Attachment 2

The Ombudsman Strikes Back: A Special Report as the NSW Ombudsman Exits the Scene

During his last weeks in office the NSW Ombudsman, Mr David Landa, released a number of reports on government administration. His special report "Freedom of Information: the way ahead" marks the final assault of his seven year campaign to reform the NSW Freedom of Information Act 1989. The NSW Ombudsman is hoping that his report will stir NSW Governments out of their lethargy or indifference to FoI so that a number of vital amendments can be made to the Act.

1. Joint Parliamentary Committee on Freedom of Information be appointed.

Committee functions would include;

monitor and review the implementation of the FoI act
Make recommendations and reports to Parliament on any matter relating to the FoI Act
Examine annual reports made by agencies
Suggest amendments to promote FoI in NSW

The NSW Ombudsman argues that there is a long term need to create an influential organisation or body to promote FoI to counterbalance the natural tendency of government and bureaucrats to lean towards the avoidance of public scrutiny.

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.

Objects of NSW FoI Act be amended

Section 5(1) of the FoI Act be amended to include a further object that information be readily accessible to the public either free of charge or at the lowest reasonable cost. The Ombudsman argues that this is necessary because NSW agencies are using their capacity to impose high fees and charges to defeat the objects of the FoI act.

Adoption of the Information Commissioner model

The NSW Ombudsman has, in the light of his experiences in the past five years, recommended that:

This series of recommendations is a clear recognition by the NSW Ombudsman that a FoI review body must have the power to make binding determinations.

Delays in determining applications

The Ombudsman has noted that few NSW agencies are consistently complying with their time limit requirements under the Act. The following recommendation has been made:

I recommend that the Act be amended to provide that where an application is not determined within the statutory period, unless due to circumstances beyond the agency's control ( for example where the agency is bound to carry out particularly wide ranging consultation with third parties), the agency;
  1. must waive any fees owing and refund any fees paid; and
  2. is unable to claim certain exemptions (for example those in clauses 7&8 (relating to the agency) and clauses 9, 12 & 15 to Schedule 1 of the Act) in determining the application.

Public Interest Tests

The Ombudsman has recommended that;

  1. an overriding public interest test be incorporated into the Act as a mandatory requirement applying to agencies and their principal officers; and
  2. appropriate public interest tests be incorporated into all relevant exemption clauses in Schedule 1 to the FoI Act.
The basis for this recommendation is the view of the Ombudsman that 12 of the exemption clauses of the NSW FoI Act do require a consideration of the public interest and that "In my opinion, this is quite inappropriate and unreasonable".

Internal Working Documents

The NSW Ombudsman has consistently argued that the exemption for internal working documents needs to restricted to those documents where no final decision has been made (see Ombudsman's FOI Policies and Guidelines at 9.6.17). No doubt the recent decision by the Tasmanian Ombudsman in relation to internal working documents will come as an unpleasant reminder that not all external review bodies are persuaded by the logic of his arguments(see Recent Developments Section this issue). The NSW Ombudsman has recommended that;

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-decisionmaking documents are automatically exempt).

Fees and Charges

The Ombudsman has a recommended a plethora of changes to the Act, in regards to fees and charges, to reduce the possibility of abuse and to bring it in line with best Australian practice. For those states that have changed their fee regimes (Victoria) or are proposing to (Tasmania) the Ombudsman's exposure of the shortcomings of the NSW modified user pays philosophy. In response to the Ombudsman's previous Special Report, March 1994, on FoI the NSW Premier rejected similar recommendations on the grounds that:

Each of these matters runs counter to the user-pays philosophy which has been adopted in this state, in a modified form, for Freedom of Information. The modified system in practice provides for reduction in fees and charges in genuine cases of financial hardship or for public interest reasons. It is considered that this system is fair and reasonable in reducing charges in genuine cases of hardship while protecting agencies from unreasonable disruption to their normal activities from wide-ranging applications which could proceed unchecked if limits were placed on fees and charges for all FOI applicants.

In a tone familiar to supporters of FoI Mr Landa wrote "I found this response from the Premier to be particularly disappointing. I can only assume that the Premier was not fully briefed on the issues raised and the recommendations set out in my Special Report."

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