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Tuesday, February 11, 2014

ACT FOI bill 'best of breed' so far

The draft ACT Freedom of Information Bill 2013 tabled by The Greens Shane Rattenbury last November for public consultation can lay claim (so far, and with no challengers in sight)) to the Australian 'best of breed' title, drawing as it does on reforms elsewhere in the 2007-2010 period.

Mr Rattenbury's support enabled the ALP to form government after the 2012 election. He is Minister for Territory and Municipal Services, Minister for Corrections, Minister for Housing, Minister for Aboriginal and Torres Strait Islander Affairs, Minister for Ageing. FOI might be beyond his portfolio responsibilities, but that didn't stop him taking this step.  It remains to be seen where this goes now - consultation closed on 1 February.

The Explanatory Memorandum describes a proposed shift from the current model (taken from the Commonwealth Freedom of Information Act 1982), to "a new scheme based on the Queensland Right to Information Act 2009 ( ‘RTI Act’) with some important changes to improve the efficacy of the scheme and further increase the availability of government information. As further background to the Bill regard should also be had to the Government Information (Public Access) Act 2009 (NSW) (‘GIPA Act’), the Right to Information Act 2009 (Tas) (‘TAS RTI Act’) as well as the reports by the FOI Independent Review Panel, The Right to Information; Reviewing Queensland’s Freedom of Information Act, 2008 (‘Solomon Report’) and the NSW Ombudsman,  Opening up Government: Review of the Freedom of Information Act 1989, Special Report to Parliament under s.31 of the Ombudsman Act 1974 (2009) (‘NSW Ombudsman report’)."

Highly commendable aspects of the bill, as set out in the explanatory memorandum include:

New objects set out "the values underpinning the Bill as well as the desired outcomes that will come about from the increased public availability of information." They draw on both the Solomon review and NSW Ombudsman recommendations. "The objects are intended to remove any confusion that may have previously existed in interpreting the provisions of different FOI schemes.  The objects make it unequivocally clear that the Assembly’s intention is that there is a bias towards disclosure and that there must be a clear and demonstrable public interest in preventing the release that outweighs the public interest in release for the particular document in question to be withheld from the public. Withholding information should be rare."

"The Bill removes the class based exemptions that exist under the current FOI scheme instead deeming a relatively small number of discrete categories of information to be contrary to the public interest to release."

"...decision makers are required to act in, or make a decision in, the public interest and  the public interest is the sole element of the test rather than being an additional or optional element of the decision."
"The object and purpose of the Bill is to improve public access to information, together with the requirement set out in clause 9 of the Bill means that the scales begin laden in favour of disclosure. The application of the public interest test begins from the premise that it is in the public interest to release the information, and in the absence of a demonstrable harm to the public interest occurring from the release of the information, information must be released."

"There will be times when the relevant public interest factors are finely balanced and it is possible to reasonably consider that information both would and would not be contrary to the public interest to release. In such a circumstance clause 9 of the Bill requires that the discretion available must be exercised in favour of release."

"... a much greater emphasis on the proactive disclosure of information without the need for a formal request for the particular information. Commonly referred to as the ‘push model’ for the provision of information, the Bill mandates that a range of information including policy documents, details about agency activities and budget as well as certain expert reports and from three years after they are written: incoming minister briefs, question time briefs and estimates and annual reports briefs.

"The Bill further imposes an obligation on government agencies to continually consider what additional information they can make proactively available and authorises agencies to provide information in response to informal requests for information to avoid the need to go through the formal FOI process. The intention is that requests for information under the application process in the Bill will become a last resort and that the community will have access to a much larger range of government information without the need for formal requests."

"...the Bill will override the provision of any other law that prohibits disclosure.
...an agency or Minister must assess the public interest in the disclosure of the particular information and is not prohibited from releasing information that is subject to a secrecy provision if the information is not on balance contrary to the public interest to release under the test set out in clause 17, or deemed by the Assembly to by contrary to the public interest to release in Schedule 1."

"The definition of information avoids the issue of actual v constructive possession and ensure that the scope of the information that is subject to the Bill extends to everything that an agency can access irrespective of where it is physically located, how it is stored or who is responsible for it."

...the definition of agency is designed to ensure that all government entities are subject to the FOI scheme created by the Bill."This extends to "any entity that the Government might create and that no entity can be excluded by regulation (see the dictionary). This definition is designed to implement the Solomon review recommendation 24 and ensure that the situation considered in Davis v City North Infrastructure Pty Ltd [2011] QSC 285 cannot arise in the ACT."

Information released must be published in the Disclosure log between 3-10 working days from the date the decision notice is given to the applicant.

A minister must publish information about all travel and hospitality expenses incurred by the Minister and the Minister’s staff and the Minister’s diary is to include "all the appointments that the Minister has had in relation to ministerial responsibilities. The intention is that the public should be able to see who the Minister engages with and how. The obligation includes everything that is related to the Minister’s functions as a Minister."

In addition to the information that each Minister must publish the Chief Minister "must also publish a summary of cabinet decisions and a copy of the corresponding triple bottom line assessments for the decisions. Some information relating to cabinet decisions is currently published at http://www.cmd.act.gov.au/open_government/inform/cabinet. The requirement in the Bill will expand the amount of information made available about cabinet decisions and improve the timeliness of disclosure.

The Bill creates a new scheme for the review of decisions. It removes the option for internal review and provides for two avenues for the review of decisions under the Bill; ombudsman review and ACAT review

The Bill also provides for: clearer timeframes for consideration of requests and disclosure of information; limits the circumstances in which the Minister or an agency is not required to confirm the existence of a document; clarifies that individual circumstances or the reasons that applicants may have for applying for access to information must not be considered by the decision maker; creates a new mechanism for dealing with vexatious and unreasonable requests; limits the scope of fees that can be charged for FOI requests; creates new offence provisions for destroying information and for improperly influencing decisions made under the Bill; updates definitions; and makes other practical changes to improve the efficient provision of government information to the community.

The "only variable upon which a fee may be determined is the amount of information provided to the applicant. This issue is referred to in both the Solomon Review and the ALRC Review. The clause attempts to strike a balance between recognising the right to information and the costs that are inevitably incurred in retrieving that information....Ensuring that there is no fee for processing time encourages agencies to be efficient. At the same time changing for the volume of material provided in response to the request recognises the relative workload associated with the application...The Bill does allow for application fees to be charged, however it also provides that the first 50 pages of information must be provided with no additional change."

(Declaration-I didn't manage a submission but offered a few observations when the staffer working up the draft contacted me a few times on the way through.)

2 comments:

  1. Steve1:40 pm

    I'm very suprised - the ACT bill reads like a wishlist for the Cth FOIA. It just keeps going as well - it must be making ACT public servants squirm.

    Any chance it'll be passed?

    ReplyDelete
  2. Steve, Don't know but seem to recall and can't now find something in the Canberra Times suggesting it was a bit rich for the ALP government's liking.

    ReplyDelete