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Australian Press Council submission to Queensland government in response to draft Right to Information Bill. 30 March 2009 Executive Summary The Australian Press Council congratulates the government of Queensland on its proposed reforms to Freedom of Information.
Submission The Australian Press Council congratulates the Premier, Anna Bligh, and the government of Queensland on its proposed reforms to Freedom of Information. The draft bills, and the Solomon report on which they are based, represent a refreshing shift toward openness in Queensland. There are many aspects of the draft Right to Information Bill that will contribute to an improvement in the accountability of government to the people of Queensland. In particular, the Press Council supports the principle of proactive disclosure, together with the introduction of disclosure logs and publication schemes. The Press Council is also satisfied with the government's stated intention to narrow the scope of exemptions, particularly the Cabinet exemption. The most significant reform included in the proposed legislation is the preamble, with its emphasis on the obligation of government agencies to release information unless there is a good reason for withholding it in the public interest. If decisions are made within the spirit of the preamble, Queensland may develop into the most open and transparent administration of all Australian jurisdictions. Exempt organisations Although the Press Council's view of the draft legislation is overwhelmingly positive, the Council does have some concerns about certain elements in the proposed legislation. A key concern held by the Council in relation to the draft bills is that several organisations and classes of information will remain outside the scope of the proposed legislation. Organisations exempt from the legislation will include CS Energy, Ergon, QIC, Stanwell Corp, Tarong Energy (pursuant to section 24), the Queensland Treasury Corporation (schedule 2, part 2), and information relating to the Queensland Investment Incentive Scheme. The Press Council acknowledges that certain government agencies and quasi-government organisations have particular characteristics that make the release of information from those agencies problematic. However, such agencies should still be subject to public scrutiny and the Press Council is of the view that such agencies should not be subject to blanket exemptions. It is preferable if a decision-maker, in determining whether or not information should be disclosed, is required to engage in a balancing exercise wherein the public interest in maintaining confidentiality is weighed against the public interest in disclosure, regardless of who holds the information or the nature of the information held. For this reason the Press Council believes that the following clauses should be removed from the bill: section 24 and clause 6 of Schedule 2, Part 2. Contracted private organisations The Press Council has similar concerns with regard to information pertaining to private organisations contracted to perform government functions. In its report, the Solomon Review recommended that the documents of such organisations should be deemed to be documents of the relevant government agency. The government has rejected this recommendation, except in relation to "documents provided to the government in support of the performance of the contracted function". The Press Council recognises the complexities associated with private contracts but notes that there is a strong public interest element in information relating to contractual arrangements to provide services to or on behalf of government. Such services involve expenditure of public moneys and affect the public in direct and tangible ways. Arguably, contractors accept, when they enter into contracts with government, that information will be disclosed to the public. At the minimum, members of the public should be able to access sufficient information through the media to enable them to assess whether the contractual arrangements are satisfactory (prior to the government entering into a binding agreement), whether the government is getting value for money, and whether the contractor is performing all its obligations under the contract. The same issues arise in relation to non-government organisations that receive government funding. The Solomon report recommended that documents relating to the performance by such organisations be deemed to be in the possession of an agency, and thus subject to any Freedom of Information scheme. The Press Council notes that the government has indicated that documents held by a government agency in relation to government funding of such organisations be subject to FoI. While this compromise permits a certain degree of scrutiny, it assumes that organisations receiving public funding will provide governments with detailed and thorough reports as to their activities. Given that there will inevitably be gaps in the information provided to government, it would be preferable if there were some mechanism by which information could be sought from the organisations, regardless of whether such information is held by government. For these reasons the Press Council believes that a clause should be inserted into the legislation making organisations that are parties to contracts to provide to or on behalf of government subject to Freedom of Information. Similarly, a clause should be included which makes organisations receiving government funding subject to Freedom of Information. The question of whether or not information held by those organisations will be disclosed should be addressed, on a case-by-case basis, by the application of a public interest test. Conflicts of interest An important aspect of scrutiny and accountability of public administration is the issue of potential conflicts of interest. The public has a right to know when public officers are making decisions from which they may benefit personally. Included in the list of exempt agencies in schedule 2, part 2 of the draft Right to Information Bill is "the mayor or chief executive officer of a local government in relation to keeping a register of interests under the Local Government Act". The Press Council is of the view that it is not appropriate to exempt such registers from public access and is of the view that clause 10 of part 2 should be removed from schedule 2. Costs Excessive fees and costs are a major disincentive to the use of Freedom of Information to gain access to non-personal information. Some media organisations object to any fees additional to the additional lodgment fee on the ground that the information is ultimately provided to the public and that the media are performing a public service. The Press Council is concerned that neither the scheme proposed in the Solomon report nor that preferred by the government is entirely satisfactory. Both schemes have the potential to result in exorbitant fees in certain circumstances. Journalists and editors who regularly lodge Freedom of Information applications have indicated that the fee per page proposed by the Solomon report could easily blow out. An example of this would be where the applicant is provided with a computer disk that contains hundreds of pages of documents, or data in the form of databases or spreadsheets that, if printed, would amount to hundreds of pages. It would seem reasonable that the price per page should be lower when a large number of pages is provided. However, the scheme proposed by the Solomon report would impose a higher fee per page the larger the total number of pages received. In addition, the amounts proposed by the Solomon report were excessive, and so that scheme could result in a significant total fee. An alternative to charging per page may be to charge per gigabyte of data, or per disk. On the other hand, calculating fees based on the time taken to locate and identify documents and to make a decision as to whether or not it should be released, the proposal in the draft legislation, has the potential to be abused. In particular, the estimated time required can be inflated in order to discourage unwelcome applications. Further, under a scheme that charges on the basis of "decision-making time", applicants may in effect be penalised for the inefficiency and poor work practices of the agency dealing with their application. The Press Council would be willing to accept the fee structure set down in the draft Right to Information Bill, subject to periodic review, provided that the Bill includes a review mechanism in relation to access fees. Section 64 of the Bill specifically excludes internal or external review of charges estimate notices under section 36. Section 64 should be removed. A clause should be inserted into the Bill, placing a cap on the total amount that can be charged for "decision-making time". The Press Council is also of the view that fees should be either discounted or waived where it is in the public interest in the release of the information to the general public. Conclusion Notwithstanding its reservations, the Press Council is pleased with the reforms proposed by the Queensland government in relation to information access, including those set down in the Right to Information Bill and the related legislation. While there is scope to take the reforms even further, the Council acknowledges that the proposed legislation will make a significant improvement in public access to government information. The Council encourages the government to proceed to introduce the legislation into Parliament as soon as it is practically feasible to do so. See also Return to Documents with the |
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