Overview 3Chronology of Key Events 4Introduction 5The Background 6The Critical Shortcomings 6The use of the Freedom of Information Amendment Bill 1994 as the default standard 8Amendment Bill drastically reduced access to information 9No culture of secrecy 9Lack of analysis 11The Main Recommendations 12The positives 12The negatives 12Extension of FOI to cover all Government Business Enterprises (GBEs) 12Continued free access for lawyers to prosecution briefs. 13Extension of FOI to consultants 14Retention of the Ombudsman's ability to examine conclusive certificates 14Discarding the idea of exempting records of certain agencies 14New $25 FOI application fee. 14Processing fee of $25 where cost is $100 or less. 14Previous $400 ceiling on fees removed. 15State MP's pay for FOI after first five requests. 17Widening the Cabinet exemption to conceal more government documents. 17Existing 10 year rule for releasing Cabinet papers now extended to 20 years. 19Removal of the public interest test for internal working documents 20A fee to seek review by Ombudsman 21How the Committee has failed in its task - Chapter 3 21Making government information more accessible 22Number of FOI requests 22Applications to each Agency 22Disclosure of information 22Use of exemption provisions 23Time taken to respond to FOI requests 23Public interest tests and FOI 23The failure to consider non-government reform proposals 23Conclusion 24
The recent Tasmanian Legislative Council Select
Committee Report released on Freedom of Information will cause
serious concerns to supporters of Freedom of Information legislation
and open government around the world. The proposed recommendations,
at best, demonstrate the path to be taken in dismantling effective
access legislation and at worst they defeat the primary objectives
of accountability, public decision making, and access to information
that Freedom of Information legislation is designed to achieve.
The Government's Freedom of Information
Amendment Bill 1994 was uniformly criticised by all sectors
of the community and across the political spectrum except from
within its own ranks and a small cadre of senior bureaucrats.
Both the ALP and Greens were quick to realise that the proposed
changes would at the end of the day result in the release of minimal
information at an exorbitant cost and the sacrifice of the public
interest to the desire for bureaucratic and ministerial secrecy.
The vast majority of the Committee's recommendations will produce
an identical result.
The Legislative Select Committee has produced
a document which apart from a few alterations precisely replicates
the Government's 1994 blueprint to dismantle the structure and
defeat the spirit of the Freedom of Information Act 1991.
Many of those who made submissions to the Committee are bound
to feel either betrayed or that the Committee failed to listen.
The report is constructed in a fashion which strongly follows
the framework of the Amendment Bill and bases all its
analysis on the Bill, with token and superficial consideration
of the terms of reference which would have required a wider and
more thorough approach.
The critical shortcomings of the Committee's
approach and examination of the legislation are fourfold. These
shortcomings throw considerable doubt on the ability of the Legislative
Council to adequately perform its declared role as a House of
Review.
- First, the use of the Freedom of
Information Bill 1994 as the default standard for the comparison
to the original act meant that the Committee were conducting the
review from the wrong premise. The Committee placed the onus on
the supporters of the Freedom of Information Act 1991 to
justify why the Government's proposals ought to be rejected. In
essence the Committee was surrendering the objectives of a parliamentary
Act for the quest for secrecy by the Executive.
- Second, the Committee rejected FOI
as a vital, albeit under used, element of Tasmanian democracy
and treated it as an optional costly play thing of a handful of
journalists, politicians and lawyers.
- Third, a complete lack of analysis
was evident in the structure of the report. Too often the Committee
only listed a summary of main points for and against a proposal,
without proceeding to form or advance any sort of analysis in
justifying their particular stance or recommendation on an issue.
- Fourth, the Committee's recommendations,
taken as a package, are completely at odds with the reasoning
and suggestions made in other well researched and reasoned reports
such as the Australian Law Reform Commission Report ("Open
Government: A Review of the Federal Freedom of Information Act
1982"), the Western Australian Report (Commission on Government
1995), and the NSW Ombudsman Report to Parliament (Freedom
of Information: The Way Ahead 1995).
The proposed recommendations which are considered in this Discussion Paper include:
The positives:
_ Extension of FOI to cover all Government Business Enterprises
_ Rejection of the proposal to remove the Ombudsman's ability to scrutinise conclusive certificates issued in relation to Cabinet documents
_ Continued
free access for lawyers to prosecution briefs.
_ $25 application fee
_ Widening of the Cabinet Exemption
_ Existing 10 year rule for releasing Cabinet papers now extended to 20 years.
_ Removing the public interest test for internal working documents
_ Removal of $400 ceiling on fees
_ State MP's to pay for FOI after first five requests.
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The Tasmanian Legislative Council (Upper House)
established a select committee to examine the Freedom of Information
Act 1991 (Tas) on the 22 November 1994. The Committee arose
out of a fierce controversy about the changes to FOI introduced
by the Liberal Government's proposed Freedom of Information
Amendment Bill 1994. The report of the Committee was finally
handed down on the 12 February 1997. The report is 122 pages long
and contains 64 recommendations.
In a bout of Orwellian newspeak the Chairman of the Committee in his Foreword suggests that the findings of the Committee are best summarised in the following way;
"With many new enactments, there is inevitably a need to revise and review the initial Act, to fine tune, and to facilitate the technical changes identified during the early practice of the law. This fine tuning is part of the evolutionary process of establishing FOI in Tasmanian public administration."
Instead of being a fine tuning the report is
a major, savage and poorly considered pruning of what has to date
remained a contender as the best example of Australian FOI legislation.
In general the only recommendations that this paper supports the
Committee on is; where those recommendations propose the retention
of provisions in the current Act, reject the more outlandish amendments
proposed by the Government or are attempts to modify the Government's
proposals. There are some exceptions to this generalised reaction
to the report which are outlined later in this paper.
The fate of open government in Tasmania now
rests in the hands of the ALP opposition and the Tasmanian Greens.
These two political foes have the numbers to reject any resurrection
of the lapsed Freedom of Information Amendment Bill 1994.
In the past it has been the hope of open government advocates
in Tasmania that the ALP and Greens would join forces and pass
reforms to the Freedom of Information Act 1991 in line
with the positive reforms suggested by the Australian Law Reform
Commission/Administrative Review Council Review, by the Commission
on Government (WA) and the NSW Ombudsman. The Select Committee's
report displays such an abject abandonment of the core principles
of FOI legislation that such a daydream ought to be forgotten.
Both the ALP and the Greens need to reaffirm
their vigorous support for the Freedom of Information Act 1991
and advance a series of positive reforms which will achieve the
democratic objectives of the legislation. These reforms would
include, among others, greater resources and wider functions for
the Ombudsman, a greater emphasis on agencies to make information
available outside of the Act, stricter requirements on the processing
of requests and greater promotion of the Act.
The Legislative Council recommendations
would convert the Freedom of Information Act 1991 (Tas)
into a tatted masquerade of an information access regime that
was designed to be based on strong principles and ideals. The
acid test for any modification to a Freedom of Information regime
should be the extent and degree to which access to government
information (collected, stored and used on trust for the public)
is improved both in terms of quality and quantity. The Legislative
Council recommendations would leave citizens, journalists and
other users with the same result as the Liberal's defunct Freedom
of Information Amendment Bill 1994 ; resulting in far less
information at a prohibitive cost.
