12 May 2009

How free should information be? NSW FOI reforms released for comment

by Brendan Bateman, Andrew Poulos, Nick Thomas, Brigitte Markovic, Zac Chami, Narelle Smythe, Steven Klimt

New South Wales is moving ahead with reforming its freedom of information laws with the release of consultation drafts of the Open Government Information Bill 2009 and Information Commissioner Bill 2009.

The NSW reforms have many similarities to the Commonwealth reforms in that they attempt to create a pro-disclosure regime, and create an Information Commissioner to act as a champion for the Act.

The main effect of the package is to put more responsibility on departments and agencies to proactively review and release information. For example, the fact that a document contains matter protected by legal professional privilege can be a reason not to disclose the document. Under the proposed reforms, the agency will be required to consider whether it should assert the privilege or waive it.

Key features of the package are:

  • there will be a presumption in favour of disclosure unless there is an overriding public interest against disclosure
  • if there is something in the document which leads to the conclusion that there is an overriding public interest against disclosure, and it is practicable to remove the matter, then it should be removed to allow disclosure
  • departments and agencies will be required to proactively release certain classes of information without waiting for a request
  • details of contracts with a value of more than $150,000 will be listed on a register, including details of the tendering process, particulars of the contract and payments to the contractor. Extra information will be required for certain types of contracts, including privately financed projects
  • new rules on how applications must be made and determined
  • levels of review, including internal review, review by the Information Commissioner and the Administrative Decisions Tribunal; and
  • new offences for officers of agencies who improperly decline access, influence others to decline access, or who conceal or destroy government information to prevent its disclosure.

Comments on the bill must be made by 5 pm Wednesday 3 June 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.