An edited version of this paper appeared as "Freedom of Information: A Research Tool for Tasmanian Lawyers." Survey of Tasmanian Law Vol 1 1994 92-111.

Preliminary

This paper is an expanded version of the talk I presented at The Law Society of Tasmania Continuing Legal Education seminar "Changing Times: Changing Laws" 18 March 1994. Feedback from those present at the seminar indicated that I had raised a number of ideas about the use of the Freedom of Information Act 1991 (Tas) which had not to that point been seriously considered as a viable and multi functional working tool. I have therefore expanded upon many of the points I made in my talk, added a few more examples and provided some substance to the examples given. The theme of the talk was that Freedom of Information legislation, especially at the State level, provides a key tool for lawyers to use in their normal work or to undertake work in new fields. Like all tools FoI can be overused, under used or poorly used. If used with skill and finesse FoI can become a high precision (and inexpensive) device for lawyers to use on behalf of their clients.

The ideas in this paper are not meant to be exhaustive or definitive. My goal is to stir imaginations and to reveal possible applications of FoI. This paper has drawn from many sources including: my experiences with FoI as a lecturer in law, as national editor of the Freedom of Information Review, as a regular FoI applicant, as a consultant and researcher, from my contacts with Australian and US academics and government officials working in the area of FoI case law and, not least, from suggestions of other writers.

Introduction

FoI is a radical piece of legislation. It is designed to transform the bureaucratic mindset from one where secrecy and non-disclosure prevails to one that gives access to as much information as possible. The Act achieves this goal by giving any person a legal right to all information held by government agencies subject to a limited number of exemptions which are to be interpreted narrowly. The objective of access is futher assisted by many of the exemptions having a public interest test.

Provision is made for internal review of decisions within the agency denying FoI requests. There is also provision for external review via the Ombudsman. This review process increases the possibilities of further information being released in part or in full. It should be noted that access is given to all or at least part of the information requested in over 90% of requests. Full access occurs in approximately 80% of cases. Internal and external review increases the access rate to about 94% of requests.

FoI presents unbounded opportunities to gain access to large reservoirs of information. The Act creates a revolutionary reversal of information availability that is waiting to be exploited by those who are innovative and prepared to experiment. Before 1993, approaches to the public sector for information was a haphazard affair with the normal outcome being little or no disclosure of information unless other factors intervened. Since 1 January 1993 there has been a legal entitlement to all information unless it falls under an exemption, and the Agency decides to exercise that exemption power. The Act encourages Agencies to exercise their discretions in favour of disclosure giving them the right to release otherwise exempt information.

Any lawyer or professional using the Tasmanian FoI Act on a regular basis is advised to have easy access to the following material;

Essential materials

Freedom of Information Guidelines

These are available from the State Government Printer for $35 (later 1993). The guidelines contain a copy of the Act, the 1992 Amendment Act and Regulations concerning fees. The guidelines are designed to help public servants deal with requests for information and spells out in a broad fashion the considerations and major legal points that should be applied with the handling of each exemption provision.

Freedom of Information Review

As the national editor my bias may be showing, nevertheless it is an inexpensive way of being regularly informed about recent developments in FoI around Australia and provides regular case notes on key recent cases. The cost is $35 a year for 6 issues. Available from the Legal Service Bulletin Co-Op, c- of Faculty of Law, Monash University, Clayton 3168, ph (03) 544 0974, fax (03)565 5305 or via the author.

1994 Law Handbook

The FoI chapter in the Handbook provides a very good basic guide to using the Act.

Highly desirable

Kyrou, Victorian Administrative Law, looseleaf service.

Flick, Federal Administrative Law, loose leaf service.

Victorian Administrative Reports.

Australian Administrative Law Journal

Madeline Campbell, "Freedom of Information Legislation in Australia: A Comparison" Administrative Law: Does the Public Benefit? ed John McMillan, Australian Institute of Administrative Law 1992, 375-385.