Those supporting these recommendations
and the 1994 Amendment Bill should be required to demonstrate
how their version of "Freedom From Information"
will not substantially lessen the amount of information which
the Government and the bureaucracy do not wish to release. These
recommendations not only make another Burnie Legionnaires cover
up possible but they also weaken the already frail pursuit, in
Tasmania, of an informed and critical public accountability of
the government and its bureaucracy by the media and the opposition
(including minority government partners).
The real shame of the Legislative
Council Committee's recommendations is that they arise from a
gross failure to understand the reasoning behind the design and
logic of Freedom of Information. The 1994 Amendment Bill was a
crude and ill motivated but understandable attempt by Executive
Government and its bureaucratic allies to nobble a piece of legislation
which had the potential, not yet exploited by Tasmanian journalists
and the community, to throw a little light onto the machinations
of public administration. The Select Committee's efforts display
the shortcomings so often attributed to the Legislative Council
in general. Namely; a world view reminiscent of a 19th century
gentleman's club, attitudinal inclinations that are receptive
to commercial concerns but are unable to cope with issues of democratic
or public accountability and a general deference to the bureaucracy's
policy agenda.
The problem with the Committee's dismissal or relegation of Freedom of Information as relatively unimportant is twofold. First it is paternalistic and disempowers the ordinary citizen. Second the Committee is making decisions about the utility of FOI on behalf of the public without any empirical evidence to support the claims that bureaucrats are releasing significant amounts of information voluntarily across a wide range of agencies.
After almost 12 months of secret preparation the Tasmanian Government tabled its Freedom of Information Amendment Bill 1994 to a parliamentary and media uproar. The extent of the opposition to its proposals caught the Government by surprise and a lack of detail to justify those changes forced the Premier to endorse the creation of an Upper House Select Committee. The Committee had the following terms of reference;
'To inquire into and report upon the operation of the Freedom of Information Act 1991, as amended by the Freedom of Information Act 1992, with particular reference to -
_ the effectiveness of the Act in providing access to information required by the public;
_ the type of information that should be exempted from the provisions of the Act;
_ the fees, if any, that should be levied for access to information under the Act;
_ the Freedom of Information Acts applying in other jurisdictions, including a comparison with the Tasmanian Act; matters incidental thereto;
At its heart the whole structure and approach
of the Select Committee's report is flawed in a number of areas
both in terms of methodology and reasoning. Many of the deficiencies
in the Committee's recommendations stem from a combination of
three factors;
_ The use of the Freedom of Information Amendment Bill 1994 as the default standard
_ A rejection of the key finding of the ALRC/ARC that a culture of secrecy still persists in Australian public administration
_ A lack of analysis
To a degree unparalleled, by the reports that have led to the setting up or have recommended Freedom of Information legislation in Australia and the rest of the world, the Legislative Council Committee downplays the importance of or even the real necessity for such legislation. The Committee manages in a few words to consign FOI to a minor role in democratic government;
In analysing the extent to which Tasmania's FOI Act has enhanced open government, it is important to recognise that this legislation is but one of a range of formal and informal mechanisms by which the objectives of openness and accountability, dissemination of information, and privacy considerations can be achieved. Members of Parliament, through the Parliamentary processes such as question time, questions on notice and the scrutiny provided by an extensive committee system, are constantly transferring information from the Government to the Parliament, and then to the people. Other means of dissemination include community consultation, annual reports, brochures and publications, and the 'information super highway' - the Internet. Whilst not within the scope of this inquiry, it is also important to recognise that advances in information technology will further enhance and improve public access to government material.
Supporters of open government or veteran observers will not find in this Committee report views expressed like;
"Freedom of Information is essential for Open Government. It is not a luxury, nor is it a purely procedural matter. It goes to the heart of the democratic process. An electorate cannot properly judge its government unless that electorate has information about what the government is doing and why it is doing it."
" the spirit of the Act is to increase the accountability of the executive to the Tasmanian people and to increase public participation in State government and democracy."
The FOI Act is now accepted as a part of the legislative landscape of Australia. There has been no suggestion from any person or sector during this review that the Act ought be abolished. Australian society and politics have clearly moved a long way since those tentative years leading to the introduction of the Act. The FOI Act is now an integral part of Australia's democratic framework. This is not to say that the Act is working perfectly or that it is not susceptible to attack or weakening. It is often said that Oppositions are fond of FOI but 'the longer a government is in office, the less its enthusiasm, typically, for open government.'
Any Freedom of Information legislation worth the name has three basic aims. The first is simply to protect the rights of individuals - to give people the right of access to information about themselves held in government files, and the right to correct that information if it is misleading or untrue. The second is to ensure wider dissemination of information gathered at the public expense on topics such as product safety, engineering feasibility, environmental hazards and so on. The third, and perhaps most important of all, is to improve the quality of decision-making in the public sector - both by keeping people informed of the workings of the decision-making process in policy formulation and administration, and by throwing the spotlight of public scrutiny on Government mistakes in the past to ensure that they are not repeated in the future.
Governments of different political philosophies have endorsed the principle of Freedom of Information so as to express support for the concept that knowledge and information about the conduct of public affairs, and the application of public money, in a democratically governed country are essential to its right to be so described. The courts must zealously support those quite sweeping legislative intentions.
Secrecy can no longer be a solid foundation for the relation between government and the governed. Public trust in government must be matched by Government's trust in the public.
The Access to Information Act has been Canada's major legislative response redressing the balance of official secrecy, elitism and non-accountable government. It established a "right to know", set standards for what the government could protect from access and fastened on a Westminster-style government, a system of review of refusals of access, which was independent of ministers.
The Committee, as members of Tasmania's conservative
and oft criticised Upper House, have managed to put themselves
at odds with the consensus of opinion.
The supporters of open government, both internal and external
to the bureaucracy, within Tasmania and around Australia have
failed to lead Tasmanian Upper House members to any clear understanding
of why an effective FOI Act is necessary to achieve open government.
It is as if the sentiments and reasoning used around Australia, by the Governments that brought FOI into play, has just simply slipped over the head of this Committee. A comparison between the Committee's view on the bit role of FOI in the democratic process, expressed above, and the speeches repeated below is testimony to that sad gulf in understanding. In his Second Reading Speech introducing the New South Wales Freedom of Information Bill the Minister stated:
This Bill is one of the most important to come before this House because it will enshrine and protect the three basic principles of democratic government, namely, openness, accountability and responsibility. It is only if these three principles are firmly in place in the form of legislation that we can say with confidence that we have a truly democratic State Government … It has become commonplace to remark upon the degree of apathy and cynicism which the typical citizen feels about the democratic process. Voters feel that, having made their marks upon ballot papers on polling day, they can have no further effect on, and make no further contribution to, the process of government until the next election. This feeling of powerlessness stems from the fact that electors know that many of the decisions which vitally affect their lives are made by, or on advice from, anonymous public officials, and are frequently based on information which is not available to the public. The government is committed to remedying this situation …
This Freedom of Information legislation will strengthen democracy by helping to provide the people with a basis on which government policies and actions can be discussed and debated, as well as allowing the performance of the Government to be judged fairly at election time. It will permit a more informed electorate to make rational judgments. This is obviously preferable to forming opinions based on the present diet of sensational leaks and reports isolated from their context
In his Second Reading Speech to the Tasmanian House of Assembly Dr Bob Brown made the following comments;
I can do no better than to quote the Queensland Catholic Commission of Justice a Peace's cogent reasoning for Freedom of Information as a vital and necessary component of modern day democracy:
"For democracy to be government-by-the-people an informed electorate is essential. This can only happen if people are guaranteed access to information - what decisions are made, how they are made and why they are made. For citizens to believe in the democratic process, they must believe they are part of the process. For citizens to believe that the process is just, it must be seen to be just. And fundamental to this is for a citizen to have access to information held by government'.
