40 Recommendations Made in Report on Australian FOI Law

2 August 2013

By Peter Timmins

Timmins is an Australian lawyer and consultant who works on FOI and privacy protection issues in Sydney, NSW.  His report first appeared Aug. 2 in his Open and Shut blog.

Attorney General Mark Dreyfus today released the Hawke report on the review of the operation of the Freedom of Information Act  and the Australian Information Commissioner Act commenting in this Media Release that the report “finds that recent changes to freedom of information law are broadly working well to improve transparency but it also identifies areas requiring fine-tuning for further reform…”

From my quick read of the report (pdf) that’s close to the mark as an accurate summary. 

No big, new, grand 21st century model on display; no dramatic machinery changes that would convert the 20th century version into something sleek modern efficient, effective and fit for purpose in the information age.

There is a reminder of the treadmill that is FOI reform in the first recommendation, “..that a comprehensive review of the FOI Act be undertaken”  and this concluding observation: “I believe a complete rewrite of the FOI Act in plain language is now necessary, so that it is readily accessible and easily understood.”

It’s not the Doctor’s fault but inevitable given the terms of reference from former Attorney General Roxon, the six month time frame and the one man band involved. (And alas, what I suggested in a submission to the review.) So it’s round and round and round we go in the search to get this law up to date and down pat.

First, hurried thoughts from a quick read. More after some time for reflection.

Welcome aspects include the recommendation that the current no application fee, no charge for personal information, five hours free processing for other requests and no internal review fee remain unchanged; that the act extend to the parliamentary departments (with the exception of the parliamentary librarian) in respect of documents of an administrative nature-just after parliament went the whole hog to exclude them entirely; rejection of the suggestion that frank and fearless advice needs stronger protection with endorsement of the principle that “officials should be happy to publicly defend any advice given to a minister and if not happy should rethink the advice”; a five day exclusive use of released material before information is released publicly via the disclosure log; a single government wide website for publication of disclosure logs; questioning the scope of some of the exclusions from the act in Schedule 2.

Not so welcome: a 40 hour fixed cap on processing time; unspecified changes to provide new protection for information about the conduct of surveillance, intelligence gathering and monitoring activities; a new conditional exemption for incoming minister briefs, question time and estimates briefs; intelligence agencies to remain entirely outside scope of the act.

Controversial: no reduction of the time frame for processing, extended from 30 days to 30 working days; $50 per hour for 5-10 hours processing and $30 per hour thereafter; $400 for an OAIC  review application, although $300 refundable if a favourable settlement or decision; the processing an FOI request is suspended where the applicant has commenced litigation or there is a specific ongoing law enforcement investigation in progress.

Missed opportunities: nothing in the way of research regarding the culture change said to have occurred and which is acknowledged as having “still some way to go”; nothing more than more encouragement for administrative access as an alternative to the formal application process; nothing about agency efficiency/inefficiency in dealing with FOI requests or any gaming of the system that may be contributing to the estimated $40 million FOI cost across government; cursory consideration only of outcomes and results from the operation of the act in light of its objects; no deep examination of the operations of the OAIC and the adequacy of resourcing prior to the conclusion that it just has to cop resource constraints like other government agencies.

The big miss: what might have emerged from some detailed discussion and debate involving those inside and outside government who know a bit about the subject. As lamented earlier, the approach to consultation in this case without an issues paper, inviting submissions but providing no opportunity for back and forward in the iterative development and testing of ideas, and spending the entire review apparently locked into the parliamentary triangle isn’t a satisfactory model for review of legislation designed to increase public participation in government.  

 

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