FUTURE DIRECTIONS IN FREEDOM OF INFORMATION

The ALRC Proposes a New Approach

The Australian Law Reform Commission is currently in the final stages of its 18 month review of the Commonwealth's Freedom of Information Act 1983.

In this article Margaret Ryan draws together some of the important issues and outlines the major proposals in Discussion Paper 59 (DP 59), released in June 1995.

In the 13 years the Commonwealth's Freedom of Information (FOI) Act has been in operation it has had a marked impact on the way agencies make decisions and record information. Along with other elements of administrative law, the Act has focused decision-makers' minds on the need to base decisions on relevant factors and to record the decision making process.

Despite this positive impact there are deficiencies in the current FOI system. These include:

• an unsupportive culture in some agencies
• prohibitive costs in some cases
• the tendency for requests to develop quickly into legalistic, adversarial contests
• the lack of an advocate for FOI.

Given the similarities between the federal and State FOI Acts, this review has relevance and interest beyond the federal sphere. Both the NSW and the Tasmanian FOI Acts are currently under review. The Review was specifically asked to examine developments in Queensland and Western Australia, the last two States to introduce FOI legislation.

The place of FOI in our system of government

Release of information under the FOI Act is not the only way government-held information is disclosed. Agencies publish information, Ministers issue press releases, politicians ask questions in Parliament and agencies sometimes release information on request without the formality of an FOI application.

New technology is affecting the community's expectations about the ease of access to government information.

The Review proposes the greatest openness possible, with the FOI Act being more of a legal underpinning rather than a principal means of access. At present, FOI applications are frequently treated in a highly legalistic, adversarial way rather than in a spirit of openness.

FOI must also be acknowledged as a fundamental part of representative democracy, not just an extra' to be complied with at the whim of the agency. The importance of information in a representative democracy has been acknowledged by the High Court (eg the 1992 cases of Nationwide News v Wills and Australian Capital Television v The Commonmwealth).

The way in which agencies administer the Act should improve if they understand the significance of FOI and the philosophy behind it. The Review proposes a preamble and an amendment to the objects clause of the Act to emphasise the essential role of FOI and to ensure that the Act is explicitly pro-disclosure. This will affect the interpretation of the Act, particularly the exemptions, where there is room for discretion in assessing the public interest. It should also make the Act less vulnerable to amendments that might weaken it.

Culture of agencies

It is important, therefore, that staff (and not just those who are designated FOI officers) receive adequate training and have a good understanding of the philosophy of the FOI Act. There is a particular need for small agencies to have access to advice.

It is also important that officers have a clear understanding of their responsibilities and obligations regarding disclosure of government-held information.

Independent monitor

The Review proposes that there should be an independent monitor with responsibility for ensuring that agencies are administering the Act correctly - not just in a legal sense but also in the spirit of openness that the Act is designed to achieve.

The monitor should also be responsible for educating agencies, for promoting the Act in the community and for issuing guidelines to help both agencies and applicants. When agencies and applicants are more informed and communication between them is increased applications are less likely to develop into adversarial, legalistic battles. Who should perform this monitoring role? Options include setting up a new office or expanding the current role of the Commonwealth Ombudsman.

Exemptions

Undoubtedly there is a need for exemptions to the general right of access to government-held information. Exemptions protect, for example, the privacy of individuals, the commercial interests of businesses and the security of Australia. What is important, however, is that an exemption is only claimed when real harm will be caused by disclosure.

Public interest test

It would benefit both agencies and applicants, however, if some guidance were provided on what constitutes the public interest. The Review heard from a number of applicants who had no idea how to go about arguing a public interest case. Agencies currently have the benefit of memos issued by the Attorney-General's Department.

The proposed independent monitor could, for example, issue guidelines on factors that may or may not be relevant to assessing the public interest. An example of a factor that should not be taken into account is whether disclosure would cause embarassment to the government or the public servants involved.

Cabinet documents

The Review considers that this class exemption should be retained, but the scope of the exemption should be confined. The exemption should only apply to Cabinet documents that are less than 20 years old and should only be available for documents that were created for Cabinet. Wheeling a document through the Cabinet room does not make a document worthy of exemption.

Uniformity with State and ACT FOI exemptions

Fees and charges

One benefit of charges is that they encourage focussed requests and discourage fishing expeditions'. There comes a point, however, when one must ask whether the cost of obtaining information becomes an unacceptable barrier to what is, after all, a fundamental part of our system of democracy.