Indeed the events in Queensland leading up to the Fitzgerald Inquiry illustrate the argument for Freedom of Information as an essential protector of democracy. Mr Fitzgerald summarised his opinion thus:
"Information is the lynch-pin of the political process. Knowledge is quite literally power. If the public is not informed it cannot take part in the political process with nay real effect'.
Yet politicians easily forget their obligations to the public.
They have a habit of forgetting that fundamental democratic principle:
the public is the governments' raison d'etre. Perhaps that line
should be repeated ten times aloud before every session as a constant
reminder to us all? Strong Freedom of Information legislation
enshrines that principle and gives it legal binding.
The use of the Freedom of Information
Amendment Bill 1994 as the default standard
The major deficiency in the Committee's deliberations
was the decision to use the Freedom of Information Amendment
Bill 1994 as the default standard for its review. The Committee
generally endorsed the Government's proposed amendment over current
provisions of the Freedom of Information Act 1991. This
general endorsement was in the face of compelling arguments to
the contrary and ignoring the views and opinions which led to
the creation of the Committee and presented to it during its review.
The Report reads as if the onus of proof was on those resisting
change or proposing changes along the lines of the Commonwealth
Report to substantiate their case. In the view of the Committee
this approach was merely a finetuning of the 1991 Act. The Committee
appears to have failed to understand, appreciate or to have given
much weight to positive reform suggestions or the necessity for
the current design and integrity of the Freedom of Information
Act 1991.
By accepting the ill intentioned amendments
put forward in the Freedom of Information Amendment Bill
1994 as the template upon which to conduct this review the Committee
commenced its operations from the wrong premise. Given that the
19 members of the Upper House have been remarkably reticent about
their usage of FOI it is not surprising that this happened. As
members of an institution often described as a gentlemen's club
FOI may be seen by many Legislative Councillors as a very uncouth
or unnecessary way of dealing with the executive and its servants.
Amendment Bill drastically reduced access to information
An empirical study undertaken
by a final year law student at the University of Tasmania revealed
some interesting results with regard to the amount of information
that would be released under the Amendment Bill 1994 as compared
with the present FOI Act. The study compared three Tasmanian case
studies under the Bill and the current Act in terms of the degree
of information that would be released under the exemptions covering
Cabinet, internal working documents, and conclusive certificates.
The results demonstrated that while under the current Act most
of the documents were held to be exempt by the Ombudsman under
the proposed amendment Bill, in most cases all of the documents
would be deemed exempt. Furthermore, statistics revealed that
under the current Act, the percentage of documents released ranged
from 3%-18% depending on the case study in question, while under
the Amendment Bill no documents were likely to be released. This
research indicates the clear potential for a significant decrease
in the disclosure of information that will occur should a new
Bill incorporting the Committee's suggestions be passed.
To use the Amendment Bill as
a default standard for its review of the current FOI Act meant
that the Legislative Council Committee was starting off with a
basic framework which was the antithesis of a model designed to
promote and support the concepts of open government and accountability.
In performing its task the Committee ought to have started from
the basis of Section 3 of the Freedom of Information Act 1991
and asked the following question "to what extent will this
proposed amendment achieve or further the objectives of the 1991
Act?"
The common experience in most, if not all, jurisdictions
where Freedom of Information (FOI) schemes have been introduced
is that Governments soon lose their reforming zeal. Government
commitment to FOI and open government, as demonstrated by the
introduction of such schemes, is seldom, if ever, maintained for
any length of time.
There is a basic conflict between the concepts of FOI and open
government on the one hand, and the desire of governments and
their bureaucrats to avoid criticism and to keep accountability
within "acceptable limits" on the other. In this NSW
is no different to anywhere else.
Unlike the review into Commonwealth Freedom of Information the Tasmanian Upper House Committee was not distressed or bothered about the persistence or otherwise of a traditional approach to secrecy in a Westminster based system of government. Indeed the Committee readily endorsed the submissions made to them by a handful of Tasmanian agencies that there was little need for any Freedom of Information legislation because wherever necessary they provided ample information to one and all outside of any technical requirement of the FOI Act. The Committee concluded at page 34 that
While some witnesses felt that the Act was not being sufficiently promoted throughout the State, it is the Committee's opinion that the Act is being used effectively by the limited number of people with a need to access government information and that it is unlikely that a large number of Tasmanians have a need to use the Act. It appears that the general public do not have a high need to utilise the provisions of the FOI Act to access information. This may be explained by the fact that many agencies adopt a pro-disclosure philosophy towards the provision of information to the public, and provide information without the need for an FOI request.
The Committee accepted the actions of a minority as the norm of the majority despite ample evidence to the contrary. The Australian Law Reform Commission President and Administrative Review Council member Alan Rose, in announcing the release of the joint ALRC/ARC Report ("Open Government: A Review of the Federal Freedom of Information Act 1982") recognised that a presumption that it is in the public interest to release government information must replace the old secrecy regime. He stated that:
"the culture of secrecy that still pervades much of the Australian public sector must be dismantled if our government is to become truly transparent and accountable".
"Without information, people cannot adequately exercise their rights and responsibilities as citizens or make informed choices. The FOI Act is important in providing access to this information".
"The success of the FOI Act in meeting its objectives is largely dependent on the attitude of the agencies administering it. The report makes several recommendations aimed at fostering a more pro-disclosure approach among FOI decision makers."
Fourteen years after the commencement of the Commonwealth FOI Act the Commonwealth Ombudsman can still make the unrefuted claim that
"many government agencies still do not operate within the legal framework and certainly not the 'spirit' of the Act..."
Yet with little direct evidence
and ignoring the evidence supplied to the Committee, as well as
evidence from other jurisdictions (found in the ALRC/ARC Report,
the Western Australian report "Commission on Government"
1995 and the NSW Ombudsman's report to Parliament "Freedom
of Information: The Way Ahead" 1995) the recommendations
of the Committee are framed on the premise that the Tasmanian
bureaucracy are paragons of voluntary open government. Such a
conclusion is unfathomable not only to bureaucratic outsiders
but to most departmental insiders. Indeed the whole premise of
the Tasmanian Government submission to the Committee was centred
on the virtues of secrecy and the necessity to preserve or achieve
an ideal of a Westminster inspired system of closed government.
The Committee also failed to consider the relationship between the Freedom of Information Act 1991 and the consequence of their recommendations on the ability to achieve open government. This failure is indicative of the Committee's narrowly focused and limited approach to its task. In contrast the Commission on Government (WA) noted that;
"The existing framework of rules, regulations and statutes clearly works against the operation of open government."
Unlike the Australian Law Reform Commission, the Select Committee has refused to accept that agency culture plays a key role in the efficacy of FOI and that Australian agency culture has a mixed score card. It will remain a puzzle how the Committee managed to find a Westminster derived public service which has avoided the attitudes encountered by the Canadian Information Commissioner
"the key to opening up government is ... somehow changing the encrusted, timorous old attitudes which see openness as a threat, not an opportunity for both citizens and governments."
The Legislative Council Select Committee report
is arranged predominantly on the basis of a summary of the main
points for and against each proposal and then a quick run down
of the Committee's views on a particular proposal. With one or
two exceptions, notably the recommendations in relation to GBE's,
does the Committee bother rebutting the proposals or evidence
put before the Committee.
