ALRC supplementary submission on the FOI (Open Government) Bill 2000
Submission to Senate Legal and Constitutional Legislation Committee, 9 March 2001
Background to this supplementary submission
On 5 March 2001, the Australian Law Reform Commission (ALRC) appeared before the Senate Legal and Constitutional Committee in relation to the Committee's examination of the Freedom of Information Amendment (Open Government) Bill 2000. The Bill is drawn very largely from the recommendations contained in the 1995 joint report of the ALRC and the Administrative Review Council (ARC), Open Government: a review of the federal Freedom of Information Act 1982 (ALRC 77).
The ALRC/ARC spent 18 months reviewing the FOI Act, consulting with a broad range of government and public interests, and receiving 200 submissions, before providing its final report to the Attorney-General in late 1995. The Department, which is responsible for a number of functions relating to administration of the FOI Act, did not make a submission to the ALRC/ARC review, so its submission to this Committee represents its first public response to the ALRC/ARC inquiry and recommendations.
Prior to the hearing, the Commission had not had the opportunity to consider related submissions made to the Committee by other persons or organisations. During the hearing, Senator Murray asked the Commission if it would be able to consider the key submissions, and in particular the submission of the Attorney-General's Department, and to provide further comment to the Committee. The Chair, Senator Payne, confirmed this request and asked the Commission to provide a supplementary submission to the Committee.
[NB. In keeping with the recommendations in ALRC 77, the wording of the Bill before the Committee, and the submission of the Attorney-General's Department, the discussion below refers to the office and functions of an 'FOI Commissioner'. However, as stated in the Commission's initial submission and in evidence before the Committee, the Commission considers that this position could be subsumed efficiently and effectively within the offices of either the Commonwealth Ombudsman or the Federal Privacy Commissioner.]
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Overview
The Department's submission suggests that many of the ALRC/ARC recommendations contained in ALRC 77 are being addressed in the current work program of the Department. In this regard, the Department's submission expressly refers to 18 of the 106 recommendations contained in the Open government report, ten of which are characterised as 'technical' amendments that 'do not materially alter existing policy'. However, the Department's submission does not address what we would regard as many of the Report's core recommendations, aimed at improving the operation of the FOI regime.
As the Commission noted in its opening statement to the Committee, there has been an almost complete turnover in the ALRC and ARC personnel involved in preparing the Open government report. Information available to the Commission suggests that neither the law nor the practice in this area has changed sufficiently to render the Open Government recommendations obsolete or inappropriate (except in relation to one aspect - legal professional privilege - which is dealt with below). The Commonwealth Ombudsman's 1999 report Needs to know would seem to confirm our understanding that conditions have not changed substantially.
The Department's submission rejects a number of ALRC/ARC recommendations as inappropriate or unnecessary, reflecting a different approach to reform in this area. In some other instances, the Department points to a technical impairment in the Bill, but does not expressly reject the underlying recommendation. This submission is intended to address particular areas of concern.
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Annual reporting
The Department has criticised clause 66R of the Bill as duplicating an annual reporting function in relation to the FOI Act (and for other technical problems). In the Open government report, the ALRC and ARC considered that reporting is a critically important aspect of monitoring compliance, and that the FOI Commissioner should be required to report to Parliament on the operation and administration of the FOI Act. This reporting was to go beyond the mere statistical and legal reporting featured in the current FOI reports prepared annually by the Department.
As stated at the hearing, the Commission recognises that statistical collection by the Department has been enhanced in recent years, and that duplication of statistical collection and reporting would not be an efficient use of resources.
The Commission suggests that the proposed clause 66R of the Bill could be altered to:
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clarify that the FOI Commissioner is to provide an annual report to the Parliament, through the Attorney-General, dealing with those areas set out in subclause 66R(2), and that the report must be tabled by the Attorney-General within 15 sitting days;
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incorporate the specific requirements of statistical reporting currently addressed in subsection 93(3)-(3A) of the FOI Act; and
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insert a requirement for agencies to furnish information to the FOI Commissioner, similar to that currently contained in subsection 93(2) of the FOI Act, in order to support this function.
Section 93 of the FOI Act could then be repealed. The administrative function of statistical collection currently carried out by the Department could be transferred to the FOI Commissioner's office.
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Recommendation 31 - Reducing time limit for processing FOI applications to 14 days
The Department expressed concern that reducing the time limit for processing FOI applications from 30 days to 14 days was impractical. In the Open government report, the ALRC/ARC considered that a 14-day limit would work in practice if agencies were given three years to prepare for the reduction, and moved to take advantage of technological advances and improved record-keeping processes.
The Commission remains of the view that it would be appropriate to impose a 14-day time limit (at least in the great preponderance of cases). Following the Commission's report Australia's Federal Record: a review of the review of the Archives Act 1983 (ALRC 85, 1998), the National Archives of Australia introduced extensive measures to improve record-keeping across all federal government agencies, and to assist agencies to take advantage of electronic document management systems. These advances will reduce the time required to retrieve relevant documents, and will assist in identifying those documents which are not sensitive - and therefore will not require close scrutiny prior to release.
