Australian Press Council Submission to the NSW Ombudsman's Review of the NSW Freedom of Information Act 1989.

10 March 2008

Executive Summary

The media has three areas of concern with regard to Freedom of Information:

• The excessive cost involved in pursuing Freedom of Information applications
   
• The lengthy delays often experienced in seeking material pursuant to Freedom of Information
   
• The high proportion of refusals of access to material under Freedom of Information.

In order to address these concerns, the Press Council seeks the following reforms:

• Elimination of Ministerial certificates
   
• Narrowing of the scope of exemptions
   
• Disclosure as default position unless there is overwhelming public interest in confidentiality
   
• Introduction of a clause making it a illegal to withhold information for improper purpose.
   
• Change in the Freedom of Information fee structure to charging for documents received rather than processing time.
   
• Refund of application fees where there is a lengthy delay.
   
• Improved access to material via the Internet.
   
• Publication of Freedom of Information statistics in collated form.

Submission

Thank you for providing the Australian Press Council with an opportunity to comment on the effectiveness of Freedom of Information (FoI) in New South Wales. The FoI system in New South Wales, although less than satisfactory, compares favourably with the performance of FoI at the Commonwealth level. However, this is more indicative of the severity of problems with the federal system than an indication of effectiveness of the NSW system. There are aspects of the Freedom of Information Act 1989 (NSW) act which embody reforms which the Australian Press Council would wish to see implanted at the federal level. But there is significant scope for improvement in both the legislation and its implementation.

The media has three areas of concern with regard to FoI:

• The excessive cost involved in pursuing FoI applications
   
• The lengthy delays often experienced in seeking material pursuant to FoI
   
• The high proportion of refusals of access to material under FoI.

Cost

Journalists and editors consistently report that one of the reasons why they avoid making FoI applications is the high cost involved in pursuing applications. While the initial application fee is modest at $30.00, government agencies also impose processing fees of $30.00 per hour. Where the documents take time to locate or are subject to perusal for the purpose of deciding whether or not they should be released, the total processing fee can blow out to an extent where it is not practical to proceed with the application. In the "Right to Know" coalition's report of their Independent Audit of Free Speech in Australia two examples were given of estimates given to journalists for the costs of processing FoI applications in NSW. In the first, the Department of Housing is reported to have estimated the cost of providing documents concerning emergency youth accommodation at $6,090. In the second, the Department of Corrective Services estimated the cost of processing documents concerning spending of prisoners' allowances at $14,900. While these amounts may seem quite as outrageous as the charges sometimes quoted by the Commonwealth government, they are well in excess of what might be considered reasonable.

Because the processing fees are calculated according to the time taken to process an application, they effectively charge applicants for any efficiencies in the agency's own records management practices. This is particularly unfair when an applicant receives only a portion of documents sought on the grounds that the remaining material is exempt. In its 1995 review of FoI the Australian Law Reform Commission recommended that fees be calculated according to the documents actually received by the applicant, and the Press Council endorses that recommendation. ["Agencies should only be able to impose charges in respect of documents that are released. Charges should be assessed in accordance with a fixed scale that has been determined on the basis of a realistic assessment of what information technology and record management systems an agency could reasonably be expected to be using." ALRC, Report No. 77, recommendation 88.] In addition, we believe that where material is received only after a lengthy delay the initial application fee should be wholly refunded.

Delay

One of the key reasons cited by journalists for not using FoI processes to gain information in relation to government is the length of time it takes to process applications. State governments are often described as performing better than the federal government in this respect, and we note that the statutory time which is allowed for the processing of FoI requests is shorter than in some other jurisdictions. However, the time taken to process FoI applications is still in excess of what might be regarded as reasonable.

In the Independent Audit of Free Speech in Australia six examples are given of excessive delays experienced by journalists seeking material from NSW government agencies, including four applications for information from NSW Police. [p 131] In all but one of the examples cited more than twelve months elapsed from the time of the initial application until the point at which the requested material was received. In the remaining example, FoI applications were unacknowledged until review was sought, then almost a year transpired before the applicant received only a portion of the material applied for.

