Summary of Discussion Paper 59 (Continued)

'The Review received considerable evidence that the culture of an agency is a significant factor in the success or otherwise of FOI.' It has been recognised that not all agencies have an accepting and cooperative attitude towards FOI, and that in some, a negative culture exists. The Review suggests several factors that may give rise to such an approach

• the absence of any statement in the Act of its democratic objectives. (It is perceived by theReview that awareness in agency employees as to the democratic underpinnings of FOI will be increased through the reformulated objects clause in the Act.)
• uncertainty arising from a change in lines of accountability and the protection provided by s 91.

In view of the limited protection of s 91 the Review has proposed that the protection afforded by this section should be broadened.

The Review considers that a change in attitude from one of withholding information, unless forced by the FOI Act to disclose it, to one of disclosing information unless there is a very good reason not to will be most likely to occur if there is a rebuttable presumption that disclosure is appropriate. The release of information consistent with the spirit and terms of the FOI Act should be an authorised release of information. Section 91 should be amended to provide this. Officers should receive protection from defamation, breach of confidence and copyright actions whenever they disclose information, whether pursuant to the FOI Act or not, provided disclosure is not malicious or reckless. The Act should effectively provide 'authorisation to disclose' rather than protection from the consequences of disclosure.

3) An independent person to oversee the administration of the Act

The Review considered that a number of shortcomings evident in both the administration and compliance of the Act could be attributed to the fact that agency request handling is not systematically reviewed. At present a review is only carried out once an application for an appeal or review of a decision has been lodged. In effect, the Review considers that:

" 'the lack of an independent, constant monitor of agencies' administration of and compliance with the Act is a major cause of deficient and inefficient federal FOI administration. It contributes to FOI's low profile, both inside and outside government. It means it is virtually impossible to compare agencies' administration of FOI for the purpose of ascertaining, developing and promoting best practices. There is no incentive for agencies to give FOI the attention and priority it should receive to ensure its effective and efficient administration. It is unlikely that agencies that need to change their practices and attitudes will do so unless they know their performance is going to be evaluated, monitored and reported publicly. Some agencies have their own quality controls but there is no government-wide quality control apart from AAT appeals and Ombudsman complaints. Additional quality control measures are needed. A monitoring function, independent of existing review arrangements, would benefit individual agencies and the FOI system as a whole. It would increase public confidence and encourage agencies, where necessary, to improve request processing. The Review proposes, therefore, that an independent person be charged with responsibility for overseeing the administration of the FOI Act. This person should audit agencies, as the Privacy Commissioner does in respect of the Privacy Act. If deficient procedures are found, he or she should consult with and advise the agency on how to improve them. The monitor would develop a good understanding of each agency's different situation and the type of requests it receives. "

Integral to this monitoring role would be a number of functions. Such would include:

• the collection of statistics
• the preparation of an annual report
• a facilitative role

These situations include where the applicant's request is very broad and the agency is unable or unwilling to persuade the applicant to narrow it or where the agency wishes to reject a request on the ground that it would require a substantial diversion of resources. An independent person may be able to suggest a way of processing the request that will reduce the workload (for example by reducing consultation). The Review sees merit in establishing a mechanism for an independent person to mediate between the parties to a request if asked to do so by either party and proposes that whoever is given responsibility for monitoring the Act should perform this role. . . The facilitation envisaged by the Review would be informal and non-binding.2

Issues outlined by the Review with respect to the breadth of the role that the independent monitor should play include:

• whether the Act should prescribe the specific situations that the monitor's assistance may be sought or alternatively that whether their assistance may be sought at any time prior to the agency's decision
• whether facilitation is even feasible, necessary or compatible with a monitoring role

It is perceived by the Review that in addition to the above functions mentioned, that the independent monitor could also promote the FOI Act, provide guidelines on how to administer the Act, assist with the education and training of agencies, and provide legislative policy advice on access to government information.

After reviewing a number of options as to who would perform the role of independent monitor (ie incorporating the role into an existing body, such as a parliamentary committee, the Ombudsman, Australian Archives , AAT or Privacy Commissioner) the Review forms the conclusion that the most viable alternative would be to create a new separate statutory office.

Using the FOI Act (Chapter 4)

This chapter considers the issues relating to the way the FOI Act operates in practice including what is available under the Act, making requests, processing requests and information management. The primary recommendations made by the Review are as follows:

• the FOI Act should be amended to allow an applicant, with the agreement of the agency, to seek a summary of the documents.
• that the current definition of a 'document' needs clarification, with particular respect to electronically available information. The Review suggested that information available on the Internet or other public access electronic networks should not be considered as falling under the scope of the Act - as such information is not necessarily ' in the possession' of the agency.
• closing the access gap- so that information created before 1977 but that is less than 30 years old is accessible.
• that a standard request application form is not necessary.
• that the effectiveness of sections 8 and 9 be improved. The Review considers that while these sections provide the public with some guidance about the information held by government departments, that the existence of such information needs to be better publicised and accessible (such as through public libraries). Furthermore, compliance with the obligations under sections 8 and 9 could be overseen by the independent monitor.
• that prior to refusing a request under s 24 ( which allows agencies to refuse a request for access on the ground that the work involved in the request would substantially and unreasonably divert the resources of the agency from its other operations) the agency must consult with the independent monitor.
• that s 24 (5) be repealed. Under s 24(5) agencies are entitled to refuse an FOI request without having identified all the relevant documents if it is apparent from the nature of the documents described in the request that they will be all exempt. The Review considers that this provision be repealed as it is contrary to the principle of disclosure- that documents should be assessed individually rather than as a class.
• that the quality of the statements of reasons be monitored by the independent monitor

