Australian Press Council submission to the NSW Department of Premier and Cabinet in response to the Open Government Information Bill 2009 and related legislation.

May 29, 2009

Executive Summary

The Australian Press Council endorses the Bills' general thrust and, in particular:

• the abolition of ministerial certificates;
   
• the introduction of proactive disclosure mechanisms;
   
• the legislative presumption in favour of disclosure (part 2 div 1 clause 5);
   
• the draft Bills' emphasis on public interest considerations, and on recognisable harm, rather than on categories of exemption;
   
• the appointment of an independent Information Commissioner;
   
• the revised objects clause;
   
• the exclusion of embarrassment as reason for refusal;
   
• the introduction of offences for knowingly breaching the legislation, for influencing a knowing breach, and for the concealing or destruction of records;
   
• the narrowing of the Cabinet exemption; and
   
• the extension of open government to include state-owned corporations within its remit.

However, the Council expresses its strong concern with the inclusion of a "conclusive presumption of over-riding public interest against disclosure" in respect of Cabinet documents and continues to have concerns with regard to the charging of a processing fee on an hourly basis.

Submission

The Australian Press Council congratulates the NSW government on the Open Government Information Bill 2009 and the related Bills. The proposed legislation, while not perfect, addresses many of the Council's concerns with respect to the ability of the press to access government information on matters of public concern. In particular, the Council is pleased to note the emphasis on proactive disclosure and the shift away from exemptions towards "the public interest" as the main criterion for determining access.

The Council's concern with Freedom of Information arises from the conviction that access to government information is fundamental to ensuring that Australia's journalists can effectively scrutinise government policies and actions, thereby facilitating a healthy democracy and efficiency in administration. Without knowledge of government conduct and the information on which it is based, "democratic accountability" remains hypothetical. Freedom of Information facilitates the practical achievement of accountability.

For some time the Council has been advocating reform of Freedom of Information, not only in NSW but in all of Australia's various jurisdictions. The experiences of journalists and editors have indicated that in many instances Freedom of Information has not worked as it was originally intended and that information that ought to have been published has been withheld by ministers and public officers. The Council acknowledges that FoI has worked better in NSW than it has in other state jurisdictions. Nevertheless, the Council is of the view that the NSW scheme is in need of reform.

The government is no doubt aware that the Council made a submission to the Office of the Ombudsman as part of its review of Freedom of Information in NSW. In that submission the Council called for disclosure to be the default position and for refusal of access only in circumstances where the public interest in confidentiality clearly outweighs the public interest in openness and accountability. The Council is pleased to note that the proposed new legislation has largely adopted this position in stating (in Part 2, division 2, clause 5) that there is a presumption in favour of disclosure unless there is an overriding public interest against disclosure.

In its previous submission the Council requested that the scope of the Cabinet exemption be narrowed. It notes that those sections of the legislation dealing with Cabinet information have been reformulated. However, the Council is disappointed to note that schedule 1 of the draft Open Government Information Bill clearly indicates that there is a "conclusive presumption of overriding public interest against disclosure" in respect of Cabinet documents. The Council is of the view that this restriction is both excessive and unnecessary, in view of the fact that schedule 2 of the draft Bill specifies that potential prejudice to "collective Ministerial responsibility" and to "deliberative processes" are to be taken into consideration in assessing the balance of public interest. The Council urges the government to reconsider the wording of schedule 1 and the inclusion of Cabinet material within that schedule. Whilst it appreciates the traditional Westminster approach of Cabinet confidentiality, the Council regards information relating to Cabinet decisions as being crucial to the process of democratic accountability. It acknowledges that certain Cabinet information ought to remain confidential. However, to the extent that Cabinet information would assist the public to understand the basis of government decisions and would not jeopardise the public interest, such information should be made available to the public., through the press.

In its earlier submission the Council also called for the removal of ministerial certificates. The Council is gratified to observe that the draft bill puts into effect the elimination of such certificates.

The Council is also pleased to note that the draft Bill emphasises proactive disclosure as a means of opening government to public scrutiny. The Council congratulates the government on taking this significant step forward. If proactive disclosure mechanisms are exploited to their full potential, they should dramatically improve the level of government accountability. However, in order to be effective, these mechanisms require a transformation in the organisational culture that influences the attitudes of public officers. For this reason, legislative mechanisms must be reinforced by extensive training and monitoring. The Council is therefore supportive of the proposed introduction of an independent Information Commissioner to oversee the implementation of the legislation.

As a concomitant of shifting the attitudes of public officers responsible for assessing FoI applications, the Council has previously sought the introduction of offences for the withholding of information for improper purposes, including the concealing of maladministration. While the draft Bill does not adopt the Council's precise position, it is pleased to note that new offences are included in the proposed legislation which prohibit the making of decisions knowingly in breach of the Act, the directing of an officer to make such decisions, the influencing of such decisions, and the destruction of information in order to avoid compliance with the Act.

The Press Council has previously raised concerns with regard to the high costs of pursuing FoI applications. It notes that the revised scheme favours an hourly processing charge rather than payment according to the information actually provided. While it recognises that alternative fee structures may also be problematic, the Council is concerned that the number of hours claimed to be required to process information may be artificially inflated to discourage applicants from proceeding with applications, or that applicants will be in effect paying higher charges due to inefficiencies in the information handling process of government agencies. It is pleased to note that the imposition of "processing charges" is reviewable under the proposed legislation. In order to ensure that the revised scheme is workable in practice, it is important that the processing charges imposed are reasonable and proportionate. For this purpose, it is crucial that the new Information Commissioner closely monitors the charges imposed, and intervenes where charges are imposed in a manner which is outside the spirit of the legislation. After the initial period of operation of the revised scheme, a review should be conducted to assess whether the costs imposed are acting as a disincentive to applicants proceeding with information requests.

Notwithstanding its ongoing concerns with regard to certain aspects of Freedom of Information in NSW, the Australian Press Council's view is that the draft legislation represents a significant improvement over the existing arrangements for access to government information.

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