08 Apr 2009

Restoring trust and integrity - What the FOI reforms will mean for Federal Government agencies

by Caroline Bush, Avinesh Chand

The reforms are intended to promote a pro-disclosure environment and encourage scrutiny of Federal Government policy and action.

On 24 March 2009, Cabinet Secretary and Special Minister of State, Senator John Faulkner released exposure drafts of the Information Commissioner Bill 2009 and the Freedom of Information Amendment (Reform) Bill (FOI Reform Bill).

The two bills, arising from the Government's 2007 election commitment to reform FOI laws, propose the most significant changes to FOI laws since their establishment 25 years ago. The reforms are intended to bring about a cultural shift in FOI practice and procedure. The stated aim is to promote a pro-disclosure environment and encourage scrutiny of Government policy and action.

This article outlines the basic elements of five of the key reforms proposed, namely, the establishment of the new Office of the Information Commissioner, the new Information Publication Scheme, the new merits review structure for FOI, changes to exemptions (including a stricter public interest test), and the extension of FOI to Commonwealth service providers.

A champion for FOI - the establishment of the Office of the Information Commissioner

Consistent with its policy leading up to the 2007 elections, the Government is proposing, pursuant to the Information Commissioner Bill, to create a new office of the Information Commissioner. It is proposed that the office of the Information Commissioner will be headed by the Information Commissioner and that the Information Commissioner will be supported by the Privacy Commissioner and a new FOI Commissioner.

The Privacy Commissioner and the FOI Commissioner, while working under the umbrella of the Information Commissioner, will be responsible for their respective functions under the Privacy Act and FOI Act.

The establishment of the independent statutory offices of the Information Commissioner and the FOI Commissioner is intended to result in a greater degree of supervision of the operation of the FOI Act. The promotion and implementation of a pro-disclosure culture across Government, as well as the facilitation of the effective operation of the FOI Act, are likely to be made possible by the functions and powers bestowed on the two new commissioners by the Information Commissioner Bill which include:

  • monitoring the operation of the FOI Act and acting as a clearing house for FOI matters and a hub for the promotion of the objects of the FOI Act
  • issuing guidelines on the administration of the FOI Act, promoting the objects of the FOI Act and administering training. It is intended that the Office of the Information Commissioner will be a resource for members of the public as well as Commonwealth agencies
  • acting upon complaints by members of the community and investigating agency compliance with the FOI Act. The Information Commissioner will also have "own motion" investigatory powers; and
  • on application by agencies, extending time for the processing of voluminous and complex FOI requests and limiting an FOI applicant's access to documents by declaring the FOI applicant to be vexatious in cases where the Information Commissioner is satisfied that the FOI application is an abuse of process or is manifestly unreasonable.

A pro-disclosure model for Government information - the establishment of the Information Publication Scheme

The FOI Reform Bill will require agencies to proactively publish information.

While Part II of the FOI Act as it currently stands contains some requirements for agencies to publish certain classes of documents and statements setting out particular information, the FOI Reform Bill proposes to extend this requirement to a wider class of information and documents. Importantly, agencies will have to publish:

  • information held by an agency to assist it to perform or exercise the agency's functions or powers in making decisions or recommendations affecting members of the public, for example an agency's rules, guidelines, practices and precedents
  • information held by an agency that is routinely provided to parliament in response to requests and orders from the Parliament; and
  • information which an agency routinely gives access to in response to requests under the FOI Act.

Such publication is to be undertaken on agency websites that will allow the information to be downloaded or inform the public how they can get access to the information.

Agencies will also be required to produce and publish plans setting out how they intend to comply with the new Information Publication scheme. In recognition of the significant effort required by agencies to identify and publish the necessary information it is proposed that the Information Commissioner may provide appropriate assistance to an agency in identifying and preparing information which is required or permitted to be published.

Not only will agencies need to publish the information that they "routinely" give access to, the proposed reforms also require them, subject to limitations to protect personal information, to publish information that has been disclosed pursuant to any specific FOI application within 10 working days of the initial disclosure.

This pro-disclosure approach to Government information will mean that agencies will have a greater responsibility for considering whether documents it holds should be published. The approach shifts the emphasis from agencies responding to requests for access to documents to agencies proactively publishing information unless it is against the public interest not to do so.

The new merits review structure for FOI - three tiers of merits review

The Information Commissioner will also undertake merits review of decisions by agencies and Ministers to refuse or grant access to documents under the FOI Act. It is intended that the Information Commissioner's review, which can only occur after internal review of the refusal decision, will be quick and less formal, with most matters being determined on the papers. While a hearing is not required, one can be conducted and the parties to a review can also request one.

