Freedom of Information (Open Government) Bill (2000)
Submission to Senate Legal and Constitutional Legislation Committee, 30 November 2000
The Australian Law Reform Commission makes the following submission in relation to the provisions of the Freedom of Information Amendment (Open Government) Bill 2000.
Review of the FOI Act
In 1994, the Australian Law Reform Commission (ALRC) and the Administrative Review Council (ARC) were asked to undertake a review of the Freedom of Information Act 1992 (Cth) (FOI Act). The principal purpose of the review was to determine whether the FOI Act had achieved the purposes and objectives it was designed to achieve and, if it had not, to recommend changes to improve its effectiveness.
The ALRC /ARC report, ALRC 77 Open Government, was tabled on 24 January 1996. The Review found that, while the FOI Act has had a significant impact on the way that agencies make decisions and the way they record information, many agencies continued to foster a ‘culture of secrecy’. While some agencies had adopted a constructive and helpful approach, others had taken an adversarial and legalistic approach to the FOI Act. The culture of an agency was found to be one of the most important factors in the success or otherwise of an FOI request.
The structure and general content of the FOI Act was not seen as problematic. One of the most serious problems with the FOI regime was the lack of a single, independent person or organisation with responsibility for overseeing the administration of the Act, and for providing guidance, assistance and advice to agencies and to individuals seeking information. The focus of the Review’s recommendations was on clarifying the purpose of the FOI Act and improving the way in which the Act is administered.
The Open Government report contained the following key recommendations:
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Creation of a statutory FOI Commissioner to monitor and improve the administration of the FOI Act and to provide assistance, advice and education to applicants and agencies about how to use, interpret and administer the Act.
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Revision of the Act’s objects clause to promote a pro-disclosure interpretation of the Act.
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Rationalisation of the exemption provisions, so that information only will be withheld where this is in the public interest. The FOI Commissioner should issue guidelines on factors to consider in weighing the public interest.
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In practice, FOI charges should not be incompatible with the objects of the Act – a scale of charges should be determined by the FOI Commissioner, and access to an applicant’s personal information should be provided free of charge.
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Reaction to the Open Government report
The Open Government report and its recommendations received support from academics and practitioners.
The Review has endorsed the major criticisms which advocates for open government have made against the way FoI has operated in Australia, and it has proposed a number of useful, innovative and interesting reforms. An American commentator has said that he would like to see all of the proposed reforms implemented in the US Act yesterday. Upon closer examination and after more widespread discussion the critiques may emerge but in the short term the ALRC and ARC deserve great praise not only from their recommendations but for the manner and form in which they carried out their task. If the means determine the end then the joint ALRC/ARC Review used a model open government approach to their review.[1]
To date, there has been no response to the report from successive governments.
The only recommendation that has received government consideration is in relation to the application of the FOI Act to private sector contractors undertaking work on behalf of the government. In 1997, the Cabinet determined that the FOI Act should apply to requests by individuals for access to, and correction of, personal information about themselves held by contractors, and that government agencies should be held accountable for compliance with obligations imposed by the Act. A Bill facilitating this amendment has not yet been made public.
The Open Government report has been referred to in other reviews of FOI legislation at Commonwealth and state level. A further review of the operations of the FOI Act was undertaken by the Commonwealth Ombudsman in 1999.[2] This was an ‘own motion’ review by the Ombudsman, spurred by mounting material suggesting a decline in understanding within government agencies of the provisions of the Act, and the absence of any agency having legislative responsibility for oversight of administration of the FOI Act. In his report, the Ombudsman found a similar situation to that exposed in the Open Government report. A number of recommendations were made by the Ombudsman for improvement to the administration of FOI within agencies, including in many instances strong support for implementation of the recommendations contained in the Open Government report and the recordkeeping recommendations in the Australian Law Reform Commission’s report on the review of the Archives Act 1983 (Cth).[3] In particular, the Ombudsman endorsed the need for an agency to be given responsibility and resources for the ongoing supervision of FOI administration.
The Open Government report also has been referred to in reviews of FOI legislation in other jurisdictions. A review of the Tasmanian FOI Act was completed by the Legislative Council Select Committee in 1997. That Committee indicated that it benefited from the work of the ALRC and ARC in its review of the Commonwealth FOI Act.[4] The Queensland Legal, Constitutional and Administrative Review Committee is currently reviewing the Queensland FOI Act. In a discussion paper released in early 2000,[5] that Committee referred extensively to the ALRC/ARC Open Government report. A review of the Official Information Act 1982 (NZ) by the Law Commission of New Zealand also made reference to the ALRC/ARC report.[6] While each of these jurisdictions has a different structure for overseeing the administration of FOI, each found the ALRC/ARC observations of existing administrative problems, and discussion of options for alleviating such problems, of assistance.
In papers to the Annual Public Law Weekend at the Australian National University in November this year, Rick Snell and the Commonwealth Ombudsman, Ron McCloud, both wondered at why the Open Government report had not received response, particularly given that the recommendations were primarily aimed at improving efficiency rather than suggesting a major departure from the basic objectives of the FOI Act.
