Australian Press Council submission to the Tasmanian Department of Justice on the review of the Freedom of Information Act 1991.

September 30, 2009

The Tasmanian government is to be congratulated for undertaking this review of its legislation relating to disclosure of government information and for adopting in the draft Right to Information Bill 2009 an approach that strengthens the position of the Tasmanian people in relation to the State.

The Bill has a number of positive aspects that enhance the public right to information on matters of public interest and concern.

In particular, the Council welcomes the proactive approach to information disclosure through the following mechanisms:

• Section 3 sets out clearly that the Object is to increase accountability of the Executive and to increase the ability of the people to participate in their governance and acknowledges that information is collected by authorities on behalf of the people of Tasmania.
   
• Section 7 proclaims that a person has a legally enforceable right to information in possession of a public authority or minister unless the information is exempt.
   
• Sections 3 and 7 together create a presumption of public disclosure.
   
• Section 10 sets out the categories of disclosure and section 5 sets out clear definitions for "active disclosure", "required disclosure" and "routine disclosure". Processes detailed apply only to "assessed disclosures".
   
• Section 15 sets out the presumption that information will be disclosed unless such disclosure would not be in the public interest or unless the information is exempt. Schedules to the Bill include a detailed public interest test (schedule 1), a list of matters that are irrelevant to the assessment of public interest (schedule 2) and matters relevant to refusing an application (schedule 3). Some matters to be considered relevant to deciding the public interest in schedule 1, need to be read in conjunction with matters that are irrelevant in schedule 2. For example in Schedule 1 one matter listed is whether disclosure would contribute or hinder debate on a matter of public interest. Schedule 2 indicates that it would be irrelevant to consider that disclosure would confuse the public or that public would not understand the information.
   
• Section 23 requires that reasons be given for refusing an application, including the public interest reason.
   
• Reasonable times are set for provision of information (20 days) and for referral to and response from third parties (15 days). The Bill also sets timeframes for negotiation (10 days) and internal review (20 days).
   
• Section 18 requires that where provision of information is deferred that reasons be given and requires that the applicant be informed, as far as practicable, when the information will be available.
   
• There are clear processes for both internal review and external review by the Ombudsman. The Ombudsman has broad powers, including the power to substitute a decision. The Ombudsman has "full free access" and also has power to issue guidelines on the application of the legislation.
   
• There are three levels of public report on the operation of the Act: by the authority, by the principal officer and by the Ombudsman.
   
• There is a requirement to give reasons for a decision to refuse disclosure.
   
• There is a requirement for the authority to take reasonable steps to assist an applicant to refine a search. A separate section provides for a period of negotiation before a request is refused.
   
• Section 10 makes it clear that electronic records are subject to the Bill.
   
• Fees are reasonable being approximately $32 per application and fees may be waived where the applicant is impecunious.
   
• Section 19 provides that information is to be provided in the form that the applicant requests unless it is impractical to do so.
   
• The Bill includes offences and fines for obstruction, interference and deliberately failing to disclose.
   
• The Bill places an obligation on the applicant to provide a sufficiently precise description of the information sought.

While the Council welcomes these changes, the question of whether the Bill will deliver on its promise and objectives will largely depend on the effectiveness of its implementation.

The move to a proactive approach to disclosure of information will require an implementation strategy that addresses the need for organisational cultural change among public officials, if the implementation is to deliver what the Bill promises. This will require extensive training of staff and a change towards a more open management culture.

In noting these positive developments, the Council nonetheless has reservations about some aspects of the Bill that appear to provide opportunities to unduly restrict disclosure. In some cases this may be addressed through careful redrafting. In others it will be critical that appropriate action be taken to ensure that cultural change and management strategies be introduced to strengthen implementation to support the intention and objects of the Bill.

Electronic data

Section 10 provides that disclosure can be refused if the information is stored in an electronic form and the information cannot be produced using the normal hardware, software and technical expertise of the authority.

Information is increasingly being stored solely in an electronic form and technology is rapidly becoming redundant so this basis for refusal is a concern.

Software and storage mechanisms change relatively frequently. For example, in the last 15 years, storage media have changed from microfiche to large floppy disks, to small floppy disks and Zip disks, to internal hard drives and portable external drives and tape storage. Similarly the software used for data storage has changed as more compact protocols are developed. Authorities are increasingly using electronic data management systems and, when upgrades are made, or when there is a change in record management personnel, an authority may choose to change their electronic data management system e.g. from Dataworks to Trim. There should be an obligation on authorities to maintain the capacity to access or convert data storage. This will benefit the organisation in its needs to retrieve its own information and also facilitate public disclosure. This provision should be reviewed to place greater onus on an authority to retain access by maintaining use of legacy software and technology, or by converting data as software and technology changes.

