Address by Senator John Faulkner
Cabinet Secretary
Special Minister of State
Canberra, 3 April 2009
Good morning.
First let me acknowledge the traditional owners of this land, and pay my respects to their elders past and present.
Last week I launched the draft exposure bills for FOI reform at the Right to Know Conference in Sydney. The organisers of that conference - a coalition of media organisations - and many of the participants, represented advocates calling for changed FOI laws. Put simply, their position could be characterised as ‘the more information the better’.
That’s no surprise. Journalism depends on information – preferably new, exclusive information.
But information is not only the substance behind the scoop headlines, which of course is the bread-and-butter of journalism. Information is also the lifeblood of democracy.
It makes informed commentary, debate and discussion of government policies possible. It lets people know what their government is doing, and why. It is fundamental to openness in government, that cornerstone of government integrity.
And achieving more openness in government is the Government’s goal.
The amendments proposed in the two draft Bills I made public last week represent the first significant reform to the FOI Act since its commencement in 1982, a reform which will reposition the Act as a cornerstone law in Australian Government accountability legislation.
I am very pleased to be speaking to you today. You are after all at the coal face of FOI – handling requests, dealing with applicants, making decisions, and sometimes defending those decisions.
For you, the Government’s objectives of more openness, and the promotion of a pro-disclosure culture, through reforms to the FOI Act has a direct and real impact.
I said last week that implementing major reform to the FOI Act is neither simple nor easy. It takes a willing Government, and a willing public service, to demonstrate a commitment to increased disclosure of Government information, especially if it means more scrutiny and increased potential for criticism of Government policy.
I know that you want – and deserve – clear boundaries and rules that guide your decisions on the information that can be disclosed. And reassurance that ‘hard’ decisions – where the balancing point between disclosure and non-disclosure can be fine – will be supported by the senior officers in your agency.
The reforms outlined in the draft bills will provide that clear framework – a framework that is both strongly conducive to disclosure of information, and clear and easy to apply in practice.
The establishment of an Information Publication Scheme and the establishment of independent office holders with statutory responsibilities for FOI – namely an Information Commissioner and an FOI Commissioner – creates an FOI framework that allows for on-going access to information through publication.
Most significantly, these reforms allow the FOI Act to evolve as a legislative framework for giving access to information through pro-active publication, a framework that is neither stagnant nor solely reactive to access requests.
For the publication scheme to work effectively, the information that an agency publishes will need to be accurate, up to date and complete. Information will also need to be relevant and meaningful. Some information of course will not be appropriate for publication. The Bills provide that agencies cannot be required to publish exempt information or information prohibited from disclosure by other legislation.
In determining information for publication, agencies are to have regard to the objects of the Act and to guidelines issued by the Information Commissioner.
The Bill will re-write the objects clause. The objects are to give the Australian community access to Government information by requiring publication of information and by providing a right of access to documents.
What is significant about the proposed clause is its reference to the reasons underlying these objects. These reasons lie in the promotion of Australia’s representative democracy by contributing towards:
Increased currency is also given to the objects through its express incorporation as a factor relevant to determining information for publication under Part 2 of the Act, and as a factor favouring disclosure in the application of the public interest test under Part 3 of the Act.
It is part of the publication scheme that agencies prepare a plan which outlines the information an agency proposes to publish, and how and to whom, the information will be published. It is important that plans are subject to timely and regular review by agencies. It will also be important for agencies to work in partnership with the Office of the Information Commissioner.
Most of you will be aware that the structural reforms centre on bringing together privacy and FOI into a central office. The Information Commissioner will head that Office and will be vested with all FOI and privacy functions.
The Information Commissioner will be supported by the Privacy Commissioner and by the new FOI Commissioner.
The proposed structure works largely through delegation. There is nothing new in that approach. The Information Commissioner, as head of the Office, will ultimately be responsible for both the strategic and administrative operations of the Office.
The Information Commissioner will also be solely responsible for the ‘information commissioner functions’, as spelt out in the Bill. Those functions reflect the capacity for the new structure to generate strategic advice to Government on broader information management policy, beyond privacy and FOI.
The Information Commissioner will report to me on matters relating to Government information policy and practices. Consistent with the objective of ensuring a coordinated approach to information management policy across government, the Information Commissioner is to be assisted by an Information Advisory Committee, comprised of senior executives from key agencies.
In addition to responsibilities for the publication scheme, other FOI functions for the Information Commissioner include the general promotion of the FOI Act, the provision of training and assistance to members of the public and to agencies, and issuing guidelines. The Office of the Information Commissioner is intended to be a resource for agencies as well as for the public.
In keeping with the concept of the Office being a clearing house for FOI matters, the Information Commissioner will be tasked with investigating complaints and with undertaking merits review of access decisions. Each of these functions offers a different and discrete remedy.
In the last financial year, the Ombudsman reported that 34% of FOI complaints received concerned delay. Another 31% of complaints related to the correctness of an agency’s primary decision. The Ombudsman also reports that in some complaints agencies failed to meet their obligation to assist an applicant to make a valid request.
Under the existing regime, an individual cannot make an application to the AAT for review until the Ombudsman has reported on the complaint. That restriction is not replicated in the reform Bill. If a person’s grievance relates to the correctness of a decision, their proper remedy lies in an application for internal review or external review. If a person is concerned with delay, or a failure to receive assistance (such as help refining their request), then these are discrete matters that can be investigated under the Information Commissioner’s complaints jurisdiction.
Like the Ombudsman, the Information Commissioner will be able to undertake own motion investigations into agency compliance with the FOI Act. The Information Commissioner will have similar powers to the Ombudsman, and will have the capacity to table reports in the Parliament.