The main issues in this chapter centre around problems with the current exemption provisions. The solutions proposed by the Review include:

• that Pt IV of the FOI Act should be prefaced with a statement that the purpose of the Act is to provide access to government information and that the consideration of an FOI request should commence from the position that, on the face of it, the applicant has a right to obtain the requested information.
• that as a general rule, the exemption provisions be drafted so as to require agencies to focus on whether harm would result from disclosure of the particular document.
• clear guidance is needed on how the public interest test should operate, specifically the factors that should be prescribed as requiring consideration and those factors that are not to be considered.

  Proposal 5.5: the independent monitor should issue guidelines on how to apply a public interest test.

  Proposal 5.6: the guidelines should list factors that should or should not be considered in applying the public interest test. They should include the following factors.

  To be considered:

  • whether the document would disclose the reasons for a decision
  • whether the information in the document is already public
  • whether the information would reveal environmental or health risks or measures relating to public health and safety
  • whether the information would contribute to the maintenance of social peace and order
  • whether the information would contribute to the administration of justice and in particular enforcement of criminal law
  • whether the information is the applicant's personal information.
  Not to be considered:
  • the seniority of the persons involved in the communications or matter the subject of the document
  • that disclosure would confuse the public or that there is a possibility that the public might not readily understand any tentative or optional quality of the information
  • that disclosure would embarrass the government or the public servants involved
  • that disclosure would cause a loss of confidence in the government
  • that disclosure may cause the applicant to misinterpret or misunderstand the information contained in the document because of an omission from the document or for any other reason.
• that if an agency claims that a document is exempt under an exemption that incorporates a public interest test, that it must include in its statement of reasons all the factors it considered in applying the public interest test.
• that two years should be prescribed as the maximum duration of conclusive certificates, and that the independent monitor be able to monitor the use of conclusive certificates and include in his/her annual report details about their use.

This chapter examines the specific exemptions in the FOI Act and considers whether the interests they are designed to protect warrant protecting and if, they do, whether they reflect the philosophy described in Chapter 5. The wording of the sections and tests used in them are also discussed. The following recommendations were made:

• that the circumstances be narrowed in which an agency could claim an exemption under s 34 (pertaining to Cabinet documents) The Review proposes that s 34 should encourage agencies not to claim an exemption where it is clear that no harm would befall the system of Cabinet decision making.
• that the definition of a 'cabinet document' must only include documents that have been prepared for Cabinet, ie documents that have been submitted would not fall under the new definition.
• that the term 'officially published' for s 34 (1) (d) be defined to reduce uncertainty.
• that s 34 be amended so that Cabinet documents are only exempt for 20 years after the year in which they were created. -that section 41 be amended, so to provide that personal information of a person other than the applicant is exempt subject to specific defined circumstances.
• that the Act should require agencies to ascertain, if possible, whether an applicant wants access to third party personal information covered by his or her request before consulting the third party. In addition, that an agency should be able to seek the advice of the independent monitor as to whether consultation is necessary.
• that s 42 be redrafted so as to reflect the client legal professional privilege provisions in the Evidence Act. 1955 (Cth). It should also include a public interest test.
• that s 43 to be amended to make it clear that it applies to the competitive commercial activities of agencies, and that it be made subject to a balancing public interest test in respect of information relating to government activities (including those of GBE's).
• that the agencies listed in Schedule 2 Part 1 should only be entirely exempt from the coverage of FOI in exceptional circumstances.

This chapter examines the rationale for the current fees and charges regime in a scheme designed to enhance openness, accountability and public participation in government and in which the aim should be to provide information in the most efficient, cost effective way. In summary, the Review considers that some form of contribution is appropriate, but that the cost of providing info should be reduced. The Review made the following recommendations:

• that access to personal information should be free. With regard to the issue of fees and charges for non personal information, the following issues were canvassed:
  • should there be a different system of fees and charges depending on the nature of the documents sought or the purpose for which they are sought ?
  • should the $30 application fee entitle an applicant to a certain amount of search and retrieval time, if so how much ? (a suggested time was 3 hours )
  • should agencies be allowed to charge for time taken to decide whether or not to grant access to the documents requested ?
  In relation to the remission of fees and waiver or reduction of charges the Review suggested that:
  • the public interest considerations are to be the same as those in the context of the exemption provisions.
  • the services of the independent monitor are to be free.

The following recommendations were made:

• that the current duplication of the Privacy Act and FOI Act in respect of amendments to personal information be amended. (at present a person needs access to a document held by FOI in order to have it amended but under the Privacy Act they do not).
• that the FOI Act be amended to provide that amendments can be sought on the ground that personal information is not relevant having regard to the purpose for which the information was collected or is to be used.
• that the FOI Act should provide that, if on application for amendment the agency considers that personal information is incorrect, incomplete or out of date or misleading it must amend the record.
• that the Act should allow the deletion of material to ensure that information is correct, complete, up to date, relevant and not misleading. However the deleted material should be kept on a separate file for later reference should it become necessary to determine whether a decision was made on the basis of the incorrect material on a file was justified.

Return to previous page