Decisions of the Queensland Information Commissioner

Decisions of the West Australian Information Commissioner

Examples of Use

Access to police prosecution briefs

Manuals/Procedures

Material to support ultra vires actions

Accident and other reports

Commercial Disputes

Access to Investigation Records

Release of Exempt Documents in the Public Interest

Grievance Information

Background Information for a Case

Alternative Action for Clients

Defamation

Access to police prosecution briefs

In Sobh v. Police Force of Victoria the applicant appealed against a decision of the Supreme Court upholding an exemption for documents on his police file under section 31(1)(a) Vic (Law Enforcement). The Court of Appeal rejected the police argument that held that disclosure of a police brief, or entire file, would prejudice the proper administration of the law, but held that the individual circumstances of the case must be considered. The effect of this decision is that access to significant parts of police files is now available to an accused appearing in a Magistrate's Court. The decision in Sobh has been applied by the Tasmanian Ombudsman. Some points to note:

Not all information will be available see (Section 28 (law enforcement information and Section 29 information affecting legal proceedings).

Agencies can take up to 30 days to process FoI requests.

Requests should be narrow and specific to speed up processing, in recognition of the resource constraints of the Agency e.g.

Requests for "all information held by police in relation to my client" or "all the contents of the police brief" will cause delays, especially if all that is needed are copies of witness statements.

Manuals/Procedures

These can include;

Police Standing Orders

Fingerprinting Manuals

Departmental Manuals

The Law Faculty Library at the University of Tasmania acquired a full copy of Police Standing Orders under FoI in early 1993. Another applicant has received copies of Fingerprinting manuals (with the exception of the section dealing with latent prints). Of particular interest with these requests was that availability of this information in other jurisdictions was a key factor in gaining release its in Tasmania.

Material to support administrative law actions

The availability of FoI has dramatically improved the feasibility of administrative law actions in Tasmania. Administrative law cases at common law are often hampered by lack of evidence Minister for Aboriginal Affairs v Peko-Wallsend Limited illustrates how useful FoI can be in deciding whether an applicant has a strong enough case to challenge an administrative decision on the grounds that it was ultra vires. Peko-Wallsend obtained documents under FoI that revealed that the Federal Minister, Mr Holding, had not taken into account the representations made by the company in 1981 in deciding whether the company would suffer detriment if Crown Land was granted to a Land Trust. Without this evidence Peko-Wallsend would have been without a case. The High Court held that the Minister was bound to consider the submission made by Peko-Wallsend and his failure to do so constituted a failure properly to exercise his discretionary power. The FoI request by Peko-Wallsend established that there was a basis for the company to challenge the decision on the grounds of ultra vires.

Accident and other reports

Lawyers acting on behalf of clients (individuals or insurance companies) often have difficulty in advising whether active steps to defend a claim should be taken or whether it is more expedient to commence immediate settlement negotiations. If a government agency is directly or remotely involved in a claim then a FoI request to that agency may produce some helpful material.

A request to the Department of Employment after an industrial accident may reveal the extent to which a plaintiff contributed to the injuries suffered. Requests to transport authorities for documents relating to road conditions and/or maintenance may reveal some degree of contributory negligence. Access to equipment maintenance reports may reveal a long history of faulty functioning.

Mine inspection reports, including accident reports, in Tasmania have been released under FoI despite a claim for exemption under section 36 (information to which secrecy provisions of enactments apply) linked to section 47 of the Mines Inspection Act 1968. The department's claim for exemption was unsuccessful because the Ombudsman accepted that section 47 of the Mines Inspection Act did not come within the narrowly worded provisions of section 36 of the FoI Act. This example is important in another way. It illustrates that it is often necessary to pursue a claim to the final review stage before disclosure will occur. Many applicants uncritically accept the decision of the original deciding officer as being indicative of the likely outcome at both internal and external review stages and fail to continue with their applications.

Commercial Disputes

Lawyers can use FoI in many commercial disputes (tender, customs, building or industrial), to gain extra information about a commercial competitor, or gather evidence of contraventions of fair trading or other legislation. An FoI request may reveal that a client's competitor has been subject to an investigation, or has failed to comply with either environmental or local government requirements. An applicant recently used FoI to access a wide range of documents held in the Land Titles Office dealing with all aspects of a long running dispute, still to be resolved, involving his property.

The use of the Commonwealth FoI Act in commercial disputes can be particularly useful as illustrated by Re Corrs Pavey Whiting & Byrne and Alphapharm : Collector of Customs In this case access was sought to various documents regarding the import of a substance which the applicant believed to be infringing patent rights. The requests for information were denied. However a number of other documents were revealed upon which an action for patent infringement was eventually based.

