Australian Press Council submission to the Northern Territory Department of Justice, Five-Year Review of the Information Act 2002.

25 January 2008

The Australian Press Council is grateful the opportunity to contribute to the review of the Information Act 2002. The media's attitude towards the Information Act after its first five years of operation is mixed: while the introduction of the legislation is seen as having been a positive step, there is a strong view that the access to government information is not as open as it should be and that reform is necessary if the Act is to fulfil its aim of making information available to the public and thereby promoting efficient and accountable government.

The news media and the Freedom of Information process

The primary concern expressed by news editors in relation to the operation of the Information Act is with regard to the process by which applications for access to information are administered. Editors have emphasised that the period between the time when an application is lodged and when information is received is far too long. In most instances, by the time information is received (assuming access is granted), it is no longer of any value to the applicant. A further criticism which is often made by editors is that the fees charged for access to information is frequently prohibitive. When taken together, these two problems are usually sufficient to dissuade media organizations from submitting freedom of information (FoI) applications.

Assessing the success of FoI

When assessing the success or failure of FoI schemes it is essential that thorough statistical analyses are published. The NT government is to be congratulated on having appointed an Information Commissioner who has to date published three annual reports that include statistics detailing the number of FoI applications lodged and the number refused. However, the statistics provided do not distinguish between applications of a personal nature and those concerned with government accountability. In order to assess the degree to which FoI is effective in facilitating public scrutiny of government, it is important that statistics on applications be broken down according to the nature of the information sought and the category of the applicant. A distinction should be made between applications from private individuals seeking personal information relating to their own affairs and applications from organizations seeking information or documents relating to policy formulation, expenditure, or decisions impacting upon the community generally. The reason cited for seeking the information is also useful for gaining an insight into the effectiveness of FoI schemes.

It is generally accepted that the proportion of applications refused is higher where the information sought is relevant to policy and accountability than is the case with applications for personal information. Consequently, if published statistics do not distinguish between personal applications and other types of application, they will give a distorted impression by understating the proportion of public interest applications that are refused access. In a sense, the high proportion of successful applications for personal information may act as a smokescreen obscuring the extent to which non-personal applications are refused. The Press Council is of the view that, in future annual reports from the Information Commissioner, statistics for the number of applications refused, and the reasons given for refusing access, should make a distinction between personal and non-personal applications. Similarly, statistics for the average time taken to complete applications, and for the average fees charged, should also distinguish between personal and non-personal information.

Even if thorough statistics are provided it is important to recognise that they will significantly understate the level of media dissatisfaction with the FoI process. This is due to the fact that many editors feel that the process is so slow and expensive, and the prospect of receiving useful information so poor, that it is not worth pursuing FoI applications. Some editors have indicated that, where a line of inquiry necessitates an FoI application in order to proceed, they will often instruct their staff to drop the story. In effect, this results in a kind of censorship where government or bureaucratic obstruction of access to information has the result of stories not being pursued. While this tendency may be good news for officials seeking to bury embarrassing information, it is fundamentally at odds with the notion of accountable democratic government.

Exemptions to FoI obligations

In addition to the problems with the procedure for applying for access to information, the Press Council has a number of concerns with the Information Act itself. In particular, the Council is of the view that the exemptions are too broad and need to be narrowed.

Section 45(1)(a) of the Act gives the government the ability to refuse access to documents which have been considered by an executive body or which have been created for that purpose or the purpose of briefing Ministers in relation to matters to be considered by an executive body. The Press Council regards the scope of s.45(1)(a) as being far too broad. While it may be in the public interest for some of this material to remain confidential due to its sensitive nature, there is no persuasive reason for all of this material to be hidden from public scrutiny, particularly when it throw light on the processes leading to important executive decision-making. When contemplating why this material should be kept secret, it is difficult to avoid the conclusion that it is primarily to avoid embarrassment to Ministers or officials. Such embarrassment is not a persuasive reason, of itself, to justify secrecy. The Council is of the view that s.45(1)(a) should be reviewed in order to ensure that material is only exempt for the purposes of section 44 of the Information Act if disclosure would present a significant risk to the public interest. Mere consideration of a document by an executive body should not be regarded as sufficient to establish such a risk.

Similar criticisms can be made in reference to section 52 of the Act, although we note that s.50(2) specifies that "the possibility of disclosure resulting in embarrassment to or a lack of confidence in a public sector organisation" is irrelevant when determining whether disclosure is in the public interest for the purposes of s.52. Nonetheless, s.52 still provides broad scope to withhold material from public scrutiny on the grounds that such material was brought into existence for the purpose of "deliberative processes". In the view of the Press Council, if a government is provided with advice or recommendations and chooses not to follow that advice, it is a legitimate expectation on the part of the public that it is entitled to see that advice and ask why the government chose to disregard it. In most instances a refusal to recognise the legitimacy of that entitlement amounts to a rejection of the principle of accountability in government. To the extent that s.52 establishes a prima facie right to refuse access to information purely because it constitutes part of a deliberative process the section provokes scepticism as to the true intent of the legislation in making provision for free access to information. In particular, subsections 52(5)(e) and (f), which refer to "mischievous interpretation of information", and "confusion and unnecessary debate", refect an attitude which is contemptuous of the public and of democracy.

The Press Council is of the view that, by default, all information should be available under FoI. Where officials seek to withhold information on the premise that it is part of a deliberative process, the onus should be on the officials to demonstrate why the information should not be released. The legislation should list narrowly and specifically the instances when the default rule should not apply. Such instances might include:

• that the information or advice was superseded by later, more accurate or detailed information or advice;
   
• that the advice was generated at a very early stage in the process, prior to the formulation of recommendations for Cabinet consideration;
   
• that the advice has been found to be unreliable or inaccurate;
   
• that the advice, if released, would present a risk to public safety or security.

Even if the sections of the Act which provide exemptions to obligations to disclose information are revised to narrow their scope, it is inevitable that a certain amount of discretion is involved in determining whether information will be disclosed in response to an FoI application. To ensure that such discretionary decisions are made in the spirit of accountable government, the Press Council proposes that a clause be inserted into the legislation which makes it an offence to withhold a document in order to conceal incompetence, corruption, an untruth or a conflict of interest.

Conclusive certificates

The Press Council objects, in principle, to the use of conclusive certificates as a mechanism to by-pass processes for the review of decisions to refuse access to government information. It notes that, according to Information Commissioner's Annual Report for 2005-2006, no conclusive certificates have been issued since the commencement of the Act. However, the Press Council is of the view that the availability of mechanism of conclusive certificates is antithetical to the principle of accountability in government and therefore recommends that section 62 and sub section 59(2) of the Act be repealed.

Conclusion

In general terms, the impact in the first five years of the Information Act should be regarded as positive. However, reforms should be made to the Act and to the processes by which the Act is administered in order to ensure that it is a useful and effective means for members of the news media and, through them, the public to gain access to material that facilitates scrutiny of government action.

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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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