In the context of many FoI applications, time is of the essence. If information which is necessary to enable an assessment of the correctness of a government decision is delayed citizens may be denied the opportunity to seek a change in policy before it is fully implemented. In some instances that would in effect be a denial of the right to democratic participation. This is particularly the case where the policy being considered involves a contractual obligation with a non-government entity. If the contract becomes binding before the citizenry have an opportunity to raise concerns any change of policy will incur penalties and possibly expensive legal action. It is preferable if people have an opportunity to seek revision of policy at an early stage, before the government becomes locked-in to a particular course of action.

Journalists who seek information for the purpose of reporting on government policy or activity frequently find that any information which they do acquire via the FoI process is received after such a lengthy delay that it is no longer newsworthy. A lengthy delay strips the information of its value and defeats the purpose for which the FoI application was lodged.

Some journalists have also expressed frustration at the tendency of politicians to release information to the general public at the same time as, or even before, releasing it to the applicant, who may have expended a good deal of time and money pursuing the application and appeals. It is not clear whether this practice is motivated purely by malice or is a deliberate attempt to discourage journalists from using FoI. What is clear is that it robs the applicant from gaining any benefit, whereas fellow journalists who have not expended a comparable amount of time or money are able to benefit from the use of the information released. A journalist thus obstructed once is unlikely to be enthusiastic about making further FoI applications, and publishers are understandably reluctant to fund appeals against refusals. It would be appropriate that the applicant be given 24 hours in which to examine and report upon information received through FoI before that information is released to the general public.

If the FoI process is to be of any utility to journalists it must be capable of yielding results within a timeframe which is much shorter and more predictable. The statutory period within which a response must be forwarded to the applicant should be shortened to fourteen days and the scope for extensions of time needs to be reduced. Most important, the information management practices of government agencies need to be streamlined in order to facilitate the faster processing of FoI applications.

Refusals

By far the biggest concern expressed by journalists and media organizations in relation to FoI is the broad scope of exemptions and the tendency of government agencies to refuse access to material sought, particularly where that material is relevant to matters of government policy.

It is difficult to gauge the extent to which FoI applications from the media are refused on the grounds that material is exempt, since most available statistics do not distinguish between different types of applicant when citing the number of applications processed and the proportion of applications refused. However, anecdotal evidence from journalists suggests that when material is sought in relation to government policy the rate of refusals is higher than it should be, given the legislation's intention to facilitate accountability. The Independent Audit of Free Speech in Australia gives a number of examples of applications which were refused when there was ample evidence of the existence of a public interest in the disclosure of the material sought. One of the examples cited involved the refusal of an application for a report on the impact of a new coal mine. Other examples concerned amounts spent by the NSW Police on catering, and a list of major industrial users of water. The most well-known example, which the Ombudsman has acknowledged in the Annual Report for 2006-2007 [p 121], involved an application by Matthew Moore of The Sydney Morning Herald to Sydney City Council for the names of restaurants fined for poor hygiene. [p 128] In that instance the application was refused, partly on the false premise that disclosure would have been in breach of the Privacy Act and the NSW Local Government Code of Practice and partly on the grounds that disclosure would have had an adverse effect on the businesses named.

Exemptions

There are a number of exemptions set down in schedule 1 of the Freedom of Information Act 1989, some of which have the potential to be interpreted so as to provide a wide range of documents to be withheld from public access. The Press Council accepts that there are many instances where documents should remain confidential. However, where the exemptions available are broad there is a tendency for governments to exploit them to the greatest extent possible in order to refuse access to documents which contain politically sensitive material, even where such refusal is plainly contrary to the original intent of the legislation. In addition, public servants may be hesitant about releasing documents which are potentially exempt, even where there is an obvious public interest in their release. For this reason it is important that the legislation be drafted in such a way as to keep the exemptions as narrow as possible and to include safeguards which mitigate against interpretations which are not in the spirit of open and accountable government.

There are a number of amendments which could be made to the Freedom of Information Act 1989 which would facilitate greater accessibility under FoI. Firstly, the objects clause in the Act could be reworded to give greater emphasis to the aim of open and accountable government. As presently worded, the clause refers to the right of the public "to obtain access to information held by the Government". To this could be added, "and to facilitate openness and accountability of government to the public".