The lesson to be learned from Re Corrs is that users of the Act need to be alert to possible lateral outcomes of their requests. In sensitive areas, such as commercial information held by Agencies, it is likely that many documents will not be released. However the information collection activities of these agencies may have gathered together other commercially useful material which only becomes known because of a request for exempt material.

The commercial use of FoI has become the principal use of that legislation in the United States since the early 1980s. Corporations and other litigants discovered that the government was an information warehouse that held information on third parties. Businesses had learned that

the FOIA could be used to gather information about competitors that could be used to gain a commercial advantage. In fact, the vast majority of the FOIA requests were made by business executives or their lawyers, who in the words of Judge Patricia Wald, "astutely discerned the business value of the information which government obtains from industry while performing its licensing, inspecting, regulating and contracting functions."

Access to Investigation and other Reports

Information contained in reports is, to a large degree, either factual or not contrary to the public interest if released. Various authorities will often collect together information in response to complaints or incidents. This collected material can often form a rich source of information for an FoI applicant. In the case of Re Barling and Medical Board of Victoria the applicant sought access to documents in relation to his complaint to the Medical Board of Victoria. The documents in dispute consisted of medical reports obtained by the Medical Board for the purposes of investigating a complaint. The Board exempted one document (an investigator's report) under s.30(1) Vic (internal working documents, section 27 Tas) and five other documents were exempted under s.35(1)(b) Vic (Breach of confidence, section 33 Tas).

The Tribunal found that the medical reports were not communicated in confidence and that release was not likely to have an inhibitive effect on the future willingness of medical practitioners to co-operate with the Medical Board in furnishing it with information. This view was reached after careful consideration of the particular facts and circumstances involved in this particular case. This view should not be taken as an indication that a review body would adopt the same outcome in future investigation cases. Each case will depend on what factors can be marshalled to support disclosure or the presence of factors which warrent non-disclosure such as unreasonable disclosure affecting an individual's personal privacy. With respect to the exemption claimed for the internal working documents in Re Barling, the Tribunal found that a large part of the report was factual and that although the report contained recommendations and expressions of opinion, release would not be contrary to the public interest.

Whenever presented with a claim for exemption under section 27 (internal working documents) pressure should be placed on the agency to show why material is not purely factual material and therefore disclosable. For example, in one of my requests relating to information created 18 months previously, the Ombudsman accepted the argument that information which is old or pertaining to decisions publicly announced would often be disclosable. The agency had refused access on the grounds, under the internal working document exemption, that the information if disclosed would prejudice the proper working of government. The Ombudsman stated:

"I cannot see that this information, if released, would prejudice the proper working of Government. Given the passage of time since the information was created, and the fact that decisions have been publicly announced and implemented, it is in the public interest for citizens to be aware of some of the processes which contributed to the decision."

Release of Exempt Documents in the Public Interest

The case examples in this section have been included to demonstrate that otherwise exempt information can sometimes be released because of public interest considerations.

Re Robinson and University of Melbourne

A journalist sought to access documents which would identify the donor of funds to the University of Melbourne. The tribunal held that despite the documents being exempt under s.34 (business documents exemption - documents related to matters of a business, commercial or financial nature), they should be released as the public interest in whether donors were individual or corporate outweighed the public interest in financial support through confidential donations to a public institution.

Re Atkinson and Public Transport Corporation

A member of parliament sought access to documents relating to the payment of funds and the purpose for which they were used (letters, memoranda and agreements relating to the conditions and remuneration levels during the contracted employment period) under a Senior Manager's contract. The tribunal held the documents were not exempt under s.33 (documents relating to personal privacy), as although some related to work contracts, income and tax arrangements, the degree of right to protection of privacy was outweighed by the degree of interest in public scrutiny.

Grievance Information

Clients working in the public service will sometimes seek advice because they believe hey have been subject to unfair practices or want to find out why certain action was taken against them. In these types of actions, valuable information can be uncovered by using FoI. However, as the following case studies demonstrate, many of the issues will be highly technical and a skilled user of FoI will often gain more information than a novice.