This approach is in stark contrast to the one used by the Australian
Law Reform Commission in its review of the Commonwealth FOI Act,
and by the West Australian Commission on Government Report. These
organisations not only carefully summarised the current situation
relating to any proposed reform including listing submissions
both for and against the reform, but provided an extensive analysis
as to the justifications behind why a certain recommendation was
madeSpecifically this analysis was not confined to summarising
the main points of discussion and then either agreeing or disagreeing
with no additional comments (the approach evident in the Select
Committee report) but rather was quite lengthy (eg on average
the Western Australian Report was several pages for each recommendation)
and set out the Commission's particular stance on a certain issue
in detail.
A clear example of the inadequacy of this general
approach is Chapter 6 which dealt with the role of the Ombudsman.
The chapter is only 3.5 pages in length despite dealing with the
key mechanism of FOI legislation in Tasmania. The arguments in
support of an Information Commissioner model are simply listed,
no objections to this model are raised by the Committee which
then proceeds to recommend continuing with the current Ombudsman
model but increasing the time required to conduct an external
review from 30 days to 60 days.
In granting the extension in time limits the
Committee made no mention how the drastic cuts to the staffing
of the Ombudsman Office over the previous 3 years or other matters
raised in the Annual Reports of the Ombudsman have impacted on
the Ombudsman's involvement with FOI. Despite having a year to
study the ALRC/ARC Report chapter on the need for an Independent
Monitor, and being referred to that point, the Committee makes
no mention of such issues as training, agency audits, publicising
the Act or providing policy advice. To reject the application
of these suggestions is a judgment for the Committee but total
neglect of these issues in its Report is almost a breach of its
terms of reference.
This shortcoming is magnified by the fact that
during the time span of the Committee's operations the government
had transferred the responsibility of the one person FOI Unit
from the Department of Premier and Cabinet to the day to day supervision
of the Ombudsman. The Committee failed to investigate the merit
of this transfer and whether the necessary resources have been
provided to support this transfer.
By unreasonably narrowing its focus the Committee failed to adequately fulfil its first term of reference namely evaluating "the effectiveness of the Act in providing access to information required by the public". The role, efficacy and functions of the external review body ought to have been a central feature of the Select Committee's final report as it was with the ALRC/ARC review of the Commonwealth legislation. Perhaps the Committee should have taken heed of comments made by the Queensland Information Commissioner in his 4th Annual Report (1995-96), in which he stated;
"FOI legislation was not primarily intended to confer direct benefits on the executive branch of government (though a host of indirect benefits for the executive government are frequently claimed for it, by supporters of FOI legislation).It was enacted for the benefit of the citizens, with a view to fostering more responsive and accountable government and a healthier, more robust and more participative democracy, by conferring legal rights on citizens that are enforceable against the executive branch of government."
In large part the Committee approached the review from the perspective of ascertaining the benefits, or the problems caused, to the Executive branch of government. The majority of the Committee's recommendations are designed and put forward on the basis that the Freedom of Information Act had little to offer citizens and nor did the Committee consider there was any need to be concerned about this state of affairs. If the Committee had been dominated by public servants hostile to the objectives and spirit of the Freedom of Information Act 1991 it is difficult to see what changes would have been made in the Report.
_ Extension of FOI to cover all Government Business Enterprises
_ Continued free access for lawyers to prosecution briefs.
_ $25 application fee
_ Widening of the Cabinet Exemption
_ Existing 10 year rule for releasing Cabinet papers now extended to 20 years.
_ Removing the public interest test for internal working documents
_ Removal of $400 ceiling on fees
_ State MP's to pay for FOI after first five requests.
Extension of FOI to cover all Government
Business Enterprises (GBEs)
The Committee recommended that the TT-Line,
Forestry Tasmania, Works Tasmania, and the Private Forests Division
of Forestry Tasmania should be subject to FOI and that all GBE's
should remain under or return to the coverage of the FOI Act.
To defer opposition to this proposal the Committee also recommended
that the Chief Executive Officer (CEO) of each GBE be able to
issue conclusive certificates in relation to exemptions claimed
for commercial information obtained in confidence, trade secrets
and confidential information.
The Committee makes the point that because
GBE's are organisations that are to various degrees, funded by
the public purse, taxpayers should have a right to access information
in order to facilitate public accountability. It is the Committee's
view that all GBE's should be treated equally in being subjected
to the Act ( ie in response to the claims by TT-Line and Works
Tasmania that grave harm would be caused to their organisations
should they be made subject to the Act). The Committee drew on
the experience of the Hydro-Electric Corporation and Forestry
Tasmania, (GBE's that are currently subjected to the Act or have
not used Section 32A to gain exemption) and states that the processing
of FOI applications by these organisations has not caused any
great commercial inconvenience.
The Australian Law Reform Commission
proposed that in general GBE's should be made subject to FOI legislation,
excepting that in some limited circumstances, exemptions from
the scrutiny of the Act for certain GBE's were warranted. Relevant
factors in determining whether or not a GBE should be made exempt
include the extent to which a GBE is engaged in commercial activities
in a competitive market and the extent to which the GBE has multiple
functions. It stated that the greater extent to which a GBE's
commercial activities are carried out in a commercial market,
the less the justification for applying the FOI Act. It was predicted
that once a GBE becomes engaged predominantly in such activities,
market forces combined with whatever regulatory mechanisms apply
to the private sector generally or to the particular industry
in which the GBE operates will provide more appropriate accountability.
To subject those GBE's to FOI may put at risk, the benefits that
the government is seeking to create in GBE's- increased efficiency
and competitiveness.
The ALRC considered that GBE's
that are not predominantly engaged in competitive commercial activities
should be made subject to FOI legislation. It argued that any
GBE's currently exempt under FOI legislation in respect of their
documents relating to competitive commercial activities will be
adequately protected by the FOI business affairs exemption. Further,
the ALRC was of the opinion that the cost of complying with the
FOI Act should be borne by the GBE and not the applicant.
However this welcomed initiative by the Tasmanian Select Committee is offset totally by its secondary recommendation (Recommendation 30) that Sections 31, 32 and 33 should be amended to allow the issuing of conclusive certificates by the CEO of each GBE. The Committee made this recommendation despite the very vigorous claim for complete exemption from the coverage of FOI by organisations such as the TT-Line and Works Tasmania. As the Committee noted Works Tasmania strongly supported its current exemption under Section 32A, stating that:
"For this organisation, which operates on a fully commercial basis, it is most appropriate that the exemption is in place. It would not be proper for the Corporation to be subject to the full range of disclosures environment."
Despite this evidence the Committee endorsed giving CEO's of such organisations an unlimited use of conclusive certificates governed only by the Ombudsman being able to prepare a report to both Houses of Parliament contesting the merit of any particular use of a conclusive certificate. To date the Tasmanian Ombudsman has been very restrained in using this particular review mechanism for conclusive certificates issued in relation to Cabinet documents. In relation to an issue regarding the incorrect inclusion of factual information under a conclusive certificate issued for Cabinet information the Ombudsman decided that the issue did not merit a special report to parliament. The Ombudsman decided that:
"I can prepare and present a report to Parliament. Having looked at the factual information I am satisfied that such action is not warranted in this instance."
It is more likely than not that
an over extended and under resourced Ombudsman would exercise
this discretion on a fairly frequent basis in relation to conclusive
certificates issued by GBE's keen to avoid scrutiny under FOI.
