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Freedom of Information and Open Government

Freedom of Information and Open Government

Advice on legislation or legal policy issues contained in this paper is provided for use in parliamentary debate and for related parliamentary purposes. This paper is not professional legal opinion.
Background Paper No. 02/2000 by Abigail Rath
Introduction (pages 1-3)
The fundamental aim of Freedom of Information (“FOI”) legislation is to promote and enhance the processes of democracy and representative government by increasing access to information held by the government.

In summary, the New South Wales FOI Act: (a) confers a legally enforceable public right of access (subject to specified exemptions) to documents in the possession of government agencies’ and Ministers; (b) requires government agencies to publish certain information regarding their operations, functions and documents; and (c) establishes the right to seek correction of personal information held by government agencies.

Opinions differ as to whether the NSW FOI Act has provided open and accountable government. Government accountability and secrecy is commonly raised as an issue during election campaigns, with the last New South Wales election being no exception. Further, in the past couple of years, issues in relation to access to government information have been raised in some prominent contexts.

In May this year, the Leader of the Opposition introduced legislation to amend the FOI Act with the aim of increasing access to government information. There has also been recent renewed interest in FOI in a number of other Australian jurisdictions.

Background to FOI legislation in Australia (pages 3-5)
The Westminster system of government has a tradition of official secrecy which originates from the time of monarchical rule. This tradition was supported by secrecy provisions in legislation, such as public service statutes or regulations, that commonly provided that it was an offence for public servants to disclose information to unauthorised persons. In addition, the common law supported the tradition of official secrecy in that it has never recognised a general right of access to government information.

Despite historical origins, official secrecy was considered to be a crucial part of the Westminster system. When the concept of FOI legislation was first debated in Australia, it was argued that FOI legislation was incompatible with Westminster government. This argument was strongly rejected in a 1978 Senate Committee report on FOI.

Enactment of FOI legislation in Australia (pages 5-6)
The Commonwealth was the first Australian jurisdiction to enact FOI legislation (in 1982). It was the first national FOI legislation enacted in a country with a Westminster system of government. All Australian jurisdictions, except for the Northern Territory, have now enacted FOI legislation. Each jurisdiction modelled its legislation on the Commonwealth Act, although a number have endeavoured to make improvements to the federal provisions.

FOI Developments in New South Wales (pages 7-13)
The Freedom of Information Act 1989 (NSW) commenced operation on 1 July 1989. Significant amendments designed to increase the accountability of government were made in 1992. These amendments were a result of the Charter of Reform between the Greiner Government and three independent members of parliament who held the balance of power in the Legislative Assembly (John Hatton, Clover Moore and Peter McDonald). In 1998, appeals to the District Court under the FOI Act were replaced with appeals to the newly established, and more accessible, Administrative Decisions Tribunal.

Objectives of FOI legislation (pages 13-14)
The fundamental aim of FOI legislation is to promote and enhance the processes of democracy and representative government by increasing access to government information. FOI legislation aims to: provide open and accountable government; increase public participation in government decision-making; ensure that personal information held by the government is relevant, accurate, up to date and complete; and enable individuals to be kept informed of government decision-making processes that affect them.

It has also been recognised that government information is a valuable public resource that is collected and created with public money for public purposes. In this sense, government information belongs to the public, and governments are “trustees” of that information on behalf of the public. It follows from this that government information should generally be accessible to the public.

Further, it has been recognised that inappropriate government secrecy can allow corrupt practices to flourish, and that FOI and other accountability mechanisms help to protect against corruption.

Necessary restrictions to Freedom of Information (page 17)
It is widely accepted that access to government information should not be complete and unfettered. It is recognised that there are legitimate interests which may need protection and, in some circumstances, the public interest in disclosure will be outweighed by the public interest in confidentiality. Interests which may need protection include national security, international relations, cabinet confidentiality, law enforcement, personal privacy and commercial confidentiality. Protection of such interests are provided for in FOI legislation through the exemption provisions. However, defining the boundaries of such exemptions is often a contentious issue.

FOI not the only method of accessing government information (pages 17-18)
Clearly FOI legislation is just one of many ways in which government information is accessible to the public. It has been recognised that FOI legislation is not, and should not be, the only, or even the primary, way of accessing government information. Government information is available through many other sources including voluntary release by the government, parliamentary processes, review by courts, tribunals and other review bodies, and annual reporting requirements. In this context it has been noted that the importance of FOI lies in the fact that it provides a legally enforceable right of access to government information.

Other legislation in NSW providing for access to government information (pages 18-21)
The FOI Act is not the only statute in New South Wales that provides for access to government information. The Privacy and Personal Information Protection Act 1998 (NSW) (“the PPIP Act”) provides for access to, and alteration of, personal information held by government agencies. It also provides for limits and restrictions on the disclosure of personal information. There is significant overlap between the PPIP Act and the FOI Act, and whether or not information is disclosed may be depend on which Act is applying.

The Local Government Act 1993 (NSW) provides that all local council documents must be available for inspection free of charge subject to limited exceptions. It has been noted that the existence of three access regimes (the Local Government Act, the FOI Act and the PPIP Act) applying to local government has the potential to complicate access issues in the minds of the public and of council officers.

The State Records Act 1998 (NSW) provides for obligations on government agencies with respect to the creation, management and preservation of government records and archives. Good record management practices are important to the success of FOI.