Reilly and Kilmore and District Hospital

The applicant sought various documents relating to her employment at the hospital as a nursing director. Two documents contained a motion and attachments concerning a staff meeting at which a no-confidence vote had been passed in respect of the applicant (who was not present). A third document in question was a letter, about the nursing director, received by the Hospital Board.

Document 1 (the motion) was released to the applicant. It was held by the tribunal that therelevant exemption, section 35(1) breach of confidence, (section 33, Tas) did not apply because the document was neither given in confidence nor was its release likely to impair the divulgence of similar information in the future. The Tribunal held the attachment to the motion and the letter would however impair the giving of similar information in the future, and, accordingly, the applicant was denied access to those documents.

Re Read and Public Service Commission

The applicant sought external review of the PSC's decision to refuse access to file notes, memos and reports by the Office of Merit Protection (OMP) relating to the investigation of an employee grievance concerning an adverse Staff Development Review. In excess of 200 documents were initially sought. However by the time a formal determination was made, the disputed documents numbered only 17, due to the OMP agreeing to release the rest. Seven documents were finally exempt on the ground that they were confidential communications, schedule 8(2) WA (breach of confidence). Access was granted to the remaining 10 documents with paragraphs edited so as to remove material attracting legal professional privilege, personal information and information outside the ambit of the application.

In this last case it is significant to note how much material was conceded before the last hearing: 183 documents. It is a common experience in FoI litigation that an Agency will refuse to release information at all stages until a few days before a final review decision is due or before a tribunal or court hearing takes place. At that point the majority of withheld documents may be released. Section 12 of the Tasmanian FoI Act allows an Agency to make available any information, including exempt information, outside the requirements of the Act.

Background Information for a case

Often FoI is useful indirectly in uncovering background information or helping to confirm that a certain event or course of conduct has taken place. For example, in a recent case, an applicant disputed a forced redundancy from the public service. To help establish his case he needed to verify that a series of meetings in regard to his redundancy had taken place, between representatives of several agencies. He was unsuccessful in gaining access to any documents relating to these meetings (all parties disputing that any meetings had taken place and/or denying that any courses of conduct were determined at those meetings). However he was able to extract an index of communications (relating to his redundancy) between various agencies. This index showed patterns indicative of the suspected meetings actually having occurred. For example

8 July To Secretary Department X

From Legal Officer

Subject Contract of Employment A

(Refers to meeting 9 October - no record of whether formal or informal or indication of whom present)

As a result of this information he sought access from an Agency, which he previously had not considered involved in his redundancy. That agency, under FoI, provided documents held by its officers including their notes and correspondence from these previously "non-existent meetings".

A further illustration of FoI's usefulness in obtaining background information for the preparation of a case is provided by the story of Mr Neary. A senior engineer with the NSW State Rail Authority (SRA),Mr Neary, sought external review by the Ombudsman of the SRA's decision to deny him access to three documents held by the authority. The documents under dispute were :

Document 1: Two committee reports by the SRA chief concerning irregular expenditure of capital work funds.

Document 2: Internal Audit report on consultancy payments.

During the Ombudsman's preliminary inquiries, Document 2 was released, however, the SRA claimed Document 1 should continue to be exempt under 4(1)(e) (law enforcement) as the reports were the subject of ICAC and Attorney-General investigations. The Ombudsman found SRA's claimed exemptions were unreasonable. The position of the ICAC and A-G in regards to release of the documents had in fact been misrepresented by SRA officers. Mr Neary eventually gained access to all documents bar those containing information about third parties.

Alternative Action for Clients

The Molesworth Environment Centre and the Department of Defence land saga at Bathurst are two good examples of how FoI can be used to settle a controversy or prevent a development where no other legal avenues are readily available. In these types of cases instead of turning new, or old, clients away with "sorry, nothing we can do on this one for you," FoI gives the lawyer an opportunity to gather vital information. Armed with this information the client will have a better chance persuing alternative avenues to obtain justice or a hearing, for example, by gaining press attention, persuading the Ombudsman or Auditor-General or by having members of Parliament take up the cause. Often documents released under FoI, such as Ministerial briefing notes, will persuade a community group that their current lobbying activities are ineffectual or need to be redirected. The closure of the Molesworth Environment Centre provides a good illustration of this point.