Continued free access for lawyers
to prosecution briefs.
The Committee concluded that the availability
of prosecution briefs, after the acceptance of the Sobh
decision by the Ombudsman in 1993, has enhanced the lower court
system in Tasmania by reducing wasted court time and allowing
defendants to better prepare their cases. The Committee believed
that this access should continue, but that it should be the result
of a deliberate policy decision, rather than the present defacto
means. The Committee suggest that the Magistrates Court of Victoria
is an appropriate model upon which amendments to Tasmania's legislation
could be based. The Committee noted that given the cost benefits
to Tasmania's lower court system in making prosecution briefs
available under FOI, at present there exists a prima facie case
to provide the information free of charge. However the Committee
did not rule out the likelihood in the future that the Act may
be amended to include a fee for this type of information, should
it prove necessary to recover costs associated with providing
such information.
This is an important and constructive
recommendation as currently over 80% of all Tasmanian FOI requests
are for information held by the Police Prosecution Division. The
Committee opted for its preferred recommendation in light of strong
representations by the Law Society and Bar Association and clear
evidence that the use of FOI had overcome an anomaly between practice
in the Magistrates Courts compared to the Supreme Court regime.
Extension of FOI to consultants
The Committee's Recommendation
34 which can be found among an avalanche of recommendations in
Chapter 9 is welcomed with complete surprise. The Committee recommended
that the definition of "officer" in Section include
consultants. The Committee reached this conclusion out of concern
for the increasing outsourcing of work by government to consultants.
Retention of the Ombudsman's ability
to examine conclusive certificates
The Tasmanian Government submission
argued that the proposal to remove the power of the Ombudsman
to review a record in respect of which a conclusive certificate
had been signed, was consistent with both the concept and intent
of a conclusive certificate and that subjecting these documents
to administrative appeal may, in itself breach the 'Cabinet oyster'.
The Committee, however while stating that the Ombudsman should
retain his ability to examine conclusive certificates as a 'safeguard'
against the misuse of such certificates, provided a fallacious
argument that the retention of this recommendation therefore justified
the expansion of the scope of the exemption relating to Cabinet
documents.
Discarding the idea of exempting records of certain agencies
The Committee was of the opinion that it is reasonable to impose an application fee of $25 on the basis that other jurisdictions levy similar charges. They stressed the fact that this fee would not be payable where the information sought was of a personal nature, or in circumstances where the applicant was assessed as suffering from financial hardship. The Committee pointed out that it was in favour of allowing the application fee to be used as credit against the fees charged for agency processing of a request. However, the Committee opposed the removal of the waiver of fees where the applicant's intended use of the information was a use in the general public interest or benefit . There was no discussion by the Committee on how agencies have been applying this public interest exemption in fees since the commencement of the FOI Act in 1993.
Processing fee of $25 where cost
is $100 or less.
The Committee was of the opinion that it is
reasonable to charge a $25 processing fee where the calculated
cost is $100 or less, in order to cover the costs associated with
time taken by an agency to make a decision regarding the status
of information requested under the Act, and to delete and remove
exempt information if required. The Committee did not accept
that the currently hourly rate of $25 is appropriate and was of
the opinion that the Auditor General should be requested to determine
a suitable hourly rate. No mention was made in the report as to
whether the Committee considered the rate inappropriate because
it was too low or too high.
The issue of fees and charges under Australian FOI legislation will always remain controversial. As stated in the Queensland Information Commissioner's submission to the ALRC:
"[Fees and charges] are imposed as a crude rationing device to inhibit demand, and hence to reduce the level of publicly funded resources which must be devoted to administration of the FOI Act."
The Queensland Information Commissioner
in his 4th Annual Report (1995-96) has argued that, while there
is no doubt that the administration of FOI legislation comes at
a cost, and that it is capable of making sporadic intrusions on
the time of public officials who hold documents which are the
subject of applications made under the FOI Act, that nevertheless
(within reasonable limits) democratic governments should be capable
of tolerating a degree of inefficiency, and should be prepared
to accept the costs of administering a system for enhancing the
accountability of the Executive branch of government, as the price
of honouring some of the democratic imperatives of a system of
representative democracy.
Hence, the proposed amendments
relating to changes in the Tasmanian fee structure need to be
critically viewed in the context of the current reforms proposed
by the Australian Law Reform Commission, in its Open Government
Report (1995), the NSW Ombudsman's Report to Parliament "The
Way Ahead"(1995) and the Western Australia's Commission
on Government Report (1995).
The key features of mainland
FOI schemes with respect to the imposition of fees and charges
are similar to that proposed by the Select Committee, in that
there exists both an application fee and associated costs per
hour for the processing of any application and that this fee be
used as credit in respect of any charges levied on the release
of information. (The application fee is also in line with the
ALRC recommendations).
However, the ALRC in its report,
while acknowledging that agencies should continue to be able to
impose charges for FOI access to documents (other than the applicant's
personal information), nevertheless considered that charges should
only be levied in respect of documents that are released.
Not only does this approach produce greater fairness to applicants,
but it may even encourage agencies to release a greater number
of documents.
Furthermore the ALRC recommends that charges should be assessed in accordance with a fixed scale that has been determined on the basis of a realistic assessment of what information technology and record management systems an agency could reasonably be expected to be using. For example the scale would be set on the realistic basis of the average number of hours a competent administrator in an agency with efficient management systems would spend on search and retrieval, with decision making time being excluded. It is argued that a standard fee scale would provide greater certainty and protect applicants against agencies with inefficient information management systems, and could even encourage agencies to better organise their record keeping practices.
Previous $400 ceiling on fees removed.
The Committee stated that it believes that
"the true intent of the Act will not be frustrated by the
removal of an upper limit which may be placed on charges."
They cited evidence provided by the Tasmanian Government submission
in which the average cost to agencies for the processing of requests
is $380, and so claim that the average cost to applicants is likely
to be less than this amount. The Committee states that because
the intent of the legislation is to provide ordinary Tasmanians
with access to information held by government agencies, most,
if not all of the applications for non- commercial information
would fall below $400.
In justifying the removal of the upper limit
for processing charges the Committee states that it is not for
the Tasmanian taxpayer to subsidise commercial research by commercial
organisations, and that the imposition of an upper limit on the
processing fee would have this result. It seems the Committee
gave great weight to a couple of isolated instances where natural
resource agencies believe a particular FOI request was being used
to gather commercially useful information.
The Committee's recommendations use the current
agency practice of low fee charges (imposed by legislation, a
public interest test, ceiling on fees, supervision by the Ombudsman)
to justify changes that remove most of the restraints on those
fee charges. The Committee manages to avoid any reference to the
examples of abuse of fees and charges given in the NSW Ombudsman
report and the ALRC/ARC findings and recommendations on this matter.
Indeed, the NSW Ombudsman is
quite vocal in his opposition to any removal of a ceiling placed
on fees and charges that may be requested. He states that in his
experience as reviewer of FOI determinations, the lack of any
upper limit completely frustrates the objectives of the Act. In
his opinion the underestimating policy which he believes has been
pursued by many agencies is testimony to the fact that those agencies
recognised that the benefits of the Act would be placed beyond
the reach of almost all applicants if all, or even, in some cases
most, of the time spent processing FOI applications was charged
for. Further he notes that the Report of the Senate Standing
Committee on Constitutional and Legal Affairs stated, with regard
to Commonwealth FOI that it was never intended that full cost
recovery apply to FOI. The Ombudsman states that placing an upper
limit on charges does not seek to discard user pays, but rather
seeks to apply that philosophy in a way more appropriate to the
objectives of the Act.