The Government proposes to retain the role of the AAT in undertaking review of FOI decisions. After internal review, an applicant may apply to the Information Commissioner for review.
In practice, it will typically be the FOI Commissioner who undertakes the review. Both an agency and an applicant will have a right to apply to the AAT for review of the Information Commissioner’s decision.
The objective of review by the FOI Commissioner is to provide a low cost and a fast review service that should resolve most external review applications.
Applicants may be satisfied that an independent person has scrutinised an agency decision to refuse access to a document.
The intention is that most matters should be finalised on the papers. Hearings should not be common place. Informal dispute resolution techniques are also intended to be a feature of review by the FOI Commissioner.
The AAT, as an experienced review body, will be valuable in dealing with highly contested matters. The AAT will be reviewing the FOI Commissioner’s decision, not the agency’s decision. The FOI Commissioner would not defend their decision in the AAT. It will be a matter for the appealing party to demonstrate why the FOI Commissioner made the wrong decision, and why the AAT should substitute a different decision.
The establishment of new statutory officers with FOI responsibilities also allows for measures to improve the operation of the FOI Act which cannot properly be performed by agencies.
The Information Commissioner will have the power to declare an applicant to be vexatious, limiting their capacity to make FOI applications. The Commissioner will also have the power to extend the statutory time periods for dealing with complex or voluminous applications, or to extend a time period when an agency is out of time.
If an agency is out of time, their on-going consideration of a request should be under the supervision of the Information Commissioner. Agencies should seek to engage the Office of the Information Commissioner early if they envisage an extension on the grounds that an application is large or complex. Early engagement with the Office of the Information Commissioner will also give agencies an opportunity to obtain guidance about handling requests. As I have mentioned, the Office is meant to be a resource for agencies as well as a resource for the public.
It is a focus of these reforms that the right of access to documents under the FOI Act is as comprehensive as it can be, limited only where a stronger public interest lies in withholding access to documents. The amendments proposed to the exemption provisions have been prepared with that in mind.
Consistent with recommendations in the 1996 ALRC/ARC Open government report, the government proposes to repeal some exemptions. These are exemptions for Executive Council documents, documents arising out of companies and securities legislation, and documents relating to the conduct by an agency of industrial relations.
The exemption provisions will be reorganised into those subject to a public interest test and those which are not. The public interest test is to be added to exemptions for personal privacy, business affairs and research. It is also to be added to the reformulated national economy exemption.
The single form of public interest test that is proposed in the draft Bill has been drafted to reflect pro-disclosure values. The test provides that an agency or Minister must give access to a document if it is conditionally exempt at a particular time unless, in the circumstances, access to the document would, on balance, be contrary to the public interest.
The test is complemented by provisions in the Bill that specify certain public interest factors that must not be taken into account, and factors that favour disclosure.
The Bill does not list factors against disclosure. This is because most of the exemptions which are subject to the public interest test contain an initial harm threshold which in itself is a factor against disclosure.
The deliberative processes exemption does not require an initial finding of harm. For this exemption, the process of balancing factors against disclosure, with those factors favouring disclosure, may give rise to more contestable considerations.
The factors listed in the Bill which cannot be taken into account in considering the public interest test will have particular relevance to the deliberative process exemption.
Those factors are:
It is a function of the Information Commissioner to issue guidelines on public interest factors. Agencies and ministers will be required to have regard to those guidelines, but it is not intended that their content be binding. It would be a mistake to seek to exhaustively list public interest factors, and it is my view that there should be flexibility in the application of the public interest test.
The cost of access to documents is another area targeted in these reforms to ensure a comprehensive right of access. These changes involve:
In addition, no fee will apply to an application for review to the Information Commissioner.
The Information Commissioner will be charged with undertaking a full review of the charges regime within 12 months of the Commissioner’s appointment. That review will, amongst other things, look at the cost to agencies of FOI.
Ladies and gentlemen, as you would be well aware, the vast majority of FOI applications relate to requests by individuals for access to their personal information. In the last financial year, these applications comprised 85% of total FOI requests.
Given that it is in fact the Privacy Act which regulates how the government handles personal information it collects, it is much more logical for the enforceable right of access to, and correction of, an individual’s personal information to be under the Privacy Act rather than FOI laws.
This significant reform measure is to be carried forward in a separate exposure draft Bill which will implement measures from the ALRC review of the Privacy Act.
The final measures I will mention today concern amendments proposed to the Archives Act – to bring forward the open access period for cabinet note books from 50 years down to 30 years, and to bring forward the open access period for all other records from 30 years down to 20 years.
Ladies and Gentlemen, the exposure draft Bills, and the Bill to repeal the power to issue conclusive certificates which has already been introduced into Parliament, are a strong demonstration of the Government’s intention to carry forward with its policy of promoting a pro-disclosure culture across Government.
I will be writing to the heads of all agencies seeking their commitment and support in carrying out this objective, as I mentioned when I launched the package last week.
I also seek your support today. Those of you handling or advising on FOI applications have a vital role to play in ensuring that changes in FOI law are carried through to changes in FOI practice. We will be relying on you to ensure that these reforms actually deliver more open and more accountable government.
I do know that this will not always be easy. It is often a very difficult job to weigh the competing and complex demands of transparency and confidentiality. I know too that where there is not a clear answer to the issues raised by a FOI request, it will always seem easier and safer to say ‘no’ rather than ‘yes’, to chose caution and withhold the document rather than take what may seem to be a risk and release it.
It is our hope that these proposed changes will deliver the statutory structure and the processes to make it easier for you, as the decision makers ‘at the coal-face’ of FOI, to weigh these different factors, and to deliver FOI outcomes that reflect the public interest – and the government’s policies – of openness, transparency, and informed discussion and debate.
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