The ALRC/ARC recommendations were radical in terms of Commonwealth experience and practice. Yet from a state perspective they merely brought the Commonwealth in line with various best practices at the state level. So in the main the ALRC/ARC proposals were a few, albeit important, evolutionary steps but nothing revolutionary. One of the great mysteries of the 1990s is how such a modest reform agenda disappeared totally from any active consideration by the Commonwealth government.[7]
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An FOI Commissioner
The ALRC considers that one of the most important recommendations in the Open Government report is for the establishment of an FOI Commissioner. Chapter 6 of the report canvasses the need for such a Commissioner and the role that such a position should play. It was recommended that the functions of the FOI Commissioner should include:
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auditing agencies’ FOI performance
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preparing an annual report on FOI
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collecting statistics on FOI requests and decisions
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publicising the Act in the community
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issuing guidelines on how to administer the Act
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providing training to agencies
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providing information, advice and assistance in respect of FOI requests
– at any stage of the FOI request
– at the request of the applicant, the agency or a third party -
providing legislative policy advice on the FOI Act.
These functions are either performed in a basic manner by the Attorney-General’s Department (eg. the annual report and statistics collection) or are not performed at all within the current FOI regime. The improvement of the administration of the FOI Act hinges on giving a single agency responsibility for these functions, thereby providing a centralised point for overseeing proper administration of the FOI Act.
The ALRC is aware that the cost of establishing and maintaining an FOI Commissioner as an independent statutory office may impede acceptance of the recommendation. In the Open Government report, the options for placement of the FOI Commissioner were canvassed. It may be appropriate to reconsider the options for locating the functions of the proposed FOI Commissioner.
In particular, the option of combining the position of Privacy Commissioner with an Information Commissioner could be further considered, noting the successful combination in several Canadian provinces. In the Open Government report, there were concerns about combining responsibility for privacy and openness in the same agency, particularly when trying to overcome the existing tendency towards secrecy in administration of FOI. These concerns are real, but could be overcome by a Commissioner with a healthy understanding of the dual roles and the tensions involved.
The option of combining the Information Commissioner with the Commonwealth Ombudsman was considered also in the Open Government report. The option was not favoured due to conflict with the broad range of functions already carried out by the Ombudsman, particularly in relation to complaints resolution. The Ombudsman had played a limited role in FOI administration until 1991, at which time the FOI Act was amended in recognition of the impossibility of the Ombudsman completing the required functions without additional resources. In his 1999 report Needs to Know, the Ombudsman supported the establishment of an FOI Commissioner. More recently, the Ombudsman has suggested that, despite the conflicts, placing the Information Commission functions with the Ombudsman might be a practical alternative.[8]
In its most recent report, Managing Justice, the ALRC was very alive to concerns about establishing new, small agencies, and thus sought wherever possible to recommend the use or adaptation of existing bodies to undertake new, but necessary, functions. The establishment of an Information and Privacy Commissioner, or resourcing the Commonwealth Ombudsman to undertake FOI oversight functions, would be preferable to ignoring the need for allocating responsibility for FOI in an independent agency.
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Conclusion
The ALRC considers that the Open Government report remains relevant to today’s environment, and that its recommendations should be considered with a view to amendment of the FOI Act. The Bill presented to Parliament by Senator Murray encapsulates those recommendations in the Open Government report that require legislative amendment for implementation. ALRC Commissioners and staff who worked on the Open Government report are no longer with the Commission. However, the reasoning for each of the provisions of the Bill is contained in the Open Government report and the ALRC urges the Committee to consider the report itself when looking at the Bill.
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[1] Rick Snell ‘Comment’ (1996) 61 Freedom of Information Review 1. See also Denis O’Brien ‘FOI Report: Enhancing Accountability’ (1996) 7 Public Law Review 135.
[2] Commonwealth Ombudsman Needs to know: Report on investigation of administration of FOI in Commonwealth agencies Canberra June 1999.
[3] ALRC 85 The federal record: review of the Archives Act 1983 Sydney 1997.
[4] Legislative Council Select Committee Freedom of Information Parliament of Tasmania Hobart 1997, 7.
[5] The paper can be obtained from www.parliament.qld.gov.au/comdocs/legalrev/FOI%20docs/lcardp.pdf.
[6] Law Commission Report 40 Review of the Official Information Act 1982 Wellington 1997.
[7] R Snell ‘Freedom of Information – the last two years: the experience of the Australian states – an epiphany?’ paper Annual Public Law Weekend Centre for International and Public Law Australian National University Canberra 10 & 11 November 2000. See also R McCloud ‘Freedom of Information – an Ombudsman’s perspective’ paper Annual Public Law Weekend Centre for International and Public Law Australian National University Canberra 10 & 11 November 2000.
[8] R McCloud ‘Freedom of Information – an Ombudsman’s perspective’ paper Annual Public Law Weekend Centre for International and Public Law Australian National University Canberra 10 & 11 November 2000.