Following review by the Information Commissioner, applicants and agencies will be able to seek AAT review if they wish. However, it is hoped is that the informal and efficient processes of the Information Commissioner's review will resolve the majority of FOI complaints without the need to proceed to more formal AAT merits review.

Following the Information Commissioner's decision, applicants will also be able to appeal to the Federal Court on questions of law.

In effect, the new review structure proposes three levels of merits review for FOI decisions with Federal Court appeal permitted following a decision by the Information Commissioner and the AAT.

A rationalisation of exemptions and the establishment of a new public interest test

The proposed reforms establish the concept of "conditionally exempt" documents. In essence, under the new Act, conditionally exempt documents will only be exempt if their disclosure would also be contrary to the public interest. The number of conditionally exempt documents is significant. They include those documents containing personal information, information about business affairs, the national economy and research as well as those documents containing matters relating to the deliberative processes of an agency, Minister or the Government (that is, those documents that used to fall within the old "working documents" exemption).

Importantly, the reforms specify particular factors that must not be taken into account when considering the public interest:

  • that access to the document that could result in embarrassment to the Government, or cause a loss of confidence in the Government
  • that access could result in the applicant misinterpreting or misunderstanding the document
  • that access to the document could result in confusion or unnecessary debate; and
  • that the author of the document was or is of high seniority.

The risk of confusion and misunderstanding has, in the past, been relied upon by agencies in support of arguments before Courts and the AAT that release of certain documents would be contrary to the public interest. The proposed reforms make it plain that such risks are no longer relevant.

A non-exhaustive list of factors which would favour disclosure in the public interest is also proposed to be included.

The FOI Reform Bill proposes to repeal the exemptions found in the FOI Act for Executive Council documents, documents arising out of companies and securities legislation and documents relating to the conduct of an agency of industrial relations. The FOI Reform Bill also proposes to reformulate the following exemptions to clarify its scope:

  • the national economy exemption found in the FOI Act will be reformulated to better reflect the economic responsibilities of the Government; and
  • the cabinet exemption will be reformulated to clarify that the exemption applies to cabinet submissions and proposed submissions that meet the "dominant purpose" test.

Commonwealth contractors to be covered by FOI Act

The FOI Reform Bill proposes to extend the coverage of the FOI Act to contracted service providers and subcontractors delivering services for and on behalf of the Commonwealth. The proposed changes would have significant implications for Commonwealth agencies and their service providers alike.

The FOI Reform Bill will require agencies to take contractual measures to ensure that they receive particular documents from its contracted service provider(s). These are documents:

  • that an agency is required to publish under the FOI Act
  • which relate to the entry by the agency and the contracted service provider into the Commonwealth contract; or
  • which the agency would have in its possession if it had performed the services in its own right.

To date, the full scope of this reform is not clear. However, it appears that in essence, procurement practices will need to change to ensure that contracts entered into by agencies contain appropriate terms for the provision of such documents to the agency. In addition, both agencies and their service providers will also need to work out, in practice, how to implement those terms. In particular, agencies will need to have in place sufficient document management systems to manage the documents received from contractors pursuant to those obligations.

But wait, there's more

The matters summarised above are only a selection of the proposed changes. Other important changes and announcements include:

  • The FOI Reform Bill proposes to amend the objects clause to better explain the rationale of the FOI Act
  • Application fees will not be charged for FOI requests
  • The Information Commissioner will be requested to undertake a comprehensive review of charges within 12 months of the Commissioner's appointment
  • The third party consultation provision in relation to business documents will be amended so that consultation is only necessary where it appears that the business might reasonably wish to make a contention that the document is exempt under the business affairs exemption
  • The Archives Act 1983 will be amended to bring forward the "open access period" for most records from 30 to 20 years and for cabinet notebooks from 50 to 30 years
  • FOI applicants seeking access to their own personal information will not pay charges. For FOI applicants other than journalists and not-for-profit community groups, the first hour of decision-making time will be free. Journalists and not for profit community groups making FOI applications will have the first five hours of decision-making time free
  • The Government has indicated that it will also amend the Privacy Act so that individuals are able to access their own personal information through the Privacy Act rather than through the FOI Act; and
  • The Government has indicated that it will provide the Australian Law Reform Commission with a reference to consider whether FOI should be extended to the private sector.

What's next?

The Government has invited comment on the two bills from the Australian public.

The closing date for submissions is 15 May 2009.

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.