Molesworth Environment Centre

In December 1992, the Department of Education and the Arts announced it would be closing several Environment Centres attached to primary schools as a cost-cutting measure. The Molesworth Environment Centre was targeted for closure. An action group, the Friends of the Molesworth Environment Centre, was formed to lobby against closure. The Friends of Molesworth and the media were constantly told that the Centre was closed for cost cutting reasons and this was the only factor taken into account when making the decision.

The goodwill generated from a law firm's involvement in the release of documents in a similar community issue would be very high. After thirteen months and three FoI requests, two of which required intervention by the Ombudsman, a far different picture emerged. Government briefing papers were released confirming that the Department was trying to cut costs but had also presented the Minister with information strongly arguing that the Molesworth Environment Centre should be the last centre to be closed down. The reports indicated that on almost any criteria the Molesworth Centre was an excellent operation and should receive some continuing level of funding. This information was important to the local community and was provided free of charge (eventually) under the FoI Act. The Bathurst land saga is nother example demonstrates the community gratitude that can be achieved by gaining information under FoI.

Bathurst Land Saga

In the Bathurst Defence land saga local residents strongly opposed a proposed Defence Department land purchase. Evidence obtained by the residents under FoI led to the government abandoning the proposal. A Senate Standing Committee inquiry into the matter stated that:

Throughout the enquiry, material obtained from the department under the Freedom of Information Act by interest groups opposing the proposals repeatedly contradicted or undermined evidence presented to the committee by departmental witnesses.

Defamation

The use of FoI to "fish" for information is one of its major advantages over the normal discovery process. A recent case in Western Australia illustrates the advantages that can be gained from FoI in defamation proceedings. In Re Veale and Town of Bassendean the applicant sought access to a document, prepared by the Town Clerk, in which he claimed defaming statements had been made. The applicant intended to take Supreme Court procceedings against the former Town Clerk but needed the document, held by the agency, to commence proceedings. As the agency was not a party to the proceedings before the Supreme Court the applicant was unable to obtain an order for discovery of the document. However the Information Commissioner held that the document was not exempt and was available to the applicant under the Freedom of Information Act 1992 (WA). Another example of this use occurred in Re Horesh and Ministry of Education. In that case the applicant had commenced defamation proceedings against a high school principal. The applicant sought documents, including transcripts, of a departmental inquiry into the same incident.

Some Tips and Traps for the Novice

Section 19(2)

Lawyers will generally use their own standard form letters in making a request under the Act. However, it is important that special attention be given to the requirements of section 19 (2). This section requires the applicant specifically to request access to non-exempt information in circumstances where part of the requested information is considered exempt by the Agency. If no such request is made the Agency can refuse access to all the information (exempt and non-exempt).

Reason Statements

Where information is refused in part or full, section 22 requires the agency to provide the applicant with a statement of reasons for the decision to refuse access. Adequate statements of reasons are very useful in seeking internal and external review. However the general quality of statements varies from agency to agency. If the statement appears inadequate lawyers should demand at the internal review stage, that even if the decision maker intends to uphold the claim for exemption that an improved statement of reasons be provided. An undergraduate study carried out in 1993 demonstrated that there is a need for Tasmanian Agencies and the FoI Unit to improve the overall adequacy of reason statements. The study concluded that

" the overwhelming conclusion is that the standard of statements of reasons are inadequate based on the recommendations and requirements of Attorney General's Memorandum No. 26. Furthermore, in failing to meet the criteria stated below, there is an overwhelming failure by agencies to comply with their statutory obligations in providing a statement of reasons, under the Freedom of Information Act (1991), and in fulfilling their obligations to the public to inform them of their real basis of a decision."

The study highlighted that FoI Officers and Principal Officers appeared to have had difficulty understanding what would constitute an adequate statement of reasons. The Queensland Information Commissioner made similar criticisms of the adequacy of reason statements prepared by Queensland agencies during 1993. This topic has been examined in greater detail in another article.