Public submissions received by
the Western Australian Government Commission for its report highlight
the need for a cap on costs for pursuing an application for non-personal
information. Ms Hine told the Commission at a Perth public hearing
about her application for Heritage Council minutes concerning
the Swan Brewery controversy. Ms Hine received a quote for $12,130
for the material she requested and asserted that, even if she
had subsequently narrowed her request, the cost of seeking information
in question would still have been beyond most people's means.
Another submission from Mr Saxon, for the Media and Entertainment
Arts Alliance noted that even the media have to think twice about
pursuing any request that will run into hundreds of dollars.
In the opinion of the ALRC, applicants
should be required to make some contribution to the cost of providing
government held information, but that that contribution should
not be so high that it deters people from seeking information.
The Annual Report of the Canadian Information Commissioner (1995-96) further provides an examination on the fee issue. It states, if a government appears determined to raise fees then the question must be asked "to what end?" Is the goal simply to ask users to make a greater contribution to the associated costs? The Commissioner argues that if so, care must be taken to also weigh the benefits associated with the use of the law. Many of these benefits, such as greater responsibility, honesty and frugality on the part of public officials are not easily quantifiable, nor can the value of a more informed citizenry be measured; yet the benefits are direct and tangible. The Commissioner concludes;
"Even by inflated official figures, the cost of administering access rights is a bargain."
The Legislative Council Select Committee seems ready to reject the bargain and to leave the setting and tallying of costs to the Tasmanian bureaucracy. Once again these recommendations, in relation to fees, ignores the plethora of evidence of other review organisations and the considered opinion of external review agencies in other jurisdictions.
State MP's pay for FOI after first five requests.
The Committee stated that it had received sufficient evidence to indicate that some Members of Parliament were lodging FOI requests on behalf of the public, thereby circumventing the charging of fees. At the moment Tasmanian MP's are entitled to free access under the Act. The Committee believed that this practice should be discouraged, but not to the extent that that the Members would be denied information necessary for the performance of their Parliamentary duties. Thus it was the Committee's opinion that as Members should not need to lodge any more than five applications per year in relation to their official duties, that the application fee should be charged to Members after their fifth request within a financial year. The Committee stated at page 68;
"The Committee has received sufficient evidence to indicate some Members of Parliament are lodging FOI requests on behalf of the public, thereby enabling members of the public to avoid paying fees. This practice should be discouraged, but not to the extent that Members are denied information crucial to the performance of their Parliamentary functions. It is the Committee's opinion that most members would not need to lodge more than five applications each year to access information in relation to their official duties..."
This recommendation and opinion illustrates
the key deficiencies in the Select Committee's approach to their
task. First, the Committee fails to give any evidence about the
precise nature and extent of this "rorting" of the current
Act nor the source or veracity of that information. Second, the
Committee ignores Section 17(1)(h) of the current Act where the
fee waiver is only to be granted if the information is required
by the Member of Parliament in connection with the Member's official
duties. Any agency that suspected an MP was rorting the fee system
could easily use the provisions of section 17(1)(h) and allow
the MP to challenge that decision. Third, the Committee's recommendation
unduly affects independent MP's , party MP's would be able distribute
their requests among members to keep to the limit of 5 per MP.
Fourth, the choice of the magic number of 5 requests accurately
reflects an upper house membership that has no real understanding
or inkling about the potential efficacy of FOI in helping independent
members of Parliament hold the Executive accountable.
The ALRC felt that although there was some support for the proposition of an automatic waiver for Members of Parliament seeking information in the performance of their duties, they did not favour such a proposal. They felt that Members of Parliament can always seek a waiver, and that each request will be reviewed on its merits. Further, it was stated that the availability of the waiver on public interest grounds is sufficient to ensure that the democratic objects of FOI legislation are advanced.
Widening the Cabinet exemption to conceal more government documents.
The Committee stated that it was impressed with the level of commitment to the objects of the legislation demonstrated by agency representatives who presented submissions, and were therefore convinced that an expansion of the exemption for Cabinet information is unlikely to be abused by agencies. Reasons provided by the Committee in justifying widening the exemption included:
-"that such amendments are required to recognise the practicalities of modern Government" (supported by advice from the Solicitor-General)
-" that it is in the public interest that Cabinet information be exempt from the ambit of FOI legislation"
-"any attempt to alter the principles of Cabinet solidarity
should be achieved by a deliberate process, rather than as a consequence
of an amendment to FOI legislation".
A number of non-agency submissions to the Committee had contested the commitment of many agencies to the Act and provided evidence to the contrary. However the Solicitor General had argued that;
'… The realities of modern Executive Government are that ministerial involvement in a record tendered for Cabinet consideration may not arise until the proposal to which the record relates has been developed to the stage that it is ready for the Minister's detailed consideration and his immediate signature if he accepts the proposal. Good administration of a government agency involves far more than simply reacting to a Minister's proposals. Initiative is encouraged in the identification of ideas which might valuably be advanced in the interests of good government and of problems which should be remedied. Once identification takes place, those proposals and remedies can be and are often worked through and developed to a stage that a submission is prepared in a form ready to go to Cabinet with the Minister's sanction. Only then is the Minister involved. If he accepts the recommendation and endorses such a submission it would, under the present provisions, not be exempt under S.24. That, in my view, is ridiculous.'
While the Solicitor General may have described
the actual process of policy formulation in Tasmania and aptly
captured the role of Ministers as mere message deliverers of their
bureaucrats' designs it misses the rationale for the Cabinet exemption
in FOI legislation. Namely, the protection of the actual deliberations
of Cabinet.
The Committee also stated that Executive Council
information warrants the same degree of protection from disclosure
as is afforded to Cabinet information and therefore agencies should
retain the discretion to issue a conclusive certificate in respect
of Executive Council information, as long as the Ombudsman's power
to review the issuing of these certificates is maintained. The
Committee views the amendments to Section 23 to include briefing
papers and records prepared for submission to the Governor or
Executive Council whether or not they have been submitted, as
"logical extensions of the current provisions".
In widening the Cabinet exemption
to conceal greater government documents, the Council is taking
a stance that runs counter to recent reforms suggested by the
Queensland Information Commissioner in his 4th Annual Report to
Parliament (1995/1996) and the Western Australia's Commission
on Government Report (1995). The proposed amendment removes the
requirement that a Minister contribute to the origin, subject
or contents of a record which is created for the purpose of being
submitted to Cabinet. Under the amendment, an exempt record is
one prepared by or for a Minister for the purpose of being
submitted to Cabinet, whether or not the record has been so
submitted.
The Queensland Information Commissioner stated in relation to similar amendments to the Cabinet exemption in the Queensland FOI Act, that so wide is the reach of the section, that it can no longer be said to represent an appropriate balance between competing public interests favouring disclosure and non-disclosure of government information. Indeed, the Information Commissioner stated that;
"they (the amendments) exceed the bounds of what is necessary to protect traditional concepts of collective Ministerial responsibility (and its corresponding need for Cabinet secrecy) to such an extent that they are antithetical to the achievement of the professed objects of the FOI Act in promoting openness, accountability and informed public participation in the processes of government."