There is no doubt that FOI imposes costs on agencies - approximately $12-14 million each year. It is impossible to tell, however, how much of these costs are self-induced', for example, those relating to internal review and AAT review when the agency should have released the information in the first place.

In the Review's opinion, the issue of reducing the cost of administering the Act is just as important an issue as sharing the cost of administering the Act. This will require agencies to take advantage of the latest technology and records management techniques to ensure that information is as easy (and as cheap) as possible to retrieve.

Review mechanisms

Internal review

AAT review

The main change is that certain members will be nominated to handle the AAT's FOI cases. They will become involved from the time an appeal is lodged. These members will presumably develop expertise in FOI and be more able to keep abreast of relevant decisions and amendments. The Review considers that these changes, if successful, would justify leaving the AAT to continue as the sole determinative review body for FOI.

A major deficiency in current AAT review is that the AAT does not have access to a document in dispute until the time of the hearing. Unless the respondent agency agrees to give to the AAT the document(s) claimed to be exempt, preliminary conferences are conducted without the AAT having seen the disputed document. This reduces the likelihood of an early resolution of a dispute. The AAT should be able to require the production of disputed documents as soon as an FOI appeal is lodged.

Government Business Enterprises

• a legal entity separate from the government
• principally involved in commercial activities
• controlled by the government.

Private sector

No FOI extension

However, where there is a need for particular information in the private sector, or in a particular part of the private sector, to be made accessible and this should be provided for by specific legislation.

Privacy protection needed

This privacy protection is needed in the private sector as well as in the public sector. People should be able to get access to their personal information (eg medical records) held in the private sector and to change it if it is incorrect. Private sector bodies need to be mindful of the importance of handling personal information in a way that does not infringe people's privacy.

Privacy protection would best be provided by extending the Privacy Act, rather than the FOI Act. Accordingly, the Review proposes that the Privacy Act be extended to the private sector.

It considers, however, that private sector bodies ought be given an opportunity to self-regulate. The Privacy Act should only become enforceable in a particular industry if the Privacy Commissioner has issued a code for that industry. This will give private sector industries an opportunity to introduce their own privacy protection codes to give effect to the Information Privacy Principles of the Privacy Act in a way that is relevant and appropriate to their industry.

Single Act

For example, both the FOI Act and the Privacy Act provide for access to and amendment of personal information. Given that well over 90% of FOI requests are for applicants' own personal information, the practical extent of this overlap is significant. Also, both those Acts restrict the disclosure of one person's personal information to another person. But the criteria by which they do this are different.

The question is whether the parts of these Acts that do not overlap could be sensibly and comfortably accommodated within a single Act.

The Review's time frame and resources prevent this idea being taken much beyond a proposal for further consideration. It seems, however, to be a sensible and consistent approach to government information to combine these three Acts.

Overseas interest

To obtain a copy of Discussion Paper 59 contact Bridie Healy on (02) 284 6304. A final report is due in December 1995.

An overview of the ALRC / ARC FOI Reform Proposals 1. The FOI Act should include a preamble stating that access to government held information is a right that is integral to our democratic system. The Act should be amended to make it explicitly pro-disclosure. 2. An independent person should be appointed to oversee and monitor the administration of the Act. This will encourage agencies to give FOI a higher priority than it is accorded at present. 3. Legislation dealing with government information practices needs to be rationalised. Eventually the FOI Act, Privacy Act and Archives Act should be combined into a single Act. 4. The FOI Act should not be extended to the private sector. If there is a need for disclosure in a particular area it should be required by specific legislation. The Privacy Act should be extended to cover the private sector by way of industry specific codes. The highest priority should be given to developing such a code for the private medical and health industry. 5. Fees and charges for FOI applications should not be set at a level that would constitute a barrier to genuine applications. Access to one's own personal information should be free. 6. The procedures for making an FOI request should be streamlined to be as straightforward and flexible as possible. The authority of public servants to disclose information should be clarified. 7. Exemptions to access under FOI must focus on whether disclosure would cause real harm. 8. A provision should be added to the Act to compel agencies to amend personal information that is incorrect, incomplete, out of date or irrelevant. 9. Government Business Enterprises should be subject to the FOI Act. Documents relating to their competitive commercial activities should, however, be exempt from disclosure. 10. Existing review mechanisms should be maintained and enhanced. The AAT should have immediate access to any documents in dispute.