Indexes

FoI applications are often educated fishing expeditions. These forays can be refined by initially requesting an agency to provide registers or indexes of various records held relating to the general area in which you are interested. For example when tracing details for the Molesworth case a copy of an index of briefing notes prepared for the Minister of Education over a three month period was sought. In a later request a copy of register of documents pertaining to the operations of a particular Board was also obtained. This register identified precisely the different files and their subject matter and assisted in the construction of further requests which were targeted to more precise areas:

Legislation

B1/6 Freedom of Information

Industry Developments - International

B4/2 India

B4/12 Egypt

Security

B5/2/1 Licensing

B5/13/1 Analysis - Samples

B5/20 Monday Meetings

Trade

B6/6 Marketing Initiatives

General Files

B8/7/1 Agency Consultative Committee

B8/18/4 DPI - Senior Management Meetings

Personnel

A2/2 Occupational Health and Safety

Vehicles

A5/1 Motor

Access to such information allows the applicant to be very specific in requests. This accelerates the processing of applications and enables internal and external reviews to be conducted faster and focus more precisely on the key information or documents that the applicant is seeking.

Physical Inspection

Section 19(1) allows applicants to be given copies of the information and/or a reasonable opportunity to inspect the record containing the information. This latter alternative can be usefully exploited to minimise costs and to maximise access to information. In a recent request to an agency access was granted to all of files on a particular matter so that precisely what was wanted could be identified. While perusing the files a number of other documents were discovered to which access will be sought in future requests.

On another occasion the Agency identified the information it was prepared to allow access to and I was able to inspect those documents in order to minimise copying charges. It is possible to be swamped by unwanted reams of information. On one occassion a request made to the Department of Primary Industry resulted in a pile of documents 30 cm high being released. It took several hours to read through the information to uncover the tiny 2 cm stack of documents that were of key importance.

Running Review Cases

Careful crafting of internal (section 47) and external (section 48) review requests can lead to improved chances of disclosure. An applicant should always be willing to compromise at the internal review stage if the Agency offers to release some of the information. The reason statement, if it fails to meet the guidelines for an adequate statement (of the original decision maker) should be challenged. Even if the internal review is unsuccessful a better understanding of the Agency's case against release may have been gained and this will be useful in seeking external review.

The outcome of review cases, especially external reviews, will sometimes be dependant upon the amount of information the applicant already knows about the documents being sought. The following extract from a letter from the Ombudsman to the author in relation to the Molesworth Environment Centre mentioned previously illustrates this point;

"Following discussions between this office and the Secretary of Education and the Arts, the above file was provided. The Department advises the file was inadvertently overlooked in its search for records on the matter.

"As a result of further inquiries the Department located 13 folios of various reports...Some of the information contained therein comes within the scope of the initial request.

As the Department did not refer to this information in its initial and review notices of decision to you, under section 50(1) the decision is deemed to be a decision refusing to grant access."

The Ombudsman commented that it was apparent that an adequate search had not been conducted prior to review, but that the Department had now given the assurance that no further information was available. The Ombudsman thus considered that there was "...little alternative but to accept the Department's word that there is no more information..." and that in conducting a search the agency had only to make adequate efforts to locate a document.

This situation raises two important issues:

1. What is required by "adequate efforts" to locate a document?

2. If Departments only locate all relevant information when the applicant provides specific identifying details such as the author's name, what is the consequence for applicants who do not possess such information?

Adequate search requirements - basic principles:

- A review body has jurisdiction to entertain an application to review a decision where a document cannot be found.

- Where a review body has the power to decide any matter in relation to a request that could have been decided by an agency, this power extends to the preliminary decision made by an agency as to the extent of the search which should be made for a document.

- If a document cannot be found, it does not follow that the review body will itself undertake an examination of the agency's filing system. However, circumstances may well arise where the review body might consider it appropriate to give directions as to further avenues of enquiry that ought properly be pursued.

Prima facie, the scenario outlined above suggests that applicants may have difficulty in assessing the adequacy of the search conducted by the agency. Once an application for review has been made, it seems that the Ombudsman has the power to assess the adequacy of the search conducted by the Department. However, unless details elicited by the Ombudsman are provided to the applicant, he/she may remain uncertain as to just how thorough the agency's search has been. In the case described, while it is quite conceivable that the Ombudsman obtained details of the search conducted by the agency, he provided no details to the applicant, and gave no explanation as to why he had been satisfied by the Department's assurance that no further information existed.