The Western Australian Commission stated that while it appreciated that there are competing considerations which must be assessed when considering the justification for Cabinet secrecy, it nevertheless favoured greater openness in the Cabinet process, noting that any body that operates in secret has the potential to engage in improper, illegal, or corrupt conduct. The Commission found it incongruous that Cabinet should be exempt from any form of public disclosure of its operations, while corporations must face a most stringent and onerous disclosure regime. The Commission stated ;
"that it was clear that the heavy veil of secrecy under which Cabinet operates does not always serve the public interest and that the current accountability mechanisms need to be supplemented without materially affecting the proper functioning of Cabinet and its role within our system of responsible government."
The Commission favoured the introduction
of a Cabinet decision register that would record the decisions
of Cabinet and be made available for public inspection after a
cabinet meeting. The register should reveal such details as the
names of those attending the meeting, the collective Cabinet decision
reached, the quantum of any public funds committed and the minister
responsible for implementation. The purpose of the register would
be to make available to the public a clear record of what decision
has been reached. Although, in the Commission's view public access
to the proposed Cabinet decision register is paramount, it recognises
that in certain instances it may be necessary to temporarily exempt
the disclosure of information.(such as decisions involving variation
in tax rates or the provision of support for private sector organisations).
Nevertheless, the exemption of decisions should be limited and
should be lifted once the decision is implemented or after a period
of two years (which is not to be extended). The Premier would
hold the discretion in deciding what items require exemption on
these grounds. The Commission stated that the benefits of this
model would include; a statutory right of access to a timely record
of cabinet decisions, the establishment of an audit trail of decisions,
greater accountability of the Executive, and no impairment of
the freedom and candour of cabinet deliberations.
Furthermore, it was recommended
by the Commission that the federal system of cabinet record keeping
should be introduced. In particular, cabinet minutes should be
kept recording the collective decisions reached. Cabinet notebooks
should also be kept which record the individual contributions
of ministers and while not being a verbatim account of the proceedings,
should accurately reflect the discussion which occurred.
In light of the considered and careful approach of the Commission on Government to the issue of the Cabinet exemption under Freedom of Information the anarconhnistic, superficial and non-open government attitude of the Tasmanian Committee's approach is clearly displayed.
Existing 10 year rule for releasing Cabinet papers now extended to 20 years.
The Committee acknowledged that while a government
may retain power for more than ten years, there nevertheless should
be a time limit, after which Cabinet documents may be disclosed.
In justifying the extension of the current 10 year limit to a
20 year limit, the Committee discussed the ALRC recommendations
that suggested that Cabinet documents be exempt for 20 years,
rather than for 30 years. This recommendation was based on the
theory that 20 years generally represents a generation of Ministers.
The Committee stated that it agrees with the ALRC and feels that
20 years is a more suitable time frame for the exemption of Cabinet
documents.
The Western Australian Commission
on Government report provides comment with regard to the limit
being only 10 years, rather than 20 years. The Commission stated
that while recognising that for the effective operation of Cabinet
proceedings it is necessary that cabinet deliberations be confidential,
they also stated the need that this exemption not apply indefinitely.
The Commission stated that the public interest in promoting open
discussion of public affairs and enhancing government accountability,
calls for the release of all cabinet material after ten years.
The Commission also makes the distinction between Cabinet deliberations
and final decisions, with only the former being protected. Accordingly,
once a collective decision has been reached, unless there are
counterveiling public interests to the contrary, the public should
be entitled to prompt access to such decisions (such as through
their suggested cabinet decisions register model).
In making its recommendation
the Legislative Council Committee noted that a ten year rule currently
applies in Victoria, New South Wales and Western Australia but
failed to justify why the Commonwealth ALRC recommendation was
superior to the current practice in a majority of states.
The experience with the Official Information Act in New Zealand demonstrates how the collapse of civilisation as we know it will not take place if access to substantial amounts of Cabinet information is granted even only a few months after the final decision is made. A crucial design difference between the New Zealand and Australian access to information schemes is that in New Zealand judgments about exemptions are based on the consequences of releasing particular information in contrast to the Australian approach "which categorises particular documents". So in New Zealand the crucial question is "what is the consequence of revealing this cabinet information?" as opposed to the Australian "This is a cabinet document therefore it must be exempt."
Removal of the public interest test for internal working documents
The Committee stated that the misuse of the
Section 27 exemption for internal working documents would be avoided
if the section included a specific list of documents excluded
from the exemption. The Committee suggested that Section 36 of
the Commonwealth Act be used as a basis for providing such a list,
with the addition of statistical information. Therefore, suggests
the Committee, it would be appropriate to remove the public interest
test from this section as the exemption would only be applied
to advice, opinions and recommendations. The Committee believes
that the amendment to include consultations or deliberations between
Ministers is justified, but does not discuss why.
The Committee's recommendation
in support of removing the public interest test for internal working
documents is staggering in terms of its variance with considered
opinion on this matter and the complete absence of justification.
The Committee's discussion of the public interest test involves
no more than one paragraph which obliquely equates Section 12
(the section that encourages agencies to release otherwise exempt
information) as a workable equivalent to a specific public interest
test and a paragraph which refers to Section 59A of the NSW FOI
Act. The absence of any detailed analysis to justify the removal
of the public interest test almost defies explanation.
In stark contrast the WA Commission of Government specifically recommends that the Freedom of Information Act 1992 (WA) should be amended to make provision for the attachment of a public interest test to each exemption except for the Cabinet exemption. The Commission argued that;
"A public interest test has long been recognised as a useful criterion for the law in striking a balance between various competing interests. Indeed, FOI legislation itself is often couched in public interest terms. The public interest in open government is frequently cited as the rationale for adopting it and grafting a new generation of accountability measures onto our system of government."
The ALRC Report incorporates all the previous views on the necessity to have a flexible public interest test to be used in conjunction with an internal working document exemption. The ALRC argued in Discussion Paper 59 that the
"balancing of any number of relevant considerations is ... a fundamental part of the Act and one that makes a public interest test, difficult though it may seem, an essential part of the Act."
Yet the Tasmanian Legislative Council Committee nonchalantly deletes a key public interest test from the FOI Act with barely an effort to analyse or justify its suggestion. Additionally the Committee made no comment on the suggestion that Section 27 should be amended along the lines suggested by the NSW Ombudsman in his Special Report "Freedom of Information: the way ahead" ;
Clause 9 of Schedule 1 of the FOI Act be amended to distinguish between pre and post decision-making and to limit the circumstances where an exemption applies after a decision has been made (without creating any implication that pre-decision making documents are automatically exempt).
A fee to seek review by Ombudsman
The FOI Amendment Bill proposed
that applications for review by the Ombudsman must be accompanied
by the prescribed fee ($25), but which is not payable in cases
where the original application fee was waived pursuant to s 13.
Keeping in tradition with the Committee's lack of attention to
detail and analysis as to its reasons for decisions, the Committee
merely states in response to this proposal:
" the Committee approves
of the introduction of a fee for external review by the Ombudsman
to discourage vexatious applications."
Statistics taken from the Ombudsman's Annual Report (1996) reveal current trends of external review of FOI agency decisions to be staggeringly low, in that for 1996, only 31 FOI reviews for State and Local Government agencies were conducted by the Ombudsman ( as compared with 48 reviews for the preceeding year). Indeed, when the number of requests for external review is taken as a percentage of the total number of requests, it is revealed that only a mere 0.9% of applications ever reach this level of review. Given this figure, it is difficult to see how the Committee now justifies the imposition of an external review fee. The imposition of fees generally (such as an initial application fee and processing charges) together with the proposed external review charge means that the seeking of access to information under the Act is now more costly than ever. Furthermore, because fee levels are set for by regulation, the Executive of the day can effectively increase the fees subject to the possibility of scutiny by the Subordinate Legislation Committee.
