Critique of Critique of Freedom of Information Amendment Bill 1994

Part 5
Critique of Freedom of Information Amendment Bill 1994

The Freedom of Information Amendment Bill 1994 appears as if it was deliberately drafted to ensure that each section achieved the same standard as the lowest common denominator amongst all Australian FoI Acts. The Government has taken the lowest level of performance, or weakest section, in Australia for each area of the Act and introduced it to Tasmania The amendment bill resembles a deliberate attempt to plug access "loopholes" that appeared in 1993 and 1994 as a result of interpretations and decisions made by the Ombudsman during that period. To describe the process as "watering down" the Act is a misnomer. The process is designed to remove the spirit and lifeblood of the Act and replace it with a lifeless doppelganger.

I have constructed my critique on an arrangement of the amendments to various sections in my perceived order of importance or concern rather than in a simple numerical order. The net effect of these changes will be to directly reduce the release of information by at least 50% if not more. In the long term the impact of the Freedom of Information Amendment Bill 1994 will be to discourage any use of the Act except to access personal affairs information.

Each of these proposed amendments operating in isolation have the potential to severely restrict the use of the Act to access non-personal information. The combined effect of any two or three of these proposed amendments would render the Act ineffectual for most applicants seeking non-personal information. The joint operation of these 29 amendments (plus 1 Schedule) would be to give real meaning to the cliche of a Freedom From Information Act.

Section 17 changes.

The impact on the use of FoI when application fees and open ended processing charges are introduced is well documented. Use of FoI dramatically decreases except for applications for personal affairs information.

Secondly, agencies start to use processing charges to price inquisitive politicians, journalists, lawyers and other applicants out of the contest. The proposed amendment 17A (1)-(6) will tempt agencies to speed up the charging meter by allocating extra staff to the request, searching all locations and taking considerable time to contemplate exemptions.

The current ceiling on total charges has not been shown to be inadequate or in need of change.

The NSW Ombudsman has warned us what happens when ceilings on fees are removed. Experience in NSW has shown that advanced deposits of up to $13,000 had been charged and full deposits demanded in full before the applicant is notified of the success of their application.1 These are often isolated instances but they have occurred in several jurisdictions.2 Given the Treasury calculation of the costs associated with producing an Index (Attachment 3) of $12,100 this is a portent of things to come in Tasmania.

The proposal to remove the fee exemption for members of parliament is unwarranted. If agencies consider that any Member of Parliament is abusing their position by putting in FoI applications on behalf of friends or constituents to avoid charges they should invoke Section 17(1)(h) where the fee waiver is only to be granted if the information is required by the Member in connection with the Member's official duties.

Section 24 changes.

I have previously argued that the current section is very effective in protecting sensitive and important Cabinet information.3

The proposed changes would allow Agencies to manipulate this exemption to protect a whole plethora of information that has little claim to protection under this exemption. The proposed amendments Section 24 (1) (b) and (ba) would allow the coverage of the cabinet exemption to be applied to an almost unlimited range of information.

The attempt to remove the Ombudsman's limited scrutiny (and ultimately Parliament's scrutiny) of conclusive certificates is alarming. As I have previously argued there is sufficient evidence to demonstrate that the current use of conclusive certificates is often incorrect. Without the potential of scrutiny from the Ombudsman the potential for abuse is enormous.

Section 27 changes.

This section is a very wide exemption which is effectively only limited by subsection 27(1)(b) which imposes a public interest test. The amendments will remove this public interest test. The concurrent removal of subsection (4) will make it almost impossible to challenge an agency claim for exemption under Section 27.