Below I have submitted a series of possible reforms which would involve amending the 1991 FoI Act. The basic thrust of these reforms is to expose efforts to withhold information to a greater degree of scrutiny. The Act lends itself to abuse and tardy administration and therefore this necessitates a number of safety mechanisms to ensure that decision making under the Act is open to a higher degree of accountability. The saga of the Burnie Hospital is a clear, but not isolated, example of the Act's failure to ensure the release of important information in the public interest.

These suggested reforms should not be seen as devices to release sensitive information but as safety checks which would ensure that claims for exemptions are justified and can be proven as being so on reasonable grounds. The NSW Ombudsman recently commented;

"the long-term answer is, in my opinion, to create an organisation or body charged with promoting FOI which has sufficient political influence to counterbalance the natural tendency of government and bureaucrats to lean towards the avoidance of public scrutiny"1

Agencies would still be able to be exempt sensitive and confidential information. The reforms I have suggested are aimed at requiring agencies to establish credible and well reasoned justifications for non-disclosure.

Governments and bureaucracies will always mismange information, to one degree or another. This Select Committee should make that mismangement harder in the future or at the very least more open to discovery.

This section implies a distrust of the Ombudsman, a statutory officer responsible to Parliament, that he or she will not administer the Act in a proper manner. The Ombudsman does not have the power under the Act to enforce release of information so this section is unnecessary.

Of greater concern is the frequency and extent to which this exemption has been used. The Legislative Council should investigate precisely how and under what circumstances these certificates have been issued since the Act commenced. An important consideration would be whether the issued Certificates have prevented the release of information that is otherwise not exempt.

The case study FOI 3 J and Department of Community and Health Services in the Ombudsman Annual Report 1993 was an instance where a conclusive certificate was initially incorrectly issued. This example (and others to be mentioned in the hearings before the Select Committee) warrant a closer investigation by the Select Committee into how this exemption has been used and whether its potential for abuse is offset by the fear that an Ombudsman would incorrectly release otherwise exempt information.

Section 24 and its interstate equivalents were designed to continue the protection of information which would reveal positions Cabinet Ministers took on various issues (thus undermining the convention of Cabinet solidarity) or disclosing unpublished decisions of Cabinet (thus risking potential ill effects from premature disclosure). This proposal would protect the public against a Secretary of the Department of Premier and Cabinet succumbing to the temptation of creatively extending this protection to all manner of documents with only an iota of effective independent scrutiny. The temptation currently exists and errors of judgment have already occurred.

It appears that the majority of FoI requests take very little time to actually process. Below is an example from South Australia for the year ended 30 June 1994.3

In states like South Australia and Tasmania where approximately 10-15% of requests run over the statutory deadline, the actual processing time required is a minimal component of that time overrun.

Failure to meet deadlines.

At the moment there is no incentive for agencies to decide requests within the statutory limits. The applicant does have the right (if they have read the legislation) to treat that breach as a decision not to release and appeal immediately to the Ombudsman. However this results in the Ombudsman having to negotiate with the Agency to make a final determination.

A better approach would be to maintain the current position but prevent agencies from charging fees and claiming exemptions (except for exemptions relating to personal information). Under these circumstance I would be very surprised to find any agency missing statutory deadlines. In the first twelve months of operation (when the deadline period was 45 days) Agencies were averaging time overruns in 5-10% of requests.

The NSW Ombudsman in his Special Report "Freedom of Information: way ahead" has noted that few NSW agencies are consistently complying with their time limit requirements under the Act. He made the following recommendation:

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.

In a recent paper I argued the FoI Act should be evaluated in terms of release of non-personal information.4 Ardagh has argued that the more accurate test of the success of freedom of information, and closer in keeping with the original goals and legislative object, is the ease and degree of access granted to non-personal information at the sensitive end of the bureaucratic and political scale.5 As Zifcak observed:

By contrast, however, rates of refusal climb significantly in agencies whose records consist mainly of policy, administrative or law enforcement documents. Even in these, however, the majority of requests are granted although in law enforcement agencies, not surprisingly, access to documents is granted much less frequently. The higher rate of refusal reflects the not unsurprising fact that the closer an applicant comes to the political heart of government, the more likely it is that access to documents will be contested.6

"Information held by State and local government may, therefore, be viewed as a continuum with personal information at one end of that continuum and critical "policy" type information at the other. The key to assessing the accountability of government agencies and hence, the success of the legislation, is in the type and quantity of "policy" information that is released or withheld from the public." 7

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 Tasmania

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.

Section 27(4) should be amended to include a new subsection that removes the possibility of agencies claiming "frankness and candour" as a basis for non-disclosure of internal working documents.

The NSW Ombudsman in his Special Report "Freedom of Information: way ahead" 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).