Overview of the NSW FOI Act (pages 22-36)
Right of access: The FOI Act provides that a person has a legally enforceable right of access to a government agency’s documents, or a Minister’s documents that relate to the affairs of an agency. “Document” is broadly defined and includes “any disc, tape or other article from which sounds, images or messages are capable of being reproduced”.

Exempt Bodies: An “agency” is defined as a government department, public authority, local authority or public office. Exempt bodies include the Legislative Council, Legislative Assembly, parliamentary committees, Royal Commissions, and Courts and Tribunals in relation to their judicial functions. In addition, Schedule 2 of the Act provides a list of agencies that are exempt in relation to specified functions.

Exemptions: Schedule 1 of the Act specifies categories of documents that are exempt from disclosure. Some of these exemptions are subject to some form of public interest test, that is, the public interest in, or against, disclosure must be considered in the decision whether to disclose the requested information.

Ministerial Certificates: The Premier can issue a ministerial certificate in relation to three exemptions: Cabinet documents, Executive Council documents, and documents relating to law enforcement and public safety. A ministerial certificate lasts for two years and is taken to be conclusive evidence that a document is exempt.
Appeals: The Act provides for three forms of appeal from an agency’s decision: (a) internal review by the agency (where available, a pre-requisite to other appeal options); (b) review by the Ombudsman; and (c) appeal to the Administrative Decisions Tribunal.

Fees: There is a $30 application fee under the Act. In addition, there is a processing fee of $30 per hour (there is no fee for the first 20 hours processing for documents about the applicant’s personal affairs). There is no maximum fee that may be charged. Fees are subject to a 50% reduction in some circumstances.

Amendments of Records: A person may apply to an agency for amendment of personal information (about the applicant) held by the agency, where the information is incomplete, incorrect, out of date or misleading.

Publication requirements: The Act requires agencies to publish a “Statement of Affairs” every 12 months, and a “Summary of Affairs” every six months. Each agency is also required to prepare an annual report to Parliament on their obligations under the Act.

Is the FOI Act achieving its objectives? (pages 38-42)
There appears to be consensus that the FOI Act has worked well in relation to providing access to personal information. More controversial is the question of whether the Act has achieved the objectives of open and accountable government and public participation in government decision-making. Many commentators, including the Ombudsman, Auditor-General, politicians, journalists and academics have expressed the view that too much government secrecy still exists.

Is a new approach to accessing government information needed? (pages 42-44)
Not all advocates of open government are supportive of FOI legislation. The argument that FOI has failed to deliver open government is commonly raised in jurisdictions throughout Australia and overseas. The significant developments that have occurred since the introduction of FOI legislation in Australia have also been noted. These developments include substantial changes to the structure of the public sector due to increasing corporatisation, privatisation and contracting out. In addition, significant advances in information and communications technologies have had a major impact on the way information is accessed, collected, stored, processed, exchanged and disseminated.

These developments, and the perceived failure of FOI to provide open government, have led some commentators to question the continuing relevance of FOI, and to look for other ways of providing access to information.

Reversing the concept of FOI: Pro-active Disclosure (pages 44-48)
FOI legislation requires a person to make a request to an agency or minister in order for information to be released. Thus, FOI legislation is a “reactive” rather than a “pro-active” approach to the disclosure of government information. A number of reviews in Australia have considered, or are considering, the introduction of pro-active disclosure regimes which put the onus on agencies to routinely release information.

Routine disclosure of contract and tender information and “commercial in confidence” material (pages 48-53)
Discussion regarding routine disclosure of information often centres on disclosure of information relating to government contracts and tender information. Public access to contract and tender information has become a contentious issue over the past few years in a number of Australian jurisdictions including New South Wales. There has been a perception that government agencies are using “commercial in confidence” claims too broadly to avoid scrutiny and accountability. A number of inquiries in various Australian jurisdictions have considered what information relating to tenders and contracts should be made routinely available to the public. The New South Wales Government has issued guidelines which provide for the routine disclosure of specified information relating to government contracts.

Need for Review of the NSW FOI Act? (pages 53-55)
When the NSW FOI Act was introduced to parliament, the Government indicated that it would be reviewed after two years. However, in the 11 years the Act has been in operation, it has not been subject to a comprehensive review. Before the last New South Wales election, both sides of politics indicated a willingness to review the Act.

The NSW Ombudsman’s Office has consistently called for a comprehensive review of the FOI Act for a number of years. The Ombudsman’s Office has pointed to significant developments which have occurred since the introduction of the Act to support its call for a review. These developments include: important judicial decisions which have looked at the rights of the public to access government information; technological advancements; increases in the contracting out of government services; and the enactment of other legislation providing for access to government information.

Issues regarding the reform of the FOI Act (pages 55-68)
There is a large amount of material on FOI reform proposals that are directly applicable, or relevant, to the NSW FOI legislation. Such material includes reports by law reform commissions, ombudsmen, parliamentary committees, and academics in Australian, and overseas, jurisdictions. All major aspects of FOI legislation have been reviewed including: objects clauses; exempt bodies; exemption provisions; ministerial certificates; internal and external review provisions, and charging structures.

International Comparison (pages 68-77)
The first law establishing a right to government information was enacted in Sweden in 1776. However, Sweden remained the only country with such legislation until the second half of the 20th century. Finland adopted such a law in 1951. The influential United States FOI Act was passed in 1966. A number of European countries enacted access legislation in the 1970s. Countries with Westminster systems of government soon followed with Australia, Canada and New Zealand all enacting FOI legislation in 1982. In the past few years interest in FOI legislation throughout the world has accelerated. Approximately 50 countries now have such legislation or are considering introducing it.