At the same time, it is acknowledged that there will be certain FOI applications in which it will be extremely difficult to meet the 14-day deadline, owing to the size or complexity of the request, problems in locating documents, or serious concerns about classification. In the Open government report, the ALRC and ARC decided not to introduce penalties for failing to meet deadlines. Rather, it was recognised that in difficult cases an agency should be able to negotiate an extension with the applicant to the satisfaction of both parties, and that this practice should be encouraged (see paragraph 7.12). However, the 14-day limit should be provided as the general standard. An FOI Commissioner could assist agencies in developing practices designed to meet this ideal, and could be made responsible for ruling on extensions where the parties cannot agree.
Recommendation 38 - Government embarrassment should be irrelevant to a decision
The Department's submission notes that decisions of the AAT and Federal Court make it clear that possible embarrassment is not a factor to be taken into consideration in determining the public interest. The Commission supports insertion of a clear and unambiguous provision in the FOI Act that reflects this principle.
Recommendation 64 - Repeal subsection 41(4)
The ALRC/ARC reasons for this recommendation are set out in paragraph 10.22 of the Open government report. The Department's concerns that there may be situations where it would be appropriate to disclose personal information through a health professional rather than directly to the applicant are effectively covered by clause 41 of the Bill. This clause imposes a requirement on the Minister or agency to disclose the information in a manner that minimises the risk of detriment to the applicant's health or well-being.
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Recommendation 66 - Section 42(1) of the FOI Act on legal professional privilege should be redrafted
The ALRC and ARC recommended that s 42(1) should be redrafted to reflect the common law position of the time, namely that legal professional privilege applied only to documents created for the sole purpose of seeking or providing legal advice. The common law position has now shifted to the dominant purpose test,[1] which reflects the Evidence Act 1995 (Cth) (based substantially upon ALRC 38, 1987). At that time, the application of
s 42(1) of the FOI Act also changed. It would be prudent to amend s 42(1) to reflect the existing common law and Evidence Act position, thereby removing any confusion over the test to be applied.
Recommendation 75 - Removal of exemption for certain classes of document
As drafted, the Bill does accurately reflect the relevant ALRC/ARC recommendation. In paragraph 11.14 of Open government, the ALRC and ARC specifically noted that documents of the Defence Intelligence Organisation and the Defence Signals Directorate that warrant protection would be exempt under s 33.
Recommendation 90 - FOI Commissioner to set photocopying and transcription charges
The ALRC/ARC reasons for this recommendation are set out in paragraphs 14.14-20 of the Open government report. The report suggests that the FOI Commissioner should have the power to set and review all charges under the Act due to their potential to impede access to information.
Recommendation 91 - Fees not to apply to the supervision of inspection documents
The Commission notes that the Department's opposition to item 126 of the Bill is based on technical reasons, in that it is not good legislative drafting practice to repeal a regulation by amendment to legislation. This objection does not go to the substance of the ALRC/ARC recommendation.
Recommendations 93 and 94 - Agencies to have a general discretion to remit fees and to waive or reduce charges
The guideline on remission of fees referred to by the Department was developed in 1992 and remains unchanged. In 1995, despite the existence of this guideline, the ALRC and ARC saw the need to amend the legislation to clarify that agencies have a general discretion to remit fees and to waive or reduce charges. The Commission remains of the view that these reasons, as set out in paragraphs 14.24-25 of the Open government report, are valid.
Other recommendations addressed by the Department
In relation to a number of recommendations addressed by the Department, the difference between the ALRC/ARC recommendation and the Department's view is merely a difference of opinion as to the necessity of, or approach to, reform. We draw the Committee's attention to the reasoning behind the ALRC/ARC recommendations, which is set out in full in the Open government report as follows:
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Recommendation 49 - Cabinet documents to be exempt for only 20 years after creation - see paragraph 9.12.
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Recommendation 50 - Section 35 to be repealed - see paragraph 9.14.
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Recommendation 53A - Provision for a conclusive certificate not to be available under section 36 - see paragraph 9.19.
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Recommendation 54 - Amend section 37 to protect the security of places of lawful detention - see paragraphs 9.21-22.
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Recommendation 56 - Section 40 to be amended to protect internal or administrative investigations - see paragraph 9.26.
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Recommendation 63 - Disclosures under section 41 to be made so as to minimise any risk to the applicant - see paragraph 10.21.
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Recommendation 70 - Section 38 to be repealed - see paragraphs 11.2-3.
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Recommendation 71 - Section 43A to be repealed - see paragraph 11.4.
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Recommendation 95 - FOI Commissioner to publicise section 66 - see paragraphs 14.27-28.
1. Esso Australia Resources Limited v The Commissioner of Taxation (1999) 168 ALR 123.