Reform Bill are: an offence for a failure to comply with a notice to produce a document for the purposes of an investigation (s 79(5)) or review (s 55Q(5)) and an offence for a failure to comply with a notice to appear before the Commissioner to answer questions for the purposes of an investigation (s 82(3)) or review (s 55V(3)).
[50] Open Government Information Bill 2009 (NSW) (OGI Bill), Part 6, Division 2, clauses 111-15. The Freedom of Information Act, 5 U.S.C. § 552 (1986) also makes it an offence to improperly withhold documents from disclosure. See also the Indian Right to Information Bill (2004), s 17.
[51] Peter Timmins, Submission to the Department of Prime Minister and Cabinet Privacy and FOI Policy Branch – Submission on the Exposure Drafts (15 May, 2009) <http://www.fileden.com/files/2009/4/7/2394470/Freedom%20of%20Information%20Reform[1].pdf> (accessed: 18 May 2009).
[52] The budget allocation for the establishment and ongoing operation of the Office of the Information Commissioner is: $2.961 million in 2009-10, $4.982 million in 2010-11, $5.031 million in 2011-12 and $5.080 million in 2012-13. Whether these sums will be adequate remains to be seen. Department of Prime Minister & Cabinet, Budget: Portfolio Budget Statements 2009-10, Budget Related Paper No 1.15A (Canberra: PM&C Portfolio, 2009), at 25.
[53] Recommendation 7, ALRC 77, above n11 . Commonwealth Ombudsman, Needs to know: Report on investigation of administration of FOI in Commonwealth agencies (Commonwealth Ombudsman, Canberra: 1999), at 1: noting that because of limited staffing resources, the Ombudsman was not able to fulfil its broad legislative mandate to monitor agency compliance with the FOI Act. In turn, the Act was amended in 1991 to limit the role of the Ombudsman to the investigation of FOI complaints.
[54] Reform Bill, above n31, s 8(1)(h).
[55] Id, s 8(1)(g).
[56] Roger Douglas & Melinda Jones, Douglas & Jones's Administrative Law (Annandale, NSW: Federation Press, 2006, 5th ed.), at 116.
[57] Matthew Flinders ‘Freedom of Information and Open Government in the UK’ in A. Sobanska, A (ed.) Freedom of Information: A Comparative Perspective (Warsaw: PMC, 2001), at 79.
[58] Reform Bill, above n31, s 9A.
[59] Id, s 93A: ‘The Information Commissioner may, by instrument in writing, issue guidelines’ [emphasis added]. This issue was raised at the PM&C, FOI Reform Public Forum, above n25.
[60] Freedom of Information Act 2000 (UK), s 19.
[61] Department of Justice (State of Tasmania), Strengthening Trust in Government: everyone’s right to know – Review of Freedom of Information Act 1991 Directions Paper (Department of Justice: 2008), at 11.
[62] Susan Nevelow Mart ‘The Internet’s Public Domain: Access to Government Information on the Internet’ (2009) 12 Journal of Internet Law (forthcoming), at 16.
[63] OGI Bill, above n49, clauses 6,18 and 20-22. Department of Premier and Cabinet (NSW), above n47, at 11.
[64] Freedom of Information Act, 5 U.S.C. § 552 (1986). A similar publishing scheme exists in Mexico, see: the Federal Institute for Access to Public Information in Mexico, 'ZOOM’ database, cited in Benjamin Bogado, Emilene Martinez-Morales, Bethany Noll and Kyle Bell, The Federal Institute for Access to Information and a Culture of Transparency (IFAI), a Follow-up Report (University of Pennsylvania, Annenberg School of Communications, 2007), at 4. David Solomon AM, above n45, at 230.
[65] Id, at 234.
[66] Seth Kreimer ‘The Freedom of Information Act and the Ecology of Transparency’ (2008) 10(5) The University of Pennsylvania Journal of Constitutional Law 1011, at 1025.
[67] Id, at 1027.
[68] Commonwealth Ombudsman, above n51, at 12.
[69] FOI Act, above n1, s 35.
[70] Id, s 47.
[71] Jack Herman ‘The urgent need for reform of Freedom of Information in Australia’ (Speech: Australian Press Council, Right to Know Conference, 21 August 2004), at 3.
[72] ALRC 77, above n1 1, at para [9.7].
[73] Reform Bill, above n31, s 34(1)(a).
[74] ALRC 77, above n11 , at para [9.9]. Rick Snell ‘The Kiwi Paradox: A Comparison of Freedom of Information in Australia and New Zealand’ (2000) 28 Federal Law Review 575, at 595.
[75] This problem has been cited frequently in case law, for example: National Parks Association New South Wales Inc v Department of Lands [2005] NSW ADT 124. Compare: Re Fewster and the Dept of the Prime Minister and Cabinet (No. 2) (1987) 13 ALD 139; Re Porter and the Dept of Community Services and Health (1988) 14 ALD 403; Re Reith and Minister of State for Aboriginal Affairs [1990] AATA 20; (1988) 20 ALD 264.