The section 20 hurdle

Often a request for "all information on topic x held by the agency" will be greeted by a section 20 letter from the Agency informing the applicant that the agency will refuse the request because it substantially and unreasonably diverts the resources of the agency. Many applicants often terminate their requests at this point believing that the agency is not willing to provide any information.

Section 20 requires the Agency to consult with the applicant to help refine the request so that the ground for refusal under section 20 is removed. When negotiating with an Agency over a section 20, voluminous request, claim it is advisable to place the onus on the Agency to delineate precisely what information would be provided before the exemption will be claimed. Certainly a request under section 19(1) to inspect the records should be seriously considered. Section 19(1) allows the applicant a reasonable opportunity to inspect the record containing the information. An alternative is to first seek an index or general listing of the information in question. A further possibility is to ask the agency to identify the main files or sources of information. Each of these steps should bring the request within the realms of a reasonable diversion of resources. In determining whether a request is voluminous and is an unreasonable interference in the operations of an agency various factors will come into play including; the potential cost to the agency, the size of the agency and availability of resources to meet the request and the nature of the information being requested.

Access Regimes

The possibility of requesting information in other jurisdictions should be considered as an option where it is likely a Tasmanian Agency will claim an exemption. Certain jurisdictions, especially in Queensland and to a lesser extent West Australia, are more likely to release information or to widely interpret public interest provisions in favour of disclosure. Access to Police Standing orders and significant parts of Police Finger Printing manuals were released in Tasmania because such information was available in other jurisdictions.

In late 1993 the National Tertiary Education Industry Union (NTEU) made FoI requests to each Australian University. A total of 39 requests. The requests were for access to documents which would show the total annual and contractual remuneration of Vice Chancellors and other senior administrators of each Australian University both in monetary form and by way of benefits offered either personally or to their families. The requests were made as part of an industrial bargaining process between the union and Universities. All the universities refused the initial applications. Several universities provided the information at the internal review stage. Other universities provided information just prior to an external review hearing. The remaining requests are currently under external review.

Conclusion

This paper has explored a number of areas where FoI could be used by Tasmanian lawyers to improve their services to clients. The possibilities are limited only by imagination and a willingness to be innovative. However alternative sources of information may in many circumstances be more productive, quicker and cheaper than automatically using FoI. Such sources include: minutes of meetings, documents tabled in Parliament, questions answered in Parliament, documents or evidence presented to committees like the Subordinate Legislation Committee, provision of information direct from the Agency concerned (or from another agency), public interest groups and universities.

Public interest groups like the Public Interest Advocacy Centre in Sydney and the Consumer Law Centre in Melbourne have access, in certain areas, to definitive collections of information on various topics, products or legal issues. Universities contain multitudes of formal and informal research centres which are often happy to provide information. As an example the University of Tasmania Law School is fast building a strong collection of materials on FoI, not just case law but material based on empirical studies undertaken by academics and students. This experience is replicated in other disciplines and subjects throughout the Australian university system. In many cases FoI applications will be futile or fail to secure the release of any useful information. However with several different FoI Acts in operation with different review systems (judicial, administrative and/or a combination of both) the opportunities for innovative arguments and approaches to gain access to information held by Agencies are vast.

Table 1: Comparative list of selected exemption sections

	CTH	VIC	NSW	TAS	Qld	WA	SA
Cth/State or State/State relations	33A	29	Sch 1.5	26	38	Sch 1.2	Sch 1.5
Internal working documents	36	30	Sch 1.9	24	41	Sch 1.6	Sch 1.1
Law enforcement / public safety	37	31	Sch 1.4	28	42	Sch 1.5	Sch 1.4
Secrecy provisions	38	38	Sch 1.12	36	48		Sch 1.12
Operations of agencies	40	36	Sch 1.16	34	40	Sch 1.11	Sch 1.16
Personal privacy	41	33	Sch 1.6	30	44	Sch 1.3	Sch 1.6
Legal professional privilege	42	32	sch 1.10	29	43	Sch 1.7	Sch 1.10
Business affairs	43	34	Sch 1.7	31	45	Sch 1.9	Sch 1.7
Breach of confidence	45	35	Sch 1.13	33	46	Sch 1.8	Sch 1.13
National security etc	33	29	Sch 1.5	26	38	Sch 1.2,1.5	Sch 1.5