Resource restrictions

Section 20 provides that an authority can refuse disclosure if the authority is satisfied that the work involved in providing the information would "substantially and unreasonably" divert resources from its other work or would interfere substantially and unreasonably with the performance of other functions. It should be noted that the test is subjective - it is the authority that is to be satisfied. It should be noted that s 20(4) requires that the applicant must first be given a reasonable opportunity to make an application in a form that removes the ground for refusal. There is some scope for abuse of this provision and refusals made on the basis of this provision should be monitored.

Repeat applications

Section 21 provides that the authority may refuse an application on the basis that it is a repeat or vexations application. Again a subjective standard is applied: "in the opinion" of the authority the application is the same or similar. The section indicates that an applicant has an opportunity to disclose a reasonable basis for seeking access to the same or similar information.

Schedule 3, which deals with matters relevant to assessment of refusing applications, also refers to repeat applications.

There are legitimate reasons why an applicant may request similar information, e.g. an investigative journalist seeking further detail or attempting to narrow the focus of an investigation after discovering the extent of material available. In implementation training, staff should be encouraged to appreciate that there may be good reasons why applicants may request similar information from the authority or other authorities.

Exemptions

Prejudice to relations

Section 34 provides that information is exempt if its disclosure would prejudice relations between two or more States, or the Commonwealth and the State, or the Commonwealth and State and any other country. This exemption is insufficiently specific and the exemption lacks certainty in that it is not clear how the likely prejudice is to be determined. Unlike examples above where certainty is achieved by indicating that the test is that the authority is satisfied, there is neither a subjective test, e.g. "in the opinion" of the authority, nor an objective test, e.g. "a reasonable person" test. Further, exposure of maladministration may well prejudice the relationship but would be consistent with the objective of the Bill. The provision may need to be more specific to narrow down the types of damage to relations that are anticipated.

Internal deliberative information

Section 35 provides an exemption to information if it consists of "an opinion, advice or recommendation prepared by an officer of a public authority". This needs to be qualified to confine its application to working drafts. The exemption should not apply where the document is the final report that was considered by a decision-maker in making a decision. Access to such a report, including advice, opinion and recommendation is clearly pertinent to considering accountability of the decision-maker and public participation in governance through scrutiny of decision-making.

Information related to the business affairs of a third party

Section 37 places restrictions on information acquired by a public authority from a third party where disclosure would be likely to expose a third party to a competitive disadvantage. Caution is required here in implementation as to how information is categorised and to ensure that the legislation will not prevent public scrutiny of public contracts and costs of services provided to government particularly in an era when an increasing proportion of public sector activity is either being contracted out or being undertaken in partnership with private sector bodies. It could, for example, be argued that if the terms and costs of a contract were revealed, that this may disadvantage the same contractor in future dealings because competitors would know what applied to the successful tenderer but there are public interest reasons and public accountability reasons why such information should be subject to public scrutiny and therefore public disclosure.

Information relating to business affairs of public authority

Section 38 applies a similar criterion to section 37, except that in this case it applies to public authorities that are engaged in commercial or business activities.

This exemption should be worded to make it clear that it is not the intention to prevent public scrutiny of aspects of a project including costs etc simply because it may "disadvantage" the public authority in future competitive tendering.

There is a pubic interest in benchmarking and public scrutiny of the costs and effectiveness of a government agency that engages in commercial activity.

Procedures and criteria used in negotiations

Section 40 exempts disclosure of instructions for the guidance of officers for processes to be followed and criteria to be applied in negotiations, including commercial negotiations. The scope of this exemption should be narrowed as there may be a public interest in knowing, depending on the circumstances, particularly in relation to criteria that are applied.

Information likely to affect cultural, heritage and natural resources of the State

The exemption applies to information that may:

1. threaten the survival of a rare or endangered species of flora or fauna; or
    
2. prejudice any measures being taken, or proposed to be taken, for the management or protection of a rare or endangered species of flora or fauna; or
    
3. have an adverse effect on a site or area of scientific, cultural or historical significance; or
    
4. prejudice any measures being taken, or proposed to be taken, for the management or protection of a site or area of scientific, cultural or historical significance provided such measures would not themselves have any of the effects referred to in paragraph (a), (b) or (c).

Measures taken, or proposed to be taken, are likely to be subject to differences of opinion and debate by experts, to changes in fashion, to changes in community values as to what is acceptable practice. Measures may have adverse effects on other things eg human, environmental or animal health etc. Applying an exemption to these circumstances seems to be excessive. There should be a presumption of disclosure, subject only to the general public interest test for disclosure.

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See also
Submission to the federal government on its FoI reform legislation
Submission to the NSW government on its FoI reform legislation
Submission to the Queensland government on its FoI reform legislation
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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