[76] A class classification assumes that a document is exempt if it falls within a defined class of documents irrespective of whether disclosure would have a harmful effect upon government operations. See Moira Paterson (2005), above n18.
[77] 1982 (NZ), ss2(1), 6, 7, 9, 27.
[78] These provisions require an examination of the nature of the information at issue and the likely consequences of disclosure before a document can be claimed as exempt.
[79] Robert Buchanan ‘Cabinet, policy documents and freedom of information: the New Zealand experience’ (1991) 31 FOI Review 2, at 2.
[80] Note that under the reform proposals, a ‘class’ classification still applies for documents affecting national security, defence or international relations (Reform Bill, above n31, s 33).
[81] Australia’s Right to Know, above n9, at 4.
[82] Senator John Faulkner (2009a), above n13, at 2.
[83] Ibid.
[84] Jack Herman, above n69, at 3.
[85] Peter Timmins ‘Who knows what parliamentarians do with our money?’ Open and shut (blog) <http://www.foiprivacy.blogspot.com/> (accessed 10 May 2009). Although information concerning travel allowance payments is reported twice yearly by the Department of Finance and Deregulation, the detail is limited and travel at government expense by spouses and dependants is not reported.
[86] Report of the Standing Committee on Justice and Solicitor General on the Review of the Access to Information Act and the Privacy Act, Open and Shut: Enhancing the Right to Know and the Right to Privacy (Queen’s Printer of Canada: Ottawa, 1987). Report of the Standing Committee on Justice and Solicitor General, Report of the Access to Information Review Task Force, Access to Information: Making it Work for Canadians (Queen’s Printer of Canada: Ottawa, 2002).
[87] ALRC 77, above n11, at [11.8]
[88] Reform Bill, above n31, ss47B–47J. This is to be applied to all conditional exemptions under s 11A(5).
[89] Reform Bill, above n31, s11B. Department of Prime Minister and Cabinet, Freedom of Information (FOI) Reform Companion Guide (Canberra, 2009) (PM&C Companion Guide), at 11.
[90] ALRC 77, above n11.
[91] Reform Bill, above n31, s 11A(5).
[92] Judith Bannister ‘Case Notes: McKinnon v Secretary, Department of Treasury – The Sir Humphrey Clause, Review of Conclusive Certificates in Freedom of Information Applications’ [2006] MelbULawRw 30; (2006) 30 Melbourne University Law Review 961, at 965.
[93] At present, the requirement that an agency or Minister that refuses access to a document on the grounds of a conditional exemption must identify the public interest factors taken into account in the decision only applies to the internal working documents exemption (s36). The Reform Bill extends this requirement to all conditional exemptions.
[94] Reform Bill, above n31, s 11B(3)(a).
[95] Reform Bill, above n31 s 11B(3)(b).
[96] (2006) HCA 45, at [54]-[56] (Hayne J).
[97] Re Howard and the Treasurer of Australia (1985) 7 ALD 645.
[98] Reform Bill, above n31, s11B(4)(a).
[99] Reform Bill, above n31, s11B(4)(d).
[100] These factors include: that advice to Ministers or other senior officers or free expression of opinion, if disclosed, would hamper the flow of advice from bureaucrats or others if they thought this advice could be subject to later scrutiny; disclosure would mean officers would be reluctant to record sensitive issues; and disclosure would inhibit full and frank discussions and may leave some people reluctant to record an opinion or provide advice: Haneef and Department of Immigration and Citizenship [2008] AATA 587, at [4] (Tamberlin J).
[101] A document is conditionally exempt if its disclosure would involve ‘the unreasonable disclosure of personal information about any person’ [emphasis added]: Reform Bill, above n31, s 47F(1).
[102] A document containing trade secrets or other information having commercial value is conditionally exempt if it: ‘would, or could reasonably be expected to, unreasonably affect that person adversely in respect of his or her lawful business or professional affairs’ [emphasis added]: Reform Bill, above n31, s 47G(c)(i).
[103] ALRC 77, above n1 1, at 95.
[104] Reform Bill, above n31, Part VII.
[105] Reform Bill, above n31, s 57(2).
[106] PM&C, FOI Reform Forum, above n25.
[107] Rick Snell (2000), above n72, at 595.
[108] ARLC77, above n1 1, Recommendation 83. The right to an internal review is made optional in the proposed NSW Bill: Open Government Bill 2009 (NSW), ss 84(2), 95. Both Canada and New Zealand have gone further, deliberately rejecting the need for an internal review and only providing for external review: Rick Snell (2000), above n74, at 580.
[109] David Solomon AM, above n45, at 4.