How the Committee has failed in its
task - Chapter 3
The approach to Chapter 3 "The Effectiveness of the FOI Act" illustrates all the deficiencies associated with the Committee's approach to its task. The Committee managed in 13 pages, with the exception of one brief reference, to ignore the mass of evidence presented in various submissions which raised concerns about the effectiveness of the Act. In large part the Committee made uncritical observations of agency performances with an occasional reprinted extract from the Government's submission (or agencies) and a page from the Freedom of Information Guidelines. It was in this Chapter that the Committee declared that the Act:
"is being used effectively by the limited number of people with a need to access government information and that it is unlikely that a large number of Tasmanians have a need to use the Act."
The Committee almost appears satisfied with the fact that the objectives of the Freedom of Information Act 1991 of improving democratic government in Tasmania by "increasing the accountability of the executive to the people of Tasmania "and "by increasing the ability of the people of Tasmania to participate in their governance" are not only failing but that this is a desirable state of affairs. As Hazell noted in a slightly different context:
"with the wisdom of hindsight it was naive to suppose that individual citizens ever would be the major users of the legislation. The public are seldom direct consumers of government information: they rely on others (the media, interest groups, political parties) to process the information for them and to select items which will appeal to their own particular range of interests and prejudices. To argue from the lack of public demand that the public are not interested misses the representative function of many requests: the public may have little interest for themselves, but nevertheless be keen that the media and other associations should continue to make their requests on their behalf."
The Committee used the following loose criteria to evaluate the effectiveness of the Act;
Making government information more
accessible
The Committee merely indicates that FOI is just one of a range of formal and informal mechanisms to achieve open and accountable government. The Committee then makes no attempt to evaluate the efficacy of FOI in comparison to the other means of information dissemination suggested such as questions in Parliament, annual reports, the Internet and community consultation. The Committee remains silent about the myriad of reports, articles and commentaries which have exposed deficiencies or shortcomings in these alternatives or which have demonstrated how FOI is a necessary accompaniment to these processes.
In addition to a quick run down of the pattern and frequency of requests the Committee mentions Forestry Tasmania's practice of providing information outside of the FOI process. The Committee made no significant attempt to establish the extent and effectiveness of this practice across the Tasmanian public sector. The Committee ignored the experiences and observations put before it including those of long-term Tasmanian journalist Wayne Crawford who stated:
"Generations of Tasmanian Ministers and bureaucrats have preferred to go about their tasks hidden from public gaze, revealing only what suits their purposes Ö We would add that the more secretive a government is allowed to be the more powerful and repressive it will become. Conversely the more open it is and the more its information is freely available the more democratic and accountable the government."
The Committee repeats at some
length the Government's view that something must be wrong with
the FOI Act because the majority of requests are for Government
information rather than personal affairs information. The Committee,
like the Government, seems to have missed the point that this
is precisely why FOI Acts have been brought into existence. The
Committee made no comment on, despite receiving submissions on
this point, what impact the Government's and agencies lack of
publicity about the FOI Act had on the usage of the legislation.
In three brief paragraphs (totaling 10 lines) the Committee indicated that it was satisfied with the "acceptance by agencies and local government of the pro-disclosure emphasis of the legislation." The Committee made no mention of the evidence it had received, or had been generated in the media, which cast doubt on a general pro-disclosure approach in relation to several important issues including information about the purchase of the Spirit of Tasmania, the Legionnaires Outbreak at the Burnie Hospital, the Police Tracking Affair and access to consultancy reports among other issues. The Committee received an extensive submission on the extensive failure of Government and agencies to release information in relation to the Legionnaires Disease Outbreak in Burnie. Yet this chapter makes no mention of this failure to take a pro-disclosure approach to the legislation.
Under this heading the Committee
briefly outlined the main types of exemptions claimed by agencies
and devoted one paragraph that mentioned the frequency with which
the internal working document exemption had been used. Once more
the Committee did not respond to concerns raised to it that some
agencies were taking a cavalier approach to exemptions or were
using blanket claims for exemptions to stonewall or discourage
applicants. In many ways this Chapter reads as if the Committee
received no submissions at all on the effectiveness of the Act.
Time taken to respond to FOI requests
The Committee used these two lengthy paragraphs to justify and excuse the difficulties agencies had encountered in meeting the required statutory time limit of 30 days. The Committee briefly mentions concerns had been placed before the Committee by some witnesses that there appeared to be evidence that some agencies were using time limits to delay requests.
In this section, which covered
two pages, the Committee largely restricted itself to a mere repetition
of a lengthy passage from the Tasmanian Freedom of Information
Guidelines.
The failure to consider non-government
reform proposals
In respect of non-government
reform submissions, the Committee recieved over 20 written applications,
together with statements from over 30 witnesses. It is disappointing
that only a bare minimum of such reforms were incorporated into
the Committee's recommendations in the final report. While, note
worthy is the non government reform recommendation relating to
the greater coverage of FOI to GBE's, this proposal remains noticeably
isolated and lonesome when contrasted with the plethora of reforms
reflecting the Tasmanian Government's submission. While some time
and effort was expended by the Committee in the mention of non-government
reforms in the report, in the majority of cases this was as far
as the reform was considered. Indeed, there was little attempt
at analysis by the Committee as to why non-government reforms
appeared to be so uniformly unsatisfactory. This fact is compounded
by our previous discussion relating to the extensive amount of
material documenting recent FOI reforms from which the Committee
had access:
Significantly, instances from
which the Committee did draw upon this material were limited to
the justification of their reforms, and so were in most, drawn
quite out of context from the primary source.
The work of the Committee reflects
wasted effort and missed opportunities. The Committee received
suggestions on positive reforms to the Act and had almost a year
to pick the best out of the ALRC/ARC and other suggested reforms
from Western Australia, New South Wales and Canada. A large number
of people and organisations in Tasmania, and more importantly
Australia wide, participated in this review exercise in good faith
and with the expectation that the Committee would start to understand
the necessity for effective FOI legislation. To sell this report
as mere fine tuning is at best a display that such an understanding
did not occur and at worse an indictment of the law reform process
in Tasmania.
In many ways the Committee's report reflects a betrayal of the trust placed in it by the people of Tasmania. In its report the Committee noted that;
"As a result of the controversy which surrounded the Bill and the perceived consequences of the amendments, it was widely accepted that an independent inquiry should be appointed to seek public opinion on and to analyse the changes.
This Select Committee of the Legislative Council was appointed without dissent. Its establishment was welcomed by the Government, the Opposition, the Tasmanian Greens and by members of the community at large."
In the end the Committee failed
to endorse the majority of opinion expressed to it, failed to
critically analyse the changes and failed the majority of its
original supporters. The outcome of this Committee's activities
raises serious questions about the danger of leaving issues which
are complex and/or linked to Parliamentary democracy to this type
of forum. This Committee has produced a report which is demonstrably
inadequate but will now be used to legitimate an attempt to sabotage
the Freedom of Information Act 1991. The attached newspaper
clippings which preceded and followed the Committee's formation
symbolise the vast gulf between this Report and the reality of
the threat to open government in Tasmania.