The most problematic aspect of the exemptions set down in the Freedom of Information Act 1989 is that the material which gives the greatest insight into the process of government decisionmaking is also the material which government's are most anxious to keep confidential, often for valid reasons. In order to resolve this inherent conflict, it is important that the exemption relating to cabinet documents be drafted so as to balance the practical requirements of government and the public expectation that democracy will be facilitated by a high degree of openness. Rather than blanket exemptions, the sections should be expressed so that there must also be a manifest risk to some aspect of the public interest before a potentially exempt document can be withheld. This begs the question of whether cabinet documents should be automatically exempt. The Press Council notes that in New Zealand many cabinet documents are available for public scrutiny from government websites within a short time after their consideration by Cabinet, with no apparent negative consequences. This suggests that the high level of secrecy practiced by governments in Australia has been unnecessary and should be reconsidered. The Press Council is of the view that the NSW government should consider making available for public viewing via the Internet all cabinet documents which do not present a tangible risk to the public interest or to the interests of a private individual or business.

With regard to the exemption for internal working documents (clause 9 of schedule 1), the Press Council appreciates that it is not appropriate to grant access to all research and advice, particularly that which is generated at a preliminary stage or which is prepared by a very junior officer. However, there is some material that ought to be released in order to facilitate greater understanding of government decisions. We note that the exemption does require some consideration of the public interest. However, this requirement is not sufficiently strongly worded. All material ought to be released unless this would present a real risk to the public interest.

The Press Council is concerned at the increasing tendency to refuse access to documents on the grounds of "commercial in confidence", or information which pertains to a commercial or business interest, even where such information directly relates to action which would have a direct impact on members of the public. such material should only be exempt where its publication would result in real injury to a business interest and where such injury would be more than trivial. Even where material may be subject to such an exemption it should still be made accessible unless the threat to a business interest clearly outweighs the public interest in its disclosure.

A number of bodies are listed in Schedule 2 of the Freedom of Information Act 1989 as being exempt. While these bodies may hold information which ought to be kept confidential they nonetheless government agencies and therefore should not be wholly exempt from the FoI legislation. There are ample exemption clauses in the Act which would permit such agencies to withhold material where appropriate and these agencies should be required to satisfy specific criteria in order to claim an exemption.

The exemption for "Miscellaneous documents" (Clause 20 of Schedule 1 of the Freedom of Information Act 1989) includes "information contained in the Register of Interests kept by the Premier pursuant to the Code of Conduct for Ministers of the Crown adopted by Cabinet". As such information reveals potential conflicts of interest on the part of government ministers, the Press Council is of the view that this information should be publicly available. This exemption should be removed.

The Act should specify that disclosure is the default position, so that access is only refused where, in the circumstances, the public interest in confidentiality clearly outweighs the public interest in openness and accountability. Officers who have responsibility for making decisions as to whether or not to grant access to material under FoI should be required to consider the public interest in accountability before making a determination. Failure to make such consideration should be grounds for review. Section 25(a) should be amended by the insertion of the following clause, or words of a similar meaning:

(b) and if the public interest in withholding the document from public access outweighs the public interest in openness and accountability which would be served in releasing the document.

In addition to making these amendments to the exemption provisions, the Act should also be amended by the insertion of a clause making it an offence to withhold material for an improper purpose. Such improper purposes would include the concealing of incompetence, corruption, dishonesty or a conflict of interest. This provision should apply to both public servants and politicians.

Ministerial certificates

The Press Council is of the view that the availability of Ministerial Certificates (section 59) should be completely removed. As politicians, ministers may have a conflict between their duty to disclose material which facilitates the public interest in open and accountable government and their interest in keeping confidential any material which might prompt criticism of government conduct. Consequently, it is not appropriate that Ministers have the power to decide that material is not suitable to be made public. Such decisions should either be made at arm's length from the minister or, if the minister is involved in making such decisions, they should be reviewable by an independent authority. Ministerial certificates are inconsistent with the aim of open and accountable government and their availability undermines the intent of FoI.

Better accessibility

In addition to limiting the scope of exceptions and reducing costs and delays, the NSW system of foI could be improved considerably by facilitating the making of FoI applications via the Internet and Email. At present, applications must be made in writing, on the prescribed form, and accompanied by the prescribed fee. With the development of E-Commerce, it is more efficient to allow applicants to lodge their forms electronically, provided they pay by credit card or bank transfer.