[110] Ibid.
[111] Robin Banks, Submission on the Freedom of Information (Removal of Conclusive Certificates and Other Measures) Bill 2008 (Cth): Public Interest Advocacy Centre (7 January 2007), at 2.
[112] Ibid.
[113] Frank Essier, Carsten Reinemann & David Fann ‘Spin Doctoring in British and German Election Campaigns’ (2000) 15(2) European Journal of Communication 209, at 212. [114] Rick Snell, ‘Using Comparative Studies to Improve Freedom of Information Analysis: Insights from Australia, Canada and New Zealand’ University of Tasmania Law School Paper (2004): www.bibliojuridica.org/libros/5/2404/5.pdf (accessed 10 April 2009), at 47.
[115] Gold Coast Bulletin submission to the FOI Independent Review Panel discussion paper, at 1, quoted in David Solomon AM, above n45, at 233.
[116] See Australia’s Right to Know, above n9.
[117] Denis O’Brien ‘Freedom of Information Law in Need of Overhaul’ (2005) Public Sector Informant, 1 March , Canberra, 1, at 6.
[118] See the Senate Standing Committee on Constitutional and Legal Affairs, above n2, at 37.
[119] Andrew McDonald & Greg Terrill (eds.) Open Government: freedom of information and privacy (Basingstoke, UK: McMillan, 1998), at 108.
[120] PM&C Companion Guide, above n87, at 10.
[121] Moira Paterson (2008), above n6, at 3.
[122] ALRC 77, above n11 .
[123] Freedom of Information Amendment (Open Government) Bill2003 (Cth), Schedule 1, clause 18-19.
[124] Compare the OGI Bill , above n49, clause 63 - which affords applications for which there is a special public benefit a 50% discount on processing fees.
[125] John Roberts MP ‘Legislation on Public Access to Government Documents’ Green Paper (Canada: Ottawa Ministry of Supply and Services, 1977) at 21.
[126] Alasdair Roberts ‘Less Government, More Secrecy: Reinvention and the Weakening of Freedom of Information Law’ (2000) 60(4) Public Administration Review 298, at 302.
[127] FOI Act, above n1, s15. Australia’s Right to Know, above n9, at 8.
[128] PM&C, FOI Reform Public Forum, above n25.
[129] Recommendation 31, ALRC 77, above n3. The time period for dealing with initial applications in the OGI Bill is 20 working days: above n49, clause 54.
[130] Reform Bill, above n31, ss 15(6)-(7); s 15AA.
[131] Compare the Freedom of Information Act, 5 U.S.C (1986) §552(a)(6)(E)(i)(I) (2000), as amended by the Electronic Freedom of Information Act Amendments of 1996, Pub. L. No. 104-231 §8, 110 Stat. 2048: which provides that expedited processing is available where the requester ‘demonstrates a compelling need’. This can be demonstrated by ‘a person primarily engaged in disseminating information’ who shows an ‘urgency to inform the public concerning actual or alleged Federal Government activity’. The Regulations also provide expedited processing for matters ‘of widespread and exceptional media interest in which there exist possible questions about the government’s integrity which affect public confidence’: 28 C.F.R. § 16.5(d)(1)(iv) (2006).
[132] Official Information Act (1982) (NZ), s12. Freedom of Information Act 5 U.S.C (1986) §552(a)(6)(E)(v)(II).
[133] Moira Paterson (2008), above n6, at 3.
[134] Rick Snell & Peter Sebina, above n12, at 58.
[135] PM&C, FOI Reform Public Forum, above n25 .
[136] Reform Bill, above n31, ss 26A, 27, 27A and 43(1)(c).
[137] The conditional exemptions include: documents affecting inter-governmental relations (s 47B); documents affecting personal affairs (s 47F); documents affecting business affairs (s 47G); and documents affecting conduct of research (s47H): Reform Bill, above n31.
[138] Graeme Johnson (Freehills), Amendments to the Freedom of Information Act 1982 (Cth), 26 March, 2009 <http://www.freehills.com.au/4791.aspx> (accessed 28 March, 2009), at 1.
[139] For example, the Victorian Ombudsman has recommended that to assist in the more timely processing of requests, businesses should be given a maximum of seven days to respond to consultations regarding the disclosure of documents concerning their business affairs: Ombudsman Victoria, Review of the Freedom of Information Act – Report of Ombudsman of Victoria (Victorian Government Printer, June 2003), at 114.
[140] Rick Snell ‘Releasing the potential of FOI – Making the transition from FOI version 1.0 to version 2.0’ Paper presented at the University of Tasmania, November 2008 <www.ricksnell.com.au/Articles/Ottawa%20Info%20Comm.ppt> (accessed 1 May 2009), at 1.
[141] New Zealand Committee on Official Information (Danks Committee), above n30, at 5.
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