Similarly, with much information now stored electronically as well as, or instead of, in paper form, applicants should have the option of receiving the material via email attachment or Internet download where documents are available in electronic form, thus reducing the costs of photocopying and postage and minimizing the time required to retrieve documents. After applicants have received the material it should be made available for public download via a government website.

The development of the Internet as a popular source of information provides governments with an opportunity to act proactively in the provision of information. Material which is of interest to the public or which is relevant to government accountability should be made freely available for download from government websites without the requirement to lodge an FoI application. This would reduce the burden of processing of FoI applications and facilitates greater openness.

Improved statistics

In researching the effectiveness of FoI in Australia, one of the frustrations has been the difficulty in obtaining reliable and detailed statistical data which would give an insight into how the system is operation in practice. There is no consistently and the statistics published vary in different jurisdictions around Australia. The NSW legislation does require government agencies to collect statistics pertaining to FoI applications. However, these statistics are not collated into a single report, but rather are published in each agency's own annual report. In order to obtain an overview of the use and effectiveness of FoI it is necessary to download more than a hundred separate annual reports. Some of these annual reports are published in the form of several separate files and it is necessary to search through the index or table of contents, identify the relevant file, download that file, and then search through that file to locate a section which is usually only three pages long.

While we have no objection to the FoI statistics being included in the annual reports of the individual agencies, the Press Council believes that these statistics should collated and be made available as a single annual report which gives both an overview of FoI in NSW as well as breakdowns by individual agency. In addition, the statistics on applicants should be broken down by the type of applicant - e.g. private individual, corporation, community group or not for profit organization, politician, researcher or academic, and journalist or media organization. This breakdown allows a far greater understanding of the way FoI is utilized and whether or not it is achieving its goal of facilitating democratic accountability.

Repeated or Voluminous requests

The FoI reform bill which was recently defeated in the Victorian Parliament included a provision for the declaration of certain applicants as "vexatious". The making of repeated applications was the primary criterion for such a declaration. The discussion paper issued as part of the Queensland review of FoI also raised the possibility of introducing a clause dealing with vexatious applicants. The Press Council is concerned that the power to declare certain applicants as vexatious has the potential to be used to obstruct journalists and community groups who lodge frequent FoI applications. In addition to adding to the workload of public servants, such applicants may be perceived as troublesome to governments, particularly if they seek to expose government incompetence or misconduct or other politically inconvenient information. Nonetheless, such applicants have a valid and important role to play in scrutinizing government conduct and promoting accountability. Any attempt to restrict the making of repeated FoI applicants must be approached with caution so that it does not have the effect of preventing journalists, community groups and concerned citizens from seeking to obtain information which assists in the scrutiny of government.

Similarly, provisions in FoI legislation which permit the refusal of voluminous requests have the potential to be used to obstruct journalists and other researchers from pursuing otherwise valid attempts to obtain government information. Section 25(1)(a1) permits the refusal of requests which "unreasonably divert the agency's resources". This provision includes no objective test for what constitutes such an unreasonable diversion of resources. The effect of the provision is mitigated to some degree by s. 25(5), which obligates an agency to assist the applicant to amend the application so that it no longer requires excessive diversion of resources. But in order to enable applicants to formulate their requests with the specificity necessary to satisfy section 25(1)(a1) government agencies should provide public access to databases of materials held. These databases, which should be accessible via the Internet, should include keywords and descriptions of documents so that applicants are able to identify each specific item they wish to inspect.

Monitoring, Supervision and Training

The Press Council is aware that the aims of legislation can be defeated if the officers who are responsible for its implementation fail to act within the intended spirit of the Act. This is evident from the number of FoI applications which are refused even though they seek information which it would be in the public interest to release. Consequently, it is important that FoI is constantly monitored and supervised by a body which is independent from government and which has authority to review decisions and impose penalties for non-compliance. Whether that role is best fulfilled by the Ombudsman or by an Information Commissioner is not significant, provided that such a body is adequately resourced and has the necessary statutory powers. The duties of such a body should include the provision of training for public servants in the processing of FoI applications with a view to achieving accountability of the government to the public, in order to facilitate the development of a cultural change within government agencies.

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see also
Council's position on FoI generally; and
High Court amicus brief on FoI

Return to
Submissions list
Freedom of the Press overview

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